Judgment A. Selvam, J. 1. Challenge in this Criminal Appeal is to the conviction and sentence dated 18th day of November, 2011 passed in Sessions Case No.25 of 2011 by the District and Sessions Court, Karur. 2. The epitome of the case of the prosecution is that the defacto complainant by name Chandrasekaran is the father of the deceased by name Prabakaran. The defacto complainant has been residing in Gandhigramam, North Bharathiyar Street, Second Cross, Pasubathipalayam. On 12.07.2009 during evening hours, the deceased Prabakaran has gone out for playing. At that time, the accused by name Saravanan under the guise of buying and giving chocolate, has taken the deceased to his house. After locking the outer door of the house, he has had carnal intercourse against the order of nature with the deceased. Due to overtacts committed by the accused, the deceased has become unconscious. Since the accused is having apprehension that the deceased would divulge the overtacts committed by the accused, he put the deceased in a gunny bag and by using his Bajaj M-80 has taken the deceased to Karur – Tiruchirapalli - NH – 67 and near Reliance Petrol Bunk, attacked the deceased by using a crowbar and due to his overtacts he passed away. Since the deceased has not come to house, the defacto complainant has given a complaint to PW22 and the same has been registered in Crime No.584 of 2009. The complaint given by the defacto complainant has been marked as Ex.P1. 3. On receipt of Ex.P1, the Inspector of Police viz., PW24 has taken up investigation, examined connected witnesses and made arrangements to conduct necropsy and the same has been done by PW15, Dr. Vikram and he found the following injuries: Skull (i) Fracture frontal bone extending from right temporal to left tomporal region 10 cm length. (ii) A vertical fracture line over the left side of frontal region of 5 cm length. (iii) Right parieto temporo occipital region bone deficit present. (iv) Fracture in right occipital and bone of skull. (v) Fracture present anterior to (nc) magna. Dental (nc) 1. (NC) 1. (NC) 2. 1st Molar 2. 1st Molar present 3. IInd Molar 4. Teeth present. Skull with scalp with hair with mandible humerus (both), Femur (both) preserved and sent for age, sex, cause of death identification to forensic lab. 4. The postmortem certificate has been marked as Ex.P13. (v) Fracture present anterior to (nc) magna. Dental (nc) 1. (NC) 1. (NC) 2. 1st Molar 2. 1st Molar present 3. IInd Molar 4. Teeth present. Skull with scalp with hair with mandible humerus (both), Femur (both) preserved and sent for age, sex, cause of death identification to forensic lab. 4. The postmortem certificate has been marked as Ex.P13. The Inspector of Police viz., PW24 has arrested the accused and recorded his confession statement. Further investigation has been done by PW25, Inspector of Police and after completing investigation he has laid a final report on the file of the Judicial Magistrate Court No.I, Karur and the same has been taken on file in PRC No.1 of 2011. 5. The Judicial Magistrate Court No.I, Karur after considering the fact that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions and the same has been taken on file in Sessions Case No.25 of 2011. 6. The trial court after hearing both sides and upon perusing relevant records has framed first charge against the accused under Section 377, second charge under Section 302 and third charge under Section 201 of the Indian Penal Code and the same have been read over and explained to him. The accused has denied the charges and claimed to be tried. 7. On the side of the prosecution, PWs.1 to 25 have been examined and Exs.P1 to P35 and M.Os.1 to 9 have been marked. 8. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. No oral and documentary evidence have been adduced on the side of the accused. 9. The trial Court after perpending the available evidence on record has found the accused guilty under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and also imposed a fine of Rs.1,000/- with usual default clause. The trial Court has acquitted the accused from the charges framed against him under Sections 377 and 201 of the Indian Penal Code. Against the conviction and sentence passed by the trial Court, the present Criminal Appeal has been preferred at the instance of the accused as appellant. 10. The trial Court has acquitted the accused from the charges framed against him under Sections 377 and 201 of the Indian Penal Code. Against the conviction and sentence passed by the trial Court, the present Criminal Appeal has been preferred at the instance of the accused as appellant. 