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2009 DIGILAW 435 (GUJ)

Ramanbhai Maganbhai Bariya v. State of Gujarat

2009-07-03

H.B.ANTANI, J.R.VORA

body2009
Judgment J.R. Vora, J.—Instant appeal is directed under Section 374 of the Criminal Procedure Code against the judgment and order delivered by learned Additional Sessions Judge, Panchmahal at Godhra on 3rd February, 2001 in Sessions Case No. 226 of 1996 whereby the present appellant being accused of the said Sessions Case came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment of life and to pay fine of Rs. 2,000/-, in default to undergo simple imprisonment of six months. 2. Briefly as per the prosecution case, the deceased Rameshbhai Mangalbhai was doing agricultural labour work in the field of the accused. The incident in question appears to have occurred on 1st June, 1996 at about 00.30 hours at Village : Dholi. On the day of the incident, on earlier night, when deceased was taking his night meal, accused came to the house of the deceased Ramesh and deceased Ramesh was directed by the accused that the crop was required to be watered and, therefore, his presence was required at the field. Therefore, the deceased Ramesh went with the accused at his field at that night and in early morning i.e. at about 00.30 hours, father of the deceased and his other relatives heard shouts from the field of the accused and accused was saying that something had fallen down in the well of the field and he (accused) was in the field. When the relatives of the deceased reached at the field. The accused climbed out of the well and ran away. In the morning, pouring out the water from the well, it was found that the deadbody of deceased Ramesh was in the well and it was taken out. Initially, father of deceased Mangalsinh Bhurabhai filed accidental death report before Morva Police Station and inquiry was handed over to P.W. 7 - Lalabhai Hirabhai Parghi. On 1st June, 1996, after noting down A.D. Inquiry No. 13/1996, Lalabhai Hirabhai Parghi, Head Constable forwarded deadbody for postmortem and postmortem was conducted by P.W. 9 - Dr. Subodhkumar, Medical Officer, Sant Road Primary Health Centre on 1st June, 1996 in the evening at 5.30 p.m. According to him, in external injuries, there were some abrasions on the neck of the deceased and that cause of death was due to asphyxia due to throttling. Subodhkumar, Medical Officer, Sant Road Primary Health Centre on 1st June, 1996 in the evening at 5.30 p.m. According to him, in external injuries, there were some abrasions on the neck of the deceased and that cause of death was due to asphyxia due to throttling. The time of death which Doctor stated was before 12.00 hours of conducting of the postmortem and hence, Lalabhai Hirabhai Parghi, Head Constable on behalf of the State, gave First Information Report on 2nd June, 1996 at 22.00 hours against the present appellant. In pursuance of the FIR, which was registered against the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code. Investigation was conducted by P.W. 8 - Adesinh Bhimsinh Dodia, the then P.S.I of Morva Police Station, in pursuance of which charge-sheet came to be filed against the accused in the Court of learned Judicial Magistrate, First Class and the case was committed to the Court of Sessions. 3. Vide Ex. 2, a charge came to be framed for the offences punishable under Sections 302 and 201 of the Indian Penal Code against the accused on 6th October, 2000, by the learned Additional Sessions Judge, Panchmahal at Godhra for which accused pleaded not guilty and he was tried by learned Additional Sessions Judge. 4. The prosecution examined as many as nine witnesses. P.W. 1 - Mangalsinh Bhurabhai has been examined at Ex. 11, father of the deceased who had filed First Accidental Death Report before the Police; P.W. 2 - Kamleshkumar Prabhatsinh, cousin brother of the accused has been examined at Ex. 12 and he did not support the prosecution case; P.W. 3 - Bhalsinh Mangalsinh examined at Ex. 13 is brother of the deceased and he has supported the prosecution case fully; P.W. 4 - Savitaben Mangalbhai, mother of the deceased has been examined at Ex. 14 and she has also supported the prosecution case; P.W. 5 - Somabhai Bhurabhai, Independent Witness has been examined at Ex. 15 and he has supported the prosecution case; P.W. 6 - Narvatsinh Bavajibhai has been examined at Ex. 16, was the then P.S.O. who recorded Accidental Death as declared by the father of the deceased; P.W. 7 - Lalabhai Hirabhai Parghi has been examined at Ex. 15 and he has supported the prosecution case; P.W. 6 - Narvatsinh Bavajibhai has been examined at Ex. 16, was the then P.S.O. who recorded Accidental Death as declared by the father of the deceased; P.W. 7 - Lalabhai Hirabhai Parghi has been examined at Ex. 17, who was Head Constable at the relevant