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2012 DIGILAW 1310 (GAU)

Krishna Hazarika v. State of Assam

2012-12-06

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. This is an appeal against the judgment and order, dated 05.02.2007, passed, in Sessions Case No. 2 of 2006, by the learned Sessions Judge, Golaghat, convicting the accused-appellant under Sections 302 and 201 IPC and sentencing him to suffer, for his conviction under Section 302 IPC, imprisonment for life with fine of Rs. 3,000/- and, in default of payment of fine, undergo simple imprisonment for 3 (three) months, no separate sentence having been passed for conviction of the accused-appellant under Section 201 IPC. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) On 16.08.2005, at about 4:00 PM, accused Krishna Hazarika came to the house of Puna Bora and took Puna Bora along with him to Khukudguri and while accused Krishna Hazarika returned, Puna Bora did not come back. The accused informed Puna Bora's wife (PW 2) that her husband had been kept by bordeowta (i.e., elder brother of the father). As Puna Bora did not come back, his wife (PW 2) lodged a written information (Ext. 4), on 24.08.2005, at Dergaon Police Station, alleging that she had learnt from reliable source that her husband had been killed by Krishna Hazarika. Treating the said written information as First Information Report (in short, 'FIR'), Dergaon Police Station Case No. 204 of 2005, under Section 302 IPC, was registered against the accused. (ii) During the course of investigation, police arrested the accused and brought him to the Police Station, where the accused, in the presence of other witnesses, told the investigating officer (PW 8) that he had kept Puna Bora's dead body in sugarcane plantation. The investigating officer (PW 8), then, went, along with the accused, to the sugarcane plantation and recovered the dead body of Puna Bora from a place shown by the accused. Inquest was held on the said dead body, inquest report (Ext. 2) was prepared, and the said dead body was subjected to post mortem examination. The accused also made a judicial confession, which was recorded by a Judicial Magistrate (PW 10), and, on completion of investigation, charge-sheet was laid, under Sections 302/ 201 IPC, against the accused. 2. At the trial, when charges, under Sections 302 and 201 IPC, were framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 12 (twelve) witnesses. 2. At the trial, when charges, under Sections 302 and 201 IPC, were framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 12 (twelve) witnesses. The accused was, then, examined under Section 313 Cr.P.C. In his examination aforementioned, the accused denied that he had committed the offences, which were alleged to have been committed by him, his case being that of denial inasmuch as according to the accused, he had not made any statement to the police with regard to where Puna Bora's dead body had been kept nor had he shown the said dead body or helped in the recovery thereof and also that the judicial confession was made by him involuntary, because of his having been assaulted by the police. No evidence was adduced by the defence. 4. Having, however, found the accused guilty of the offences, which he stood charged with, the learned trial Court convicted him accordingly and sentenced him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. 5. We have heard Mr. T.J. Mahanta, learned counsel, for the appellant, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. Before we deal with the evidence, adduced by the prosecution, to show that 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 Khukudguri and though the accused came back, Puna Bora never come back home and, eventually, his dead body was found at sugarcane plantation on being shown by the accused-appellant, let us, first, determine as to how far the accused-appellant's judicial confession (Ext. 2), made before the Judicial Magistrate (PW 10), can be relied upon. 7. While dealing with the judicial confession, it needs to be noted that there 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 accused 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 received corroborated from the other evidence on record, which may be direct or circumstantial. 8. However, prudence demands that before conviction of any accused 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 received corroborated from the other evidence on record, which may be direct or circumstantial. 8. 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 involuntary, the confession is to be rejected and the question of determining if the confession is true or not would not arisen at all. However, when the confession is found to be voluntary, the Court still has the duty to determine if the confession is true, for, admission of facts, which constituted offence cannot, if untrue, be treated as confession. 9. 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 Section 313 Cr.P.C., could have been, or can be, relied upon. It is noteworthy, in this regard, that according to the evidence of the Judicial Magistrate (PW 10), the accused was produced before him, on 25.08.2005, for recording of this confessional statement and despite the fact that the accused expressed his willingness to make confession, he (PW 10), having cautioned the accused about the consequences of making of a confessional statement, remanded the accused to judicial custody for reflection. PW 10 has also deposed that on 26.08.2005, when the accused was reproduced before him, at 10.30 a.m., he, again, explained to the accused the consequences of making of confessional statement, but as the accused expressed his willingness to make confession, he kept the accused, in his chamber, for reflection, under the supervision of this 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 (PW 10) found the accused willing to make confession, he recorded the confession, the confessional statement being Ext. 2(7). 