High Court · 2012

We have heard Mr. T.J. Mahanta, learned counsel, for the appellant, and At the trial, when charges, under Sections 302 and 201 IPC, were framed Before we deal with the evidence, adduced by the prosecution, to show th 7. at the accused-appellant had taken away Puna Bora from Puna Bora’s house to the sapori (i.e., high land, located, generally, by the side of river), at Khukudgur i and though the accused came back, Puna Bora never come back home and, eventual ly, his dead body was found at sugarcane plantation on being shown by the accuse d-appellant, let us, first, determine as to how far the accused-appellant’s judi cial confession (Ext.2), made before the Judicial Magistrate (PW10), can be reli ed upon. 8. While dealing with the judicial confession, it needs to be noted that th ere is no impediment in law in convicting an accused person on the basis of his confession alone. However, prudence demands that before conviction of any accuse d is founded on his own confession, the evidence on record be scrutinized by the Court to satisfy itself that the material aspects of the confession have receiv ed corroborated from the other evidence on record, which may be direct or circum stantial. 9. It is imperative to note that a confession, in order to be relied upon, must be proved to be voluntary and true. If his conviction is found to be involu ntary, the confession is to be rejected and the question of determining if the c onfession is true or not would not arisen at all. However, when the confession i s found to be voluntary, the Court still has the duty to determine if the confes sion is true, for, admission of facts, which constituted offence cannot, if untr ue, be treated as confession. 10. Let us, now, determine as to how far the judicial confession, which the accused made and which he retracted, at the stage of his examination under Secti on 313 Cr.P.C., could have been, or can be, relied upon. It is noteworthy, in th is regard, that according to the evidence of the Judicial Magistrate (PW10), the accused was produced before him, on 25-08-2005, for recording of his confession al statement and despite the fact that the accused expressed his willingness to make confession, he (PW10), having cautioned the accused about the consequences of making of a confessional statement, remanded the accused to judicial custody for reflection. PW10 has also deposed that on 26-08-2005, when the accused was r eproduced before him, at 10.30 a.m., he, again, explained to the accused the con sequences of making of confessional statement, but as the accused expressed his willingness to make confession, he kept the accused, in his chamber, for reflect ion, under the supervision of his Court peon and at 2.00 p.m., the accused was, again, brought before him in his chamber and, on explaining to the accused, the consequences of making confessional statement, when he (PW10) found the accused willing to make confession, he recorded the confession, the confessional stateme nt being Ext. 2(7). While considering the question as to whether the confessional statement 11. was voluntarily made by the accused-appellant or not, PW10, we notice, did not a sk the accused as to how he had been treated, while he was in the custody of the police, nor did he (PW10) asked the accused if he had been beaten or tortured b y the police to make confession. Thus, the treatment, meted out to the accused-a ppellant, while he was in the police custody, remained unknown. This apart, PW10 did not assure the accused-appellant that even if he (accused-appellant) chose In the light of what have been pointed out above, we do not consider it not to make confession, he would not be handed over to the police. 12. safe to hold that confession, made in the present case, was voluntary. The question, now, remains if the confession was true. 13. 14. For the purpose of ascertaining the truthfulness of the confession, we r eproduce hereinbelow, the confessional statement of the accused-appellant : (cid:28)I, Shri Krishna Hazarika, want to state that on 16-08-2005, the people of Puna Bora’s vicinity assaulted me since they did not like my visiting his house. Some times, used to do household works by staying at their house that day, Puna Bora, too, started assaulting me along with the other people of the locality. I was b eaten black and blue. Around 9 p.m. that day, when Puna Bora was coming from ’sa pori’ (high land farmed by deposit of river sand and silt). I met him near Balid ora; and dealt cut blows in his neck on the road itself with a dao. Dealing two cut blows I fled away. Puna Bora remained lying on that road. I threw him in the nearby sugarcane cultivation. A couple of days later, his family members learnt that he had died. My elder sister Smt. Rupali Bora told Puna Bora’s neighbours that I had killed Puna Bora. (cid:29) 15. From a careful reading of the confessional statement of the accused-appe llant, it becomes abundantly clear that according to the confessional statement, the accused had killed Puna Bora by inflicting, on him, two cut blows by means of a dao and threw his dead body in the nearby sugarcane plantation. Can this ve rsion be treated as true? 16. The question, posed above, brings us to the evidence of the doctor (PW4) , who had, admittedly, conducted, on 24-08-2005, post mortem examination on Puna Bora’s dead body and found as follows: (cid:28)A decomposed dead body of an adult male, wearing long pant and shirt, skin, mus cles and visceras are decomposed with maggots in the dead body. Injuries. There was fracture of the occipital and right parietal bone which are depressed into the cramium of the skull. The brain and membrane were decomposed. All other organs were found decomposed. Fracture of the occipital and right parietal bone which is 4 (cid:29) long and depressed into the interior of the cramium. Dislocation - Fractureed occipital bone and parietal right bone is depressed int o the cramium. (cid:29) 17. In the opinion of the doctor, the death was caused due to intra-cranial injury arising out of fracture of the occipital and right parietal bone and that the death had occurred more than seven days before the post mortem examination was conducted. 18. In his cross-examination, the doctor (PW11) has clarified that the injur ies were found on the skull. The finding of the doctor, with regard to the injur ies found by him, the nature of the injuries, found on the said dead body, and/o r the doctor’s opinion, with regard to the cause of death remained undisputed at the trial.

