In cases of domestic murders, the burden of proof may shift to the accused to provide an explanation of circumstances when the crime occurs in a private setting, as per Section 106 of the Evidence Act.

JUDGMENT :

ANANDA SEN, J.

1. We have heard the learned counsel appearing for the appellant and the learned counsel for the State at length.

2. This Criminal Appeal arises out of the judgment of conviction dated 08.12.2015 and order of sentence dated 10.12.2015 passed in Sessions Trial No. 24 of 2015 whereby and whereunder learned Sessions Judge, West Singhbhum at Chaibasa convicted the appellant under Sections 302 of the INDIAN PENAL CODE and sentenced him to undergo RI for life with a fine of Rs. 10,000/-.

3. The learned counsel appearing on behalf of the appellant submits that all the material witnesses in this case have been declared hostile, thus there was no scope for the trial Court to convict the appellant for committing the offence under section 302 of the INDIAN PENAL CODE . He submits that the facts stated in the FIR have not been proved by the prosecution. Further he submits that the witnesses who have turned hostile have stated that they do not known as to how the deceased died. He refers to one of the paragraph of the statement of father of the deceased wherein he says that the relationship of the appellant with the deceased was cordial. By no stretch of imagination it can be concluded that due to matrimonial discord the appellant has committed murder of the deceased. The appellant in his statement under section 313 of the Cr.PC has stated that he was working as a labour at that time in the Chakradharpur Block. In view of the fact that the prosecution prima facie not been able to prove the guilt of the appellant, section 106 of the EVIDENCE ACT cannot be applied in this case. On this score he submits that the conviction be set-aside and this appeal be allowed.

4. The learned counsel for the State argues that even if the witnesses have been declared hostile but there credible statement which supports the prosecution case can be considered while convicting the appellant. He submits that there is consistent evidence that there was a matrimonial discord between the appellant and the deceased and admittedly the deceased died in the matrimonial home and the death is unnatural as per the postmortem report. The deceased died because of throttling and the appellant has failed to explain the circumstances which led to the death of the deceased in his house.

5. The prosecution case is on the behest of Shanti Samad who is the mother of the deceased. She stated that on the fateful day this deceased along with her another daughter Sombari Samad and other village girls Poonam Samad and Shuru Samad went to Chakradharpur to work. She further stated that at 10:00 AM these two girls along with Sombari Samad returned and informed the informant that on the way the deceased met her husband i.e. the appellant and all of them went to the house of the appellant. Sombari Samad and Poonam Samad were kept outside the house whereas the deceased was taken in by the husband. She was also informed by the Sombari Samad and Poonam Samda that after taking the deceased inside the house this appellant had throttled her to death. On this basis Chakradharpur PS Case No. 64 of 2014 was registered under section 302 of the INDIAN PENAL CODE against the appellant.

6. After investigation, the Investigating Officer submitted chargesheet against the appellant for the offence punishable under Section 302 of the Indian Penal and was put on trial.

7. On the basis of chargesheet and materials available on record cognizance was taken and case was committed to Court of Session where charges were framed and trial proceeded.

8. To prove the prosecution case, altogether 9 witnesses were examined by t