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2016 DIGILAW 217 (ALL)

MAHMOOD AHMAD v. STATE OF U. P.

2016-01-16

ALOK KUMAR MUKHERJEE, BHARAT BHUSHAN

body2016
JUDGMENT : (Delivered by Hon'ble Alok Kumar Mukherjee, J.) 1. This appeal has been preferred against the judgment and order dated 22.10.1983, passed by the Special Judge/ Additional District and Sessions Judge, Bijnor in S.T. No.17 of 1982 (State Vs. Mahmood and another) arising out of Crime No. 277 of 1981, P.S. Seohara, District Bijnor, convicting the appellants Mahmood Ahmad and Smt. Aneesa under section 302 read with section 34 IPC and sentencing them to undergo imprisonment for life and found Smt. Sugra not guilty of the offence under Section 302 read with section 34 of the Indian Penal Code and acquitted her. 2. It is relevant to mention that while hearing this appeal, it has been noticed by us that the accused-appellant no.1 Mahmood Ahmad has died on 26.4.2004 during pendency of this appeal, therefore, his appeal stands abated. 3. The sole appellant/accused Smt. Aneesa has filed this appeal against the aforementioned judgment and order dated 22.10.1983 on the ground that the learned trial court below has erred in believing the prosecution case and the evidence examined in support thereof. The conviction of the appellant is against the weight of evidence on record. 4. Brief facts of the prosecution case are that on 7.12.1981 at about 9.30 A.M. complainant Allahadiya (PW-1) gave a written report at police station Seohara, District Bijnor, stating therein that he belonged to village Afganan Sahaspur falling within the police circle Seohara in district Bijnor with the allegations that the deceased Asger, having become under the burden of debt, wanted to sell his agricultural holding to pay-off the loan. His father-in-law, mother-in-law and sister-in-law, being the present accused Mahmood Ahmad, Smt. Sugra and Smt. Aneesa were opposing proposed sale of land by the deceased. At about 7.30 A.M. on the fateful day, the deceased Asgar was taking tea at the Tea-Stall of Sharif Ahmad (PW-10). Allahadiya, Abid Husain, Mohd. Yunus and Khalid Husain were also present on that Tea-Stall and were taking tea. At the same time, the accused Mahmood Ahmad came there and asked Asger to accompany him to his house for some discussion. The deceased Asger went with the accused Mahmood Ahmad to the latter's house. Allahadiya, Abid Husain, Mohd. Yunus and Khalid Husain were also present on that Tea-Stall and were taking tea. At the same time, the accused Mahmood Ahmad came there and asked Asger to accompany him to his house for some discussion. The deceased Asger went with the accused Mahmood Ahmad to the latter's house. About 15 minutes later, one Noman Ali Khan (PW-2) came on the roof of his house which existed adjacent to the house of the accused Mahmood Ahmad and raised hue and cry that Asger was being assaulted with ''Gandasa'' by his father-in-law, mother-in-law and sister-in-law. He called upon people to rush and save Asger. Thereupon, Allahadiya (PW-1), Abid Husain, Mohd. Yunus (PW-3) and Khalid Husain (PW-4) rushed to the house of the accused Mahmood Ahmad. The main-gate of the house was found bolted from inside. Allahadiya (PW-1) scaled the wall of the house and got into it and then opened the bolt of the main-gate. Thereafter, he and the other witnesses saw the accused Mahmood Ahmad and Smt. Aneesa holding ''Gandasa'' in their hands and striking the same on the neck of Asger. They found Smt. Sugra, having caught hold the hands of Asger. Asger was almost dead on account of ''Gandasa'' wounds. Blood had spilled over the ground and the clothes. Allahadiya and the other witnesses then caught all the three assailants with their weapons and called the police. The police, from the Police Out-post had also reached on the spot. 5. Subsequently an FIR was registered as case Crime No.277 of 1981 under section 302 IPC, which was entered in the General Diary. Investigation was entrusted to the then Station House Officer of the concerned Police Station. After concluding the investigation charge-sheet was submitted by him against all the accused persons including the present appellant. After procuring the attendance of all the persons including the present appellant, the case was committed to the Court of Session, where she was charged under Section 302 IPC alongwith others. The accused-appellant denied the charge and pleaded not guilty. She further stated that she had been falsely implicated in this case due to enmity and claimed to be tried. 6. In order to prove the charge, besides other papers, prosecution has filed written report (Ext. Ka-1), chik report (Ext.Ka-2), General Diary No. 16 dated 16.4.1982 (Ext. The accused-appellant denied the charge and pleaded not guilty. She further stated that she had been falsely implicated in this case due to enmity and claimed to be tried. 6. In order to prove the charge, besides other papers, prosecution has filed written report (Ext. Ka-1), chik report (Ext.Ka-2), General Diary No. 16 dated 16.4.1982 (Ext. Ka-3), General Diary No. 23 dated 16.4.1982 (Ext.Ka-4), General Diary No. 25 dated 16.4.1982 (Ext.Ka-5), General Diary No. 37 dated 16.4.1982 (Ext. Ka-6), General Diary No. 35 dated 16.4.1982 (Ext.Ka-7), Postmortem report (Ext.Ka-8) Chemical Examiner's report (Ext.Ka-9), Recovery memo of Payjama of the accused Mahmood Ahmad (Ext.Ka-10), Recovery memo of Shawl of the accused Smt. Aneesa (Ext. Ka-11), Recovery of 'Gandasa' (Ext.Ka-12), Recovery of currency-notes (Ext. Ka-13), Recovery of blood stained and plain earth (Ext.Ka-14), Panchayatnama (Inquest report) (Ext.Ka-15), Challan-lash (Ext.Ka-16), Photo-lash (Ext.Ka-17), Letters to the Chief Medical Officer, Bijnor and R.I. Police Lines, Bijnor (Ext.Ka-18 to Ext.Ka-20), Site plan with Index (Ext.Ka-21), Charge-sheet (Ext.Ka-22) and Report of Serologist (Ext.Ka-23) on record. 7. Prosecution also examined P.W.-1 complainant Allahadiya, P.W.-2 Noman Ali Khan, P.W.-3 Mohd. Yunus, P.W.-4 Khalid Husain, P.W.-5 Head Moharrir Raja Ram, P.W.-6 Constable Devi Singh, P.W.-7 Moharrir Nadir Ali, P.W.-8 Dr. J.P. Srivastava, P.W.-9 Constable. Bhim Singh, P.W.-10 Sharif Ahmad, owner of Tea-Stall and P.W.-11 S.I. Khem Chand Sharma, who accompanied the I.O. during the investigation, with a view to prove the documents prepared at the time of investigation in presence of the I.O./executed by the I.O. and entire investigation proceedings and CW-1 Madan Lal Constable, during oral evidence. 8. Statement of the accused-appellants under section 313 Cr.P.C., were recorded after closing of the prosecution evidence. The appellant Smt. Aneesa in her own statement under Section 313 Cr.P.C. has stated that in the previous night at about 4 a.m. the deceased caught hold her and tried to physically assault/molest her. She then any how got out of his clutches and ran towards verandah, the deceased again reached there also and tried to offer her money, which she threw there on the ground. Then the deceased hit her with a 'Gandasa' whereby she sustained injuries then she snatched the said 'Gandasa' from him and hit him by his 'Gandasa' and resultantly he died. Thereafter, police reached at the spot and she was apprehended by the police. She told the S.I. To lodge her FIR but he denied and sent her to jail. Then the deceased hit her with a 'Gandasa' whereby she sustained injuries then she snatched the said 'Gandasa' from him and hit him by his 'Gandasa' and resultantly he died. Thereafter, police reached at the spot and she was apprehended by the police. She told the S.I. To lodge her FIR but he denied and sent her to jail. Then she was medically examined at the concerned jail. Appellant Smt. Anisa had also filed a written statement (Paaper No.Ka-81) of her own in this regard. 