19. Thus, the undisputed medical evidence on record shows that Puna Bora die d not because he was hacked by means of a dao, but because of the fracture, whic h he had sustained on his occipital and right parietal bone. In fact, contrary t o the confessional statement, given by the accused-appellant, that he had given two cut blows (that is, incised wounds) on the neck of Puna Bora, the post morte m examination revealed no injury on the neck; rather, the injury, in the form of fracture, was found on the occipital and right parietal bone, the fracture bein g so depressed that it hit the cranium of the skull and that is why, it was desc ribed as intra-cranial injury. What logically follows from the above discussion is that the judicial co 20. nfession, in the light of the medical evidence on record, was utterly false and, hence, the statement of the accused-appellant, which has been treated as the ju dicial confession, could not have been treated, and ought not to have been treat ed, at all as his confession. This aspect appears to have completely escaped the attention of the learned trial Court.

21. Let us, now, enter into the determination of the question as to whether the alleged recovery of Puna Bora’s dead body, on the basis of the statement mad e by the accused to the Investigating Officer and on the basis of what the accus ed-appellant had allegedly shown to the Investigating Officer, can be safely rel ied upon ? 22. Before, however, we discuss the evidence on record with regard to the re covery of the dead body, it is pertinent to note that a Full Bench of this Court , in Rajib Phukan Vs State of Assam, reported in 2009 (2) GLT 414 , has taken th e view that a statement, leading to the discovery of a fact, as contemplated by Section 27 of the Evidence Act, may not always be reduced into writing in the se nse that there is no legal impediment in relying upon oral evidence as regards l eading to the discovery of a fact contemplated by Section 27 of the Evidence Act . 23. In other words, notwithstanding the fact that a statement, made by an ac cused, while in the custody of a police officer, leading to the discovery of a f act, has not been reduced into writing, such as statement can be legally relied upon. However, prudence demands, as held in Rajib Phukan (supra), that the state ment, leading to discovery of a fact, be reduced into writing and be proved, at the trial, so that the Court knows as to what exactly the accused had stated, wh ich led to the discovery of a fact inasmuch. In short, if a statement, orally ma de by an accused person, while in the custody of a police officer, leading to th e discovery of a fact, is convincingly proved, such a statement can be relied up on on the basis of oral evidence, given in this regard, even if no written recor d of the statement, leading to the discovery of the facts exists. 24. Bearing in mind the above legal position, governing the provisions of Se ction 27, we come to the evidence of the Investigating Officer (PW12). This wit ness has deposed that on taking the accused into custody, when he interrogated t he accused, the accused told him that he had killed Puna Bora and kept the dead body hidden in a sugarcane plantation and, then, taking along the accused, he (P W12) went to Cheradubi Baliduar village and recovered a dead body from a sugarca ne plantation as shown by the accused and that the said dead body was identified by Prahlad Bora as the dead body of his elder brother, Puna Bora.