10. The crux of the case of the prosecution is that the defacto complainant viz., PW1 is the father of the deceased by name Prabakaran. On 12.07.2009, during evening hours, the deceased has gone out for playing with his friends. On the same day, the accused under the guise of buying and giving chocolate, has taken the deceased to his house and closed the door and subsequently has had carnal intercourse with the deceased against the order of nature and due to his overtacts, the deceased has become unconscious. Since the accused is having apprehension to the effect that the deceased would divulge the alleged overtacts, has put him in a gunny bag and taken him to Karur – Tiruchirapalli NH – 67 by using his Bajaj M-80 and near Reliance Petrol Bunk, in a thicket, attacked on his head by using a crowbar and due to his overtacts the deceased has passed away. 11. The entire case of the prosecution hinges upon circumstantial evidence. Before contemplating the arguments advanced on the side of the appellant/accused, it would be apropos to look into as to whether the prosecution has established guilt of the accused even without a speck of doubt. 12. The prosecution has set the law in motion only on the basis of Ex.P1, complaint given by the defacto complainant, father of the deceased, wherein it is stated that on 12.07.2009 the deceased has gone out for playing with his friends, but not turned up. The complaint has been registered as a 'boy missing' case. 13. The defacto complainant viz., PW1 has stated in his evidence that after knowing the fact that the deceased has not come to his house, he and others have searched him in various places and all their attempts have become futile and one Venkatesan, a friend of his son has stated to the effect that the accused has taken the deceased by way of saying that he would buy and give a chocolate to the deceased. The wife of the defacto complainant by name Navamani has been examined as PW2 and in fact, she vouchsafed the evidence given by her husband viz., PW1. 14. The said Venkatesan and one Shreyan who are said to have played with the deceased, have been examined as PWs.3 and 4 and both of them have consistently stated in their evidence that they and deceased have played together. At that time, the accused has come there and asked them to play hide and seek and accordingly both of them have acted. After some time, both of them have not found both the accused and deceased. One Thangaraj, a shop owner has been examined as PW7 and his specific evidence is that the accused and deceased and others have come to his shop and purchased dairy milk chocolate. 15. As pointed out earlier, the entire case of the prosecution is based upon circumstantial evidence. For the purpose of proving the fact that both the accused and deceased are seen together, PWs.3, 4 and 7 have been examined. From the cumulative reading of their evidence, the Court can easily deduce that the deceased has gone out along with the accused from the place of playing. 16. At this juncture, it would be more useful to look into the legal aspects involved on the basis of the evidence given by PWs.3, 4 and 7. 17. Section 106 of the Indian Evidence Act, 1872 reads as follows: 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. 18. In the instant case, this Court has analysed the evidence given by PWs.3, 4 and 7 and ultimately found that both the accused and deceased have been seen together and after such occurrence, no information is available with regard to deceased. Therefore, as per provision of Section 106 of the Indian Evidence Act, 1872, entire burden lies upon the accused as to what has had happened to the deceased. But the accused has not given any explanation with regard to the said aspect. 19. In (2013) 8 SCC 60 [Babu @ Balasubramaniam Vs. State of Tamilnadu], the Hon'ble Apex Court has held that “incident especially within the knowledge of accused, burden of proof upon the accused – failure to prove, he must be held liable.” 20. But the accused has not given any explanation with regard to the said aspect. 19. In (2013) 8 SCC 60 [Babu @ Balasubramaniam Vs. State of Tamilnadu], the Hon'ble Apex Court has held that “incident especially within the knowledge of accused, burden of proof upon the accused – failure to prove, he must be held liable.” 20. In (2000) 8 SCC 382 [State of West Bengal Vs. MIR Mohammed Omar and others], the Hon'ble Apex Court has held that “under Section 106 of the Indian Evidence Act, 1872, inference can be drawn against a person, who is having knowledge about particular facts.” 21. In AIR 2014 SC 2936 [Paramasivam and others Vs. State through Inspector of Police], the Hon'ble Apex Court has held that “eye witnesses stated that the accused has abducted the victim – the entire burden lies upon the accused under Section 106 of the Indian Evidence Act, 1872.” 