R. S. SODHI, J. ( 1 ) THE petitioners seeks to challenge the order/judgment passed by the district and Session Judge in case No. 15/91 dated 8. 7. 1992 whereby the Judge held the appellants guilty under Section 302 read with Section 34 IPC and also guilty under Section 27 Arms Act. He further on 9. 7. 1992 sentenced the accused persons for life imprisonment under Section 302 read with Section 34 IPC together with a fine of Rs. 2,000/- and in default of payment of fine simple imprisonment for two years and also sentenced Sanjay under Section 27 of the arms Act for three years imprisonment and Rs. 500/- as fine, in default of payment of fine further simple imprisonment for two months. Facts of the case as have been noted by the learned District Judge as under. "the case was registered on the statement of PW5 on dated 16th June, 1991. On dated 16th June, 1991 Babu Lal PW5 got recorded his statement that he puts up at b-357, Mangolpuri, Delhi with his daughter Babli and son Sohan and he was a sweeper in Municipal Corporation. Two boys namely Vishnu son of Om Parkash and sanjay son of Ram Kishan also lived in his neighbourhood and they used to visit his house off and on. They also used to roam about with his son. Some days ago he came to know that those boys used to tease his daughter Babli on the way and they were made to understand by his son, but they did not accede to the request of his son and on this matter, on dated 13. 6. 1991 a quarrel took place between his son and Sanjay and Vishnu which was later on patched up. On dated 15th june, 1991 at about 10. 00 PM in the night he was present at his house with his children, that Sanjay and Vishnu came to his house and admitted their mistake. After that they took his son with them on the pretext of showing Video Film to him. When his son did not return home till morning he asked going to the houses of Sanjay and Vishnu accused. They were not found at their houses. After that they took his son with them on the pretext of showing Video Film to him. When his son did not return home till morning he asked going to the houses of Sanjay and Vishnu accused. They were not found at their houses. When he was returning back public persons told him that one dead body was lying in park and he himself also went in the park and saw that the dead body was of his son. There were many injuries on the person of his son and who was drenched in blood. He suspected the assailants of his son to be Vishnu and Sanjay, who murdered his son with plan. This statement was despatched to the PS for registration of the cse, and on the basis of this a case under section 302 read with Section 34 of IPC was registered against accused Vishnu and Sanjay. That SHO also received information through Risal Singh ASI PCR (R75) through wireless message that a dead body was lying in Sanjay Gandhi Park. After that the Investigation Agency was put into motion. The case was invested by the IO/inspector Shri R. C. Singh, SHO PS-Mangolpuri and a charge sheet was filed in the Court. The accused persons have been charged by the learned District Judge vide his separate order dated 24. 1. 1992 under Section 302/34 IPC. Accused Sanjay kumar was also charged under Section 27 of the Arms Act, separately, vide order of the same date. This case entirely depends upon circumstantial evidence and no eye-witness saw accused person killing the deceased. " ( 2 ) THE prosecution in this case examined as many as 19 witnesses. PW1 Om parkash did not support the prosecution s case. However, PW2 Ramesh deposes to the effect that the accused persons were known to him as they resided in the same block of Mangolpuri. He also states that the accused persons were not arrested and were not interrogated in his presence. But he deposed to the effect that the police have lifted the blood stained earth from near the body. He also identified the dead body of Sohan in park. He deposed to the recovery of other blood stained articles of the deceased as also empty bottle and one empty dabba. The same were seized vide seizure memo Ex. But he deposed to the effect that the police have lifted the blood stained earth from near the body. He also identified the dead body of Sohan in park. He deposed to the recovery of other blood stained articles of the deceased as also empty bottle and one empty dabba. The same were seized vide seizure memo Ex. PW2/a. This witness also states that babu Lal present when the articles were seized. This witness was ultimately cross-examined by the Public Prosecutor and confronted with portions of statement under Section 161. Nothing meaningful would revolve around this