25. From a minutes scrutiny of what the accused had, allegedly, told PW12, w hat becomes transparent is that Puna Bora’s dead body had not been found on the basis of the statement, which the accused-appellant had, allegedly, made by sayi ng that he had killed Puna Bora. To put it a little differently, the accused-ap pellant’s alleged statement, made to PW12, that he had killed Puna Bora, did not lead to the recovery of the Puna Bora’s dead body and, hence, the statement, so made, namely, ’he had killed Puna Bora’, was inadmissible and ought to have bee n kept by the learned trial Court wholly excluded from the purview of its consid eration. 26. However, the accused-appellant’s alleged statement, that he had kept the dead body of Puna Bora hidden, in a sugarcane plantation, is the statement, whi ch led the police to Cheradubi Baliduar village and the dead body was recovered from the place, which the accused showed. The act of pointing out of the place by the accused-appellant, where the said dead body was found, is admissible as t he conduct of the accused within the ambit of Section 8 of the Evidence Act, and his conduct showed that he knew that Puna Bora’s dead body was lying at the sai d sugarcane plantation. The recovery of the said dead body also confirmed the f act that it was the accused-appellant, who had (as stated by him to PW12) kept t he said dead body hidden in the said sugarcane plantation. 27. Thus, the recovery of the dead body, following the statement of the accu sed-appellant, not only make it clear that the accused-appellant had the knowled ge as to where Puna Bora’s dead body was lying, but also confirms that he was th e one, who had kept the said dead body hidden at the sugarcane plantation inasmu ch as Section 27 makes admissible a statement, leading to the discovery of a fac t, even if the statement amounts to confession. 28. s kept hidden by the accused-appellant at the said sugarcane plantation. 29. We have closely scrutinized the cross-examination of the Investigating O fficer (PW12), but we find that the defence did not succeed in eliciting anythin g from his cross-examination to show that what he had deposed was untrue or fals e. In fact, except offering a suggestion to the effect that the accused had not stated before him (PW12) that he (the accused) had kept the dead body hidden an d/or that the dead body had not been recovered on being shown by the accused, no thing, at all, was done by the defence, which could show that the evidence of th e Investigating Officer, with regard to the statement of the accused-appellant, which had led to the discovery of the dead body, was untrue or false. We have, therefore, no reason to disbelieve or discard the evidence on record leading to the discovery of fact as discussed above. 30. In fact, closely corroborating the evidence of the Investigating Office r (PW12), PW8, who is a labourer, has deposed that on coming to know that police had arrested the accused, they went to the police station, where the accused co nfessed that he had killed Puna Bora and kept him (dead body of Puna Bora) hidde n in the sugarcane plantation and, then, the police, taking along the accused, w ent to the sugarcane plantation and recovered the dead body, in their presence, on being shown by the accused. 31. Here, again, the evidence, given by PW8 to the effect that the accused h ad confessed that he had killed Puna Bora, was inadmissible for the reason, whic h we have already discussed above; but what was admissible was that the accused had confessed that he had kept him (dead body of Puna Bora) hidden in the sugarc ane plantation and that the police, taking along the accused, went to the said s What surfaces from the above discussion is that Puna Bora’s dead body wa ugarcane plantation and the dead body was recovered, in presence of this witness (PW8) and others, on being shown by the accused.

