JUDGMENT By Court. - These appeals are directed against the judgment of conviction and order of sentence dated 1.6.1999 passed by the 1st Additional Sessions Judge, Chaibasa in S.T. No. 203 of 1995 whereby and whereunder the Court while acquitting the appellants of the charge under Sections 304/34 convicted the appellants for the offence punishable under Sections 302/34 of the Indian Penal Code for committing murder of Jagdish Patro @ Jaggu Patro and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- and in default to undergo rigorous imprisonment for a period of two years. 2. The case of the prosecution is that in the night of 25.3.1995 at about 10 O'clock while the informant, Manju Champia, PW 8, PW 7, Sudha Patro, the mother of the deceased and PW 5. Sanjay Patro, the brother of the deceased were in the house, these two appellants came over there and started calling the name of Jagdish Patro @ Jaggu. Upon hearing them, Jagdish Patro @ Jaggu (deceased) came out of the house whereupon his mother and sister also came out. There they found these two appellants outside the house, who asked Jagdish Patro @ Jaggu to come along to have liquor with them. Upon it, Jagdish Patro @ Jaggu told them that he does not have any money. Thereupon both the appellants took Jagdish Patro @ Jaggu along with them but he did not return in the night. In the morning, when they came to know that the dead body of Jaggu is in the house of the appellant, Sardana Ghagra @ Sardar Ghagra, the sister Manju Champia, PW 8, brother Sanjay Patro, PW 5 and mother Sudha Patro. PW 7 came to the house of Sardana Ghagra where they found the dead body of Jaggu, who was having injury over his head. There they also found a tangi smeared with blood lying under a cot. There the police reached over there to whom Manju Cnampia. PW 8, the sister of the deceased gave fardbeyan (Ext.4) to the effect as stated above which was recorded by Sub-Inspector, B.K. Pandit of Gua Police Station. In her fardbeyan, she also stated that relationship in between the deceased and the appellants was quite cordial. However, it was alleged that both the appellants have killed her brother. 3. PW 8, the sister of the deceased gave fardbeyan (Ext.4) to the effect as stated above which was recorded by Sub-Inspector, B.K. Pandit of Gua Police Station. In her fardbeyan, she also stated that relationship in between the deceased and the appellants was quite cordial. However, it was alleged that both the appellants have killed her brother. 3. On the basis of fardbeyan (Ext.4), a case was registered against the appellants and a formal FIR (Ext.3) was drawn. The Investigating Officer, who has not been examined in this case, held autopsy on the dead body and prepared an inquest report (Ext.5). The Investigating Officer also seized tangi a glass and a bottle under seizure list (Ext.5). After holding inquest on the dead body, the dead body was sent for post-mortem examination which was conducted by Dr. D.N. Jha, PW1, who upon holding autopsy did find following injuries. (i) Incised wound over the left side of vault of scalp 8" x 4" x brain deep with brain matter out. (ii) Punctured wound over the root of the nose 1/2" x 1/2". 4. Upon dissection, fracture of left temporal parietal and frontal brain with brain matter protruding out with fracture of nasal bone was found. 5. The Doctor issued post-mortem examination report (Ext.1) with an opinion that death was caused on account of hemorrhage and shock due to above injuries. 6. Meanwhile, the Investigating Officer recorded the statement of the witnesses. After completion of investigation, charge-sheet was submitted, upon which cognizance of the offence was taken against the appellants and when the case was committed to the Court of Sessions the appellants were put on trial. 7. During trial the prosecution examined altogether ten witnesses. Of them, the informant Manju Champia. PW 8, the sister of the deceased, Sudha Patro, PW 7, the mother of the deceased and Sanjay Patro. PW 5, the brother of the deceased did testify that when they were in the house, both the appellants came there and called Jaggu to come out of the house. He came out of the house. They also come out by following Jaggu. There they found appellants. The appellant Sardana Ghagra asked Jaggu to come along with them to have liquor. When Jaggu told that he does not have any money, both the appellants took Jaggu along with them. He came out of the house. They also come out by following Jaggu. There they found appellants. The appellant Sardana Ghagra asked Jaggu to come along with them to have liquor. When Jaggu told that he does not have any money, both the appellants took Jaggu along with them. In the morning, when they came to learn that dead body of Jaggu was lying in the house of Sardana Ghagra, they went there and found the dead body. They also saw injury below the left ear. There they found tangi under the cot which was smeared with blood. PW 6. Laxman Pan a shopkeeper did testify that both the appellants along with Jaggu (deceased) came to the shop and they also asked him to accompany them but he refused to go along with them. However, when they started singing song, they left their company. Pias Dungdung. PW 3, Kandey Soren, PW 4 and Bijoy Patro. PW 9 have been tendered. 