juncture, who inquired into the Accidental Death No. 13/1996 and, thereafter, filed FIR which is placed at Ex. 18; P.W. 8 - Adesinh Bhimsinh Dodia, Investigating Officer has been examined at Ex. 19 and had filed charge-sheet, while P.W. 9 - Dr. Subodhkumar has been examined at Ex. 22 was the Doctor who conducted the postmortem note and in addition to this, vide Ex. 5 by way of documentary evidence Accidental Death Report is placed on record as declared by the father of the deceased. The panchnama of scene of offence is placed at Ex. 6; Inquest panchnama is placed at Ex. 7 and Ex. 9 is the panchnama by which the accused had shown at the place of offence; the postmortem note is placed at Ex. 10; the map of scene of offence is also placed on record. The FIR is placed at Ex. 18. This is all is the evidence produced by the prosecution. 5. On evidence being over, learned trial Judge brought incriminating circumstances to the notice of the accused and it appears that the case and defence of the accused is of total denial, but in question put to him that he was noticed by the witnesses having climbed out in the well at the relevant juncture which he admitted that he was in the well in question, but he had not noticed anything. 6. Learned trial Judge, thereafter, heard both the parties and came to the above conclusion to convict the accused for the offence punishable under Section 302 of the Indian Penal Code and to acquit the accused for the offence punishable under Section 201 of the Indian Penal Code and hence, this appeal by the appellant - accused against his conviction and sentence as aforesaid. 7. Learned Advocate Mr. J.M. Budhbhatti for the appellant - accused is heard extensively. 7. Learned Advocate Mr. J.M. Budhbhatti for the appellant - accused is heard extensively. He submitted that the case rests solely on the circumstantial evidence and in cases with the evidence of circumstances a chain must be so completed as to raise finger against the accused that the accused and accused only has committed the offence. It is submitted that in the present case no chain of circumstances is completed by the prosecution, except that the accused was last seen together with the deceased and that evidence is also doubtful. The conduct of the accused is also to be noted that he was arrested soon and that no circumstance is proved against the accused to convict him for the offence punishable under Section 302 of the Indian Penal Code. It is submitted that the learned trial Judge erred in appreciating the evidence which is not trustworthy. It is vehemently submitted that in cases of circumstantial evidence what is important for the prosecution is to prove the motive and in the present case motive is totally absent for committing the crime and the accused is entitled to acquittal. It is submitted that it becomes duty of the prosecution to prove the motive beyond reasonable doubt in cases which rests upon the circumstantial evidence. Learned Advocate for the appellant, therefore, urged to allow the appeal and to acquit the appellant from the charges for which he is convicted and sentenced. 8. Learned APP Ms. Chetana M. Shah for the respondent - State, while supporting the judgment and order in appeal, submitted that, in all cases it is not obligatory upon the prosecution to prove the motive as otherwise, by ample evidence it is proved by the prosecution that the accused was last seen together with the deceased and deceased only and the cause of death is throttling. It is submitted that many witnesses have seen the accused within the proximity of the deceased when the crime was committed and, therefore, the appeal being meritless, is required to be dismissed. 9. We have undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record. We have taken into account the broad and reasonable probabilities arising out of the case and the evidence on re-appreciation by us. We have also taken into consideration the contentions raised by both the sides. 10. 9. We have undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record. We have taken into account the broad and reasonable probabilities arising out of the case and the evidence on re-appreciation by us. We have also taken into consideration the contentions raised by both the sides. 