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2013 DIGILAW 1711 (RAJ)

Devendra Kumar Sen v. State

2013-09-24

MOHAMMAD RAFIQ, NISHA GUPTA

body2013
Hon'ble RAFIQ, J.—This appeal has been preferred by accused-appellant Devendra Kumar assailing the judgment dated 10.10.2008 passed by learned Additional Sessions Judge No.2 (Fast Track), Kota whereby he has been convicted for offence u/Sec. 302 IPC and sentenced to life imprisonment with fine of Rs.2000/-, in default whereof, he was to further undergo rigorous imprisonment of two months. He was also convicted for offence u/Sec. 364 IPC and was sentenced to undergo rigorous imprisonment of two months. He was also convicted for offence u/Sec. 364 IPC and was sentenced to undergo rigorous imprisonment of seven years with fine of Rs.1,000/- and in default, he was to further undergo one month rigorous imprisonment. 2. Facts of the case are that Sabu Lal (PW-4) lodged the report at P.S. Mahaveer Nagar, Kota on 12.2.2004 at 7.45 a.m. in connection with the occurrence alleged to have taken place on 11.2.2002 at 4.00 p.m. As per the FIR, Sabu Lal (PW-4) submitted the written report Ex.P/1 to the SHO P.S. Mahaveer, Kota to this effect that he is residing in house No.0604 in Sector 4, Keshavpura. Yesterday i.e. on 11.2.2002 at about 3-4 p.m. Devendra, son of his maternal uncle, who is residing at house No.7-C-10, Mahaveer Nagar-III, Kota came on scooter No.RJ-20-7M-5357 and told to his wife Santosh Bai @ Santa Bai (PW-3) that he is taking her daughters namely; Deepa and Jyoti on scooter for ride. After saying so, Devendra took both the girls on scooter. Informant then mentioned that he was working at the shop of "Nai" at Gumanpura, when he came to his house at about 7.00 p.m., his wife told that Devendra has taken both the children for ride, but he has not come as yet. On this information, he went to the house of Devendra and searched him. It was mentioned that on 12.2.2002 in the morning Devendra met him at the house. His brother and father asked for the girls and he told that he has murdered both the girls and threw their dead body in a pit (Khadda) near Subhash Nagar. They went on the spot with him and found dead bodies of both the girls lying in the pit and one blade was also lying there. Both the girls were taken by Devendra and he has committed their murder. It was also mentioned that they have caught Devendra and brought him there. 3. They went on the spot with him and found dead bodies of both the girls lying in the pit and one blade was also lying there. Both the girls were taken by Devendra and he has committed their murder. It was also mentioned that they have caught Devendra and brought him there. 3. The police on the basis of the aforesaid written report chalked out a regular first information report for offence against the appellant for offence u/Sec. 302 and 364 IPC. The accused was arrested. On completion of the investigation. Police filed challan against him for the aforesaid offences in the Court of Magistrate. After committal, the trial of the case was made over to the Court of Additional Sessions Judge No.2 (Fast Track), Kota. Charges for offences under Sections 364 and 302 IPC, which the accused-appellant denied and claimed to be tried. The prosecution produced as many as 12 witnesses and exhibited 26 documents. The defence however neither produced any witness, nor exhibited any document. 4. It may be significant to note that the appellant was earlier convicted by judgment of the learned trial Court dated 30.11.2002 for the aforesaid offences. Aggrieved thereby, he preferred an appeal bearing D.B. Criminal Appeal No.1661/2002. An argument was advanced before this Court that since appellant was suffering from some mental ailment, therefore, he was unable to defend his case. The learned trial Court has mechanically rejected his application filed u/S. 329 of the Code of Criminal Procedure, 1973 in that behalf, taking influence of the merits of the case. This Court vide judgment dated 5.9.2007 set aside the conviction and sentence awarded to the appellant and remanded the matter back to the trial Court with the direction to hold de novo trial in accordance with provisions of Chapter XXV of the Code of Criminal Procedure and further directing that the appellant shall be medically examined by the experts in Jaipur and unless he is completely cured, his trial shall not proceed. 5. Learned counsel argued that a Medical Board of Medical Hospital attached to MS Medical College, Jaipur, consisting of three senior Doctors was constituted to examine his mental status. Appellant was admitted in hospital for 10 days. The Medical Board examined the accused. 5. Learned counsel argued that a Medical Board of Medical Hospital attached to MS Medical College, Jaipur, consisting of three senior Doctors was constituted to examine his mental status. Appellant was admitted in hospital for 10 days. The Medical Board examined the accused. The Medical Board in its reports dated 1.7.2002 and 3.7.2002 (Ex.C1 & C2) unanimously opined that he was a patient of reactive depression, but he is physically fit and is capable of understanding his well being. The trial Court then examined Dr. Daya Ram Swami, the expert in the subject as a Court witness being CW-1. On the examination of the entire evidence, the trial Court ultimately held that appellant was capable of understanding where his interest lies and that he is fit to face the trial. The trial court thus proceeded with the trial of the case de novo. On conclusion of the trial, the trial court convicted and sentenced the appellant in the manner indicated above. Hence this appeal. 