8. After the case of the prosecution was closed, incriminating evidences/materials appearing against the appellants were put to them under Section 313 of the Code of Criminal Procedure to which they denied. 9. However, the appellant Sardana Ghagra in his statement under Section 313 of the Code of Criminal Procedure stated that on the night of occurrence, he was not in the village, rather had gone to his in-laws place. It be stated that in support of such statement no evidence has been adduced. The Court having found the testimonies of PWs 5, 6, 7 and 8 worth reliable did find the appellants guilty and hence, recorded the judgment of conviction and order of sentence which is under challenge. 10. Mr. Rajesh Mahtha, learned counsel appearing for the appellants submits that all the witnesses particularly PW 5, PW 7, PW 8 have stated that relationship in between the appellants and the deceased was quite cordial and their friendship was so intimate that they some time used to stay back in the night in each other's house. In that event, when they were so intimate to each other, there was no occasion for the appellants to commit murder of the deceased but the Court below did not consider this aspect of the matter in right perspective and hence, the trial Court committed illegality in recording the judgment of conviction and order of sentence. 11. As against this, Mr. 11. As against this, Mr. Binod Singh, learned counsel appearing for the State submits that the testimonies of the witnesses are so consistent and natural that their testimonies to the effect that the appellants took the deceased with them cannot be discarded and that the dead body was found none other place than at the house of one of the appellants, Sardana Ghagra. In the dead body two injuries were found on the person of the deceased and a tangi was also found there. Under the circumstances, when the deceased was done to death at the house of one of the appellants. it was for the appellant, who was lastly seen in the company of the deceased to explain as to how the things happened but the appellant never seems to have given any such disclosure except the fact that he was in the night of occurrence had been to his in-laws place which cannot be accepted in absence of any evidence being led in this regard. Since all happened in the house of one of the appellants, it must be within the knowledge of the appellant and therefore, it was for the appellants to explain all about. But no explanation has been given and as such, inference can be drawn that it could be the appellants, who had committed murder. That apart the appellant was lastly seen in company of the deceased. The other circumstance appearing against the appellant is that the appellants after the occurrence were found missing from the house which can be taken to be an additional circumstance against the appellants. Thus, the appellants have rightly been convicted by the trial Court and thereby the judgment of conviction and order of sentence never warrants to be interfered with. 12. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution that on the night of 25.3.1995 at about 10 O'clock when Sanjay Patra, PW 5, the brother of the deceased, Sudha Patro, PW 7, the mother of the deceased and Manju Champia, PW 8, the sister of the deceased were in the house, the appellants came and started calling Jaggu. Thereupon Jaggu came out of the house. Those three witnesses also came out of the house. Thereupon Jaggu came out of the house. Those three witnesses also came out of the house. There they heard appellant Sardana Ghagra saying the deceased to come along with them to have liquor. Jaggu did not agree to that by saying that he does not have money but Jaggu was taken by them. After leaving home, they, as per evidence of PW 6, came to the shop of Laxman Pan (PW 6) where the appellants as well as Jaggu made request to PW 6 to come along with them. Thereafter according to the evidence of PW 6, the appellants and Jaggu sang song for hours and while it was going on, he returned to his shop. On the next date, when the witnesses PW 5, PW 7 and PW 8 came to know that the dead body is lying in the house of the appellant Sardana Ghagra, they went there and found the dead body over a cot. They also saw injuries on the person of the deceased. There they found tangi smeared with blood lying on the ground. It be stated that all the witnesses such as PW 5, PW 7 and PW 8 have stated that relationship in between the deceased and the appellants was quite cordial. Some time they used to stay back in the night at each other's house. 