10. 2(7). 10. While considering the question as to whether the confessional statement was voluntarily made by the accused-appellant or not, PW 10, we notice, did not ask the accused as to how he had been treated, while he was in the custody of the police, nor did he (PW 10) asked the accused if he had been beaten or tortured by the police to make confession. Thus, the treatment, meted out to the accused-appellant, while he was in the police custody, remained unknown. This apart, PW 10 did not assure the accused-appellant that even if he (accused-appellant) chose not to make confession, he would not be handed over to the police. 11. In the light of what have been pointed out above, we do not consider it safe to hold that confession, made in the present case, was voluntary. 12. The question, now, remains if the confession was true. 13. For the purpose of ascertaining the truthfulness of the confession, we reproduce hereinbelow, the confessional statement of the accused-appellant: 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. Sometimes, 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 beaten black and blue. Around 9 p.m. that day, when Puna Bora was coming from 'sapori' (high land farmed by deposit of river sand and silt). I met him near Balidora; 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. 14. From a careful reading of the confessional statement of the accused-appellant, 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 version be treated as true? 15. 14. From a careful reading of the confessional statement of the accused-appellant, 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 version be treated as true? 15. The question, posed above, brings us to the evidence of the doctor (PW 4), who had, admittedly, conducted, on 24-08-2005, post mortem examination on Puna Bora's dead body and found as follows: A decomposed dead body of an adult male, wearing long pant and shirt, skin, muscles 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" long and depressed into the interior of the cramium. Dislocation - Fractured occipital bone and parietal right bone is depressed into the cramium. 16. 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. 17. In his cross-examination, the doctor (PW 11) has clarified that the injuries were found on the skull. The finding of the doctor, with regard to the injuries found by him, the nature of the injuries, found on the said dead body, and/or the doctor's opinion, with regard to the cause of death remained undisputed at the trial. 18. Thus, the undisputed medical evidence on record shows that Puna Bora died not because he was hacked by means of a dao, but because of the fracture, which he had sustained on his occipital and right parietal bone. In fact, contrary to 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 mortem 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 being so depressed that it hit the cranium of the skull and that is why, it was described as intra-cranial injury. 19. 19. What logically follows from the above discussion is that the judicial confession, 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 judicial confession, could not have been treated, and ought not to have been treated, at all as his confession. This aspect appears to have completely escaped the attention of the learned trial Court. 20. 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 made by the accused to the Investigating Officer and on the basis of what the accused-appellant had allegedly shown to the Investigating Officer, can be safely relied upon? 21. Before, however, we discuss the evidence on record with regard to the recovery 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 the 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 sense that there is no legal impediment in relying upon oral evidence as regards leading to the discovery of a fact contemplated by Section 27 of the Evidence Act. 22. In other words, notwithstanding the fact that a statement, made by an accused, while in the custody of a police officer, leading to the discovery of a fact, 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 statement, 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, which led to the discovery of a fact inasmuch. In short, if a statement, orally made by an accused person, while in the custody of a police officer, leading to the discovery of a fact, is convincingly proved, such a statement can be relied upon on the basis of oral evidence, given in this regard, even if no written record of the statement, leading to the discovery of the facts exists. 23. 23. Bearing in mind the above legal position, governing the provisions of Section 27, we come to the evidence of the Investigating Officer (PW 12). This witness has deposed that on taking the accused into custody, when he interrogated the 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 (PW 12) went to Cheradubi Baliduar village and recovered a dead body from a sugarcane 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. 24. From a minutes scrutiny of what the accused had, allegedly, told PW 12, what 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 saying that he had killed Puna Bora. To put it a little differently, the accused-appellant's alleged statement, made to PW 12, 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 been kept by the learned trial Court wholly excluded from the purview of its consideration. 