6. Shri Surendra Kumar Sharma, learned counsel for the appellant has argued that there is interpolation in the written report (Ex.P/1). The allegation was that accused-appellant took two daughters of the informant Sabu Lal namely; Deepa and Jyoti with him on 10.2.2002, but by overwriting, the date 10' was made 11'. Same interpolation was made at the bottom of the written report where also the record indicates that 11' was by overwriting made as 12' in the date 12.2.2002'. In the proceedings drawn by the police on the written report also initially 11.2.2002' was written as the date of submission thereof, but then 11' was also by overwriting made as 12' in the date 12.2.2002'. Learned counsel argued that if actually the appellant was last seen with the deceased Jyoti aged about 15 months and Deepa aged about 4 years on 10.2.2002 or that he had taken them with him on 10.2.2002, there was every possibility of accused having dropped them back at their residence on that evening or the following day and that they could have been abducted by somebody else and eventually murdered. Smt. Santosh (PW-3), the mother of the aforesaid two girls and the wife of the informant Sabu Lal (PW-4) was, in fact, the witness of last seen. This is corroborated from the fact that Dr. Smt. Santosh (PW-3), the mother of the aforesaid two girls and the wife of the informant Sabu Lal (PW-4) was, in fact, the witness of last seen. This is corroborated from the fact that Dr. Rakesh Sharma (PW-12) has proved the postmortem report of Jyoti (Ex.P/23) and postmortem report of Deepa (Ex.P/24) wherein the duration of their death has been indicated to be within 24 hours. Since the case against the accused-appellant hinges on the circumstantial evidence, this is a very significant missing link in the chain of circumstances because the Dr. Rakesh Sharma (PW-12) in his cross-examination stated that the duration of death would vary from 24 to 30 hours. In any case, therefore, the death could not have taken place on 10.2.2002. Learned counsel argued that the date was changed by overwriting so as to bring the FIR in tune with the postmortem report after the autopsy was conducted by the aforesaid Doctor. 7. Shri Surendra Kumar Sharma, learned counsel for the appellant has argued that in a case of circumstantial evidence, motive assumes significance. No evidence whatsoever has been produced to show as to what was the motive of the appellant to murder two young daughters of his cousin. Learned counsel argued that another significant circumstance relied on by learned trial Court for convicting the appellant is to called extra judicial confession, whereas there was none. There was no evidence whatsoever in whose presence the appellant confessed to killing the aforesaid two girls. Learned counsel in this connection referred to the statement of Santosh (PW-3), who stated that the appellant was found in Sultanpur and from there he was brought back to Kota. He was beaten and thereafter when he was taken to the police, he admitted to his guilt and told that he had murdered those girls in Kota. Sabu Lal (PW-4) has narrated a different story. He has stated that when report was received that appellant was presently in Sultanpur, his maternal uncle and two three others brought him at 11.00-12.00 p.m. He gave different excuses, but on the following morning at 7.00-8.00 a.m., he took them to the place where he murdered the girls by cutting their throat with the blade. The blade was also lying there. Thereafter, the report was lodged. The blade was also lying there. Thereafter, the report was lodged. In cross-examination, he has disclosed name of the maternal uncle who brought the accused to Sultanpur to be Murari Lal, in whose presence, he accused-appellant is alleged to have confessed, but Murari Lal has not been produced in evidence. Another maternal uncle Babu Lal was also stated to be present when the accused took them to the place of incident. But Babu Lal has also not been produced by the prosecution. When the important witnesses have been withheld, the evidence of alleged extra judicial confession just because Sabu Lal (PW4) and Smt. Santosh (PW3) are so alleging, cannot be relied to convict the accused-appellant. 