13. In the context of such evidences being led by the prosecution, submission advanced on behalf of the appellant is that under that circumstance, the appellant could not have killed the deceased or that he may not have had any intention to kill the deceased. it is true that such evidences are there but at the same time, it is also there that the deceased was found killed in the house of the appellant Sardana Ghagra. In that situation, burden in terms of the provision as contained in Section 106 of the Evidence Act was there upon appellant Sardana Ghagra to explain it as to how it happened as it was within special knowledge of the appellant Sardana Ghagra. The said provision reads as follows : "106. Burden of proving fact especially within knowledge. In that situation, burden in terms of the provision as contained in Section 106 of the Evidence Act was there upon appellant Sardana Ghagra to explain it as to how it happened as it was within special knowledge of the appellant Sardana Ghagra. The said provision reads as follows : "106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." Illustration - 1 (a)-When a person does an act with some intention other than that which the character and circumstances of the act suggest the burden of proving that intention is upon him." 14. Here, we have stated earlier that the evidences are there to the effect that the appellants and the deceased were quite intimate to each other but the prosecution has also proved that the dead body was lying in the house of the appellant. Two injuries were found on the person of the deceased which in view of the evidence never appears to be superficial, rather those injuries seem to have been inflicted with the force, as a result of which, brain matter had come out. This indicates that the deceased was assaulted with intention to kill him. Under the circumstances, it was for the appellant Sardana Ghagra to explain under what circumstances the deceased was killed but in absence of any cogent explanation being given, presumption can be drawn that it was the appellant, Sardana Ghagra who committed murder of the deceased which gets proved from other circumstance as the appellant was lastly seen in the company with the deceased which is evident from the evidence of PW 6. 15. Further the circumstances of appellant being absconded after the occurrence also goes against the appellant Sardana Ghagra. 16. Under the circumstances, we do find that the prosecution has been able to establish the charge against the appellant Sardana Ghagra beyond all reasonable doubt and thereby the trial Court is absolutely justified in recording the guilt of the appellant. However, in the facts and circumstances, the appellant, Sardana Ghagra is convicted under Section 302 of the Indian Penal Code instead of 302/34 of the Indian Penal Code. Sentence imposed against him shall remain intact. 17. So far the appellant Lalu Gope is concerned, admittedly dead body was not found in the house of Lalu Gope. However, in the facts and circumstances, the appellant, Sardana Ghagra is convicted under Section 302 of the Indian Penal Code instead of 302/34 of the Indian Penal Code. Sentence imposed against him shall remain intact. 17. So far the appellant Lalu Gope is concerned, admittedly dead body was not found in the house of Lalu Gope. However, as per the evidences of PW5, PW 6 and PW 8, it were the appellants Sardana Ghagra and Lalu Gope, who took the deceased along with them and then as per evidence of PW 6, they sang song near the shop of Laxman Pan, PW 6 but no evidence is there that thereafter Lalu Gope came to the house of the appellant Sardana Ghagra along with the deceased and Sardana Ghagra. Under the circumstances, when relationship was quite cordial in between the deceased and the appellants including Lalu Gope imputation cannot be put in against the appellant Lalu Gape of killing the deceased. 18. Under the circumstances, the prosecution cannot be said to have proved its charge beyond all reasonable doubt against the appellant Lalu Gope and thereby the appellant Lalu Gope seems to have wrongly been convicted for committing murder of the deceased. Accordingly, the judgment of conviction and order of sentence passed by the trial Court against him is hereby set aside. He is discharged from the liability of the bail bond. 19. In the result, Cr. Appeal (DB) No. 219 of 1999 is hereby' allowed whereas Cr. Appeal (DB) No. 1458 of 2005 is dismissed with modification on the point of conviction.