22. From the conjoint reading of the decisions referred to supra rendered by the Hon'ble Apex Court, it is made clear that if a particular fact is exclusively within the knowledge of a particular person, entire burden lies upon him as per provisions of Section 106 of the Indian Evidence Act, 1872. 23. Even at the risk of repetition, the Court would like to point out that cumulative effect of evidence given by PWs.3, 4 and 7 is that all of them have last seen both the accused and deceased together. But the accused has not discharged his burden. Under the said circumstances, the Court can very well infer that except the accused, nobody has slayed the deceased. 24. The learned counsel appearing for the appellant/accused has made the following abortive attempts so as to set aside the conviction and sentence passed against the appellant/accused. (a) Even though the prosecution has examined PWs.3, 4 and 7, the last seen theory trotted out on the side of the prosecution has not at all been established. (b) The specific case of the prosecution is that on 08.11.2009, the accused has voluntarily come to the office of PW9, VAO and given extra judicial confession in the presence of PW9 and one Chandrasekar. (b) The specific case of the prosecution is that on 08.11.2009, the accused has voluntarily come to the office of PW9, VAO and given extra judicial confession in the presence of PW9 and one Chandrasekar. But the prosecution has not examined the said Chandrasekar and further, PW9 has categorically admitted in his evidence that he put his signature in observation as well as recovery mahazers only in police station and therefore, the role alleged to have been played by PW9 cannot be believed in. (c) The prosecution has examined PWs.15 and 16. Dr. Vikram Dr. Prabakaran and both of them are not certain enough to say that the deceased is a male or female and in fact, the specific evidence of PW16 is that as per science, he cannot say that his report is correct. (d) Identity of the deceased has not at all been established. 25. In order to dispel the contentions put forth on the side of the appellant/accused, the learned Additional Public Prosecutor has contended that even though the entire case of the prosecution is based upon circumstantial evidence, PWs.3, 4 and 7 have given clear evidence for the purpose of proving last seen theory and further, PW16 has conducted superimposition test and the same is tallied with the photograph of the deceased and the trial Court after considering the overwhelming evidence available on record has rightly found the accused guilty under Section 302 of the Indian Penal Code and therefore, the conviction and sentence passed by the trial Court are not liable to be interfered with. 26. As stated in many places, the entire case of the prosecution is based upon circumstantial evidence. For the purpose of proving last seen theory put up on the side of the prosecution, PWs.3, 4 and 7 have given consistent evidence to the effect that they have seen both the accused and deceased together and as per Section 106 of the Indian Evidence Act, 1872, entire burden lies upon the accused to show as to what has had happened to the deceased. But on the side of the accused, even an iota of evidence is not available with regard to the said aspect. 27. But on the side of the accused, even an iota of evidence is not available with regard to the said aspect. 27. It is true that PWs.3, 4 and 7 are minor witnesses and in fact, their consistent evidence is that they and deceased played together and at that time, the accused has come there and directed them to play hide and seek and after some time, both the accused and deceased are not found in that place. The specific evidence given by PW7 is that he has seen the accused, deceased and others in his shop. In fact, this Court has groped the entire evidence adduced by PWs.3, 4 and 7 and no motive has been in existence between them and accused and even a suggestion has not been put to them with regard to motive. Since PWs.3, 4 and 7 are adduced evidence independently without any bias or motive, their evidence cannot be eschewed. Further, they are not having any direct or subterranean influence so as to adduce evidence in support of prosecution against truth. Therefore, the first and foremost contention urged on the side of the appellant/accused is not having succulence. 28. The occurrence has taken place on 12.07.2009. The extra judicial confession alleged to have been given by the accused to PW9 has taken place on 08.11.2009. In fact, this Court has perused the entire evidence adduced by PW9 and his specific evidence is that on 08.11.2009 while he is in office, one Chandrasekar has come there for paying kist. At that time, the accused has voluntarily appeared and given a statement and the same has been marked as Ex.P5, wherein it is stated that he has committed the offence. 