8. Shri Surendra Kumar, learned counsel argued that the blood stains found on the shirt of the accused-appellant could have been possible because he was subjected to severe beating as was admitted by Smt. Santosh (PW-3), mother of the deceased girls. The report of the Forensic Science Laboratory (Ex.P/26), therefore, does not conclusively prove the guilt of the appellant even if the blood group found on the clothes of the deceased children and the one found on his shirt, is matched both being of Group-A. If the appellant was beaten, there was every possibility that the blood stains on the shirt, which he was shown wearing at the time of his arrest, could be of his own. It is also contended that appellant was allegedly wearing the jacket at the time of arrest and even at the time when he has committed murder. If accused-appellant was wearing jacket at the time of arrest and therefore it would not possible that blood marks would be seen on the shoulders of the shirt. The fourth circumstance that has been relied on by learned trial Court in convicting the accused-appellant was about the disclosure of place of incident and recovery of dead bodies at the instance of appellant. Learned counsel in his connection referred to the statement of the informant Sabu Lal (PW 4), who has stated that when accused-appellant admitted to his guilt on the following morning at 7/8.00 a.m., he took them to the place of incident where they found both the girls lying dead with slited throat and close thereby lay a blade used for murdering them. This shows that the blood stained dead body was discovered by the complainant party even before the lodgment of FIR. Ram Narain (PW-1), the witness of recovery of shirt vide Ex.P/11 when asked to explain that whether he noticed the blood stains on the shirt, stated that he does not know what was there on the shirt, which implies that he was unaware of the blood stains on the shirt. 9. Shri Surendra Kumar Sharma, learned counsel for the appellant has argued that with regard to the seizure memo Ex.P/6 to P/8, Ram Narain (PW1) has stated that it was signed by him at Police Station Kota. This shows that the seizure of different articles shown by the appellant from the place of incident was not a fact. Learned counsel submitted that Sabu Lal (PW 4) has stated that he had lodged the missing person report on the same day but that missing person report has not been produced in evidence. Sabu Lal (PW4) has stated that his signatures on Ex.P/2 to P/10 were obtained in the Police Station. Govind Singh (PW9) was produced, who accepted the written report and proved the police proceedings thereon. He was produced to explain the overwriting, but he has failed to give any convincing explanation. Ramesh Chand (PW-11), the Investigating Officer has also not given any convincing evidence with regard to various steps taken in investigation especially with regard to preparation of Ex.P/1 to Ex.P/11 for which Ram Narain (PW1) and Sabu Lal (PW4) have stated that their signatures were obtained in Police Station, whereas this circumstance has not been explained by him as to how the documents were shown to have been prepared at the place of incident. Learned counsel submits that the blade was recovered from the place of incidence vide recovery memo Ex.P/8. The Investigating Officer has not given any explanation why the finger prints on the blade were not matched with those of the accused-appellant, which could be best scientific evidence. 10. Learned counsel argued that even if in the medical examination by the Medical Board, appellant has been held to be a patient of reactive depression, but the prosecution witnesses in their statements have admitted to the fact that he was a psychiatric patient. 10. Learned counsel argued that even if in the medical examination by the Medical Board, appellant has been held to be a patient of reactive depression, but the prosecution witnesses in their statements have admitted to the fact that he was a psychiatric patient. Learned counsel in this connection referred to the statement of Ram Narain (PW-1), who in cross examination stated that at times, the appellant would talk non-sense and became very infurious and that he was being treated by the psychiatric Dr. Chandra Shekhar. Smt. Santosh (PW-3) has stated that when the accused-appellant was brought from Sultanpur in the night of the day of incident, he was given sleeping pills so that his mind settles down and next morning when he confessed, he was taken to the Police Station. Learned counsel therefore argued that in this case which is entirely based on circumstantial evidence, each of the circumstances forming chain of circumstances has to be individually proved and the chain of circumstances formed should be so complete so as to be consistent that guilt of the accused and rule out every reasonable hypothesis that may be compitable with his innocence. Since in the present case there are several missing links, the conviction of the accused-appellant on the basis of such shaky evidence would be highly unsafe. It is therefore, prayed that the appeal be allowed and the conviction of the accused-appellant be set aside. 