10. Now it is established that the case rests on circumstantial evidence. True that principle is when the case rests upon the circumstantial evidence, such evidence must satisfy that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. The circumstances should be of definite tendency unerringly pointing towards guilt of the accused. Cumulative effect of such circumstance should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. It must also be noted that such chain must be complete and must be incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 11. When we re-appreciate the evidence on record keeping in mind principles as laid down, as stated aforesaid, important witness is P.W. 9 - Dr. Subodhkumar. He deposed in uncertain terms that the cause of death was on account of throttling and, therefore, it was culpable homicide. There were abrasions on the neck of the deceased. He has been examined-in-cross by the defence and except the measurement of the abrasion, nothing is asked and, therefore, the cause of death due to asphyxia due to throttling, is accepted by the defence. With the above cause of death, if we appreciate the evidence on record, P.W. 1 - Mangalsinh Bhurabhai in his deposition at Ex. 11 unerringly stated that accused had been to his house and had taken the deceased to his field for watering the crop and at about 12.30 at night, the incident so happened that the accused shouted that somebody had fallen in the well, and when they reached at the scene of offence, the accused was in the well and in presence of the witnesses came out of the well and ran away. The deadbody was recovered from the said well with the above said cause of death. In his examination-in-cross, it was asked by the defence that while he gave the declaration about the death, he had stated that for some reasons, the deceased might have fallen in the well and had died. There was no quarrel between the accused and deceased. He denied that the deceased was in habit of taking liquor. There was no wall all around the well and it was in level of the land. 12. P.W. 2 - Kamleshkumar Prabhatsinh is a hostile witness and has been examined for the fact that at about 9.00 o’clock, deceased had accompanied the accused to his field and at about 12 hours, the incident occurred. 13. P.W. 3 - Bhalsinh Mangalsinh examined at Ex. 13, is the brother of the deceased and he also stated that on the day of the incident i.e. earlier dated 31st May, 1996 at about 6.00 o’clock in the evening, his deceased brother had returned from the labour work at their residence and, thereafter, both the brothers had been gone for ironing the clothes and had returned to their house. While they were taking their night meal, the accused had visited their house and had taken the deceased to his field stating that the crop was required to be watered and at about 12 at night, they heard shouts of the accused that somebody had fallen in the well and he himself, his father and others reached at the field near the well, at that juncture, the accused was in the well and when they reached near the well, he climbed out from the well and had run away. The deadbody was recovered from the said well. In his examination-in-cross, he denied that the well was under repair. He stated that there was pulley on the well to extract the water. A probability was asked by the defence that there was mud all around the well and on account of which the deceased might have got a slip and fallen in the well. The witness denied this suggestion. The witness also denied the suggestion that the accused was in habit of taking liquor. 14. P.W. 4 - Savitaben Mangalbhai examined at Ex. The witness denied this suggestion. The witness also denied the suggestion that the accused was in habit of taking liquor. 14. P.W. 4 - Savitaben Mangalbhai examined at Ex. 14 also stated same story that during night meal, the deceased was taken by the accused to his field on the pretext that the crop was required to be watered and at about 12.30 at night, they heard shouts and went at the field of the accused and found that the accused was in the well and that on they being there, accused climbed out from the well and ran away from the spot. She was also cross-examined for the probability that there was mud all around the well, but she denied. 15. P.W. 5 - Somabhai Bhurabhai examined at Ex. 15, neighbour of the deceased, stated that at about 12 at night, he heard shouts from the accused that somebody had fallen in the well and, therefore, he also rushed towards the scene of offence and at that time, the accused was in the well and when they reached near the well, accused climbed up from the well and had run away. Thereafter, next day in the morning when the water was taken out from the well, the deadbody of the deceased was recovered. In the examination-in-cross by the defence, he stated that in the morning the deadbody was taken out from the well and police had drawn a panchnama. There was no injury mark on the deadbody and he in cross-examination stated that the deceased was his nephew. He denied the suggestion that the deceased was in habit of taking liquor and on account of that he had fallen in the well by accident. 