9. The defence has also examined Dr. R.K. Nigam (DW-1) who has proved the injury report of the appellant Smt. Aneesa (Ext.Kha-3) and Assistant Jailor Sri A. Kumar (DW-2) written statement of the appellant under Section 313 Cr.P.C. (Paper No.ka-81) and also filed copies of the plaint of a Suit No.113/1970 Smt. Kamar Vs. Mahmood Hussain (Ext.Kha-1) and order dated 21.04.71 passed by the court of Munsif, Nagina, dismissing the suit in default of the parties (Ext.Kha-2). 10. After hearing the arguments of the parties the learned trial Judge by the impugned judgment and orders convicted the present surviving appellant along with another appellant since deceased and sentenced them as above. Being aggrieved by the aforesaid judgment and order of the trial court, this appeal has been preferred by the appellant Smt. Aneesa alongwith another appellant since deceased. 11. We have heard Sri Sikander B. Kochar, learned counsel for the appellant and Sri Ajeet Kumar Singh, learned A.G.A, and carefully perused the evidence on record. 12. It has been argued on behalf of the appellant that the prosecution has utterly failed to prove the alleged motive, the prosecution story as well as the charge framed against the appellant-accused beyond reasonable doubt. The prosecution has also failed to examine independent witnesses, whose presence was natural at the scene of the crime rather, examined only interested chance witnesses, whose presence at the site of the crime was wholly doubtful, unnatural and improbable as such they are not worthy of reliance. It is also contended by the learned counsel for the appellant that sudden arrival of the scribe of the written report (Ext.Ka-1) at the place of occurrence is also doubtful. 13. It has also been contended that there is material inconsistency between the ocular and the medical evidence; the entire investigation in the case is faulty as well as against the rules and procedure prescribed by law. 13. It has also been contended that there is material inconsistency between the ocular and the medical evidence; the entire investigation in the case is faulty as well as against the rules and procedure prescribed by law. Prosecution has failed to prove as to what prompted the accused persons to commit this murder. Counsel for appellant has wondered that under what circumstances only all the related eyewitnesses were present at the same date, time and place to see this incident of murder. Learned trial court has not taken into consideration the evidence adduced by the defence as well as cogent explanation regarding self defence taken by the surviving appellant. He has submitted that the entire prosecution story is concocted and presence of the eyewitnesses, as mentioned above, is highly doubtful, improbable and unnatural, therefore, the appellant accused is entitled to get benefit of doubt. 14. Refuting all the arguments advanced by the side of the appellant, Sri Ajeet Kumar Singh, learned A.G.A. has submitted that presence of the said eyewitnesses at the time and place of the incident has been proved by them and the reason for their presence is quite natural and probable. Also there is no material on record which creates doubt about their presence. 15. The learned AGA further contended that the previous enmity/motive has been stated in the FIR and proved by the witnesses, which the defence has also admitted, FIR was lodged promptly by the real cousin brother of the deceased, Allahadiya (P.W.-1). It is also submitted by the learned A.G.A. that the prosecution by placing cogent oral and documentary evidence has proved the incident in question and the charge framed against the appellant/accused, beyond reasonable doubt. All the witnesses are trust-worthy; their testimonies are natural and no material contradictions, embellishments or exaggerations are present in their testimonies, as such there is no substance in the arguments of the learned counsel for the appellant. The contradictions, as alleged by the learned counsel for the appellant, in the ocular and medical evidence are misconceived. The provision under Section 106 of Evidence Act also comes into play in this case and there is no cogent explanation furnished by the appellants. The explanation in self defence adduced by the sole surviving appellant is palpably false and concocted. The contradictions, as alleged by the learned counsel for the appellant, in the ocular and medical evidence are misconceived. The provision under Section 106 of Evidence Act also comes into play in this case and there is no cogent explanation furnished by the appellants. The explanation in self defence adduced by the sole surviving appellant is palpably false and concocted. The learned Sessions Judge has convicted the appellant/accused alongwith other co-accused (since deceased) by a reasoned judgment and order hence, there is no scope for interference by this Appellate Court in the impugned judgment and order. 16. Before entering into the merits of the appeal, we would like to recall the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222] whereby duties of the appellate court have been outlined. Para-4 of the judgment reads as under: "4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." 17. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below: "5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence." 18. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence." 18. Therefore, it is the settled proposition of law that the High Court, while exercising appellate jurisdiction in criminal appeal, is expected to appraise the credibility of evidence available on record and to draw the inference on the basis of material available on record and has not to be guided by the finding of acquittal or conviction recorded by the learned court below, bearing in mind the basic principle of criminal law regarding innocence of the accused. 19. Firstly, we would like to have a glance at the medical evidence, which is in the form of statement of Dr. Vinay Kumar Yadav P.W.5 and postmortem report Ext. Ka-8. Though on behalf of the defence death/murder of Asger has not been disputed, we are duty bound to examine whether any offence was committed and if so, by whom. 20. Dr. J.P. Srivastava P.W.