11. Shri Javed Choudhary, learned Public Prosecutor for the State has submitted hat none of the arguments, which have been put forth on behalf of appellant were taken as defence in the trial. It was never the defence of the appellant, nor did he offered any explanation in his statement under Section 313 Cr.P.C. or otherwise adduced any evidence in defence that he had actually taken the deceased Jyoti and Deepa on his scooter on 10th and not on 11th. This was a simple human error. The complainant was a barber and was an illiterate person, which is evident from the fact that he had put his thumb impression on the written report and got the first information report written by someone else. The date of incident was inadvertently mentioned as 10.2.2002, whereas the accused had taken the girls with him on 11.2.2002 and it was in the night of that day that he was brought to Sultanpur by the maternal uncle of informant. The date of incident was inadvertently mentioned as 10.2.2002, whereas the accused had taken the girls with him on 11.2.2002 and it was in the night of that day that he was brought to Sultanpur by the maternal uncle of informant. Therefore, if the written report was submitted on 12.2.2002, the date of incident should be indicated to be 11.2.2002. When this mistake was noticed, it was eventually corrected at the time of lodging of the written report itself. It is with this date that it has been entered in the police record at all places and in all the corresponding documents, reference has been made to the number of FIR with the date. If there would be any such discrepancy, defence would have definitely raised this argument before the learned trial Court. This argument without the factual verification with reference to the record of the Police Station, cannot be permitted to be raised for the first time before this Court. 12. Learned Public Prosecutor argued that there was no beating given to the accused-appellant. The informant and the accused are first cousins and therefore Ram Narain (PW-1) happens to be his real maternal uncle. There was no question of giving severe beating to the accused. Smt. Sanju Bai (PW3) herself was not a witness to any such beating which has been clarified by her in cross-examination that no such beating is given in her presence. If there was any, the beating must have been given in the house of the appellant himself. When the appellant was arrested, there were no injuries on his body, which has been specifically mentioned in his arrest memo. Therefore, there is no question of any injury report being prepared. Learned counsel argued that accused-appellant was wearing shirt at the time of arrest. The blood stains were found on both the shoulders of the shirt and also on the chest, which is possible only when both the children were killed by the appellant with the help of blade and the blood oozed out therefrom. The blood group marks on the shirt and also on the clothes of children matched and it came of 'A' group, which is evident from the FSL report Ex.P/26. The blood group marks on the shirt and also on the clothes of children matched and it came of 'A' group, which is evident from the FSL report Ex.P/26. It is denied that there are any contradictions in the statement of the prosecution witnesses specially Smt. Santosh (PW-3) and Sabu Lal (PW 4) as to when the dead body was recovered or whether the dead body was recovered prior to filing of the FIR. 13. Learned Public Prosecutor submits that the circumstances against the accused-appellant conclusively point to the guilt of the accused-appellant and none else that it was appellant, who alone was seen with the two children, having taken them with him on a scooter for a ride and then he did not return back. He therefore had the exclusive knowledge as to what has happened to those children after they were last seen with him. The appellant has not given any explanation thereabout in his examination under Sec. 313 Cr.P.C. Adverse inference should therefore be drawn against him with reference to provisions of Sec. 106 of the Evidence Act. Burden of proving the fact that was specifically within his knowledge lies on the appellant himself. 14. Learned Public Prosecutor submits that minor lapses or lacunae in the investigation would not have any adverse effect on the fate of prosecution as the chain of circumstances against the appellant completely proves and points to the guilt of the appellant and none else. 15. We have given our anxious consideration to the rival submissions and perused the material on record. 16. The testimony of Santosh (PW-3), mother of the children Jyoti aged 15 months and Deepa aged about 4 years is significant piece of evidence in this matter. She has stated that on that day accused came to her house on scooter and parked the scooter outside. He took her younger daughter Jyoti, who was playing outside for a ride and then brought her back. When she again insisted for a ride, the accused again took her on the scooter. The elder one Deepa also insisted for a ride. The accused then took both on the scooter. Since the accused was closely related to them, she (this witness) did not object to his taking children with him on scooter. When accused did not return till evening, she called her husband Sabu Lal on phone. The elder one Deepa also insisted for a ride. The accused then took both on the scooter. Since the accused was closely related to them, she (this witness) did not object to his taking children with him on scooter. When accused did not return till evening, she called her husband Sabu Lal on phone. When he came there, he went to the Police Station for informing the police. He also started searching accused-appellant, who was ultimately discovered in Sultanpur. He was brought in the night. This witness stated that accused did not divulge any information, even when he was given some beatings. He was given some sleeping pills, but ultimately he was taken to the Police Station the following morning. There he disclosed that he