32. In tune with the evidence of PW8 and PW12, PW7 has deposed that on comin g to learn that the accused had been arrested, they went to police station and s aw him, in the lock up, and that the Officer-in-Charge interrogated the accused in their presence and the accused confessed that he had cut Puna Bora and had ke pt the dead body hidden in sugarcane plantation and, then, the police took the a ccused along and went to sugarcane plantation and recovered from there Puna Bora ’s dead body, as shown by the accused, with the neck of the said deceased cut. It is also in the evidence of PW7 that the police prepared inquest report, which is Exhibit 1. It is relevant to note that we have already held that the accused-appell 33. ant’s judicial confession, that he had cut the neck of the said deceased by mean s of a dao, cannot be safely relied upon and, hence, we do not attribute any imp ortance to the evidence of PW7 that he had seen the neck of the said deceased cu t; more so, when the inquest report does not reflect, even remotely, that the ne ck of the deceased was found cut. 34. Therefore, even while considering the evidence of PW7, one has to keep h is evidence, that the accused had confessed that he had cut Puna Bora, excluded from the purview of consideration inasmuch as this statement of the accused had not led to the discovery of any fact. What was, however, admissible, in the evi dence of PW7, is that the accused-appellant had confessed before the Officer-in- Charge (PW8) that he (accused) had kept the body of Puna Bora hidden in the suga rcane plantation and that, on being shown by the accused, the dead body of Puna Bora was recovered from the sugarcane plantation. 35. What crystallizes from the above discussion is that the evidence on reco rd proved clearly it was the accused-appellant, who had kept Puna Bora’s dead bo dy hidden at the sugarcane plantation and that the said dead body was recovered from the said place on being shown by the accused-appellant. 36. In the backdrop of the above evidence on record, when we turn to the evi dence of PW2, widow of deceased Puna Bora, we notice that, according to her evid ence, one day, in the month of last ’Bhadra’ (2nd half of August to 1st half of September), the accused and her husband went to sapori (high land, located gener ally, by the side of river), to inform Cheni that they could not pay the price o f the cow, which they had purchased, and, after a while, the accused returned an d informed her (PW2) that Puna Bora would stay for that night with Cheni and tha t he (her husband) would return home on the following day. However, her husband did not return on the following day and, on being asked, the accused could not give any satisfactory reply about the non-arrival of her husband and, after abou t 9 (nine) days, her husband’s dead body was found at the sapori and, then, she lodged the FIR. Except suggesting to the witness (PW2) that her statements to the effect 37. , that the accused could not give her any satisfactory reply about the non-arriv al of her husband, or that Puna Bora was in the house of Cheni, at sapori, were not true, the defence did not elicit anything from the cross-examination of PW2 to show that her evidence was not believable. The suggestion, so offered, havin g been denied by PW2, could not have been of any help to the defence. 38. In fact, the defence did not even dispute the evidence of PW2 that Puna Bora and the accused went together to the sapori to inform Cheni that they could not pay the price of the cow, which they had purchased, and that the accused ca me back alone and informed PW2 that her husband had been kept by Cheni and that her husband would come back on the following day. Far from this, the defence as serted, while cross-examining PW2, that the accused had repeatedly told PW2 that her husband was at the house of Cheni at sapori.

39. As far as PW1 (sister of the accused and sister-in-law of the deceased) is concerned, her evidence is that about 7 (seven) months ago, the accused took Puna Bora to sapori, which is at a distance of about 2 Km, from their house and, after sometime, the accused came back alone from the sapori and informed them t hat Puna Bora would come back on the following day as he (Puna Bora) had been ke pt back by Cheni, their Bordeuta (i.e., father’s elder brother) and that after 9 (nine) days, the dead body of Puna Bora was found at the sapori. Even PW1 was left almost untouched, in her cross-examination, on the material aspects of her evidence and we see, therefore, no reason to disbelieve her evidence or not to g ive credence to her evidence, which her evidence, otherwise, deserves. 40. As far as PW3, PW4, PW5 and PW6 are concerned, their evidence are releva nt only to the extent that all of them deposed to the effect that Puna Bora rema ined untraced for about 7/8 days until the time his dead body was recovered by t he police. 41. What emerges from the above discussion is that the accused-appellant too k the deceased, Puna Bora, to Sapori (high land, located generally, by the side of river) and returned, after sometime, and informed Puna Bora’s wife (PW2) that Puna Bora had been kept by his Bordeuta, i.e., elder brother of his father, and that Puna Bora would come back on the following day. Puna Bora, did not, howeve r, come back and, eventually, on being interrogated, the accused made a statemen t to the Investigating Officer (PW12) that he had kept hidden Puna Bora’s dead b ody in a sugarcane plantation. The investigating officer (PW12), then, went to t he Sapori (high land, located generally, by the side of river), along with the a ccused-appellant and, on arriving there, the accused-appellant showed a place an d from the said place, Puna Bora’s dead body was recovered. Though the dead body was decomposed, its identity was never challenged at the trial. Thus, Puna Bora was last seen in the company of the accused and he was n 42. ever found alive thereafter. Coupled with this, the statement, which the accused -appellant had made while in the custody of the Investigating Officer (PW12), sh owed that it was the accused-appellant, who had kept hidden Puna Bora’s dead bod y at the sugarcane plantation and it was, again, the accused-appellant, who had shown the place from where Puna Bora’s dead body came to be recovered. 