witness. PW3 is constable Shamsher Singh who took the dead body of the deceased mortury at Subzi Mandi for post martam. This witness was not cross-examined. PW4 is Kumari Babli, the sister of the deceased deposed by narrating the events that took place on the night intervening of 15th/16th June, 1991. She deposed to the effect that she knows both accused persons namely Sanjay and Vishnu. They were residing at Mangolpuri. Her brother and the accused persons were friends. Sanjay and Vishnu were on visiting terms to the house of the deceased. Both the accused persons would profess love to her and would tease her when she went out of the house. This witness reported the matter to her brother and father at which the brother cautioned the accused persons. There was a quarrel on account of this warning two days prior to the occurrence which was then patched up as the accused apologized. ( 3 ) THE witness goes on to state that on 15th June, 1991 at about 10. 00 PM, both the accused persons came to the house of the deceased and asked the deceased to accompany them to see a film being shown on the VCR. The deceased accompanied the accused and thereafter did not return. On the following morning the father of this witness went to the house of Sanjay and Vishnu to enquire about the deceased but none of the accused were found present at the residence. In the meantime, the information was received by her father that a dead body is lying in Sanjay Park, Sultanpuri. The father of the deceased went to the spot and on return informed the family that Sohan had been murdered. The witness was put to lengthy cross-examination and withstood her cross-examination firmly. In the meantime, the information was received by her father that a dead body is lying in Sanjay Park, Sultanpuri. The father of the deceased went to the spot and on return informed the family that Sohan had been murdered. The witness was put to lengthy cross-examination and withstood her cross-examination firmly. There was nothing meaningful that could be elicited from this witness by the defence. The case put by the defence to this witness was that the accused neither went to the house of the deceased nor did they asked the deceased to accompany them to view the so-called film show. ( 4 ) PW5 Babu Lal is the complainant and father of the deceased. He deposes to the effect that his family consists of his daughter Babli, son Sohan (deceased) and himself. Both the accused persons were friends of Sohan and were on visiting terms with his family. That on various occasions they would be visiting his house accompanied by the deceased. He also deposed to the effect that the both accused used to harass his daughter which fact was narrated by his daughter Babli to this witness. On 13. 6. 1991 the quarrel ensued between the deceased and the accused persons but the same was ultimately patched up as the accused persons apologized for their behaviour. On 15th/16th June, 1991 both the accused persons came to the house of this witness at 10. 00 PM to invite the deceased to see a video film which was being screened at the residence of the accused on a VCR. The deceased did not return. On the following morning this witness went to the house of Vishnu but Vishnu was not at his house. After that he went to the house of Sanjay who too was not available at his house. While on his way back he was informed that a dead body is lying in the park. The father of the deceased went to the park and saw that a dead body was of his son Sohan. The police came thereafter and recorded his statement as Ex. While on his way back he was informed that a dead body is lying in the park. The father of the deceased went to the park and saw that a dead body was of his son Sohan. The police came thereafter and recorded his statement as Ex. PW5/a. The police in presence of this witness took into possession blood smeared earth, blood smeared chappals lying near the dead body, one cap stained with blood, one chhaini stained with blood, one blood stained baniyan, a piece of paper blood stained, one empty bottle and one empty tin which were lying around the body. All the above articles were sealed vide a seizure memo Ex. PW2/a. This witness identified the articles recovered. The witness goes on to say that the police went in search of the accused persons, when one information that Sanjay and vishnu were present in the park. The SHO organised a raiding party consisting of 4 police officials as also the witness and Ramesh. The raiding party reached the park where they identified both the accused persons who were apprehended by the police. On a personal search of the accused