29. It is true that during the course of cross examination, PW9 has accepted that he put his signatures in seizure as well as observation mahazers only in police station. Further as rightly pointed out on the side of the appellant/accused, the said Chandrasekar has not at all been examined and his non-examination would not militate the case of the prosecution. Further, on the basis of flimsy contradiction available in the evidence of PW9, the Court cannot come to a conclusion that the appellant/accused has had no connection whatsoever with the crime. 30. It is a settled principle of law that extra judicial confession is admissible in evidence. Further, on the basis of flimsy contradiction available in the evidence of PW9, the Court cannot come to a conclusion that the appellant/accused has had no connection whatsoever with the crime. 30. It is a settled principle of law that extra judicial confession is admissible in evidence. The prosecution has based its case on two aspects. The first and foremost aspect is on the basis of last seen theory. The second aspect is on the basis of extra judicial confession alleged to have been given by the appellant/accused to PW9. 31. Even assuming without conceding that role of PW9 and Ex.P5 have been utilised for the purpose of strengthening the case of the prosecution, no blemish could be attached to the evidence given by PWs.3, 4 and 7. Therefore, the second contention urged on the side of the appellant/accused is sans merit. 32. The third contention put forth on the side of the appellant/accused is that on the basis of evidence given by PWs.15 and 16, the Court cannot firmly come to a conclusion that the deceased is a male or female. As pointed out in many places, the occurrence has taken place on 12.07.2009. The appellant/accused has given extra judicial confession only on 08.11.2009. Only on the basis of extra judicial confession and confession alleged to have been made by him before the Investigating Officer, the Investigating Officer has brought all of them to the place, where dead body of the deceased has been kept and PW15 has conducted autopsy on the same day and his specific evidence is that he found a dead body which is partially skeleton. Under the said circumstances, PW15 has given evidence to the effect that the deceased is a male or female. Likewise, PW16 has given clear evidence to the effect that he cannot say that as per science his report is correct. 33. Considering the stage on which autopsy has been conducted by PW15 and also considering that PW16 has conducted superimposition test, their evidence cannot be discarded in toto. 34. The last contention put forth on the side of the appellant/accused is that identity of the deceased has not at all been established. At this juncture, it would be condign to look into Ex.P1, complaint wherein it has been specifically stated about the dress worn by the deceased at the time of missing. 34. The last contention put forth on the side of the appellant/accused is that identity of the deceased has not at all been established. At this juncture, it would be condign to look into Ex.P1, complaint wherein it has been specifically stated about the dress worn by the deceased at the time of missing. The author of Ex.P1 has been examined as PW1 and his specific evidence is that in the place, where dead body is found, he identified pant, shirt worn by the deceased. Since PW1 has identified the pant, shirt worn by the deceased in the place, where dead body is found, it is needless to say that the dead body is the body of the deceased. Therefore, there is no incertitude in coming to a conclusion that the dead body which has been subjected to autopsy is the body of the deceased. 35. It has already been discussed in detail that the prosecution has established necessary circumstances so as to point out guilt of the accused and it is not an adulation to say that there is no missing link and further, as per Section 106 of the Indian Evidence Act, 1872, the burden lies upon the appellant/accused remains undischarged. Therefore, viewing from any angle, the Court can very well come to a conclusion that the appellant/accused is the real accused who slayed the deceased. 36. The trial Court after considering the available evidence on record has rightly found the accused guilty under Section 302 of the Indian Penal Code. In view of the foregoing elucidation of both the factual and legal premise, this Court has not found any force in the contentions urged on the side of the appellant/accused. Therefore, the present Criminal Appeal is liable to be dismissed. 37. In fine, this Criminal Appeal is dismissed. The conviction and sentence passed in Sessions Case No. 25 of 2011 by the District and Sessions Court, Karur are confirmed.