JUDGMENT : (Delivered by Hon'ble Alok Kumar Mukherjee, J.) 1. Since both these appeals have been preferred against a common judgment and order dated 22.8.1983, passed by the IInd Additional Sessions Judge, Fatehpur in S.T. No.146 of 1982 (State Vs. Prem Narain alias Baboley and others) arising out of Crime No. 111 of 1981, P.S. Jafarganj, District Fatehpur, convicting the appellants Prem Narain alias Baboley, Satya Narain, Shiva Ram and Ramkali under section 302 read with section 34 IPC and sentencing them to undergo imprisonment for life and further convicting appellants under Section 342 IPC and sentencing them to undergo 4 months' Rigorous imprisonment, both these appeals were connected and heard together. 2. It is relevant to mention that while hearing these appeals, it has been noticed by us that the accused-appellants Shiv Ram Lohar and Smt. Ram Kali have died during pendency of Criminal Appeal No. 2001 of 1983 (Satya Narain and others Vs. State of U.P.). Therefore, their appeal stands abated by this Bench vide order dated 19.5.2016, and as such Criminal Appeal No. 1995 of 1983 (Prem Narain alias Baboley Vs. State of U.P.) and connected Criminal Appeal No. 2001 of 1983 (Satya Narain and others Vs. State of U.P.) for the surviving appellants Prem Narain alias Baboley and Satya Narain are being disposed of by this judgment. 3. The appellants/accused persons Prem Narain alias Baboley and Satya Narain and others have filed these appeals against the aforementioned judgment and order dated 24.6.1983 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 appellants is against the weight of evidence on record and the sentences awarded to them are too severe. 4. Brief facts of the prosecution case are that on 28.10.1981 at about 7.00 a.m. informant Ram Sajiwan Trivedi, son of Devi Charan, resident of village Sarai, P.S. Jafarganj, District Fatehpur gave a written report (Ext.Ka-5), scribed by one Brij Kishore Agnihotri of village Shivari, P.S. Lalauli, District Fatehpur, at police station Jafargang, District Fatehpur, stating therein that his brother Venkatesh alias Munni was returning after attending to the nature's call (after easing himself) on 27th October, 1981 Tuesday at about 5.15 p.m.. As soon as he reached the place in front of the door of the house of Shivram Lohar, the accused persons/appellants Prem Narain alias Baboley, Satya Narain and their father Shivram and mother Smt. Ram Kali started dragging his brother forcibly inside their house, whereupon his brother Munni, raised an alarm and cried "Meri Jaan Bachao". On hearing his cries, he, his wife and his brother's wife and the witness Nootan ran towards the spot and after witnessing this kind of highhandedness they also raised hue and cry. But by the time they reached that place the accused persons/appellants had already dragged his brother inside the house and chained the door from inside. They tried their best to get it opened, but despite their best efforts they could not open the door. Watching from outside the closed house, they kept on hearing the cries of Ram Sajiwan's brother "Bachao Bachao" and then heard the sound of some "Khatpat", after which cries of his brother stopped. Meanwhile, some other persons of the village also came there and they tried to keep vigil on all the doors of the said house from outside. Then, just in order to mislead them, appellant Ram Kali was seen knocking/opening latch at the southern door of the house from inside with an earthen lamp in her hand and in the meantime, accused persons-appellants broke open the western katchcha wall of the house (Nakab) and all of them fled away. He then went inside the house through that "Nakab" and saw that the dead body of his brother was lying in a pool of blood and 'Kulhadi' stained with blood also lying there at the side of the dead body. According to the informant, the appellant Shivram had prior enmity with his brother Venkatesh alias Munni on account of land, due to which he was murdered. 5. On receiving the written report (Ext.Ka.-5), the Head Constable Shivnandan Prasad (PW-1) recorded FIR (Ext.Ka-1) on the basis of that written report on 28.10.1981 at 7.00 a.m. in the presence of the S.O./ Investigating Officer and lodged the same under case Crime No.111 of 1981, offence under section 302/342 IPC, which was also entered in the General Diary dated 28.10.1981 at its serial no.9 (Ext.Ka-2). He then sent special report of the occurrence through the constable CP 294 Rajmani and recorded an entry in this respect in the said General Diary at its serial no.10 at 8.55 a.m. (Ext.Ka-3). 