had murdered both the girls. Her husband brought their dead bodies from the hospital. In cross-examination, this witness has denied the suggestion that the accused was mentally sick or mentally imbalanced. She has in cross-examination stated that her husband told her that the family of the accused give him beating in their house and not in her house. She was not present there. Sabu Lal (PW-4) has also corroborated the statement of Smt. Sanju Bai (PW-3) that a phone call was made by her wife to him around 7.00 p.m. informing that accused-appellant Devendra has taken their daughters Deepa and Jyoti and has not come back. Devendra was ultimately found in Sultanpur. His maternal uncle and two three persons brought him to Kota at 11-12.00 clock in the night. He gave all kinds of false explanations. Following morning, the took them to the place where the girls were murdered by blade. The dead bodies and blade were lying there, but this statement does not mean that the dead bodies and the blade were discovered even before the lodgment of the FIR because in the very next line, this witness has stated that he had already lodged report with the police. The police had taken photographs. The site plan Ex.P/2 was prepared in his presence, which contains his thumb impression. He has not denied putting thumb impression on Ex.P/2. The inquest of the dead body of Jyoti (Ex.P/4) and Deepa (Ex.P/5) and seizure memo of the blade was prepared as Ex.P/8. The blood stained clothes of Deepa were seized vide Ex.P/16 and Jyoti vide Ex.P/17 by the police. He has not denied putting thumb impression on Ex.P/2. The inquest of the dead body of Jyoti (Ex.P/4) and Deepa (Ex.P/5) and seizure memo of the blade was prepared as Ex.P/8. The blood stained clothes of Deepa were seized vide Ex.P/16 and Jyoti vide Ex.P/17 by the police. He has stated that the maternal uncle Murari Lal and some other persons had brought the accused from Sultanpur to Kota, but he did not meet Devendra in the night. He lodged a missing person report in the Police Station that evening and when he went to Police Station for submitting the report, his thumb impression was obtained at two places. 17. Ram Narain (PW-1), the uncle of the appellant was witness to various exhibits. He has stated that Sabu Lal was working in his hair cutting Saloon. In the evening on the date of incident when a telephonic call was received from his house informing that accused Devendra had taken his daughters, he sent Sabu Lal to his house. This witness has proved seizure memos and also the arrest memo of the accused-appellant (Ex.P/19). In the document Ex.P/19, it has been specifically mentioned that at the time of arrest, the shirt which the accused was wearing had blood stains and the same was separately seized vide Ex./11. On the information of the accused-appellant, the scooter was recovered at the instance of accused-appellant vide recovery memo is Ex.P/21. M.L. Gorama (PW-7), the Constable has proved that he obtained 6 packets in sealed cover from Kamal Kishore, the Head Constable, Malkhana Incharge with a forwarding letter for deposit with FSL, Jaipur entry whereof was made in Ex.18A in the malkhana register at C to D. Kamal Kishore, ASI (PW-8) the malkhana incharge proved the malkhana register Ex.18A and the entries made in it. He has also proved that he has handed over six packets in five sealed cover to Constable Laddu Lal in sealed cover condition on 15.2.2002. Laddu Lal deposited them with the FSL against a receipt on 16.2.2002, which receipt he handed over to Malkhana incharge on 17.2.2002. Kamal Kishore (PW-8) handed over the receipt of deposit of those articles with FLS on 16.2.2002 to the Investigating Officer on 17.2.2002 against the receipt Ex.P/22. 18. Laddu Lal deposited them with the FSL against a receipt on 16.2.2002, which receipt he handed over to Malkhana incharge on 17.2.2002. Kamal Kishore (PW-8) handed over the receipt of deposit of those articles with FLS on 16.2.2002 to the Investigating Officer on 17.2.2002 against the receipt Ex.P/22. 18. Govind Singh (PW-9) has stated that overwriting was made in the date and actually the written report was submitted on 11.2.2002 which was made as 12.2.2002 in the Police Station with the thumb impression of the informant Sabu Lal (PW-4). The chalked FIR is Ex.P/25. His signatures on such FIR is at 'A' and 'B'. He stated that informant was not literate and used to make thumb impression. Though this witness has not given any reason of overwriting, but he has clearly stated that written report was submitted on 12.2.2002 and therefore if the date was correct, it should be accepted as a bonafide lapse and the entire prosecution case cannot be thrown on that lacuna alone. Ramesh Chand (PW11 has proved the seizure of various articles and the arrest memo. He has also proved that at the time of arrest, the accused was not wearing any jacket, that the accused was arrested vide Ex.P/19. The shirt that he was wearing at the time of arrest had blood stained, which was seized by Ex.P/11. The blood stained control soil in packet-A, plain soil in packet-B, shaving blade in packet-C, the blood stained clothes of Deepa in packet-D, blood stained clothes of Jyoti, packet-E and the blood stained shirt of accused Devendra Kumar in packet-F were deposited with the Forensic Science Laboratory on 16.2.2002 vide Ex.P/22. According to the report of Forensic Science Laboratory (Ex.P/26), the blade Ex.3 from packet-C, one T-shirt and frock Ex.6 & 7 from packet D of Deepa and one underwear and T-shirt Ex.8 & 9 from packet E of deceased Jyoti and one shirt of accused Ex.11 from packet-F, all were found to be of 'A' blood group. 