16. P.W. 6 - Narvatsinh Bavajibhai, at Ex. 16 is P.S.O who recorded the accidental death declaration as declared by P.W. 1. P.W. 7 - Lalabhai Hirabhai Parghi at Ex. 17 was the Head Constable, as we referred hereinabove, that he inquired into accidental death and, thereafter, filed the complaint. In his examination-in-cross by the defence, he stated that he recorded the statement of witness Kamleshkumar Prabhatsinh on 1st June, 1996. He could not say at what time, but in later part of the day. He denied the suggestion that the statement of Kamleshkumar Prabhatsinh was written by him on his own volition. P.W. 8 - Adesinh Bhimsinh Dodia, at Ex. He could not say at what time, but in later part of the day. He denied the suggestion that the statement of Kamleshkumar Prabhatsinh was written by him on his own volition. P.W. 8 - Adesinh Bhimsinh Dodia, at Ex. 19 is Investigating Officer, in his examination-in-cross by the defence, he stated that he knew that the deceased was taking liquor sometime. He denied the fact that in his investigation, it was revealed that the deceased had committed suicide. P.W. 9 - Dr. Subodhkumar examined at Ex. 22 is a Doctor who opined that the cause of death was throttling. 17. Now from the above evidence, it becomes very clear that the prosecution is able to prove the fact beyond reasonable doubt that the death was caused due to throttling and that the deceased was last seen in the company of the accused to the greatest proximity that when witnesses reached at the scene of offence, accused was found in the well and seeing the witnesses, the accused climbed out of the well and ran away from the spot. At least from the evidence of P.W. 1 - Mangalsinh, P.W. 4 - Savitaben and P.W. 5 - Somabhai, it is established that on earlier night i.e. on 31st May, 1996, while the deceased was taking his meal, the accused came to their house and took the deceased with him on the pretext that the crop was required to be watered. It was also stated by all these witnesses that when they heard shouts from the field of the accused, they went there and noticed that the accused was in the well and seeing the witnesses, the accused climbed out from the well and ran away from the scene of offence. Thereafter, in the morning, deadbody was taken out from the well and was sent for postmortem and it was found that the death was caused due to throttling. It must be noted these facts that the death was caused on account of throttling and that accused had come to the house of the deceased to call him for agriculture work and that he was found in the well when witnesses reached at the scene of offence are not in challenge. It must be noted these facts that the death was caused on account of throttling and that accused had come to the house of the deceased to call him for agriculture work and that he was found in the well when witnesses reached at the scene of offence are not in challenge. In cross-examination of none of these witnesses none of this fact has been challenged even by the prosecution and, therefore, the following facts which are important circumstances inculpating the accused are proved and these circumstances are as under: [1] The death of the deceased is proved to be homicidal and on account of asphyxia due to throttling. [2] The deceased was last seen in the company of the accused till he was found dead. [3] It was proved and it is unchallenged that earlier night while deceased was taking meal the accused came to the house of the deceased and in the presence of witnesses on the pretext that crops were requiring water, deceased was taken away by the accused at the field. [4] There is no explanation from the accused that the deceased at the field till the witnesses are reached at the scene of offence. [5] When the witnesses reached at the scene of offence, the accused was in the well and in the presence of the witnesses, he climbed out of the well and ran away from the spot. [6] In the morning when the dead body was taken out and postmortem was conducted, it was found that the death was due to throttling. [7] In the statement of the accused under Section 313 of the Criminal Procedure Code, the accused indirectly admitted his presence at the scene of offence to the extent that he admitted that he had got down in the well, but he had found nothing. 18. In our view when veracity of the witnesses on those facts are not shaken to the extent that the depositions and the statements of the above witnesses to the above facts have not even been challenged by the defence, these are the circumstances pointing to the involvement of the accused in crime beyond reasonable doubt. These are the circumstances from which only inference which could be drawn of the guilt of the accused and nothing else. These are the circumstances from which only inference which could be drawn of the guilt of the accused and nothing else. Those circumstances are cogent in nature that the deceased was called by the accused to his field and the deceased accompanying the accused and, thereafter, all the time, he was in