JUDGMENT S.K.SAHOO, J. - The appellant faced trial in the Court of learned Sessions Judge, Puri in Sessions Trial No.250 of 2007 for offence punishable under Section 302 Indian Penal Code for committing murder of his wife Sulochana Bhjanja (hereafter the “deceased”) in the night on 26/27.2.2007 at village Brahamanabada under Delanga Police Station in the district of Puri. The learned trial Court vide impugned judgment and order dated 27.6.2008 held the appellant guilty under Section 302 IPC and accordingly convicted him of such offence and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default, to undergo R.I. for six months more. 2. The prosecution case, as per the FIR lodged by Deba Bhoi (P.W.6) on 27.2.2007 before Officer-in-charge of Delanga Police Station is that the deceased was his cousin sister and she had been to attend the obsequies of her grandmother to her paternal place and stayed there for about 20 days and returned to her matrimonial house on 26.2.2007 at about 7 p.m. with P.W.6. The deceased prepared food for her in-laws and everybody including the appellant and his father Sikhar Bhanj (P.W.1) took their dinner. The father-in-law and mother-in-law of the deceased slept in one room, P.W.6 and younger brother of the appellant namely Jagannath slept in another room and the appellant and the deceased slept in the 3rd room. During the night, P.W. 6 heard some quarrel between the appellant and the deceased. The younger brother of the appellant Jagannath started crying for which P.W.6 took him and left him near his parents and again came back to sleep. In the early morning at about 6 O’ Clock P.W.6 called the deceased but she did not wake up. The appellant was standing outside the house. When the parents of the appellant asked him about the deceased, the appellant told that there was disturbance between him and the deceased last night for which he had killed the deceased. Lighting a lamp, all of them saw that the deceased was lying dead with bleeding injuries. P.W.6 immediately rushed to his sister’s house and intimated about the incident and thereafter came to Delanga Police Station to lodge the FIR. P.W.13 Kunjabihari Patnaik was the Officer-in-Charge of Delanga Police Station. Lighting a lamp, all of them saw that the deceased was lying dead with bleeding injuries. P.W.6 immediately rushed to his sister’s house and intimated about the incident and thereafter came to Delanga Police Station to lodge the FIR. P.W.13 Kunjabihari Patnaik was the Officer-in-Charge of Delanga Police Station. On 27.2.2007 P.W.6 appeared before him in the police station and orally reported the matter which was reduced to writing by P.W.13 and treated as FIR and accordingly Delanga P.S. Case No. 22 dated 27.2.2007 was registered under Section 302 IPC. P.W.13 himself took up investigation of the case. During course of investigation, he prepared the spot map (Ext.11/3). The dead body was found lying in the room of appellant with bleeding injuries and accordingly the I.O. held inquest over the dead body vide Ext.1. The Scientific team collected blood stained earth, sample earth from the spot which were seized by the I.O. under seizure list Ext.3/1. The appellant was arrested and the dead body was sent for post mortem examination. On 28.2.2007 the I.O. seized the wearing apparels of the deceased being produced by the Constable under seizure list Ext.10. He also seized the weapon of offence i.e., Tangia (M.O.V) pursuant to the disclosure statement made by the appellant while in custody. The weapon of offence was sent by the I.O. to the doctor for his opinion with regard to the possibility of the injuries by the said weapon. The wearing apparels, blood stained earth, sample earth and the weapon of offence were sent to SFSL, Bhubaneswar for chemical examination through JMFC, Pipili on 7.6.2007. After completion of investigation, charge sheet was submitted. 3. The defence plea is one of denial. 4. In order to prove its case, the prosecution examined 14 witnesses. P.W.1 Sikhar Bhanj is the father of the appellant and he stated about the extra judicial confession made by the appellant before him. P.W.2 Govinda Chandra Mohanty is a co-villager of the appellant and he also stated about the extra judicial confession of the appellant. He is a witness to the inquest. P.W.3 Santosh Mohapatra stated about the extra judicial confession of the appellant and he is also another witness to the inquest over the dead body. P.W.4 Baikuntha Mohapatra has stated about the extra judicial confession of the appellant and he is also a witness to the inquest report. He is a witness to the inquest. P.W.3 Santosh Mohapatra stated about the extra judicial confession of the appellant and he is also another witness to the inquest over the dead body. P.W.4 Baikuntha Mohapatra has stated about the extra judicial confession of the appellant and he is also a witness to the inquest report. P.W.5 Purna Chandra Mohapatra is a co-villager of the appellant and he did not support the prosecution case for which he was declared hostile. P.W.6 Deba Bhoi is the cousin brother of the deceased and he stated about the appellant and the deceased sleeping in one room in the night of occurrence, detection of the dead body on the next day morning in a pool of blood with deep injury on her throat in her bed room and also a Tangia having blood stains in that room. He is the informant in the case. P.W.7 Bhajaman Bhoi is the father of the deceased