19. Aforemade analysis of the evidence clearly proves the following circumstances against the accused-appellant: (1) that he was last seen with the deceased Deepa aged about 4 years and deceased Jyoti aged about 15 months, when he had taken them for a ride on a scooter as provide by Santosh (PW-3). 19. Aforemade analysis of the evidence clearly proves the following circumstances against the accused-appellant: (1) that he was last seen with the deceased Deepa aged about 4 years and deceased Jyoti aged about 15 months, when he had taken them for a ride on a scooter as provide by Santosh (PW-3). When the accused did not return with the children, Santosh (PW-3) made a phone call to her husband Sabu Lal (PW-4) in the barber shop where he was working. The accused was traced out in Sultanpur wherefrom he was brought back to his house by the maternal uncle of the informant and two others. (2) that the accused on being pressurized by his own family members disclosed that he had murdered both the girls and place where dead bodies of the two girls were lying. (3) that after lodging the FIR when the accused-appellant and the informant visited the place disclosed by the accused, they found the dead bodies of the deceased girls as well as the blade used for sliting their throats. (4) that clothes of Deepa and Jyoti were found to contain human blood of Group 'A', which matched with the blood group found on the shirt of the accused. According to the post-mortem report of Jyoti (Ex.P/23), which has been proved by Dr. Rakesh Sharma (PW-12), she received following injuries: "Incised wound 6 x 2.5 cm x Trachea deep. High up in the neck, anteriorly oblique place. Neck, muscle cut. vague nerves cut Juglar, veins, also cut, trachea cut, lumen open filled c blood and blood clots." According to the post-mortem report of Deepa (Ex.P/24), which has been proved by Dr. Rakesh Sharma (PW-12), she has received following injuries: "Incised wound 5 x 3 cm/trachea deep high up in the neck, oblique anteriorly neck, muscle, cut vague nerves, Juglar veins also cut Trachea, cut lumen, open filled c blood and blood clots." 20. Merely because there were some lacunae in the investigation here and there, would not make very significant dent to the prosecution case unless they have the effect of making the evidence on record otherwise unbelievable. Even if the prosecution has not been able to bring on record the missing persons report lodged by the informant on the previous evening, entire prosecution case cannot be thrown on that count in the face of the evidence so clinchingly proving the guilt of the accused. 21. Even if the prosecution has not been able to bring on record the missing persons report lodged by the informant on the previous evening, entire prosecution case cannot be thrown on that count in the face of the evidence so clinchingly proving the guilt of the accused. 21. The chain of circumstances against the accused can be taken as complete even when the finding of extra judicial confession is not acted upon. In fact, the prosecution has neither produced maternal uncles of accused Murari Lal nor Babu Lal to prove that the accused confessed in their presence and therefore that circumstance indeed cannot be made use of against the accused. However, the discovery of place of incident on the basis of information given by the accused in the presence of those witnesses would slit be a relevant factor. 22. The argument that appellant was suffering from certain mental ailment and was not in a fit condition to face the trial with reference to Section 329 Cr.P.C. has already been considered in the earlier judgment while deciding his previous appeal and the matter was remanded to the learned trial Court for de novo trial after holding the enquiry into such assertion. The appellant was then referred to Psychiatric Centre of S.M.S. Hospital, Jaipur. He was remained an indoor patient from 15.10.2007 to 27.12.2007. He was thoroughly examined by a Medical Board consisting of three Senior Psychiatrists and they have given their report (Ex.C1 & C2) proving that the appellant was a patient of reactive depression. However, he was capable of understanding what was in his best interest. It is thus evident that this argument was neither made by the accused in the trial nor was a case set up by the accused, nor substantiated by any evidence, whatsoever, with reference to Section 84 of the Indian Penal Code that he was a person of unsound mind so as to claim benefit of exception carved out therein. This argument is therefore, rejected. 23. Evidence clearly prove that accused took the two daughters of the complaint with him on scooter and did not return and therefore at his instance the dead bodies of the girls were recovered. It establishes the fact that it was within his exclusive knowledge as to what has happened to deceased Jyoti and Deepa. This argument is therefore, rejected. 