persons seized memos Ex. PW2/d and Ex. PW2/e respectively were prepared. The witness states that the accused were not interrogated in his presence but goes on to say that Vishnu led the policy party and got recovered blood stained clothes of Vishnu which were seized vide memo Ex. PW2/f. Thereafter Vishnu and the police party got one pant and one shirt recovered which was dipped in a balti placed in the kitchen, this was seized. Sanjay accused led the police party to the park and got recovered dagger from under the bushes. The sketch of the dagger was exhibited vide ex. PW2/j. The dagger was sealed by seizure memo Ex. PW2/h. This witness was sought to be cross-examined by the Public Prosecutor. Permission was granted to the Public Prosecutor to cross-examine this witness and in cross-examination the witness states that ?it is incorrect to suggest that in my presence Sanjay got recovered one pant of black colour, one shirt of blue colour and pair of chappals. ? He was confronted with portion B to B of Ex. PW5/b where it was so recorded. ? He was confronted with portion B to B of Ex. PW5/b where it was so recorded. This witness also states that it is incorrect to suggest that Vishnu got recovered one pant blood stained of black colour and one shirt and one pair of shoes which he had taken out from beneath the gadda of a double bed, confronted with portion B to B of Ex. PW5/b. The witness voluntarily stated that"vishnu accused had taken out clothes which were dipped in water in a balti lying in the kitchen and no pair of shoes was produced by the accused Vishnu in his presence. ? This witness also denied the suggestion that the accused persons namely Sanjay and Vishnu were interrogated by the police separately in his presence and that in the presence of Ramesh and it is also incorrect to suggest that Sanjay and Vishnu signed the disclosure statements in his presence. In reply to a suggestion, the witness stated that ?on 15th June, 1991 when the accused persons came to my residence to take my son with them there was none else except us voluntarily all the persons were in their house. It is correct that a movie was being relayed on our television. ? In response to another suggestion the witness states that ?it is correct that the place of recovery from where the daggers were recovered is a place place open to all and sundary. " ( 5 ) PW6 Kesar Singh is head constable. He deposed that he was posted in PS mangolpuri as Duty Officer. On that day he received a rukka through head constable Hari Om sent by the IO Inspector R. C. Singh. That rukka is Ex. PW5/a. On the basis of that rukka a formal FIR Ex. PW6/a was recorded. The original rukka endorsed along with the FIR was delivered at the spot to the IO through the same head constable. ( 6 ) PW7 Balram ASI Mangolpuri states that on 16. 6. 1991 he was posted at police station Mangolpuri. He was called by the Investigating Officer on the spot. He along with other police officials accompanied Babu Lal complainant and ramesh went in search of the accused persons. They reached Outer Ring Road near industrial Area Park. Babu Lal and Ramesh identified Sanjay Kumar and Vishnu kumar accused. The accused were apprehended. The accused were interrogated separately. He was called by the Investigating Officer on the spot. He along with other police officials accompanied Babu Lal complainant and ramesh went in search of the accused persons. They reached Outer Ring Road near industrial Area Park. Babu Lal and Ramesh identified Sanjay Kumar and Vishnu kumar accused. The accused were apprehended. The accused were interrogated separately. Personal search memos of the accused were prepared vide Ex. PW2/d and ex. PW2/e signed by the witnesses. This witness goes on to say that disclosure statements of the accused persons Ex. PW2/l and Ex. PW2/m bears his signatures. However the witness says that he can only point out the accused who got recovered the dagger by seeing the record of the case. The witness goes on say that Sanjay led the police party and got recovered one dagger from Relief Camp bushes. Dagger was blood stained. The sketch was prepared vide Ex. PW2/j. It bears the signatures of the witness. It was converted into a packet and was sealed with the seal of RCS pointing out memo and seizure memo of the dagger is ex. PW2/h. The witness identified the dagger as Ex. P7. According to this witness, Vishnu got recovered the iron rod which was recovered from the bushes. The witness corrected himself by saying that the accused Vishnu had pointed out the place where he had thrown the rod and bottle of acid and tin pointing out of memo Ex. PW2/k. Accused