-8, in his statement has stated that he was posted as Medical Officer, District Hospital, Bijnor on 8.12.1981. On that date at about 11.00 A.M. he conducted the post-mortem examination on the corpse of Asger, whose age was about 30 years. He deposed that the dead body was brought to him by constable Devi Singh and one more, who also produced the necessary papers before him. On external examination, he claimed to have found that the deceased was of an average built. Rigor-mortis was present on the body and death had occurred about one day before. He found following ante-mortem injuries on the dead body of deceased:- (1) Incised wound on the back of neck 10 cm. x 4 cm. x vertical column cut from root of neck. (2) Incised wound on left side of neck 12 cm. x 4 cm. x soft tissue deep. (3) Incised wound on skull frontal side 4 cm. x 3 cm. x brain deep. (4) Incised wound on right side of neck 6 cm. x 3 cm. x soft tissue deep. (5) Incised wound palmar side of all fingers of right hand. (6) Incised wound palmar surface of left thumb index finger. (7) Abrasion 4 cm. x 4 cm. on top of right knee. 21. x 3 cm. x brain deep. (4) Incised wound on right side of neck 6 cm. x 3 cm. x soft tissue deep. (5) Incised wound palmar side of all fingers of right hand. (6) Incised wound palmar surface of left thumb index finger. (7) Abrasion 4 cm. x 4 cm. on top of right knee. 21. Further, according to this witness the death of Asger had occurred about one day before the post-mortem examination. He proved the postmortem report Ext. Ka-8. 22. Now, we deal with the arguments advanced by the learned counsel for the appellants one by one. 23. So far as the motive part is concerned, as alleged by the learned counsel for the appellants, it is not proved by the prosecution by cogent and reliable evidence. It is revealed from the perusal of the FIR that the deceased Asgar was under the heavy liability of debt and to over come the same he wanted to dispose of his property and the accused appellants opposed the proposal. This aspect clearly indicates towards the motive for commission of the crime, which was proved by the overwhelming evidence of the witness PW-1 Allahadiya. Therefore, the factum with regard to the alleged motive has been fully substantiated by the oral and documentary evidence adduced by the prosecution. Even if, this aspect is ignored, it is a case of direct evidence. One Noman Ali Khan (neighbour) (PW-2) is alleged to have raised alarm stating that the deceased Asgar was being assaulted by the accused appellant Mohmood Ahmad (now deceased). Subsequently on this alarm, the witnesses namely Allahadiya (PW-1), Khalid Husain(PW-4), Noman Ali Khan (PW-2) and Mohd. Yunus (PW-3) have deposed that they rushed to the closed house of the accused appellant Mahmood Ahmad (now deceased) which is the place of the incident, Allahadiya entered the house by scaling the wall and opened the door and then after entering in the house they saw the appellants Smt. Aneesa and Mahmood Ahmad making assault by 'Gandasa' on the neck of the Asgar and Smt. Sugra was seen having caught hold the deceased. In the light of these averments, it is explicit that the case is based on direct evidence, as such the motive loses its significance. Thus, the argument of the learned counsel for the appellant in this regard is not of much avail for the appellant. 24. In the light of these averments, it is explicit that the case is based on direct evidence, as such the motive loses its significance. Thus, the argument of the learned counsel for the appellant in this regard is not of much avail for the appellant. 24. It is note-worthy that the accused appellant Mahmood Ahmad has died during the course of trial and Smt. Sugra has been acquitted by the trial court. Thus, the appeal remains pending with respect to the sole accused appellant Smt. Aneesa, who has been assigned 'Gandasa' as a weapon of assault. 25. The next point of the argument is that the presence of the witness on the spot was not natural and interested as well as chance witnesses have been examined. From the perusal of the FIR it is revealed that one Noman Ali Khan (PW-2), neighbour of the deceased accused appellant saw the incident and raised alarm whereby Allahadiya (PW-1), Abid Husain, Mohd. Yunus (PW-3) and Khalid Husain (PW-4) rushed to the house of accused Mahmood Ahmad(deceased). It has come in the prosecution version that these witnesses were present and taking tea with the deceased at the tea-stall of Sharif Ahmad (PW-10), when the deceased appellant came there and asked the deceased to accompany him to the later's house for having some deliberation, on which the deceased accompanied the deceased appellant and proceeded towards the former's house. 26. So far as the appreciation of the interested witness is concerned, the matter has, time and again, been considered by the Apex Court and the legal position has now been crystilized into a rule of law and mere witness being related cannot be discarded as a whole. In such situation, the Court should enshrine with his duty to scrutinize interested or related witness with utmost care and caution, hence even presuming the witnesses to be interested or related, their testimony cannot be thrown out. 27. The law on this point is very clear that non-examination of an independent witness is not a mathematical formula for discarding the weight of the testimony of other direct ocular witnesses available on record, however natural, trustworthy and convincing it may be. It is settled law that non-examination of independent witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a single stroke of pen. It is settled law that non-examination of independent witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a single stroke of pen. The Court can convict the accused on the statement of solitary eye witness, even if he is related to the deceased, inimical or partisan, therefore, non-examination of an independent witness would not be fatal to the case of the prosecution. The above ratio of law has been laid down by the Apex Court in the cases of Kripal Singh v. State of Haryana [ AIR 2013 SC 286 ], Sandeep v. State of U.P. [ (2012) 6 SCC 107 ] and Mano Dutt and another v. State of U.P. [ (2012) 4 SCC 79 ]. Dalip Singh and others Vs. State of Punjab [ AIR 1953 SC 364 1SCR 145], Chavda Jivanji Chelaji and others v. State of Gujrat [2001 Cri LJ 3299], Girish Yadav and others v. State of Madhya Pradesh [ AIR 1996 SC 3098 ] and Bhagwan Singh and others v. State of Madhya Pradesh [ AIR 2002 SC 1621 ]. 28. In a recent judgment in the case of Nagappan v. State (by Inspector of Police, Tamil Nadu) reported in AIR 2013 SC 3298 , the Apex Court in paragraph No. 10 has observed as under:-- "10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. " 29. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. " 29. It appears that the Hon'ble Supreme Court has taken note of the situation that normally the people do not want to be involved in the affairs of the others, even if they have seen the incident. There is a general apathy among the public to not to involve themselves in the litigation of others either to depose in favour or against a particular side. It is the related persons who have tendency or psychology that the real culprits should not go scot free and the actual culprits should be brought to be booked. Merely on the ground that the witnesses are related, their testimony cannot be discarded. In such circumstances, the court is enjoined with the duty to scrutinize the testimony of the related witnesses with utmost care and caution and as such the submission in this regard that the witnesses being related to the victim is of not much significance. 