Issue for consideration: The High Court affi rmed the judgment and order of conviction passed by the Trial Court holding appellant-husband guilty of the off ence of murder punishable u/s.302 of the IPC alongwith the off ence punishable u/s. 498A of the IPC and appellant-mother-in-law guilty of the off ence punishable u/s. 498A of the IPC r/w. 34 of the IPC, whether the High Court committed any error in passing the impugned judgment and order. Penal Code, 1860 – s.302, s.498A – Prosecution case was that victim died due to poisoning – At the time of death only her appellant-husband was present – Poison was found in the examination of viscera of the deceased – Appellant-husband had not informed family of victim after her death – Earlier, victim-deceased had written letters to her family informing them regarding harassment from her appellant-husband and appellant-mother-in-law for dowry: Held: The cause of death was due to poisoning – The poison detected in the viscera was aluminium phosphide, which is used a fumigant to control the insects and rodents – Defense of the convicts to say that the presence of aluminium phosphide in the viscera could be due to the medicines which the deceased used to take for her heart ailment cannot be accepted – No evidence led by the appellant-husband that he had taken victim to the hospital in Delhi – The dubious conduct of the convict-husband of not informing the family members about the death of their daughter – In the case on hand it has been established or rather proved to the satisfaction of the court that the deceased was in company of her husband i.e., the appellant-convict at a point of time when something went wrong with her health and therefore, in such circumstances the appellant-convict alone knew what happened to her until she was with him – Appellant-convict (husband) has not explained in any manner as to what had actually happened to his wife more particularly when it is not in dispute that the appellant-convict was in company of his wife i.e., deceased – Although, the appellant-convict tried to project a picture that no sooner the deceased fell sick than he immediately took her to the Hospital at Delhi – If it is his case, that his wife was declared dead on being brought at the hospital then it is diffi cult to believe that the hospital authorities allowed the appellant to carry the dead body back home without completing the legal formalities – The circumstances in the instant case constitute more than a prima facie case to enable the prosecution to invoke s.106 of the Evidence Act and shift the burden on the accused husband to explain what had actually happened on the date his wife died – Section 106 does not cast any burden upon an accused in a criminal trial, but that, where the accused throws no light at all upon the facts which ought to be especially within his knowledge, and which could support any theory of hypothesis compatible with his innocence, the Court can also consider his failure to adduce any explanation, in consonance with the principle of the passage in Deonandan Mishra – The courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities, perfunctory investigation or insignifi cant lacunas in the evidence – In result, both the appeals fail. [Paras 29,52,53,56,61 and 62] Evidence Act, 1872 – s.106 – Applicability – Meaning of word “especially”: Held: s.106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him – The word “especially” means facts that are pre-eminently or exceptionally within the knowledge of the accused – The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modifi ed by the rule of facts embodied in s.106 of the Evidence Act – s.106 of the Evidence Act is an exception to s.101 of the Evidence Act. [Para 34] Evidence Act, 1872 – s.106 does not absolve the prosecution from duty of proving crime: Held: Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused – This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the off ence – It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifi cally within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. [Para 42] Evidence Act, 1872 – s.106 – Distinction exists between the burden of proof and the burden of going forward with the evidence: Held: Generally, the burden of proof upon any affi rmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony – Thus, if the prosecution has off ered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence – When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affi rmative or negative one – He is not required to do so even though a prima facie case has been established, for the court must still fi nd that he is guilty beyond a reasonable doubt before it can convict – However, the accused's failure to present evidence on his behalf may be regarded by the court as confi rming the conclusion indicated by the evidence presented by the prosecution or as confi rming presumptions which might have been rebutted. [Para 46] Evidence Act, 1872 – s.106 – “Prima facie” in context of s.106: Held: Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death. [Para 48] LIST OF CITATIONS AND OTHER REFERENCE