who also stated about the extra judicial confession of the appellant and recovery of a Tangia from the bed room of the appellant at the instance of the appellant. He is also a witness to the seizure. P.W.8 Abanikanta Pattnaik was the Executive Magistrate, Delanga who was present at the time of inquest over the dead body. P.W.9 Abhiram Mohapatra was the Asst. Surgeon attached to District Headquarters Hospital, Puri who conducted post mortem examination over the dead body and submitted his report vide Ext.6. He also gave his opinion regarding the query made by the I.O. about the possibility of the injury on the person of the deceased by the weapon of offence. P.W.10 Prakash Chandra Mallick was the Constable attached to Delang Police Station who carried the dead body for post mortem examination and after post mortem examination produced the wearing apparels of the deceased before the investigating officer which was seized under seizure list Ext.10. P.W.11 Banambar Behera is related to the deceased being married to her sister and he stated about the intimation received from P.W.6 regarding the murder of the deceased by the appellant. P.W.12 Jyostna Behera is the sister of the deceased and she stated about the intimation received from P.W.6 regarding the murder of the deceased by the appellant. P.W.13 Kunjabihari Patnaik is the Investigating Officer. P.W.12 Jyostna Behera is the sister of the deceased and she stated about the intimation received from P.W.6 regarding the murder of the deceased by the appellant. P.W.13 Kunjabihari Patnaik is the Investigating Officer. P.W.14 Achyutananda Baliarsingh was the Scientific Officer, DFSL, Puri who visited the spot on 27.7.2007 and collected blood stained earth, sample earth, Tangia from the bed room of the deceased. No witness was examined on behalf of the defence. The prosecution exhibited thirteen documents and also marked five material objects. Ext.1 is the inquest report, Ext.2 is the signature of P.W.5 on a piece of paper (statement under Section 27 Evidence Act), Ext.3 is the signature of P.W.5 on a piece of paper (seizure list of blood stained earth), Ext. 4 is the signature of P.W.5 on a piece of paper (seizure list of Tangi), Ext.5 is the written FIR, Ext.6 is the post mortem examination report, Ext.7 is the opinion of the doctor on the police query, Ext.8 is the command certificate, Ext.9 is the dead body challan, Ext.10 is the seizure list of wearing apparels of the deceased, Ext.11 is the crime detailed form, Ext.11/3 is the spot map, Ext.12 is the disclosure statement of the appellant and Ext.13 is the carbon copy of the forwarding letter sending exhibits for chemical examination. The defence has exhibited the Xerox copy of spot visit report as Ext.A. 5. Now it is to be seen how far the prosecution has established that the death of the deceased Sulochana Bhanj was homicidal in nature. In order to establish such aspect, apart from the inquest report (Ext.1), the prosecution examined the doctor (P.W.9) who conducted autopsy over the dead body on 27.2.2007 as Asst. Surgeon attached to District Headquarters Hospital, Puri and he found a chopped wound of 2” in length, 1” in breadth and 1” deep situated anteriorly on the right side of neck which was extending laterally from the sternal end of right clavicle involving underline muscles and vessels like right external jugular vein and common carotid artery. He opined the cause of death on account of shock and haemorrhage due to injury to the right external jugular vein and common carotid artery. The post mortem report has been marked as Ext.6. The learned counsel for the appellant did not challenge the evidence of P.W.9 and the findings of the post mortem report (Ext.6). He opined the cause of death on account of shock and haemorrhage due to injury to the right external jugular vein and common carotid artery. The post mortem report has been marked as Ext.6. The learned counsel for the appellant did not challenge the evidence of P.W.9 and the findings of the post mortem report (Ext.6). After perusing the evidence on record, the post mortem report (Ext.6) and the statement of P.W.9 Dr. Abhiram Mohapatra, we are also of the view that the prosecution has proved the death of the deceased to be homicidal in nature. 6. In the present case, there is no direct evidence regarding the commission of murder of the deceased and the case is based on circumstantial evidence. The circumstances against the appellant are as follows:- (i) Extra judicial confession of the appellant before P.Ws.1, 2, 3, 4 and 7; (ii) Last seen of the deceased in the company of the appellant in the night of occurrence when they went to sleep in their bed room; (iii) Recovery of the dead body of the deceased from her bed room with deep cut injury on the throat in the morning and the presence of appellant in that room; (iv) Recovery of the Tangia (M.O.V) pursuant to the disclosure statement of the appellant before police from his bed room. 7. It is the settled law that when a case rests upon circumstantial evidence, it is the duty of the Court to see that each of the circumstances should be fully established by the prosecution and such circumstance cannot be explained under any other hypothesis and the circumstances taken together must form a chain so complete that there is no escape from the conclusion that it is the accused and accused alone and none else who has committed the crime. In the case of Sharad Birdhichand Sarda –v- State of Maharastra reported in AIR 1984 SC 1622 their Lordships have laid down five golden principles so as to constitute “Panchasheel” in the proof of a case based on circumstantial evidence which are as follows:- “1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. 