25. 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, which 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 the 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 said sugarcane plantation. The recovery of the said dead body also confirmed the fact that it was the accused-appellant, who had (as stated by him to PW 12) kept the said dead body hidden in the said sugarcane plantation. 26. The recovery of the said dead body also confirmed the fact that it was the accused-appellant, who had (as stated by him to PW 12) kept the said dead body hidden in the said sugarcane plantation. 26. Thus, the recovery of the dead body, following the statement of the accused-appellant, not only make it clear that the accused-appellant had the knowledge as to where Puna Bora's dead body was lying, but also confirms that he was the one, who had kept the said dead body hidden at the sugarcane plantation inasmuch as Section 27 makes admissible a statement, leading to the discovery of a fact, even if the statement amounts to confession. 27. What surfaces from the above discussion is that Puna Bora's dead body was kept hidden by the accused-appellant at the said sugarcane plantation. 28. We have closely scrutinized the cross-examination of the Investigating Officer (PW 12), but we find that the defence did not succeed in eliciting anything from his cross-examination to show that what he had deposed was untrue or false. In fact, except offering a suggestion to the effect that the accused had not stated before him (PW 12) that he (the accused) had kept the dead body hidden and/or that the dead body had not been recovered on being shown by the accused, nothing, at all, was done by the defence, which could show that the evidence of the 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. 29. In fact, closely corroborating the evidence of the Investigating Officer (PW 12), PW 8, 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 confessed that he had killed Puna Bora and kept him (dead body of Puna Bora) hidden in the sugarcane plantation and, then, the police, taking along the accused, went to the sugarcane plantation and recovered the dead body, in their presence, on being shown by the accused. 30. 30. Here, again, the evidence, given by PW 8 to the effect that the accused had confessed that he had killed Puna Bora, was inadmissible for the reason, which 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 sugarcane plantation and that the police, taking along the accused, went to the said sugarcane plantation and the dead body was recovered, in presence of this witness (PW 8) and others, on being shown by the accused. 31. In tune with the evidence of PW 8 and PW 12, PW 7 has deposed that on coming to learn that the accused had been arrested, they went to police station and saw 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 kept the dead body hidden in sugarcane plantation and, then, the police took the accused 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 PW 7 that the police prepared inquest report, which is Exhibit 1. 32. It is relevant to note that we have already held that the accused-appellant's judicial confession, that he had cut the neck of the said deceased by means of a dao, cannot be safely relied upon and, hence, we do not attribute any importance to the evidence of PW 7 that he had seen the neck of the said deceased cut; more so, when the inquest report does not reflect, even remotely, that the neck of the deceased was found cut. 33. Therefore, even while considering the evidence of PW 7, one has to keep his 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. 33. Therefore, even while considering the evidence of PW 7, one has to keep his 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 evidence of PW 7, is that the accused-appellant had confessed before the Officer-in-Charge (PW 8) that he (accused) had kept the body of Puna Bora hidden in the sugarcane plantation and that, on being shown by the accused, the dead body of Puna Bora was recovered from the sugarcane plantation. 34. What crystallizes from the above discussion is that the evidence on record proved clearly it was the accused-appellant, who had kept Puna Bora's dead body hidden at the sugarcane plantation and that the said dead body was recovered from the said place on being shown by the accused-appellant. 35. In the backdrop of the above evidence on record, when we turn to the evidence of PW 2, widow of deceased Puna Bora, we notice that, according to her evidence, 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 generally, by the side of river), to inform Cheni that they could not pay the price of the cow, which they had purchased, and, after a while, the accused returned and informed her (PW 2) that Puna Bora would stay for that night with Cheni and that 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 about 9 (nine) days, her husband's dead body was found at the sapori and, then, she lodged the FIR. 36. Except suggesting to the witness (PW 2) that her statements to the effect, that the accused could not give her any satisfactory reply about the non-arrival 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 PW 2 to show that her evidence was not believable. The suggestion, so offered, having been denied by PW 2, could not have been of any help to the defence. 