the company of the accused till witnesses noticed him climbing out of the well and, therefore, these circumstances are firmly established. These circumstances, therefore, are of definite tendency unerringly pointing towards guilt of the accused only. Cumulative effect of these circumstances is that the deceased was working as an agricultural labour at the field of the accused and then he was called earlier night by the accused and was found dead in the well in the presence of the accused and the accused was found in the said well to the extent that on seeing the witnesses, he ran away from the spot. These circumstances are the links forming a chain which is so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and accused only. Above all, there are no other circumstances, even brought to the notice of the trial Court as well as this Court that such circumstances were incapable of explanation of any other hypothesis than that of the guilt nor any circumstance was brought to the notice of the trial Court or this Court that any circumstances were consistent with innocence of the accused. There are no circumstances or probability indicating hypothesis of innocence of the accused. The accused was arrested on 6th June, 1996 and has failed to explain any of the circumstances appearing against him. 19. Learned Advocate for the appellant has relied upon the decisions (i) in the matter of The State of Gujarat vs. Dindol (Adivasi) Ratna Surpal, reported in 1994 Cr.L.R. (Gujarat) 148 a decision of the Division Bench; (ii) a decision of Apex Court in the matter of Gamparai Hrudayaraju Vs. State of A.P., reported in 2009 AIR SCW 3184 and (iii) a decision of the Apex Court in the matter of State of Goa vs. Sanjay Thakran and Another, reported in (2007) 3 SCC 755 . 20. State of A.P., reported in 2009 AIR SCW 3184 and (iii) a decision of the Apex Court in the matter of State of Goa vs. Sanjay Thakran and Another, reported in (2007) 3 SCC 755 . 20. Learned Advocate for the appellant has vehemently argued that the prosecution has failed to prove the motive behind the crime and, therefore, in the cases rests upon the circumstantial evidence in the absence of motive, accused be acquitted. 21. All the three decisions cited by learned advocate for the appellant are the decisions on the facts of those cases and on the facts of this case as discussed and appreciated in detailed above are different and, therefore, these decisions are not helpful to the appellant. 22. We are unable to accept the arguments advanced on behalf of the appellant that in absence of motive the accused can not be convicted when case rests on circumstantial evidence. We are of the view that it is true that originally motive is not relevant to decide the guilt of the accused but motive is important and does assume greater importance upon the cases rests upon the circumstantial evidence. But according to us, when the case is established by the prosecution by clinching evidence of circumstances and chain is so complete that circumstances unerringly pointing towards the guilt of the accused, motive is not important to be established by the prosecution. In the matter of Ujjagar Singh vs. State of Punjab, reported in (2007) 13 SCC 90 , in para-17, the Hon’ble Supreme Court has observed as under: “17. It has also been submitted by Mr Goburdhun that there appeared to be no motive for the incident as the story about Mukhtiar Kaur’s unhappiness about the transfer of land to the sons of Ujjagar Singh sought to be proved by P.W. 9 Balwinder Singh and P.W. 10 Karam Singh had been disbelieved by the High Court with the observation that the statements of these two witnesses could not be relied upon. It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliche) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. There is however a hint in the testimony of P.W. 14 Inspector Harjinder Pal Singh that his enquiries had revealed that the accused was having illicit relations with Mukhtiar Kaur and we can assume that something untoward had happened which could have triggered the volatile and hostile incident. There could perhaps be some truth in this suggestion, as it is significant that though the appellant had an extended family living with him i.e. mother, wife, son living (in the village) and two young daughters who were studying outside and residing in a hostel, but were frequent visitors home, yet none of them has come forth to depose in his favour. To our mind, therefore, this is yet another circumstance inculpating the accused.” 23. It is also to be noted that this is the case wherein accused was required to explain the circumstances. While he admitted that he had climbed down of the well. In the matter of State of Rajasthan vs. Kashi Ram, reported in (2006) 12 SCC 254 in paras-19, 20, 21, and 23, the Hon’ble Supreme Court has observed as under: “19. Before adverting to the decisions relied upon by the counsel for the State, we may observe that whether an inference ought to be drawn under Section 106 Evidence Act is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. 