30. The witnesses Allahadiya (PW-1), Abid Husain, Mohd. Yunus (PW-3) and Khalid Husain (PW-4) are the persons, who were present on the tea-stall and on alarm raised by Noman Ali (PW-2), (who is the neighbour of the deceased accused appellant Mahmood Ahmad) and whose house is adjacent to the house where the incident took place, the persons who were sitting at the tea-stall reached on the spot, witnessed the incident in question and apprehended the accused persons at the spot, hence they cannot be treated to be a 'chance witness' and they appear to be natural witnesses. 31. The Apex Court in the case of Vikram Singh and others V. State of Punjab reported in (2010) 3 SCC 56 has cited paragraph 3 of its earlier pronouncement in the case of Rana Pratap and Others V. State of Haryana reported in 1983 (3) SCC 327 . The said paragraph-3 reads as under:-- "There were three eye witnesses. 31. The Apex Court in the case of Vikram Singh and others V. State of Punjab reported in (2010) 3 SCC 56 has cited paragraph 3 of its earlier pronouncement in the case of Rana Pratap and Others V. State of Haryana reported in 1983 (3) SCC 327 . The said paragraph-3 reads as under:-- "There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence." 32. In view of the above proposition of law laid down by the Apex Court in Rana Pratap and Others (supra) the position has been clear with respect to the context of the 'chance witness', the evidence of which cannot be discarded without there being a cogent reason there for. 33. The next submission is that in the inquest report, the witnesses of the FIR were not made the panch. Learned counsel has failed to demonstrate any provision of law which mandates/requires the naming of the witnesses in the FIR to be the witnesses of inquest. 33. The next submission is that in the inquest report, the witnesses of the FIR were not made the panch. Learned counsel has failed to demonstrate any provision of law which mandates/requires the naming of the witnesses in the FIR to be the witnesses of inquest. Further, even if the Sardar Ali and Anees Ahmad, who were made witnesses of the different recovery memos have not been made the witnesses of inquest report, it would have no oblique bearing on the case. The purpose of inquest is to asserting the nature/cause of the death whether it is homicidal, incidental or suicidal etc., hence any omission on the part of execution of the inquest would not be fatal for the prosecution of the case. 34. The Hon'ble Apex Court in the case of Ravi @ Ravichandran Vs. State; 2007 (Cri.)LJ 2740 has observed that the purpose of preparing the inquest report is only to notice as to whether the murder committed was homicidal in nature or not for making a note in regard to identification marks of the accused. 35. The Hon'ble Apex Court in the case of Amar Singh Vs. Balwinder Singh and others; AIR 2003 SC 1164 has observed that purpose of holding inquest is opined in Section 174 Cr.P.C. the police officer is required to record the cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted. The Hon'ble Apex Court has further observed that this section does not contemplate that the manner in which the incident took place should be mentioned. Its total probative value has been discussed in the case of Pandurang Tukia & Bhillia Vs. State of Hyderabad; AIR 1955 SC 216 that except section 145 of the Indian Evidence Act, admissibility of inquest report is not questionable. At the most inquest witness could have been confronted with its help. 36. The next submission of the counsel for the accused appellant about the interpolation in the writing of weapon of assault being found blood stained in the inquest report is also falsified from the perusal of the inquest report (Ext.Ka-15). Accordingly, this submission regarding interpolation also goes away on the basis of perusal of (Ext.Ka-15) itself. 37. 36. The next submission of the counsel for the accused appellant about the interpolation in the writing of weapon of assault being found blood stained in the inquest report is also falsified from the perusal of the inquest report (Ext.Ka-15). Accordingly, this submission regarding interpolation also goes away on the basis of perusal of (Ext.Ka-15) itself. 37. It is note-worthy that the execution proceedings commenced on 7.12.1981 at 11 a.m., i.e., 7.45 a.m. about the incident of 07.12.1981 at whose report was lodged with the police at 9.30 a.m. on the same day, approximately about one and half hours after the incident and concluded at 12 hours on the same day. 38. From the perusal of document (Ext. Ka-15) it is revealed that it bears the crime number and it was promptly executed after the lodging of the First Information Report. 39. Next point of argument is that witnesses Anees Ahmad and Sardar Ali, who were the witnesses of recovery of money have not been examined. Time and again, it has been propounded by the Apex Court that it is a quality of the evidence which matter. This aspect has also taken care of in the Indian Evidence Act as well. 40. The testimony of PW-5 Head Moharrir Raja Ram, PW-6 Constable Devi Singh, PW-7 Moharrir Nadir Ali and PW-9 Constable Bhim Singh is confined only to the documents that they have executed at the time of lodging of the FIR as well as during the course of investigation. They have not deposed on the factual aspect of the case. They are formal witnesses. 41. So far as the testimony of the Doctor (PW-8) is concerned, he is also a formal witness. He has conducted autopsy and he has noticed 7 injuries on the person of the deceased Asgar. He has taken down 7 injuries and formed that the injuries no. 1 to 6 are in the nature of incised wounds and injury number 7 is abrasion. The prosecution has been consistent in its case that assault on Asgar was made by 'Gandasa', which were assigned to the deceased appellant and the surviving appellant Smt. Aneesa. The aforesaid injuries on the person of the deceased prima facie correspond to the weapon of assault assigned to the accused appellant. Now, the testimony of the Doctor (PW-8) would be appreciated in the light of the evidence of witnesses of fact. 42. The aforesaid injuries on the person of the deceased prima facie correspond to the weapon of assault assigned to the accused appellant. Now, the testimony of the Doctor (PW-8) would be appreciated in the light of the evidence of witnesses of fact. 42. Before entering into the scrutiny of the testimony of fact, PW-1 Allahadiya, PW-2 Noman Ali Khan, PW-3 Mohd. Yunus and PW-4 Khalid Husain, it appears expedient to first deal with the testimony of P.W.