43. While considering the present appeal, it needs to be noted that no witne ss has been examined by the prosecution, who claims to have witnessed the accuse d-appellant assaulting and/or killing Puna Bora. The case of the prosecution, th erefore, rests on circumstantial evidence. 44. The standard of proof required, for the purpose of convicting a person, on the basis of circumstantial evidence, has been laid down, with great clarity, in the case of Hanumant Govind Nargundkar v. State of M.P., reported in 1952 SC R 1091, wherein the Court has pointed out that the circumstances, which are reli ed upon, must be fully established and the chain of evidence, furnished by the c ircumstances so established, should make a complete case against the accused and shall not leave any reasonable ground for a conclusion consistent with the inno cence of the accused. The relevant observations, appearing in Hanumant Govind Na rgundkar (supra), read as under: (cid:28)It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn shou ld in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again , the circumstances should be of a conclusive nature and tendency and they shoul d be such as to exclude every hypothesis but the one proposed to be proved. In o ther words, there must be a chain of evidence so far complete as not to leave an y reasonable ground for a conclusion consistent with the innocence of the accuse d and it must be such as to show that within all human probability the act must have been done by the accused. (cid:29) 45. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116, has pointed out that in a case, based on circumstantial evidence, the circumstances from which the conclusion of guilt is required to be drawn shall be fully established and the facts, so established, shall be not only consistent with the hypothesis of guilt of the accused, but shall be in consistent with an y hypothesis of innocence of the accused. 46. Elaborately dealing with the principles, laid down in Hanumant Govind Na rgundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda (supra), pointe d out, at para 152, thus: (cid:28)152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully esta blished: (1) the circumstances from which the conclusion of guilt is to be drawn should b e fully established. It may be noted here that this Court indicated that the circumstances concerned (cid:28)must or should (cid:29) and not (cid:28)may be (cid:29) established. There is not only a grammatical b ut a legal distinction between (cid:28)may be proved (cid:29) and (cid:28)must be or should be proved (cid:29) as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra wh

47. ere the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] (cid:28)Certainly, it is a primary principle that the accused must be and not merely ma y be guilty before a court can convict and the mental distance between ’may be’ and ’must be’ is long and divides vague conjectures from sure conclusions. (cid:29) (2) the facts so established should be consistent only with the hypothesis of th e guilt of the accused, that is to say, they should not be explainable on any ot her hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, a (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (cid:29) Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court has pointed out, in Deonandan Mishra Vs. The State of Bihar ( AIR 1955 SC 801), too, that in a case of circumstantial evidence, not only should the vario us links in the chain of evidence be clearly established, but the completed chai n must be such as to rule out a reasonable likelihood of the innocence of the ac cused. Referring to the facts of Deonandan Mishra (supra), the Supreme Court poi nted out that in a case like this, where various links have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time a nd situation, and when he (accused) offers no explanation, which if accepted, th ough not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explana tion would itself be an additional link, which completes the chain. 48. The case of Joseph Vs. State of Kerala, reported in (2000) 5 SCC 197, is a case, which is relevant, while considering the theory of last seen together. In Joseph (supra), the facts were, as noted by the Supreme Court, in its subsequ ent decision, in State of Rajasthan Vs. Kashi Ram, reported in (2006) 12 SCC 254 , as under: (cid:28)20. cts were that the deceased was an employee of a school. The appellant representi ng himself to be the husband of one of the sisters of Gracy, the deceased, went to the St. Mary’s Convent where she was employed and on a false pretext that her mother was ill and had been admitted to a hospital took her away with the permi ssion of the Sister in charge of the Convent, PW-5. The case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. It was a lso found as a fact that the deceased was last seen alive only in his company, a nd that on information furnished by the appellant in the course of investigation , the jewels of the deceased, which were sold to PW-11 by the appellant, were se ized. There was clear evidence to prove that those jewels were worn by the decea sed at the time when she left the Convent with the appellant. When questioned un der Section 313 