ORDER : This appeal has been preferred against the judgment and order dated 29.3.2007 passed by the High Court of Bombay in Crl. A. No. 547 of 2003, by way of which it has modified the judgment and order of the Sessions Court, Kolhapur in Sessions Case No. 71 of 2002 dated 11.3.2003, by way of which the appellant stood convicted for the offences punishable under Sections 302 read with 34 and 364 of Indian Penal Code, 1860 (hereinafter referred to as `the IPC') along with others, converting the conviction under Sections 304-II read with 34 IPC and awarded the sentence of 10 years. However, it has set aside the conviction and sentence under Section 364 IPC. The trial court had awarded the sentence under Sections 302 r/w 34 IPC to suffer life imprisonment along with a fine of Rs. 5,000/- each, in default to suffer further RI for one year; and under Section 364 sentence for life imprisonment along with a fine of Rs. 5,000/-, in default to suffer RI for one year. Both the sentences for life imprisonment were directed to run concurrently. 2. Facts and circumstances giving rise to this appeal are that: A. Parshuram Kashinath Chavan (A.1) doubted the character of his wife and had a suspicion that she had developed intimacy with Deepak More (deceased). On the fateful day i.e. 15.11.2001, the deceased, a cable operator, left his house along with his assistant Vishal (PW.13) for giving a cable connection in pursuance of a telephone call. Vishal (PW.13) returned back in the evening and told the father of the deceased that Parshuram Kashinath Chavan (A.1), Sanjay Ashok Powar (A.2), (Appellant herein), and Ajay Janardhan Chavan (A.3) had taken the deceased in a Maruti car. At 7.30 P.M., the father of the deceased was informed by a telephone call that the deceased had met with an accident and he was admitted in a hospital. An FIR was lodged on 16.11.2001 under Sections 326 r/w 34 IPC and the accused were arrested. The deceased succumbed to the injuries at about 8.00 A.M. on 16.1.2001. B. After completing the investigation, the charge sheet was filed and the appellant along with two others was put to trial under Sections 302/34 and 364 IPC. An FIR was lodged on 16.11.2001 under Sections 326 r/w 34 IPC and the accused were arrested. The deceased succumbed to the injuries at about 8.00 A.M. on 16.1.2001. B. After completing the investigation, the charge sheet was filed and the appellant along with two others was put to trial under Sections 302/34 and 364 IPC. After conclusion of the trial, the trial court vide judgment and order dated 11.3.2003 convicted all the three accused under Sections 302/34 and 364 IPC and awarded the sentence as referred to herein above. C. Aggrieved, the appellant preferred an appeal before the High Court wherein the conviction and sentence of the appellant and others under Section 364 IPC, has been set aside. The appellant and others were convicted under Sections 304-II r/w 34 IPC and awarded sentence of 10 years RI vide impugned judgment and order dated 29.3.2007. Hence, this appeal. 3. We have heard Shri P. Vinay Kumar, learned counsel appearing on behalf of the appellant and Ms. Asha G. Nair, learned counsel appearing on behalf of the State. Both the courts below have considered all the aspects of the case in great detail. Learned counsel for the appellant has fairly conceded that the appellant was throughout in the company of Parshuram Kashinath Chavan (A.1), Sanjay Ashok Powar (A.2) and Ajay Janardhan Chavan (A.3) and they had taken the deceased in a Maruti car. He has further admitted that the deceased got injured and the accused persons got him admitted to the hospital. However, he has submitted that the appellant had not assigned any overt act whatsoever in the incident by the prosecution. The appeal deserves to be allowed. 4. On the contrary Ms. Asha G. Nair, has submitted that admittedly, the appellant had been throughout with the deceased. He is the person having special knowledge of the facts and, therefore, it was his duty to explain and disclose as under what circumstances the deceased got injuries as both the courts have negatived the theory of accident. More so, had it been the case of accident, why the accused persons did not get even a scratch on their bodies. Thus, the appeal is liable to be dismissed. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 6. More so, had it been the case of accident, why the accused persons did not get even a scratch on their bodies. Thus, the appeal is liable to be dismissed. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 6. The High Court has concurred with the trial court on the findings of fact on most of the subjects/issues, however, it came to the conclusion that the accused had no intention to kill the victim, they had no knowledge that their assault could lead to his death. Their lack of intention to kill him was apparent from the fact that after assaulting him, they had got him admitted in the hospital for treatment. Even Parshuram Kashinath Chavan (A.1) had also given his visiting card to the doctor. Thus, under these circumstances, their conviction has been altered from Section 302 to Section 304-II IPC. However, both the courts have recorded the findings that all the accused had beaten him and the motive was the doubt of Parshuram Kashinath Chavan (A.1) regarding the character of his wife and they had been questioning the deceased about the whereabouts of Vaishali, wife of Parshuram Kashinath Chavan (A.1). 7. This Court in Prithipal Singh & Ors. v. State of Punjab & Anr., IV (2011) CCR 182 (SC) : IV (2011) DLT (Crl.) 417 (SC) : VIII (2011) SLT 119 : (2012) 1 SCC 10 , dealt with the provisions of Section 106 of the Indian Evidence Act, 1872 and held as under: "53. In State of W.B. v. Mir Mohammad Omar, AIR 2000 SC 298, this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 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. 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. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 , Sucha Singh v. State of Punjab, AIR 2001 SC 1436 and Sahadevan v. State, AIR 2003 SC 215 )" 8. A similar view has been reiterated in Santosh Kumar Singh v. State through CBI, IV (2010) CCR 100 (SC) : VII (2010) SLT 158 : IV (2010) DLT (Crl.) 10 (SC) : (2010) 9 SCC 747 ; Manu Sao v. State of Bihar, III (2010) CCR 238 (SC) : V (2010) SLT 641 : III (2010) DLT (Crl.) 478 (SC) : (2010) 12 SCC 310 ; and Neel Kumar @ Anil Kumar v. State of Haryana, III (2012) SLT 656 : II (2012) DLT (Crl.) 446 (SC) : (2012) 5 SCC 766 . 9. We have asked learned counsel for the appellant time and again that if the appellant remained in the company of the deceased throughout, it was his duty to explain as under what circumstances the injuries were caused to the deceased. However, he could not furnish any explanation whatsoever. As the appellant failed to discharge the burden on him and explain as how the injuries were caused, we do not find any cogent reason to interfere with the impugned judgment. The appeal lacks merit and is, accordingly, dismissed.