Sanjay had also pointed out the place of incidence and a memo was prepared and Ex. PW2/n. The memo bears his signatures. Accused Sanjay led the police party and got recovered one shirt, one pant, one pair of hawai chappal. All these articles were produced by the accused Sanjay from a room where these articles were lying beneath sofa. The articles were seized separately with seal of RCS and were seized vide seizure memo Ex. PW2/f. This witness identified the clothes seized which are shirt Ex. P8, pant Ex. P9, and pair of chappals Ex. P10. The shirt and pant were smeared with blood. According to this witness, accused Vishnu led the police party to his house at Mangolpuri and got recovered one pant, one shirt, one pair of shoes from beneath the gadda of double bed. These articles were identified as P11, shirt Ex. P12, and pair of shoes Ex. P13. P10. The shirt and pant were smeared with blood. According to this witness, accused Vishnu led the police party to his house at Mangolpuri and got recovered one pant, one shirt, one pair of shoes from beneath the gadda of double bed. These articles were identified as P11, shirt Ex. P12, and pair of shoes Ex. P13. On cross-examination on behalf of Vishnu, the witness admits that there is over-writing on the date written under the signature of the SHO. He denied the suggestion that he did not join the investigation. This witness was not cross-examined by accused Sanjay, despite opportunity given. ( 7 ) THE other formal witness PW8 Sh. Dharamvir Singh, SI was tendered for cross-examination but both the accused declined to cross-examine him. ( 8 ) PW9 head constable Hari Shankar deposed to the facts that on16. 6. 1991 he was working as photographer in North West District. He was called by investigation Officer to Sanjay Gandhi Park and taken photographs of the scene of crime including the dead body from different angels. This witness brought the original negatives as also of prints. The witness was not cross-examined despite opportunity that have been given. ( 9 ) PW10 is a draftsman Manohar Lal. He too was not cross-examined. ( 10 ) PW11 Dr. G. C. Jawa of Jawa Nursing Home was examined. He states that he is running Jawa Nursing Home and on 16. 6. 1991 one patient came to his nursing home gave his name as Vishnu. He had an injury on his left hip which was bleeding at that time. The patient was discharged after providing first aid. Prescription Ex. PW7/b was prescribed. The witness goes on say that Vishnu was examined at 12 mid-night. In cross-examination by counsel for the Vishnu, he admits that the father s name of Vishnu is not mentioned on the prescription. He does not identified the accused person in court. ( 11 ) PW13 Dr. L. T. Ramani, Chief Medical Officer, Civil Hospital deposed that on 17. 6. 1991 he conducted post-mortum of the body of Sohan alias Sonu son of Babu Lal. The deceased was wearing a banian, pant, belt and underwear and silver ring on the right ring finger. Clothes showed multiple cuts corresponding to the injuries on the body. Banian was soaked with blood and some sticky fluid and had become fragile. 6. 1991 he conducted post-mortum of the body of Sohan alias Sonu son of Babu Lal. The deceased was wearing a banian, pant, belt and underwear and silver ring on the right ring finger. Clothes showed multiple cuts corresponding to the injuries on the body. Banian was soaked with blood and some sticky fluid and had become fragile. Built of body was normal. He sustained external injuries as follows:-"1. Corrosive burns over lower part front of neck, left side front of chest upto costal margin with evidence of drippling side words. The pattern of banian was seen on the skin of the left side front of chest. Corrosive burns were also seen on the left arm, fore arm, right half of face, chin, right shoulder, lateral surface of right arm, fore arm and dorsum of hand. There was no evidence of vital reaction at the junction of normal skin and corroded areas. 2. Laceration on the left ear helix and over mastoid region behind the ear with bruising around. Size of the injury was 2 inches into 1 inch into muscle deep. 3. An incise wound 2? x 1? 1 ? placed transversely on the lower part front of neck left side, skin edges were regular. 4. Incised wound 1 ?? x 1? 1 muscle deep on the top of the right shoulder. 5. Six incised wounds all parralel to each other 1 ?? to 4? long placed half an inch to one inch apart on the left side front of chest transversely. 6. Incised wound 2? long on the upper part back of neck near hair margin. 7. Five incised stab wounds present on the right scapular region and back of right shoulder varying in size from 2% x 3 ?? longs, three of them placed obliquely and two vertically. 