Cr.P.C., the appellant did not even attempt to explain or clarif y the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In this backdrop, the Cou rt held:- \Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and f alse answers given to court, when questioned, found the missing links to be supp In Joseph s/o Kooveli Poulo Vs. State of Kerala (2000) 5 SCC 197; the fa lied by such answers for completing the chain of incriminating circumstances nec essary to connect the person concerned with the crime committed (see State of Ma harashtra Vs. Suresh, (2000) 1 SCC 471). That missing link to connect the accuse d appellant, we find in this case provided by the blunt and outright denial of e very one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accus ed with the death and the cause for the death of Gracy\. From the observations, made above, it becomes clear that when a fact is 49. explainable and within the special knowledge of the accused, facing trial, and t he accused chooses not to offer explanation, it becomes an additional link in th e circumstances in the sense that the omission to explain is a missing link, whi ch may be treated to have been supplied for arriving at the answer, which the ci rcumstantial evidence makes one reach. 50. In Ram Gulam Choudhary and others Vs. State of Bihar, reported in (2001) 8 SCC 311, the Supreme Court has pointed out that it is permissible, in a given case, to draw an inference from the silence of an accused if the answer could b e given by the accused alone even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt inasmuch as Section 106 would apply to cases, wh ere prosecution successfully proves the facts from which a reasonable inference can be drawn. 51. In fact, the case of Sahadevan alias Sagadevan Vs. State, represented by Inspector of Police, Chennai, reported in (2003) 1 SCC 534, is a case, which is closely akin to the case at hand, wherein the deceased was seen in the company of the appellant from the morning of March 5, 1985, till, at least, 5 pm on that day, when he was brought to his house and, thereafter, his dead body was found in the morning of March 6, 1985. In this fact situation, the Supreme Court obser ved: \Therefore, it has become obligatory on the appellants to satisfy the court as t o how, where and in what manner Vadivelu parted company with them. This is on th e principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the ci rcumstances in which they parted company. In the instant case the appellants hav e failed to discharge this onus. In their statement under Section 313 CrPC they have not taken any specific stand whatsoever\. 52. Having taken into consideration the cases of Joseph (supra), Ram Gulam ( supra) and Sahadevan (supra), the Supreme Court has pointed out, in Kashi Ram (s upra), that Section 106 of the Evidence Act makes it clear that when any fact is especially within the knowledge of a person, the burden of proving that fact is on him.

53. Hence, observes the Supreme Court, in Kashi Ram (supra), that if a perso n is last seen with the deceased, he must offer an explanation as to how and whe n he parted with the company of the deceased. The Supreme Court has, in fact, go ne to the extent of observing that in such a case, the accused must furnish an e xplanation, which appears to the Court to be probable and satisfactory and if th e accused does so, he must be held to have discharged his burden; but if the acc used fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. The Su preme Court has further pointed out, in Kashi Ram (supra), that if, in a case, r esting on circumstantial evidence, the accused fails to offer reasonable explana tion in discharging the burden placed on him by virtue of Section 106, his silen ce is an additional link in the chain of circumstances proved against him. 54. Clarifying the object of Section 106, the Supreme Court has laid down, i n Kashi Ram (supra), that Section 106 does not shift the burden of proof in a cr iminal trial inasmuch as the burden of proof always rests on the prosecution, bu t it lays down the rule that when the accused does not throw any light upon the facts, which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his f ailure to adduce any explanation as an additional link, which completes the chai n. In coming to this conclusion, the Court has referred to Naina Mohamed (AIR 19 It is not necessary to multiply with authorities. The principle is well 60 SC 218). The relevant observations, appearing in Kashi Ram (supra), read as u nder: (cid:28)23. settled. The provisions of Section 106 of the Evidence Act itself are unambiguou s and categoric in laying down that when any fact is especially within the knowl edge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 10 6 of the Evidence Act. In a case resting on circumstantial evidence if the accus ed fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances prove d against him. Section 106 does not shift the burden of proof in a criminal tria l, which is always upon the prosecution. It lays down the rule that when the acc used does not throw any light upon facts which are specially within his knowledg e and which could not support any theory or hypothesis compatiable with his inno cence, the Court can consider his failure to adduce any explanation, as an addit ional link which completes the chain. The principle has been succinctly stated i n Re. Naina Mohd. AIR 1960 Madras, 218. (cid:29) 55. Ordinarily, the circumstance of last seen together would be relevant, wh en it is established by the evidence on record that the time gap between the poi nt of time, when the accused and the deceased were seen together alive, and when the deceased was found dead, is so small that possibility of any other person b eing with the deceased