JUDGMENT :

SHREE CHANDRASHEKHAR, J.

In S.T. No. 615 of 2009 Shatrughan Thakur, the appellant, has been convicted and sentenced to R.I. for life and a fine of Rs.5,000/- under section 302 of the Indian Penal Code (in short, IPC) for committing murder of Dhaneshwari Devi @ Munia, his wife.

2. Katkamsandi P.S. Case No. 178 of 2009 was lodged on 23.07.2009 on the basis of the fardbeyan of Bhikhani Devi which was recorded at 07:00 AM on 23.07.2009 at the house of the appellant, which is the place of occurrence. The informant has stated that her daughter was married to the appellant about 15 years back and they were blessed with two children, a son and a daughter. The appellant had drinking habits and he would assault his wife and threaten to kill her. Her daughter with children had, therefore, come back to her and after some time the appellant also came there. Somehow she could reason with the appellant who promised not to commit marpit with his wife and started living with his wife and children in her house. On 21.07.2009 they had gone to Tetaria Tola, Village-Basantpur and stayed in the house of the appellant. At that time her other daughter and grand-children were also with her. In the night they slept in different rooms and the appellant went to sleep on Varandah. Around 03:00 A.M. in the night when her grandson tried to wake up his mother he saw one injury on the temple of his mother. The doors of the house were closed from outside and the appellant had fled away. During the investigation confessional statement of the appellant was recorded and according to the witnesses at his instance the crime weapon was recovered from a well. It has also transpired that after the occurrence he had consumed poison and was admitted in the hospital for treatment. The children of the appellant stated before the police that they have seen their father assaulting the mother. On completion of the investigation a charge-sheet was filed and the appellant was sent up for trial. He has faced the trial on the charge under section 302 IPC for committing murder of his wife. In the trial, the prosecution has examined 10 witnesses out of whom PW-1, PW-2, PW-4, PW-8 and PW-9 are closely related to Dhaneshwari Devi. PW-5 and PW-6 are the inquest and seizure witnesses and PW-10 is a co-villager of the appellant who has turned hostile. At one stage, PW-5 was also declared hostile at the instance of the prosecution.

3. PW-8 and PW-9, the children of the appellant, who were prime witnesses for the prosecution have however simply stated in the Court that their mother has died. The learned trial Judge has therefore looked into the circumstantial evidence brought on record by the prosecution to prove the charge against the appellant. The learned trial Judge has accepted the evidence of PW-1 and PW-2 and came to a finding that the ocular evidence is sufficiently corroborated by the medical evidence. The learned trial Judge has further held that the appellant who was sleeping in his house in the night of 22.07.2009 has failed to offer an explanation. In his examination under Section 313 of the Code of Criminal Procedure (in short, Cr PC) and therefore a presumption under Section 106 of the Evidence Act must be raised on his culpability in the crime.

4. Mr. Prabhat Kumar Sinha, the learned counsel for the appellant has contended that confessional statement of the appellant is not admissible in evidence and merely on the basis of the circumstance that the appellant was sleeping on the Varandah of his house in the fateful night a presumption under section 106 of the Evidence Act cannot be raised. The learned counsel has relied on the decisions in "Madhu v. State of Kerala" reported in (2012) 2 SCC 399, "State of U.P. v. Kishanpal" reported in (2008) 16 SCC 73, "Navaneethakrishnan v. State" reported in (2018) 16 SCC 161 and "Rajkumar v. State of M.P." reported in (2004) 12 SCC 77.

5. In a case based on circumstantial evidence the circumstances on the basis of which the conclu