37. In fact, the defence did not even dispute the evidence of PW 2 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 came back alone and informed PW 2 that her husband had been kept by Cheni and that her husband would come back on the following day. Far from this, the defence asserted, while cross-examining PW 2, that the accused had repeatedly told PW 2 that her husband was at the house of Cheni at sapori. 38. As far as PW 1 (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 that Puna Bora would come back on the following day as he (Puna Bora) had been kept 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 PW 1 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 give credence to her evidence, which her evidence, otherwise, deserves. 39. As far as PW3, PW4, PW5 and PW6 are concerned, their evidence are relevant only to the extent that all of them deposed to the effect that Puna Bora remained untraced for about 7/8 days until the time his dead body was recovered by the police. 40. What emerges from the above discussion is that the accused-appellant took 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 (PW 2) 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, however, come back and, eventually, on being interrogated, the accused made a statement to the Investigating Officer (PW 12) that he had kept hidden Puna Bora's dead body in a sugarcane plantation. The investigating officer (PW 12), then, went to the Sapori (high land, located generally, by the side of river), along with the accused-appellant and, on arriving there, the accused-appellant showed a place and 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. 41. Thus, Puna Bora was last seen in the company of the accused and he was never found alive thereafter. Coupled with this, the statement, which the accused-appellant had made while in the custody of the Investigating Officer (PW 12), showed that it was the accused-appellant, who had kept hidden Puna Bora's dead body 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. 42. While considering the present appeal, it needs to be noted that no witness has been examined by the prosecution, who claims to have witnessed the accused-appellant assaulting and/or killing Puna Bora. The case of the prosecution, therefore, rests on circumstantial evidence. 43. 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 Vs. State of M.P., reported in 1952 SCR 1091 , wherein the Court has pointed out that the circumstances, which are relied upon, must be fully established and the chain of evidence, furnished by the circumstances so established, should make a complete case against the accused and shall not leave any reasonable ground for a conclusion consistent with the innocence of the accused. The relevant observations, appearing in Hanumant Govind Nargundkar (supra), read as under: 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 should 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 should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 44. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda Vs. 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 any hypothesis of innocence of the accused. 45. Elaborately dealing with the principles, laid down in Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda (supra), pointed out, at para 152, thus: 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 established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may 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. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other 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, and (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. 46. 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 various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. Referring to the facts of Deonandan Mishra (supra), the Supreme Court pointed 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 and situation, and when he (accused) offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link, which completes the chain. 47. 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 subsequent decision, in State of Rajasthan Vs. Kashi Ram, reported in (2006) 12 SCC 254 , as under: 20. In Joseph s/o Kooveli Poulo Vs. State of Kerala (2000) 5 SCC 197 ; 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 the St. Kashi Ram, reported in (2006) 12 SCC 254 , as under: 20. In Joseph s/o Kooveli Poulo Vs. State of Kerala (2000) 5 SCC 197 ; 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 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 permission 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 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 PW-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 Cr.P.C., 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 this backdrop, the Court 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 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, (2000) 1 SCC 471 ). 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, connect the accused with the death and the cause for the death of Gracy. 48. 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, connect the accused with the death and the cause for the death of Gracy. 48. From the observations, made above, it becomes clear that when a fact is explainable and within the special knowledge of the accused, facing trial, and the accused chooses not to offer explanation, it becomes an additional link in the circumstances in the sense that the omission to explain is a missing link, which may be treated to have been supplied for arriving at the answer, which the circumstantial evidence makes one reach. 49. In Ram Gulam Choudhary & Ors. 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 be 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, where prosecution successfully proves the facts from which a reasonable inference can be drawn. 