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 from which the conclusion of guilt is to be drawn should be fully established. 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.” In the case of Jaharlal Das v. State of Orissa reported in AIR 1991 SC 1388 , it is held that the Court as to bear in mind:- “9……A caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.” In case of Budhuram –v- State of Chhatisgarh reported in (2013)1 Supreme Court Cases (Criminal) 727 it is held as follows:- “12.The law relating to proof of a criminal charge by means of circumstantial evidence would hardly require any reiteration, save and except that the incriminating circumstances against the accused, on being proved, must be capable of pointing to only one direction and to no other, namely, that it is the accused and nobody else who had committed the crime. If the proved circumstances are capable of admitting any other conclusion inconsistent with the guilt of the accused, the accused must have the benefit of the same.” In case of Kanhaiya Lal –v- State of Rajastan reported in (2014) 2 Supreme Court Cases (Criminal) 413, it is held as follows:- “8…….Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.” Absence of motive 8. The learned counsel for the appellant submitted that since it is a case based on circumstantial evidence and the prosecution has failed to establish any motive behind the commission of crime, the prosecution case should be disbelieved. Under Section 8 of the Evidence Act, any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. In case of Prem Kumar and another –v- State of Bihar reported in 1995 Supreme Court Cases (Criminal) 445, it is held as follows:- “5……Very often, a motive is alleged to indicate the high degree of probability that the offence was committed by the person who was prompted by the motive. In our opinion, in a case when motive alleged against the accused is fully established, it provides a foundational material to connect the chain of circumstances. We hold that if the motive is proved or established, it affords a key or pointer, to scan the evidence in the case, in that perspective and as a satisfactory circumstance of corroboration. It is a very relevant and important aspect- (a) to highlight the intention of the accused and (b) the approach to be made in appreciating the totality of the circumstances including the evidence disclosed in the case.” In case of Surinder Pal Jain –v- Delhi Administration reported in 1993 Supreme Court Cases (Criminal) 1096, it is held as follows:- “11…….In a case based on circumstantial evidence,motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the Court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof”. As it appears, absolutely no motive has been established by the prosecution against the appellant for commission of crime. Even though the father, sister, brother-in-law and cousin brother of the deceased have been examined but they have not whispered anything about the previous conduct of the appellant or any hitch between the husband and wife so as to constitute any motive. The absence of motive in a case which depends on circumstantial evidence is more favourable to the defence as it often forms the fulcrum of the prosecution story and such absence would put the Court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission and conjecture do not take the place of proof. But to say that the absence of motive would dislodge the entire prosecution story is like giving undue weight to such aspect as motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. First circumstance 9. Coming to the extra judicial confession of the appellant before P.Ws.1, 2, 3, 4 and 7, it is found that not only in the FIR lodged by P.W.6 but also during trial all these witnesses have stated about such confession made by the appellant. P.W.1 is none else than the father of the appellant and he has stated that when the deceased did not wake up in the morning, his wife Nayana (appellant’s mother) asked the appellant as to why there was late in rising of the deceased from bed. The appellant disclosed that he had a hitch with the deceased in the last night and he had killed her with an axe. The learned Counsel for the appellant Mr. Ragada contended that when Nayana has not been examined and in the cross examination, P.W.1 has stated that the appellant never confessed before them to have killed the deceased with an axe and further stated that he has no knowledge about the death of the deceased, no importance to be attached to the statement made in chief examination. Ragada contended that when Nayana has not been examined and in the cross examination, P.W.1 has stated that the appellant never confessed before them to have killed the deceased with an axe and further stated that he has no knowledge about the death of the deceased, no importance to be attached to the statement made in chief examination. It is seen that P.W.1 has given a complete somersault to his evidence in chief regarding extrajudicial confession of the appellant in the cross examination. The prosecution has not taken any steps before the trial Court to declare this witness hostile and for grant of