8. Two incised wound 2? and 3? long, all present obliquely on the lower back of chest and lumber spine area. 9. Five incised stab wounds 2? to 3? long, all present obliquely on the lower back of chest and lumbar spine area. 10. Five incised wounds present transversely over lumbosacral spine three inches to five inches long. Abdominal viscera were expelled out through one of these wounds over right renal angle area. 11. Incised wound four inches x 2 inches x? present on the upper outer quadrant of right buttack. 10. Five incised wounds present transversely over lumbosacral spine three inches to five inches long. Abdominal viscera were expelled out through one of these wounds over right renal angle area. 11. Incised wound four inches x 2 inches x? present on the upper outer quadrant of right buttack. Looks of small pwels were protruded out through this wound. 12. Small incised wound half an inch x muscle deep on the front of left arm. 13. Incised wound 1 inch x half an inch x Muscle deep on the anterior aspect of left arm. 14. Incised wound three inches into 1 ? inches x muscle deep on the back of left arm lower end. 15. Two small incised wounds ?? x skin deep on the left elbow. 16. Two incised wounds each 1? long on the middle of left fore arm. 17. Incised wound 1? x ?? muscle deep on the back of left wrist. 18. One of the ends of all these stab wounds is more acutely cut. ? he sustained internal injuries as follows:- "scalp, skull bones were normal. Brain showed signs of early decomposition. Injury no. 3 had cut muscles of lower part of neck and body of fourth cervical vertebra 0. 5 centimeters deep. There was extra vasation of blood in soft tissues along the track of the injury. Injury no. 6 on the back of neck was seen to have cut spinous process of second cervical vertebra. Both chest cavities were full of blood. Left lung showed three cuts and right showed two cuts on the posterior surface. There were two cuts on the heart. Liver showed three cuts on the left front margin and four of the posterior surface. Stomach contained blood mixed food. Stomach showed a cut on the anterior surface. Looks of small bowels were cut at five places. " ( 12 ) IN the opinion of the doctor all injuries were anti-martem. Injury no. 1 was caused by some corrusive liquid. Injury no. 2 was caused by blunt object. All other injuries were caused by sharp edged weapon. Injuries no. 5,7,8,9,10 and 11 were individually sufficient to cause death in ordinary course of nature. Death was due to haemorrhagic shock consequent to injuries time since death. Time since death was as about 36 hours. Sample of blood and clothes were preserved, sealed and handed over. He identifies his report ex. Injuries no. 5,7,8,9,10 and 11 were individually sufficient to cause death in ordinary course of nature. Death was due to haemorrhagic shock consequent to injuries time since death. Time since death was as about 36 hours. Sample of blood and clothes were preserved, sealed and handed over. He identifies his report ex. PW13/a. The application for conduct of post-martum is Ex. PW13/b. Opportunity was given but accused persons did not cross-examined this witness. ( 13 ) PW17 R. C. Singh is the Investigating Officer. He deposed to the effect that on 16. 6. 1991 he was working as SHO Mangolpuri. While working as SHO mangolpuri he received DD No. 9a on which he along with other members of the staff reached Sanjay Gandhi Park situated near outer Ring Road, Mangolpuri, where dead body of Sohan was lying. He bored multiple injuries. He recorded the statement of Babu Lal Ex. PW6/b and gave his report Ex. PW17/a. He sent a rukka to the police station through head constable Hari Om. The special report also mentioned that the photographer and crime team and dog squad be sent at the spot. On the basis of rukka a formal FIR was registered Ex. PW6/a. This witness deposed that he lifted blood stained earth earth which was lying beneath the dead body of Sohan, sample control earth from near the dead body, blood stained earth which was lying about five feet away from the dead body and also a pair of chappals, blood stained cap, one chhaini of iron blood stained, one branch of banyan villa, blood stained one paper, blood stained one empty bottle and one empty dabba. These articles were sealed separately and were sealed with the seal of RCS. The articles were taken into custody in the presence of Ramesh, Babu lal. All articles were seized vide a seizure memo Ex. PW2/a. The witness also states that he inspected the site and prepared rough site