23. Evidence clearly prove that accused took the two daughters of the complaint with him on scooter and did not return and therefore at his instance the dead bodies of the girls were recovered. It establishes the fact that it was within his exclusive knowledge as to what has happened to deceased Jyoti and Deepa. This circumstance was specifically put to the accused-appellant in his examination under Section 313 Cr.P.C. under Question No.3, but he failed to give any explanation for his conduct. 24. The Supreme Court in State of Punjab vs. Karnail Singh : (2003) 11 SCC 271 held that the law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act, which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Raising of presumption under Section 106 of the Evidence Act would justify because the facts, which were especially within the knowledge of accused, burden of proving those facts was upon him. Ratio of this judgment is fully applicable to the present case as the only accused was aware as to what happened with the girls as the accused was the list one who was with the girls. 25. In State of W.B. vs. Mir Mohammad Omar and Others : (2000) 8 SCC 382 , a young businessman of Calcutta was abducted and killed. The kingpin of the abduction and some of his henchmen were later nabbed and were tried for the alleged offences. He was forcibly abducted by the accused away from the slight and ken of the residents of that area. Thereafter, he was not seen alive by any one. Later, his dead-body was found in hospital. Their lordships in those facts observed that burden lies on the accused to rebut the presumption under Section 106 of the Evidence Act. He was forcibly abducted by the accused away from the slight and ken of the residents of that area. Thereafter, he was not seen alive by any one. Later, his dead-body was found in hospital. Their lordships in those facts observed that burden lies on the accused to rebut the presumption under Section 106 of the Evidence Act. While considering the provisions of Sections 101, 106 and 114 of the Evidence, it was observed by the Supreme Court that inference regarding existence of one fact against accused is proved 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. It was held that efforts should be made by courts to see that criminal justice is salvaged despite defects in investigation. Their lordships in paras 31 to 34 and 36 to 37 of the report observed, as under:- "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 32. In this case, when prosecution succeeded in establishing the afore narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. 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. 33. 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. 33. 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. 34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody." "36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 37. The section is not 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 where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference." 26. The Supreme Court in Shambhu Nath Mehra vs. State of Ajmer : AIR 1956 SC 404 while considering the same legal position, held thus: "This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relive it of that duty. The Supreme Court in Shambhu Nath Mehra vs. State of Ajmer : AIR 1956 SC 404 while considering the same legal position, held thus: "This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relive it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are preeminently or exceptionally within his knowledge." 27. The Supreme Court in Joseph S/o Kooveli Poulo vs. State of Kerala : 2000 SCC (Cri) 926 held that it is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightway condemned and their evidence discarded in its entirety. It was further held by the Supreme Court that during the time of questioning under Section 313, the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self condemned. 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. That missing link to connect the accused was held to have provided by the blunt and outright denial of every circumstance put to him and it was held that all the incriminating circumstances with sufficient and reasonable certainty on the facts proved, connect the accused with the murder of deceased. 28. That missing link to connect the accused was held to have provided by the blunt and outright denial of every circumstance put to him and it was held that all the incriminating circumstances with sufficient and reasonable certainty on the facts proved, connect the accused with the murder of deceased. 28. It is not necessary to multiply the authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical 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 fats 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. From the trend of the answers given by the accused in his examination, under Section 313 Cr.P.C., it appears that the accused made only a bald denial of all the incriminating circumstances put to him, and had no explanation to offer. 29. In view of the above, the appeal is dismissed and the judgment dated 10.10.2008 passed by learned Additional Sessions Judge No.2 (Fast Track), Kota is upheld.