permission to cross examine him. In State of Bihar v. Laloo Prasad reported in (2002) 9 Supreme Court Cases 626, it is observed that though it is open to the party who called the witness to seek the permission of the Court as envisaged in Section 154 of the Evidence Act at any stage of the examination, nonetheless a discretion has been vested with the Court whether to grant the permission or not. It is further observed that normally when the Public Prosecutor request for the permission to put cross-questions to a witness called by him, the Court used to grant it. It is further observed that if the witness stuck to his version he was expected to say by the party who called the witness in the examination-in-chief, but he showed propensity to favour the adversary party only in cross16 examination, in such case the party who called him has a legitimate right to put cross-questions to the witness. When a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. Hon’ble Supreme Court in case of Bhagwan Singh v. State of Haryana reported in AIR 1976 SC 202 ; Rabinder Kumar Dev v. State of Orissa reported in AIR 1977 SC 170 ; Sayed Akbar v. State of Karnataka reported in AIR 1979 SC 1848 and Rameshbhai Mohanbhai Koli and Ors. v. State of Gujarat (2011) 11 SCC 111 held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In State of U.P. – v- Ramesh Prasad Misra reported in (1996) 10 SCC 360 , the Hon’ble Supreme Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. A similar view has been reiterated by the Hon’ble Supreme Court in Balu Sonba Shinde v. State of Maharashtra (2002) 7 SCC 543 , Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, Radha Mohan Singh v. State of U.P. (2006) 2 SCC 450 , Sarvesh Narain Shukla v. Daroga Singh (2007) 13 SCC 360 and Subbu Singh v. State (2009) 6 SCC 462 . In case of Bhajju alias Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327 , in the context of consideration of the version of a hostile witness, Hon’ble Supreme Court has expressed thus: “Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of Code of Criminal Procedure, the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the Court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to crossexamine such witnesses, if he so desires. If such a permission is granted by the Court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to crossexamine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution”. No doubt P.W.1 being father of the appellant thought it proper to support the prosecution case during chief examination but he was clever enough to give a complete different version in the cross-examination and supported the defence case. In the chief examination, he stated that appellant disclosed that he had a hitch with his wife (deceased) in the night and therefore he had killed her with axe but in the cross- examination, he stated that the appellant never confessed before them to have killed his wife with an axe in the night as he had a hitch with his wife. It appears that in order to save his son, P.W.1 has changed his version. The Public Prosecutor has not taken effective steps in such situation which is permissible in law in putting cross-questions after seeking permission from the Court. In case of Rammi –v- State of M.P. reported in 2000 Supreme Court Cases (Criminal) 26, Hon’ble Supreme Court held as follows:- “19. A Public Prosecutor who is attentive during cross examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient Public Prosecutor would gather up such answers failing from the mouth of a witness during cross-examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination.” Even if we discard the evidence of P.W.1 relating to extra judicial confession because of his contradictory versions in the chief examination vis-à-vis cross examination, from his evidence it is clearly borne out that P.W.6 had come to leave the deceased in the house of the appellant and on that night P.W.6 also stayed there. So far as the extra judicial confession before P.W.2, P.W.3 and P.W.4 and P.W.7 is concerned, it appears that such confession was made while the appellant was in the custody of police. Section 25 of Evidence Act prohibits for proving any confession made by an accused to a police officer against such accused. Section 26 of the Evidence Act provides that no confession made by any person whilst in the custody of a police officer shall be proved as against him unless it is made in the immediate present of a Magistrate. Section 25 contemplates a confession to police officer, but the Section does not exclude all statements made in the presence of a police officer unless it comes within the meaning of Section 26 of the Evidence Act. In the present case when the extra judicial confession is stated to have been made before P.Ws.2, 3, 4 and 7 while the appellant was in police custody, we are unable to place any reliance on it. Though P.W.6 has mentioned about the extrajudicial confession in the FIR but in Court he has not stated anything on that aspect. F.I.R. by itself is not a substantive piece of evidence. It can be used to either contradict or corroborate the maker thereof in the manner provided under the Evidence Act. Even though P.W.6 has mentioned regarding extrajudicial confession in FIR but in absence of any such statement in Court by him during trial, we are unable to place any reliance on it. The learned trial Court has also not placed any reliance on such evidence. Thus the