6. At once investigation was entrusted to the then Station Officer Sri Manokanyaka Singh. After concluding the investigation, charge-sheet was submitted by him against all the accused persons/appellants including the present appellants. After procuring the attendance of all the appellants, the case was committed to the Court of Session, where they were charged under Sections 342 and 302/34 IPC. The accused-appellants denied the charge and pleaded not guilty. They further stated that they had been falsely implicated in this case due to enmity and claimed to be tried. 7. In order to prove the charge, besides other papers, prosecution has filed copy of FIR (Ext. Ka-1), General Diary dated 28.10.1981 at 7.00 a.m. at its serial no.9 (Ext.Ka-2), General Diary dated 28.10.1981 at 8.55 a.m. at its serial no.10 (Ext.Ka-3), Letter of the deceased dated 28.03.1981 (Ext.Ka-4), Written report (Ext. Ka-5), Postmortem report (Ext.Ka-6), copy of chik FIR (with seal of the District Hospital) (Ext.Ka-7), Copy of G.D. (with seal of the District Hospital) (Ext.Ka-8), Inquest report (Ext.Ka-9), Diagram of the corpse (Ext.Ka-10), Sample seal (Ext.Ka-11), challan of the dead body (Ext.Ka-12), letters to the R.I. and CMO for postmortem as well as for returning the bloodstained clothes of the deceased etc. (Ext.Ka-13 to Ext.Ka-15), Site plan (Ext.Ka-16), recovery memo of blood stained and plain earth (Ext. Ka-17), recovery memo of three blood stained Axes (Ext.Ka-18), recovery memo of one pair of plastic shoes (Ext.Ka-19), charge sheet dated 6.5.1983 (Ext.Ka-20), Affidavit of Indra Sen Singh dated 26.3.1983 (cross examination dispensed with by the defence) (Ext.Ka-21) on record and placed before the trial court material exhibits (Ext.-1 to 6). 8. Prosecution has also examined P.W.-1 Head Moharrir Shivnandan Prasad, P.W.-2 informant Ram Sajivan, P.W.-3 Dr. V.K. Tripathi, P.W.-4 Nootan, P.W.-5 S. O. Manokanyaka Singh I.O. in oral evidence. 9. Statements of accused-appellants under section 313 Cr.P.C. were recorded after closing of the prosecution evidence. In their said statements all the appellants have admitted that the appellants Prem Narain and Satya Narain are real brothers while the appellants Shiv Ram Lohar (since deceased) and Smt. Ram Kali (since deceased) were their parents. 9. Statements of accused-appellants under section 313 Cr.P.C. were recorded after closing of the prosecution evidence. In their said statements all the appellants have admitted that the appellants Prem Narain and Satya Narain are real brothers while the appellants Shiv Ram Lohar (since deceased) and Smt. Ram Kali (since deceased) were their parents. Except the said admission, they have denied the entire prosecution story as well as from the evidence and all the incriminating circumstances put to them during their recording of statements under Section 313 Cr.P.C. 10. In addition to above, the appellant Prem Narain alias Baboley had taken plea of alibi by stating that he was living in village Janta since birth because his uncles Lakhan Lal and Puttu Lal were issue-less and his father's elder brother had adopted him. He and his family lived in village Janta. He had never been in village Sarai. On the date of the occurrence also he was not there. He has falsely been implicated due to his family. 11. Similarly, appellant Satya Narain had also pleaded that he had been implicated on suspicion. On the date and time of occurrence he was not there at Sarai and had gone to Chitrakoot. Similar statement was being made by the appellant Shiv Ram Lohar (since deceased) alleging that he was also suffering with ill health. Smt. Ram Kali (since deceased) had also shown her total ignorance about all the incriminating facts and circumstances and stated in her statement that she was an old lady. As to why she was implicated in this case and why the witnesses were speaking against her had not been explained by her also in the said statement. 12. To substantiate their pleas of alibi the appellants Prem Narain alias Baboley, Satya Narain and Shiv Ram Lohar, they have examined DW-1 Lakhan Lal, elder brother of appellant Shiv Ram Lohar, DW-2 Raja Ram, Ex. Pradhan of village Janta, DW-3 Raghunandan Lal, Head Master of Family School, village Janta, Bindaki, District Fatehpur. 13. 12. To substantiate their pleas of alibi the appellants Prem Narain alias Baboley, Satya Narain and Shiv Ram Lohar, they have examined DW-1 Lakhan Lal, elder brother of appellant Shiv Ram Lohar, DW-2 Raja Ram, Ex. Pradhan of village Janta, DW-3 Raghunandan Lal, Head Master of Family School, village Janta, Bindaki, District Fatehpur. 13. In documentary evidence the appellants have filed the copy of Pariwar register of village Sarai with regard to the house No.66, village Sarai (Ext.Kha-1), copy of Kutumb register (part-I) village Sarai for the year 1955-70 (Ext.Kha-2), Voter list of 1980 relating to village Janta pertaining to House No. 156 (Ext.Kha-3), Voter list of the year 1980 relating to village Sarai pertaining to House No.66 (Ext.Kha-4), copies of scholar register of Anirudh Kumar and Gokaran sons of appellant Prem Narain alias Baboley as well as their School Leaving Certificate of Primary Pathshala Janta (Ext.Kha-5 and Kha-6) and copy of judgment and order in S.T. No.333 of 1974 (State Vs. Shatrughan and others) passed by the court of Sessions Judge, Fatehpur (Ext.Kha-7). 