can be completely ruled out. Thus, the time gap between t he accused person having been seen in the company of the deceased and the death of the deceased would be a material consideration for appreciation of evidence i n such matters. What is, however, of paramount importance to note is that it can not be always stated that the evidence of last seen together must be rejected me rely because the time gap between the point of time, when the accused persons we re seen in the company of the deceased, and the coming into light of the offence committed is of a considerable long duration. There is no fixed or straight-jac ket formula in respect of duration of time gap. Obviously, it would depend on th e facts of a given case if the circumstance of the last seen together is so mate rial that it can lead the Court to conclude that none, but the accused was last seen in the company of the deceased and was, therefore, the one, who had caused death of the deceased. Reference, in this regard, may be made to the cases of Bo dhraj v. State of J & K, reported in (2002) 8 SCC 45, State of U.P. v. Satish, r eported in (2005) 3 SCC 114, Ramreddy Rajesh Khanna Reddy v. State of A.P., repo rted in (2006) 10 SCC 172 and Jaswant Gir v. State of Panjab, reported in (2005) 12 SCC 438. The Supreme Court has summarized the theory of last seen together, in State of Goa v. Sanjay Thakran and another, reported in (2007) 3 SCC 755, at Para 34, as follows: (cid:28)From the principle laid down by this Court, the circumstance of last-seen toget her would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the tim e gap between the point of time when the accused and the deceased were found tog ether alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The tim e gap between the accused persons seen in the company of the deceased and the de tection of the crime would be a material consideration for appreciation of the e vidence and placing reliance on it as a circumstance against the accused. But, i n all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the decease d last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of t ime gap in this regard and it would depend upon the evidence led by the prosecut ion to remove the possibility of any other person meeting the deceased in the in tervening period, that is to say, if the prosecution is able to lead such an evi dence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen toget her, although there is long duration of time, can be considered as one of the ci rcumstances in the chain of circumstances to prove the guilt against such accuse d persons. Hence, if the prosecution proves that in the light of the facts and c ircumstances of the case, there was no possibility of any other person meeting o r approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be r elevant evidence. For instance, if it can be demonstrated by showing that the ac cused persons were in exclusive possession of the place where the incident occur red or where they were last seen together with the deceased, and there was no po ssibility of any intrusion to that place by any third party, then a relatively w ider time gap would not affect the prosecution case. (cid:29)

56. In the backdrop of the law, as discussed above, when the facts o f the present case are taken into account, it becomes clear that the deceased, Puna Borah, was seen last in the company of the accused-appellant, Krishna Hazar ika. It was, therefore, in the facts and attending circumstances of the present case, for the accused-appellant to offer a convincing and plausible explanation as to where he had left Puna Borah. The accused-appellant did not, however, offe r any convincing or truthful explanation. This apart, his statement, made to the Investigating Officer, clearly reveals that it was the accused-appellant, who h ad hidden Puna Borah’s dead body at a sugarcane plantation and, acting upon the statement, so made by the accused-appellant, when the Investigating Officer came to the sugarcane plantation, accused-appellant showed Puna Borah’s dead body. I n a situation, such as the present one, the evidence on record must be treated t o be unerringly pointing to the accused-appellant as Puna Borah’s assailant.

57. In the light of the law discussed above, when one considers the facts of the present case, there remains no escape from the conclusion that it was accus ed-appellant and none else, who had killed Puna Bora and kept his dead body hidd en in sugarcane plantation, police went to the sugarcane plantation and the said dead body was recovered by police on being shown by the accused-appellant.

58. Situated thus, we have no hesitation in holding that the accused-appella nt was proved beyond reasonable doubt to have committed the offence of murder pu nishable under Section 302 IPC and he also proved to have disposed of the said d ead body in order to screen himself from being caught and his act was, therefore , punishable under Section 201 IPC too. 59. We, therefore, find no infirmity, legal or factual, in the conviction of the accused-appellant under Sections 302 and 201 IPC and we accordingly uphold his conviction. Though the accused-appellant has been, as already pointed out above, sen 60. tenced, for his conviction under Section 302 IPC, he has not been sentenced for his conviction under Section 201 IPC. As there is no appeal against omission to pass any sentence against the accused-appellant for his conviction under Section 201 IPC, it would be permissible for us, now, to interfere with this aspect of the appeal. 61. ails and the same shall accordingly stand dismissed. 62. of. 63. Send back the LCR. Because of what have been discussed and pointed out above, this appeal f With the above observations and directions, this appeal stands disposed