prosecution has failed to prove the first circumstance against the appellant beyond all reasonable doubt. Second Circumstance 10. The second circumstance relied upon by the prosecution is the last seen of the deceased in the company of the appellant in the night when they went to sleep in their bed room. P.W.6 has categorically stated that the appellant and the deceased slept in one room in the night of occurrence. P.W.6 has further stated that in that room where his sister (deceased) and brother-in-law (appellant) had slept on the fateful night, no other person was there in that room or had slept in that room. P.W.1, the father of the appellant has stated about the presence of P.W.6 in the night of occurrence in their house. P.W.6 has further stated that in that room where his sister (deceased) and brother-in-law (appellant) had slept on the fateful night, no other person was there in that room or had slept in that room. P.W.1, the father of the appellant has stated about the presence of P.W.6 in the night of occurrence in their house. It is also very natural for the husband and wife to sleep together in their bed room. The other family members of the appellant including P.W.6 were sleeping in different rooms as stated by P.W.6. Nothing has been elicited in the cross-examination of P.W.6 to discredit his version. Thus the prosecution has established that the deceased was last seen in the company of the appellant in the night of occurrence in their bed room. Third Circumstance 11. The third circumstance relied upon by the prosecution is the recovery of the dead body of the deceased from her bed room with deep cut injury on the throat in the morning and the presence of appellant in that room. P.W.1 has stated that he proceeded to the bed room of the deceased along with his wife and found the deceased lying dead. P.W.6 has also stated that he proceeded to the bed room of the deceased on the next day morning and found her lying dead in a pool of blood and there was deep injury on her throat. He has also stated about the presence of the appellant in that room. P.W.11 has also stated to have seen the deceased lying dead in the house of the appellant with a cut injury on her neck. The I.O. (P.W.13) has also stated that the dead body of the deceased was lying in a room of the house of the appellant with deep cut injury on the neck and there was profuse bleeding from the said injury and the deceased was lying in a pool of blood. The inquest report Ext.1 also indicates that the dead body was lying in the house of the appellant with bleeding injury. Nothing has been brought out in the cross-examination to disbelieve such circumstance. The appellant has been specifically asked about the circumstances nos.2 and 3 in the accused statement but he has simply denied the same. The inquest report Ext.1 also indicates that the dead body was lying in the house of the appellant with bleeding injury. Nothing has been brought out in the cross-examination to disbelieve such circumstance. The appellant has been specifically asked about the circumstances nos.2 and 3 in the accused statement but he has simply denied the same. In view of such evidence, we are of the view that the prosecution has also proved that the dead body of the deceased was recovered from her bed room with deep cut injuries on her throat in the morning and the appellant was present in that room. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. When the husband (appellant) and wife (deceased) were sleeping together in their bed room in the night and the deceased was found dead with cut injuries on the neck in the morning, it is the appellant who is to explain as to under what circumstances the deceased died. In case of Ajitsingh Harnamsingh Gujral -Vs.- State of Maharashtra AIR 2011 SC 3690 , it is held as follows:- “29. The evidences of PW.3, PW 4 and PW 5, which we see no reason to disbelieve, thus fully establish that the Appellant was last seen with his wife at about midnight and was in fact quarrelling with her at that time. 30. The incident happened at 4 or 4.30 a.m. and hence there was a time gap of only about 4 hours from the time when the Appellant was seen with his wife (deceased) and the time of the incident. Thus he was last seen with his wife and there was only a short interval between this and the fire. 31. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible, vide Mohd. Azad alias Samin v. State of West Bengal 2008 (15) SCC 449 and State through Central Bureau of Investigation v. Mahender Singh Dahiya 2011 (3) SCC 109 , Sk. Yusuf v. State of West Bengal JT 2011 (6) SC 640 . 32. Azad alias Samin v. State of West Bengal 2008 (15) SCC 449 and State through Central Bureau of Investigation v. Mahender Singh Dahiya 2011 (3) SCC 109 , Sk. Yusuf v. State of West Bengal JT 2011 (6) SC 640 . 32. In our opinion, since the accused was last seen with his wife and the fire broke out about 4 hours thereafter it was for him to properly explain how this incident happened, which he has not done. Hence this is one of the strong links in the chain connecting the accused with the crime. 33. The victims died in the house of the accused, and he was there according to the testimony of the above witnesses. The incident took place at a time when there was no outsider or stranger who would have ordinarily entered the house of the accused without resistance and moreover it was most natural for the accused to be present in his own house during the night”. In case of Babu S/o Raveendran -Vs.