The burden of proof can shift to the accused under section 106 of the Evidence Act, and non-explanation of incriminating circumstances can be construed as indicating guilt of the accused.

JUDGMENT RAJEEV KUMAR SHRIVASTAVA, J. : – The appellants have preferred this appeal under section 374 of Criminal Procedure Code against the judgment of conviction and sentence dated 14-5-2012 passed by Sessions Judge, Shivpuri (MP) in Sessions Trial No. 113 of 2011, by which each of them has been convicted under section 302 of Indian Penal Code and sentenced to undergo Life Imprisonment with a fine of Rs. 1,000/- default stipulation and further sentenced to undergo one year Rigorous Imprisonment with fine of Rs. 500/- with default stipulation for offence under section 201 of Indian Penal Code respectively. Both the sentences have been directed to run concurrently.

2. In brief, the prosecution case is that on 17-2-2011 at around 08:00 in the morning, Veer Bahadur Singh (PW3) the brother of accused Bihari Singh, lodged a report at Police Station Kotwali, Shivpuri to the effect that at around 05:00 in the morning his brother Bihari Singh informed him that his daughter-in-law Jyoti, aged about 24 years, was found dead in burn condition and the cause of which is not known to him. On the basis of that, a merg was recorded under section 174 of Criminal Procedure Code vide Ex.5-A. Thereafter, police reached the spot and recorded Panchnama of dead body of deceased Jyoti vide Ex.P3 and seized plain and blood-stained earth and other articles vide Ex.P4 and also spot map Ex.P6 was prepared. Thereafter, the dead body of the deceased sent for its postmortem vide Ex.P12. At the time of preparation of Panchnama of dead body of deceased, injuries were found on her body. The statements of neighbours were recorded. After the incident, the father-in-law, husband and other family members remained absconding on the basis of which, the Police in-charge Shri Dilip Singh Yadav, on the basis of causing disappearance of evidence of offence, committed by appellants-accused, registered the FIR vide Ex.P15. Statements of the witnesses were also recorded and thereafter, the accused were arrested and on the basis of memorandum of accused Bihari Singh, one shirt vide Ex.P11 was seized. All seized articles were sent to FSL for examination. After completion of investigation and other formalities, police filed charge sheet before the Court of JMFC on 11-5-2011 from where the case was committed to the Sessions Court for its trial. The accused abjured their guilt and pleaded complete innocence. They did not examine any witness in their defence. The prosecution in order to prove its case examined as many as ten witnesses.

3. The trial Court, after appreciating the entire evidence, led by the prosecution and relying on the same, found charges against appellants proved and accordingly, convicted and sentenced them for offences as mentioned above in paragraph 1 of this judgment.

4. The learned counsel for the appellants contended that the judgment passed by the trial Court as well as the approach of trial Court is bad in law. There are material contradictions and omissions in the statements of prosecution witnesses, therefore, their evidence are unreliable. There is no eye-witness to the alleged incident and only on the basis of surmises and conjectures, the appellants have been charged for the alleged offence. The prosecution has failed to prove its case beyond all reasonable doubt. It is further submitted that the trial Court has not evaluated and appreciated the prosecution evidence properly and committed an error in convicting and sentencing the present appellants. There is no independent witness to the incident. Therefore, the impugned judgment of conviction and sentence passed by the trial Court deserves to be set aside and the appellants-accused are entitled for acquittal.

5. Refuting the aforesaid contentions raised by learned counsel for the appellants, learned State Counsel submitted that considering the nature and gravity of offence as well as the material available on record, the trial Court has rightly assigned cogent reasons in order to hold the appella