20. In Joseph v. State of Kerala the facts were that the deceased was an employee of a school. The appellant representing himself to be the husband of one of the sisters of Gracy, the deceased, went to 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 permission of the sister in charge of the Convent, P.W. 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. 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 also found as a fact that the deceased was last seen alive only in his company, and that on information furnished by the appellant in the course of investigation, the jewels of the deceased, which were sold to P.W. 11 by the appellant, were seized. There was clear evidence to prove that those jewels were worn by the deceased at the time when she left the Convent with the appellant. When questioned under Section 313, CrPC, the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In the background of such facts, the Court held: (SCC p. 205, Para 14) “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 false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra vs. Suresh). That missing link to connect the accused - appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connected the accused with the death and the cause for the death of Gracy.” 21. In Ram Gulam Chaudhary vs. State of Bihar the facts proved at the trial were that the deceased boy was brutally assaulted by the appellants. When one of them declared that the boy was still alive and he should be killed, a chhura-blow was inflicted on his chest. Thereafter, the appellants carried away the boy who was not seen alive thereafter. The appellants gave no explanation as to what they did after they took away the boy. The question arose whether in such facts Section 106 of the Evidence Act applied. This Court held: (SCC p. 320, Para 24). Thereafter, the appellants carried away the boy who was not seen alive thereafter. The appellants gave no explanation as to what they did after they took away the boy. The question arose whether in such facts Section 106 of the Evidence Act applied. This Court held: (SCC p. 320, Para 24). “In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the Court, there is every justification for drawing the inference that they had murdered the boy. 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, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference.” 22. In Sahadevan vs. State the prosecution established the fact that the deceased was seen in the company of the appellants from the morning of 5-3-1985 till at least 5 p.m. on that day when he was brought to his house, and thereafter his dead body was found in the morning of 6-3-1985. In the background of such facts the Court observed: (SCC p. 543, Para 19). “Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he has last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 CrPC they have not taken any specific stand whatsoever.” 23. It is not necessary to multiply with authorities. The principle is well settled. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 CrPC they have not taken any specific stand whatsoever.” 23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge 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 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused 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 proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon 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 failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd.,” 24. Thus, it would be clearly seen that the prosecution established the case against the accused by clinching evidence that he was in constant company of deceased while he died and proximity that he was seen coming out of the well by the witnesses. The death is proved to be by throttling and, therefore, in this case giving importance to motive only is giving importance to one factor while ignoring other clinching evidence. The death is proved to be by throttling and, therefore, in this case giving importance to motive only is giving importance to one factor while ignoring other clinching evidence. Not only that but accused in this case was required to explain his presence in the well which he failed to explain and according to the decision of the Apex Court in the matter of State of Rajasthan vs. Kashi Ram (Supra), this is an additional link and incriminating circumstances against the accused making him liable for the offence punishable under Section 302 of the Indian Penal Code. 25. In view of the above, the following final order is passed. The appeal stands dismissed.