- Babu S/o Bahuleyan and Anr. reported in (2003) 7 SCC 37 , it is held that “14. The second important circumstantial evidence against the accused is that the accused and the deceased were last seen together. To put it tersely, both of them slept together by retiring to the room that night. Last seen together in legal parlance ordinarily refers to the last seen together in the street, at a public place, or at any place frequented by the public. But here, the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room. It is in the evidence of PW-3 and PW-6 that they had dined together and the accused and the deceased were closeted in a room at about 8.30 p.m. Therefore, on the fateful day the accused and the deceased were closeted in a bedroom at about 8.30 p.m. is undisputed and it is for the accused alone to explain as to what happened and how his wife died and that too on account of strangulation. xx xx xx xx 18. Now the question which remains to be considered is, who is responsible. As already noticed, the accused and the deceased were closeted inside the room. There is no evidence of an intruder. xx xx xx xx 18. Now the question which remains to be considered is, who is responsible. As already noticed, the accused and the deceased were closeted inside the room. There is no evidence of an intruder. In such a situation, the circumstances leading to the death of the deceased are shifted to the accused. It is he who knows in what manner and in what circumstances the deceased has met her end and as to how the body with strangulation marks found its way into the nearby well. All the aforesaid circumstances, taken together cumulatively lead and unerringly point only to the guilt of the accused”. In Trimukh Maroti Kirkan –V- State of Maharashtra reported in 2006 AIR SCW 5300, the Apex Court held that: “12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties……Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S. 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation”. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation”. In case of State of Rajasthan –V- Kashi Ram reported in 2006 AIR SCW 5768, the Apex Court held that: “19…..whether an inference ought to be drawn under Section 106 Evidence Act is a question which must be determined by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts”. The Court further held that: “23.....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”. 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”. It appears that as per the evidence of P.W.6, who was sleeping in the same house in a room where the appellant and his wife (deceased) were sleeping in another room and there was none other in the said room except appellant and the deceased only and on the next morning the deceased was found lying dead in a pool of blood with deep injury on her throat and the appellant was found in that room and a tangia having blood stains was also found in that room. It was within the especial knowledge of the appellant and therefore it was incumbent upon him to explain as to how the death of deceased was caused by sustaining chopped wound on the neck and if that remains unexplained by him, then there can be an inference of his guilt as per the provisions of Section 106 of the Indian Evidence Act. Though the appellant is not under any obligation to disprove the prosecution case, yet when the prosecution has proved that death of the wife in a closed room with husband only has been caused in some unnatural way, then the husband is bound to explain such death and if not explained properly then an inference may be made regarding his guilt as per the provisions of 106 of the Indian Evidence Act. The prosecution has discharged its initial burden in establishing that both of the appellant and the deceased were sleeping together in their bed room in the night and the deceased was found dead in the morning with cut injuries on the neck. The appellant has failed to discharge his burden in terms of Section 106 of the Evidence Act. This circumstance is very clinching and points to the guilt of the appellant. Fourth Circumstance 12. The fourth circumstance relied upon by the prosecution is the recovery of the Tangia (M.O.V) pursuant to the disclosure statement of the appellant before police from his bed room. This circumstance is very clinching and points to the guilt of the appellant. Fourth Circumstance 12. The fourth circumstance relied upon by the prosecution is the recovery of the Tangia (M.O.V) pursuant to the disclosure statement of the appellant before police from his bed room. P.W.13, the I.O. has stated that the appellant in custody gave a statement that he had kept concealed a Tangia in the north-east corner of his house and disclosed that he would give recovery of the same and accordingly his statement was recorded vide Ext.12 and thereafter the appellant indicated the place where he had concealed the Tangia (M.O.V) and the same was recovered and seized in presence of witnesses and seizure list Ext.4 was prepared. P.W.7 has also stated about such aspect. P.W.6 on the other hand has stated that in the morning when he found the deceased lying dead in a pool of blood, the appellant was there in that room and a Tangia having blood stains was also found in that room. Thus prior to the lodging of the FIR by P.W.6, the Tangia was lying in an open condition in the room and therefore it appears that the I.O. has staged