plan Ex. PW17/a and the marginal notes of the site plan were made in his hand and bears his signatures. The site was got photographed. Crime team had also inspected the scene of incidence. He had prepared the inquest report Ex. PW17/b and brief facts ex. PW17/c. After preparing the inquest papers he sent the dead body for post- mortum, the application whereof is Ex. The site was got photographed. Crime team had also inspected the scene of incidence. He had prepared the inquest report Ex. PW17/b and brief facts ex. PW17/c. After preparing the inquest papers he sent the dead body for post- mortum, the application whereof is Ex. PW13/b. During investigation he apprehended both the accused person from the park situated at Industrial Area, mangolpuri. Their personal search memos were prepared PW2/d and Ex. PW2/e. At the time of arrest Babu Lal and Ramesh and Balram ASI were present. Accused were interrogated separately. Accused Sanjay made a disclosure statement Ex. PW2/l signed by Sanjay at point B. Both accused persons were interrogated in the presence of PWs and police officers. The place of incidence is Ex. PW2/n. The investigating Officers goes on to narrate the steps taken by him during investigation and which include sending of exhibites to the CFSL for examination. The CFSL report is Ex. PW17/g, Ex. PW17/h and Ex. PW17/j. After completion of investigation challans were presented against the accused persons. The witness was cross-examined at great length. ( 14 ) THE case of the accused put to the witness was to the effect that vishnu did not get recovered any blood stained, clothes nor made any disclosure statement. But at the same time it was also suggested to the witness that vishnu had got recovered one pant, one shirt lying in a balty in the kitchen of his house. ( 15 ) ON an overall evaluation of the material available before the Trial court, the Trial Court came to the conclusion that prosecution has proved, its case beyond doubt. Consequently, convicted the accused persons under Section 302/34 IPC as also convicted Sanjay under Section 27 Arms Act. ( 16 ) THE arguments raised by the counsel for the appellants before this court has been that the prosecution has not been able to establish that the deceased was taken away by the appellants on the night intervening 15th/16th june, 1991. The counsel contends that except from the ipse dixit of the sister of the deceased and the father of the deceased, there is nothing on record to show that the deceased was taken away by the accused persons on as alleged by the prosecution. The counsel contends that except from the ipse dixit of the sister of the deceased and the father of the deceased, there is nothing on record to show that the deceased was taken away by the accused persons on as alleged by the prosecution. He contends that PW5 father of the deceased having himself not supported the prosecution s case as regards the recovery of blood stained clothes and dagger is indicative of the false case of the prosecution. The trial Court was wrong in placing reliance on recoveries to base its conviction. The counsel further contends that there was no reason for the accused to have caused the death of Sohan since they were good friends and the quarrel if at all had already been settled amicable. Even otherwise he contends that if the prosecution is to be believed and the accused persons had a glad eye towards the sister of the deceased the same can hardly be a motive to kill the brother. To some up the arguments, learned counsel submitted that in any event of the matter even if the last seen evidence is sought to be believed by the court,the same cannot be made the sole ground for conviction. ( 17 ) COUNSEL for the State has argued that from the record of the case there is nothing to disbelieve PW5 and PW4 regarding the incident intervening 15th/16th June, 1991 namely that the deceased was taken away by the appellants on the pretext of watching movie at their house. The defence has not been able to dislodge the testimony of the aforesaid witnesses on this point. Although they have made attempts to bring about doubts on recoveries and or disclosure statements. He contends that without admitting that the recoveries are not reliable there is the last seen evidence which remains unshaken. Unless appellants are able to come out with a meaningful explanation to the effect that the deceased was not in their company or had left their company any time during the night the circumstance would be strong enough to base conviction. However, counsel submits that blood stained clothes were recovered from the accused persons. Blood