-10 Sharif Ahmad, who is tea-stall owner. He has proved the presence of Allahadiya, Abid Husain, Mohd. Yunus and Khalid Husain at the tea-stall when the deceased accused-appellant took away the deceased Asgar Ali to his house on the pretext of having some deliberation and deceased Asgar Ali accompanied the deceased accused appellant. After sometime, the neighbour Noman Ali Khan (PW-2), who was living adjacent to the house of deceased accused-appellant, raised alarm from his roof that Asgar Ali being assaulted by the deceased-appellant, surviving appellant Smt. Aneesa and Sugra by 'Gandasa'. On hearing the alarm the witnesses Allahadiya (PW-1), Mohd. Yunus (PW-3) and Khalid Husain (PW-4) quickly reached to the spot and made access in the house. This witness had been put to a lengthy cross-examination but nothing could be extracted so as to create any doubt in the presence of PW-1 Allahadiya, PW-3 Mohd. Yunus and PW-4 Khalid Husain at the tea-stall. Hence, their presence, by any stretch of imagination, can be said to be unnatural at the tea-stall prior to the incident. It has also come in his evidence that his shop is located across the road from where the house of Noman Ali (PW-2) is visible. His testimony is confined only to a limited fact that is about the presence of PW-1 Allahadiya, PW-3 Mohd. Yunus and PW-4 Khalid Husain at the tea-stall, which cannot be doubted because nothing adverse can be extracted from his (PW-10) cross-examination. 43. PW-2 Noman Ali Khan is the first witness who saw the incident of assault from his house, the deceased Asgar was being assaulted by the deceased accused-appellant and the present surviving accused-appellant by 'Gandasa'. Noman Ali Khan has stated that he saw the incident from his window, after hearing the cries of the deceased. 43. PW-2 Noman Ali Khan is the first witness who saw the incident of assault from his house, the deceased Asgar was being assaulted by the deceased accused-appellant and the present surviving accused-appellant by 'Gandasa'. Noman Ali Khan has stated that he saw the incident from his window, after hearing the cries of the deceased. A general suggestion has been given to the witness that he has enmity with the accused-appellant but no specific direct reason for enmity was put to the witness by way of suggestion so as to create doubt in his testimony. The witness had been put to a lengthy cross-examination but nothing could be extracted from him by way of cross-examination so as to establish that he did not see the incident of assault on Asgar by the accused-appellant, as alleged by him. It is settled proposition of law that the testimony of a witness is to be appreciated as a whole and any part of the evidence would not be conclusive or determining factor for assessing the veracity of the witness. In his examination-in-chief and cross-examination, he (PW-2) remained consistent about the factum of assault by the surviving accused-appellant inclusive of deceased accused-appellant and the surviving accused-appellant has failed to demonstrate any major or material contradiction which may go to the root of the entire testimony of PW-2 and may be found sufficient to reject his evidence. 44. Now, the testimony of PW-1 Allahadiya, PW-3 Mohd. Yunus and PW-4 Khalid Husain remains to be scrutinize. PW-1 Allahadiya, informant has fully supported the prosecution version and has also corroborated the testimony of PW-2 Noman Ali Khan. The witness has categorically stated about the motive, execution of written report (Ext.Ka-1), date, time, place, manner of lodging of FIR, the occurrence and the persons who committed the offence with the weapons assigned to them. The witness has also disclosed through his statement, the topography of the house of the deceased-appellant, in which the incident is alleged to have taken place. The witness has also deposed about the factum of debt being owned by the deceased Asgar Ali. According to him, he wanted to pay off the debt and was in need of selling his property. This also makes a reflection upon the motive behind the commission of the offence. 45. The witness has also deposed about the factum of debt being owned by the deceased Asgar Ali. According to him, he wanted to pay off the debt and was in need of selling his property. This also makes a reflection upon the motive behind the commission of the offence. 45. The witness (PW-1) had been put to a lengthy cross-examination but his testimony has been consistent through out the examination-in-chief and cross-examination with respect to the motive, date, time, place, manner of occurrence and the weapon by which the assault was made by the surviving appellant and the factum of spot arrest of all the accused persons as well as lodging of FIR. There is no occasion to disbelieve his testimony and the witness comes in the category of wholly reliable witness. 46. Now remains the testimony of PW-3 Mohd. Yunus for appraisal. PW-3 Mohd. Yunus, who was present prior to the incident at the tea-stall, also reached the spot after hearing the alarm of Noman Ali Khan (PW-2) and has reiterated the date, time, place, manner of incident in question and the weapon of assault assigned to the appellant-accused persons for committing the offence and the names of the persons who committed the crime. This witness has also been put to a lengthy cross-examination but nothing material could be elicited, which may raise finger about the testimony of the witness. His testimony in examination-in-chief and cross-examination has been consistent and uniform. The general suggestion which has been given is that being a relative of PW-1, he has deposed in the case. His presence was natural at the tea-stall and he also saw the incident in question and thereafter, given the description before the trial Court what he saw on the spot. Mere being related to PW-1, his testimony cannot be discarded. No any suggestion has been put to the witness so as to create doubt about his presence and his being the eye witness. In view of the consistency in the statement of the witness PW-3, his testimony appears to be reliable. 47. Now, remains the testimony of PW-4 Khalid Husain for critical appraisal. PW-4 was also sitting at the tea-stall prior to the incident as established by the testimony of PW-1. In view of the consistency in the statement of the witness PW-3, his testimony appears to be reliable. 47. Now, remains the testimony of PW-4 Khalid Husain for critical appraisal. PW-4 was also sitting at the tea-stall prior to the incident as established by the testimony of PW-1. He also reached on the spot on the alarm raised by Noman Ali Khan (PW-2) and saw the incident of assault being committed by Hafiz Mahmood Ahmad, deceased accused-appellant and his daughter Smt. Aneesa surviving accused-appellant at the said date, time and place of incident. He has also stated that at the time of the incident Smt. Sugra accused was catching hold the deceased. He further stated that the deceased accused-appellant and the surviving accused-appellant were apprehended on the spot with the weapon of assault after the incident. The witness has also noticed the presence of the blood on the spot and in his observation Asgar had died then and there and was lying in the inner verandah of the house of the deceased accused appellant. The witness had been put to sufficiently lengthy cross-examination. The witness has also given description of the two 'Gandasa', the weapons of assault in his cross-examination. His examination-in-chief and cross-examination has all through being consistent and nothing can be elicited by cross-examination so as to discredit the testimony of the witness. 