managed the leading to discovery theory of Tangia to create one more circumstance against the appellant. In case of Sukhvinder Singh and Ors. –v- State of Punjab reported in JT 1994 (4) SC 1, it is held as follows:- “17…..Section 27 of the Evidence Act is an exception to the general rule that a statement made before the police is not admissible in evidence is not in doubt. However, vide Section 27 of the Evidence Act, only so much of the statement of an accused is admissible in evidence as distinctly leads to the discovery of a fact. Therefore, once the fact has been discovered, Section 27 of the Evidence Act cannot again be made use of to ‘re-discover’ the discovered fact. It would be a total misuse even abuse of the provisions of Section 27 of the Evidence Act”. Therefore, once the fact has been discovered, Section 27 of the Evidence Act cannot again be made use of to ‘re-discover’ the discovered fact. It would be a total misuse even abuse of the provisions of Section 27 of the Evidence Act”. In view of the evidence available on record to show that the Tangia was lying openly in the room where the dead body was lying which has also been stated by the Scientific Officer (P.W.14) and the Tangia was not found to have contained any blood on chemical examination, we are unable to attach any importance to the circumstance of leading to recovery of the same on the disclosure statement of the appellant. 13. The learned counsel for the appellant submitted that the accused was mad and therefore in view Section 84 of Indian Penal Code, he is liable to be exonerated of the offence. P.W. 2 has stated that the appellant had mental problem for which he was treated in hospital by his father. P.W. 1 who is the father of the appellant has not whispered anything about this aspect. No other witness has also stated about the same. No medical document has been proved by the defence. In case of Surendera Mishra -Vs.- State of Jharkhand reported in AIR 2011 SC 627 , it is held as follows:- ”6........In view of the plea raised it is desirable to consider the meaning of the expression “unsoundness of mind” in the context of Section 84 of the Indian Penal Code and for its appreciation, we deem it expedient to reproduce the same. It reads as follows: “84. Act of a person of unsound mind.— Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law”. Section 84 of the Indian Penal Code is found in its Chapter IV, which deals with general exceptions. 7. From a plain reading of the aforesaid provision, it is evident that an act will not be an offence, if done by a person who, at the time of doing the same by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. 7. From a plain reading of the aforesaid provision, it is evident that an act will not be an offence, if done by a person who, at the time of doing the same by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. But what is unsoundness of mind? This Court had the occasion to consider this question in the case of Bapu alias Gujraj Singh v. State of Rajasthan reported in (2007) 8 SCC 66 , in which it has been held as follows: “The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts in the past, or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this Section”. 8. The scope and ambit of the Section 84 of the Indian Penal Code also came up for consideration before this Court in the case of Hari Singh Gond v. State of Madhya Pradesh reported in AIR 2009 SC 31 in which it has been held as follows: “Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of ‘unsoundness of mind’ in IPC. The Courts have, however, mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A Court is concerned with legal insanity and not with medical insanity”. 9. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. A distinction is to be made between legal insanity and medical insanity. A Court is concerned with legal insanity and not with medical insanity”. 9. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression “unsoundness of mind” has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code”. When a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Sec.84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime. We, therefore, do not see any indication of insanity from the materials found in the room; on the other hand they support the case of premeditated murder. It has not been established that the appellant was insane; nor is the evidence sufficient even to throw a reasonable doubt in our mind that the act might have been committed when he was in a fit of insanity. It has not been established that the appellant was insane; nor is the evidence sufficient even to throw a reasonable doubt in our mind that the act might have been committed when he was in a fit of insanity. Though the appellant has deliberately feigned ignorance and incredibly denied his complicity, the overwhelming persuasive circumstances attending the case and the crucial inculpatory evidence bear chilling testimony unmistakably proving the gruesome offence of murder and its diabolical execution and unerringly establishing the guilt of the appellant beyond all reasonable doubts. For all the reasons stated above, we, unhesitatingly hold that the conclusion arrived at by the trial Court is logical, tenable, and reasonably sustainable. We, therefore, though for different reasons, agree with the conclusion arrived at by the trial Court and dismiss the appeal. VINOD PRASAD, J. I agree. Appeal dismissed.