IMPORTANT POINT
The court affirmed that in cases of circumstantial evidence, the accused's failure to explain facts within their knowledge can lead to a presumption of guilt under Section 106 of the Evidence Act.

JUDGMENT :

(Munnuri Laxman, J.) :

1) The present criminal appeal assails the judgment of conviction dated 23.06.2016 passed by learned Additional Sessions Judge, No.2, Abu Road, Distt. Sirohi on the file of Sessions Case No.25/2015 (19/2013), whereby the appellant-accused has been convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs.10,000/-; in default of payment of fine to further undergo six months’ simple imprisonment.

2) The sum and substance of the prosecution case is that Deva Ram (PW-2), the elder brother of the deceased-Samartha Ram lodged a report under Exhibit-P/1 stating that Samartha Ram and his wife Baby Devi had three sons i.e. Dalpat Ram, Prema Shankar and Raju. All the sons reside in Mumbai. The younger son Raju came to the parents 20-25 days prior to the incident and ever since, he had been staying with them. On 07.02.2013 at about 10:00 p.m. on receipt of information about murder of his brother Samartha Ram and sister-in-law Baby, he went to the house of the deceased and found that they were lying dead in the pool of blood and the wounds were fresh. The blood was still oozing out from the injuries and Raju was sitting near the deceased persons. On enquiry with the appellant-accused Raju, initially he claimed that he went to Ajari village and subsequently, he claimed that he went to Markundeshwar Ji. Such incident was informed to other sons of the deceased.

3) On the basis of the above, the police issued the FIR No.49/2013 at Police Station Pindwara. The FIR was issued expressing suspicion over the present appellant and the investigation was proceeded on the basis of the said FIR. The final result of the Investigation reveals that the appellant accused had some domestic disputes with the parents. He blamed the deceased parents responsible for desertion of his wife and the appellant-accused killed both the parents by hitting with stone and by placing rope around the neck of Samartha Ram (appellant’s father) in their residential house.

4) The charge was framed for the offence under Section 302 of IPC against the appellant-accused. The accused denied the charge and claimed to be tried. The prosecution in support of its case examined in all 18 witnesses and relied upon the documents under Exhibits-P/1 to P/40. Accused was examined under Section 313 Cr.P.C. and he denied the incriminating evidence. He did not produce any witness in defence, however, he exhibited documents under Exhibit-D/1 to D/4.

5) The learned trial court on appreciation of evidence on record found the accused guilty of the offence under Section 302 of IPC and he was sentenced to the terms indicated herein-before. Hence, the present appeal at the instance of the appellant-convict.

6) The learned Amicus Curiae appearing for the appellant has submitted that there is no direct eyewitness to the incident. The entire case of the prosecution rests upon the circumstantial evidence like presence of the accused at the time of the incident and recovery of blood stained clothes of the accused. The blood group thereon was tallied with the blood group of the deceased. The other part of the evidence is the recovery of the stone on the information of the accused under Section 27 of the Indian Evidence Act based on his confessional statement. The submission of the learned counsel for the appellant is that the trial court was not correct in invoking Section 106 of Indian Evidence Act in the absence of discharge of initial onus, which always lies with the prosecution. The foundational requirement for shifting the burden and for invoking the presumption under Section 106 of the Indian Evidence Act was placed on record by the prosecution. Without discharge of initial burden, the presumption under Section 106 of the Indian Evidence Act, in the absence of proper explanation with regard to how the death occurred, cannot be invoked.

7) The further submission of learned Amicus Curiae is that the recovery of sto