50. In fact, the case of Sahadevan @ 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 observed: 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 was last found has to explain the circumstances in which they parted company. 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 was 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. 51. Having taken into consideration the cases of Joseph (supra), Ram Gulam (supra) and Sahadevan (supra), the Supreme Court has pointed out, in Kashi Ram (supra), 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. 52. Hence, observes the Supreme Court, in Kashi Ram (supra), that if a person is last seen with the deceased, he must offer an explanation as to how and when he parted with the company of the deceased. The Supreme Court has, in fact, gone to the extent of observing that in such a case, the accused must furnish an explanation, which appears to the Court to be probable and satisfactory and if the accused does so, he must be held to have discharged his burden; but if the accused 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 Supreme Court has further pointed out, in Kashi Ram (supra), that if, in a case, resting on circumstantial evidence, the accused fails to offer reasonable explanation in discharging the burden placed on him by virtue of Section 106, his silence is an additional link in the chain of circumstances proved against him. 53. Clarifying the object of Section 106, the Supreme Court has laid down, in Kashi Ram (supra), that Section 106 does not shift the burden of proof in a criminal trial inasmuch as the burden of proof always rests on the prosecution, but 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 failure to adduce any explanation as an additional link, which completes the chain. In coming to this conclusion, the Court has referred to Naina Mohamed (AIR 1960 SC 218). The relevant observations, appearing in Kashi Ram (supra), read as under: 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 Re. Naina Mohd. AIR 1960 Mad 218 . 54. Ordinarily, the circumstance of last seen together would be relevant, when it is established by the evidence on record that the time gap between the point 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 being with the deceased can be completely ruled out. Thus, the time gap between the 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 in such matters. Thus, the time gap between the 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 in such matters. What is, however, of paramount importance to note is that it cannot be always stated that the evidence of last seen together must be rejected merely because the time gap between the point of time, when the accused persons were 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-jacket formula in respect of duration of time gap. Obviously, it would depend on the facts of a given case if the circumstance of the last seen together is so material 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 Bodhraj Vs. State of J & K, reported in (2002) 8 SCC 45 , State of U.P. v. Satish, reported in (2005) 3 SCC 114 , Ramreddy Rajesh Khanna Reddy v. State of A.P., reported 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 & Anr., reported in (2007) 3 SCC 755 , at Para 34, as follows: From the principle laid down by this Court, the circumstance of last-seen together 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 time gap between the point of time when the accused and the deceased were found together 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 time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in 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 deceased 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 time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or 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 relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. 55. In the backdrop of the law, as discussed above, when the facts of 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 Hazarika. 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, offer any convincing or truthful explanation. 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, offer any convincing or truthful explanation. This apart, his statement, made to the Investigating Officer, clearly reveals that it was the accused-appellant, who had 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. In a situation, such as the present one, the evidence on record must be treated to be unerringly pointing to the accused-appellant as Puna Borah's assailant. 56. 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 accused-appellant and none else, who had killed Puna Bora and kept his dead body hidden 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. 57. Situated thus, we have no hesitation in holding that the accused-appellant was proved beyond reasonable doubt to have committed the offence of murder punishable under Section 302 IPC and he also proved to have disposed of the said dead body in order to screen himself from being caught and his act was, therefore, punishable under Section 201 IPC too. 58. 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. 59. Though the accused-appellant has been, as already pointed out above, sentenced, 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. 60. Because of what have been discussed and pointed out above, this appeal fails and the same shall accordingly stand dismissed. 61. With the above observations and directions, this appeal stands disposed of. Send back the LCR.