stained knife was recovered at the instance of Sanjay which the cfsl report shows matches with the blood of deceased. However, counsel submits that blood stained clothes were recovered from the accused persons. Blood stained knife was recovered at the instance of Sanjay which the cfsl report shows matches with the blood of deceased. That being the position the Trial Court was corrected in analysing the material placed before it to come to the conclusion that the prosecution has proved the case beyond doubt. ( 18 ) WE have heard counsel for the parties and with their assistance carefully gone through the record of the case. We find that from the deposition of PW4 and PW5 what emerges is that the appellants were friends of the deceased, on visiting terms, began misbehaving with the sister of the deceased were cautioned by the deceased which led to a quarrel, which later was resolved. It is also brought out that the accused persons on the night intervening 15th/16th june, 1991 convinced the deceased to come and watch a film at their residence at 10. 00 P. M. when the family of the deceased were themselves watching a film on the television at the house of the deceased. ( 19 ) IT is established from the record that the deceased was last seen with the appellants at around 10. 00 P. M. on the night intervening 15th/16th June, 1991. The dead body of Sohan was identified the following morning. It is also in evidence that at the time of arrest both the accused persons had injuries on their person. It is also in evidence that the injury on the person of Vishnu was attended to at 12. 00 mid-night of 15th/16th June, 1991. These facts stand proved. The testimony of PW4 and PW5 as regards last seen is truthful and can be relied upon. ( 20 ) AS regards disclosure statements, there appears to be some discrepancy and the recovery pursuant thereto appeared to be doubtful. The accused are entitled to benefit of doubt in respect thereof. With the aforesaid material on record, there is clinching evidence in this case that the deceased was last seen in the company of the accused persons before the dead body was recovered the following morning. There is no explanation forthcoming from the accused as to when, if at all, the deceased left their company and also there is no explanation by the accused of how they sustained bleeding injuries prior to the arrest the following morning. There is no explanation forthcoming from the accused as to when, if at all, the deceased left their company and also there is no explanation by the accused of how they sustained bleeding injuries prior to the arrest the following morning. The Supreme Court in AIR 2000 SC 2988 titled state of West Bengal vs. Mir Mohammad Omar has held that:-"presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. " ( 21 ) IN the present case where it is proved to the satisfaction of the court that the accused persons took away the deceased at 10. 00 P. M. on the night intervening 15th/16th June, 1991. The accused alone knew what happened to him till he was with them. If he was found murdered within a short time after the last seen, permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disputed if accused would tell the court what else happened to the deceased at least until he was with them. In this context, the court may profitably utilise the legal principle embodied in Section 106 of the Evidence Act. By doing so the prosecution has not been relieved of its burden to prove the guilt of the accused beyond reasonable doubt but would apply to cases where the prosecution has succeeded in proving facts from which reasonable inference can be drawn regarding the existence of certain facts, unless the accused by virtue of special knowledge regarding such facts fails to offer any explanation which may drive the court to draw a different inference. Reference may also be had to shambu Nath Mehra vs. The State of Ajmer, 1956 SCR 199 where the aforesaid principle has been dealt with. ( 22 ) IN the present case as already discussed above the proximity of the last seen, unexplained injuries on the accused which were treated at around 12 mid night and the recovery of the dead body on the following morning having been established, we can safely draw the inference that the deceased was put to death by the accused persons. Consequently, we find no substance in the appeal and maintain the order of conviction u/s 302/34 IPC as also sentence thereof, while acquitting the accused Sanjay u/s 27 of the Arms Act. The appellants are on bail, thus shall surrender forthwith and be taken into custody to serve out the remaining portion of the sentence. .