48. No vital suggestion has been given to the witness so as to ascertain the reason why he has deposed against the accused appellant. Mere suggestion that due to relationship with the witness Noman Ali Khan (PW-2), the witness has deposed, is not of much significance. There appears no plausible reason to discard the testimony of the witness. The witness (PW-4) also appears to be reliable. 49. Now, it appears expedient to appreciate the testimony of the witness of fact in the light of medical evidence. The ante-mortem injuries, six in number, are in the nature of incised wound, which correspond to the weapon of assault assigned to the deceased accused-appellant and the surviving accused-appellant. The autopsy of the deceased Asgar was conducted on 8.12.81 at 11 a.m. whereas the incident took place on 7.12.81 at about 7.30 a.m. The duration, as pointed out by the Doctor (PW-8) also correspond to the time and date of the incident. The autopsy of the deceased Asgar was conducted on 8.12.81 at 11 a.m. whereas the incident took place on 7.12.81 at about 7.30 a.m. The duration, as pointed out by the Doctor (PW-8) also correspond to the time and date of the incident. It has also been opined by the Doctor that the injury in the nature, caused to the person of the deceased, was sufficient to cause death. He has further opined that the said injuries could have been caused by 'Gandasa', which is a sharp edged weapon. The witnesses of the fact have stated that the commission of the offence by using the 'Gandasa' as weapon of assault. The injury no. 1 was on the neck, which cut down the trachea, as per the statement of the doctor. It is note-worthy to mention that the statement of the doctor (PW-8) was initially recorded in the month of May,1982 and subsequently, his cross-examination was closed by the trial court on 13.10.1983, as no cross-examination has been conducted by the defence despite opportunity given,, as such the testimony of the doctor (PW-8) remains unchallenged and uncontroverted. There is no occasion to discard the statement of the doctor (PW-8), which fully supports the testimony of the witnesses of fact. 50. The Head Moharrir Raja Ram (PW-5) has proved the execution of the check FIR, G.D., about Special Report and G.D. Nos. 3,5,6 and 7. Nothing could be suggested to the witness so as to establish that the documents referred to above are executed by the witness were fabricated. Not even a single suggestion has been given to this witness so as to bring out the factum of FIR ante-timed. 51. The report of Serologist also reveals the presence of blood stains on the material Nos. 1,3,4, and 6 to 12 sent for chemical examination, which further fortifies the prosecution version. 52. Now remains the testimony of PW-11 S.I. Khem Chand Sharma, who had accompanied and worked with the Investigating Officer/S.H.O. S.C. Gautam (later suspended), has proved the entire proceeding of the investigation, by adducing secondary evidence, because of no whereabout of the I.O. He is also the formal witness. He has not stated any fact. 52. Now remains the testimony of PW-11 S.I. Khem Chand Sharma, who had accompanied and worked with the Investigating Officer/S.H.O. S.C. Gautam (later suspended), has proved the entire proceeding of the investigation, by adducing secondary evidence, because of no whereabout of the I.O. He is also the formal witness. He has not stated any fact. He has conducted the spot inspection with the I.O. and proved the execution of the recovery memo of clothes, weapons, blood stained currency, plain soil and blood stained soil, Pyjama of deceased appellant and shawl of the accused appellant and further proved that after conducting the investigation in accordance with the procedure I.O. had submitted the charge sheet. He specifically proved the execution of the recovery memo of the weapon of assault, and other memos prepared at the time of the investigation on the spot and also recording of the statements of the witnesses by the I.O. and thereafter final submission of the charge sheet by the I.O. Nothing could be elicited by way of cross-examination so as to establish that no proper investigation was conducted by the I.O. or the investigation was conducted in a cursorily, tainted and haphazard manner. 53. Now it appears essential for the Court to take the notice of the defence. Smt. Aneesa surviving accused-appellant has set out the defence in her statement under Section 313 that in the previous night the deceased tried to physically assault/molest her and on refusal he hit her with a 'Gandasa' whereby she sustained injuries. Then she snatched the 'Gandasa' from him and hit him bythe said 'Gandasa' and thereafter, he died on the spot. The same self defence, submitted in writing, by the surviving accused-appellant Smt. Aneesa (Paper No.Ka-81). 54. Further, the prosecution has proved beyond doubt that all the two weapons of assault stained with blood and the body of the deceased were found lying in the said house of the appellants; even blood droplets were sprinkled on theverandah of the said house. It is also proved by cogent direct ocular evidence of trustworthy witnesses that at the time of the murder in the said closed house of the appellants, only the appellants and the deceased were present and no one else, till reaching of the witnesses and witnessing the same. 55. It is also proved by cogent direct ocular evidence of trustworthy witnesses that at the time of the murder in the said closed house of the appellants, only the appellants and the deceased were present and no one else, till reaching of the witnesses and witnessing the same. 55. Therefore, in view of the above facts and circumstances of the case, it is established that when the deceased was assaulted by the appellants with the two cutting edged 'Gandasas', no other than the aforesaid persons were present till the witnesses arrived. Hence, it is also proved that this incident was also 'especially in the special knowledge of the appellants'. Thus, it is obligatory on the part of the appellants while being examined under Section 313 Cr.P.C. to furnish some cogent explanation with respect to the incriminating circumstances associated with them, so that the court must take note of such explanation in the case, to decide as to whether or not, the said explanation can inculpate them in relation to the commission of the crime. The aforesaid observation has been made by the Apex Court in Transport Commissioner Vs. S. Sardar Ali, (1983) 4 SCC 245 and has also been affirmed and followed in the case of Musheer Khan Vs. State of M.P., (2010) 2 SCC 748 . 56. Further, in State of Maharashtra Vs. Suresh, (2000) 1 SCC 471 , the Apex Court has held that when the attention of the accused is drawn to such circumstances that inculpate him in relation to the commission of the crime, and he fails to give proper explanation and gives false answer in respect to the same, the said act may be counted as providing a chain or ground, pointing towards the guilt of the accused and nothing else. 57. Again, dealing with similar facts, in the case of Joseph Vs. State of Kerala (2000) 5 SCC 197 , that when questioned under Section 313 Cr.P.C., the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In the background of such facts, the Supreme Court observed (at page 205, paragraph 14); "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. In the background of such facts, the Supreme Court observed (at page 205, paragraph 14); "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 (see State of Maharashtra Vs. Suresh (2000)1 SCC 471 ). That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy." 58. In the instant case also, from the trend of the answers given by the appellants in their examination under Section 313 Cr.P.C., it appears that the appellants made only a bald denial of all the incriminating circumstances put to them, and finally had made false and concocted explanation. 59. Similarly, in the case of Sahadevan Vs. State (2003) 1 SCC 534 , the Apex Court has observed as under:- "Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever." 60. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever." 60. Now, on applying the above settled legal principles in this case, it appears that the surviving appellant has made false and concocted case of self defence about the incriminating circumstances, inculpating and connecting her, especially about the glaring incriminating facts and circumstances in this case, that the corpse of the deceased was found lying in a pool of blood and the weapons of assault stained with blood were also found near the said body in the house of the appellant found closed from inside. 61. The defence witnesses have been examined on behalf of the accused appellant to substantiate the defence version. D.W.-1 Dr. R.K. Nigam is the Jail Doctor, who has examined the accused appellant at Jail on 8.12.1981 at about 4.35 p.m., who has noted the injuries in the nature of incised wound on the index finger of the right hand in the size of 3/4 cm x 1/4 cm x muscle deep, on the middle finger of the right hand in the size of 1-1/4 cm x 1/4 cm x muscle deep and third on the little finger of the right hand in the size of 3/4 cm x 1/4 cm x muscle deep. The doctor has opined the injuries about one and half days old and the nature of injury opined to be simple. 62. Now the case set up/explanation given by the accused appellant in his written statement (Paper No. Ka-81) as well as in her statement under Section 313 is to be appreciated in the light of the medical evidence. The veracity of the fact could be established if the injuries were shown to them at the police station which could have find mention in the G.D. and consequently the accused appellant would have been referred to the hospital for medical examination. No injury finds mention in the G.D. Of the arrest and more so Head Moharrir Raja Ram PW-5 has also not corroborated this fact and no such injury was brought to the notice of the I.O. by the accused appellant while giving her statement to the I.O., as such the theory of the defence made and raised at a later stage do not inspire confidence. 63. 63. The testimony of the DW-2 A. Kumar, Assistant Jailor clearly reveals that the accused appellant was admitted in jail on 7.12.1981 in Case Crime No. 277 of 1981 under Section 302 IPC, P.S. Seohara, District Bijnor but the medical examination was conducted on 8.12.1981 at about 4.30 p.m.. From the statement of the DW-2 it is clear that it is the requirement of Jail Mannual that every prisoner admitted in jail should be medically examined at the time of admission. Admittedly, from the testimony of the DW-2 medical was conducted on 8.12.1981 at about 4.30 p.m., which clearly goes to prove that no medical examination of the accused appellant was conducted at the time of her admission in the jail. 64. From the defence version this fact is establish that the accused appellant had made assault on the deceased by 'Gandasa'. Now it is to be considered whether the assault was made in the circumstances as alleged by the defence or as alleged by the prosecution witnesses. From the analysis of the entire prosecution and defence evidence, it is establish that the injuries alleged to have been caused to the accused appellant were neither noted in the G.D. nor she was referred for medical examination after arrest nor medical examination was conducted at the time of entry in the jail and therefore, it is subsequent that the medical examination was conducted on 8.12.1981 at 4.30 p.m. with some ulterior motive. Whereas the prosecution have been consistent all through by their statements and the prosecution documents, which establishes that the assault on the deceased Asgar was made on 7.12.1981 at 7.30 in the morning by the deceased accused appellant and the accused appellant inclusive of accused Sugra in furtherance of their common intention, who has been acquitted by the trial court. 65. It is note-worthy to mention that the testimony of PW-1 Allahadiya, PW-2 Noman Ali Khan, PW-3 Mohd. Yunus and PW-4 Khalid Husain have been all through consistent inter-se and coherent about the motive, date, time, place and manner of occurrence, by whom the offence had been committed, with the weapon by which the offence was committed etc. 65. It is note-worthy to mention that the testimony of PW-1 Allahadiya, PW-2 Noman Ali Khan, PW-3 Mohd. Yunus and PW-4 Khalid Husain have been all through consistent inter-se and coherent about the motive, date, time, place and manner of occurrence, by whom the offence had been committed, with the weapon by which the offence was committed etc. This finds support from the medical evidence as well as recovery of weapons, recovery of corpse and arrest of the accused persons from the spot, soon after the occurrence, i.e., from the closed house of the appellant and further the blood found on the weapon of assault, clothes of the sole appellant and from the place of occurrence was also finds support from the Serologist report. 66. Since no appeal has been filed on behalf of the prosecution or complainant against the acquittal of accused Sugra, hence no observation is being made about the participation of the accused Sugra in the commission of the offence and the findings recorded by the learned trial court with respect to the accused Sugra is not being interfered with. 67. More so, the Section 106 of Evidence Act cannot be ignored in the facts and circumstances of the case. The offence as alleged could have been committed by the accused-appellants in the manner as alleged by the prosecution and fully corroborated by the direct evidence of the prosecution witnesses and the other material available on record and the body of deceased was also found from inside the closed house of the accused-appellants. Therefore, it is required under law that the special facts, which are in the special knowledge of the accused persons should have been explained by them only, by submitting cogent and plausible explanation. This burden has also not been properly discharged by them. 68. The Apex Court in the case of State of West Bengal Vs. Mir Mohd. Omar (2000) 8 SCC 382 , Harijan Bhala Teja Vs. State of Gujarat 2016 (4) SCALE 397 , State of Himanchal Pradesh Vs. Rajiv Jassi AIR 2016 SC 2241 , lays emphasis on the application of Section 106 of the Evidence Act in the incidents alike the case in hand. In this respect the Apex Court in the case of Mir Mohd. State of Gujarat 2016 (4) SCALE 397 , State of Himanchal Pradesh Vs. Rajiv Jassi AIR 2016 SC 2241 , lays emphasis on the application of Section 106 of the Evidence Act in the incidents alike the case in hand. In this respect the Apex Court in the case of Mir Mohd. Omar (Supra) has held as follows:- "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 fossilized 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 the 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. 33. 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. 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 reaches 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 the 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. 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 the accused would tell the Court what else happened to Mahesh at least until he was in their custody." 69. Therefore, if an offence takes place inside the privacy of a house and in such circumstances, where the appellants have all the opportunity to plan and commit the offence at the time and circumstance 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. Affirming the applicability of Section 106 of the Evidence Act in these cases, in the decision of State of Rajasthan Vs. Jaggu Ram (2008) 12 SCC 51 at para 28, the observation made in the judgment of Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681 had been reiterated by the Apex Court as under:- "14. 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 presides 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. (See Stirland v. Director of Public Prosecutions [1944 AC 315] quoted with approval by Arijit Pasayat, J. in State of Punjab V. Karnail Singh [ 2003 (11) SCC 271 ]. 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 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.... 15. 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 Section 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. 70. Similar view has also been expressed in State of Punjab vs. Karnail Singh [ 2003 (11) SCC 271 ], State of Rajasthan vs. Kashi Ram [ 2006 (12) SCC 254 ] and Raj Kumar Prasad Tamakar vs. State of Bihar (2007) 10 SCC 433 ." 71. The judgment of Vivian Bose, J. in the Apex Court's decision in Shambu Nath Mehra Vs. State of Ajmer, AIR 1956 SC 404 , lays down the legal principle underlying the shifting of burden of proof under Section 106 of the Evidence Act thus (vide para 38) : "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 relieve 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 pre-eminently or exceptionally within his knowledge." 72. Consequently, Section 106 of the Evidence Act is squarely applicable in this case, as pointed out in Mir Mohd. Omar (Supra) and Shambu Nath Mehra (supra). The rule in Section 106 of the evidence Act would apply when the facts are 'especially in the knowledge of the accused' and it would be impossible, at any rate, disproportionately difficult for the prosecution to establish the said fact, 'especially within the knowledge of the accused'. 73. In the present case also, by the ample cogent evidence, the prosecution did proceed on the footing that the incident in question was committed inside the closed house of the appellants as well as in the presence of the appellants and so the facts were 'especially within the knowledge of the accused persons', therefore, the principle of Section 106 of the Evidence Act shall apply in this case. 74. While dealing with a similar matter the Apex Court, in its latest decision in Gajanan Dashrath Kharate Vs. State of Maharashtra, (2016) 4 SCC 604 , has observed that the inmates of the house cannot get away by simply keeping quiet and offering no explanation or false explanation. 75. The aforementioned observation of the Apex Court is based on the catena of Supreme Court decisions. The relevant para-13 of the said decision is quoted herein below:- "13. In Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681 , it was held as under:- "22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram V. State of H.P. (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal V. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. V. Dr. Ravindra Prakash Mittal (1992) 3 SCC 300 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. V. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. And the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. And the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime." Same view was reiterated by this Court in State of Rajasthan Vs. Parthu (2007) 12 SCC 754 . 76. In this case also the inmates of the house, i.e., appellants cannot get away by simply remaining quiet and offering no explanation or giving false explanation on the supposed premise that the burden to establish the case lies entirely upon the prosecution and there is no duty at all on the appellants-accused persons to offer an explanation as to how the homicidal death of the deceased happened in his house on the date, time and place of the occurrence. When the sole surviving appellant offer false and concocted explanation as to the above facts, which were 'especially within her knowledge' it is a strong circumstance against the appellant also that she and other appellant (deceased) alone are responsible for the commission of the crime. 77. Illumined by the aforementioned proposition of law laid down by the Apex Court and on the critical appraisal of the impugned judgment of the trial Court, we are of the considered opinion that the judgment and order in question is wholly substantiated by the evidence on record. The trial court has not erred in appreciating the evidence and has rightly recorded the findings of conviction. Therefore, we do not find any justification to interfere with the findings of conviction and the sentence awarded to the accused appellant by the learned trial court. 78. In view of above, we find that arguments advanced on behalf of the appellant are without substance. The appeal is bereft of merit and deserves to be dismissed. 79. Accordingly, the appeal is dismissed. 78. In view of above, we find that arguments advanced on behalf of the appellant are without substance. The appeal is bereft of merit and deserves to be dismissed. 79. Accordingly, the appeal is dismissed. The conviction and sentence awarded by the learned Special Judge/Additional District and Sessions Judge, Bijnor against the sole accused-appellant Smt. Aneesa is affirmed. The accused/appellant Smt. Aneesa is directed to serve out the remaining part of the sentence awarded by the learned trial court by the impugned judgment and order. The accused-appellant Smt. Aneesa is on bail. She shall surrender before the trial court for serving out the sentence within 30 days from the date of this judgment, failing which the trial court shall ensure her arrest and to send her to jail for serving out the remaining part of the sentence in accordance with law. 80. The copy of the judgment and entire record be transmitted back to the concerned trial court through Sessions Judge, Bijnor for compliance within ten days. The concerned court will thereafter report the compliance to this Court within a month.