14. After hearing the arguments of the parties the learned trial Judge by the impugned judgment and orders convicted the surviving appellants along with two other appellants (since deceased) and sentenced them as above. Being aggrieved by the aforesaid judgment and order of the trial court, these appeals have been preferred by all the appellants. 15. We have heard Sri Jai Narain, learned counsel for the appellant Prem Narain alias Baboley and Sri Omkar Singh, counsel for the appellant Satya Narain as well as Sri Rajeev Kumar Mishra, learned A.G.A, for the State and carefully perused the evidence on record. 16. It has been argued on behalf of the appellants that the prosecution has miserably failed to prove the alleged motive and there is virtually no evidence of complicity of the appellants in the matter. Lodging of First Information Report (hereinafter called as FIR), inquest proceedings and proceedings of postmortem report of the deceased are highly belated pointing towards ante-dated and ante-timed proceedings, for which no cogent explanation has been shown by the prosecution. Despite police-post Juniha being situated near the place of occurrence, the informant did not inform the police of that post, which shows that the entite prosecution story as well as all the proceedings are cooked up and an afterthought. Despite police-post Juniha being situated near the place of occurrence, the informant did not inform the police of that post, which shows that the entite prosecution story as well as all the proceedings are cooked up and an afterthought. Moreover, notwithstanding the presence and availability of independent witnesses from the locality, the prosecution has examined only highly interested/related/partisan/inimical witnesses. The testimony of alleged eye-witnesses P.W.-2 informant Ram Sajivan and P.W.-4 Nootan, examined by the prosecution, do not inspire confidence. 17. It is further argued by the learned counsel for the appellants that the learned Sessions Judge has convicted and sentenced the appellants against the settled principles of law. His finding of guilt is not based on facts and evidence on record. The entire investigation is marred with grave omissions and commissions. The ocular evidence is not in consonance with the medical evidence because the ante-mortem injuries found on the body of the deceased could not be caused by the blow of axe. Recovered weapons could not be tallied with the injuries shown in the postmortem report. The alleged blood found on the three axes had also not been sent for chemical examination. This is a case of direct ocular evidence, hence, provisions of Section 106 of the Evidence Act have no application. Presence of both the eye-witnesses on the place of occurrence is highly doubtful. From the evidence on record it appears that there was some long standing enmity between the family of the deceased and the rival group of their earlier village Shivri and that actually the said group or some unknown person had killed the deceased in the wee hours of the night and due to previous enmity the appellants were falsely being implicated in this case. 18. Per contra, learned A.G.A. for the State has argued that as many as two eye-witnesses have supported the prosecution story. The testimony of these witnesses is without any blemish. Minor discrepancies are not sufficient to erode credibility of the eye-witnesses. Testimony of all eye-witnesses is natural, trustworthy and inter se coherent and consistent with the normal human conduct. There is no contradiction in the medical and ocular evidence placed by the prosecution. Regarding the delay in lodging the FIR and other police and medical proceedings cogent explanation has been furnished by the side of the prosecution at the stage of the FIR itself, which cannot be disbelieved. There is no contradiction in the medical and ocular evidence placed by the prosecution. Regarding the delay in lodging the FIR and other police and medical proceedings cogent explanation has been furnished by the side of the prosecution at the stage of the FIR itself, which cannot be disbelieved. Evidence of the eye-witnesses cannot be brushed aside only on the ground of enmity or relationship or not corroborated by the evidence of any other independent witness; the only requirement is that their evidence shall be examined with due care and caution. The body of the deceased and the blood stained weapons of assault were recovered from the house of the appellants and all the appellants fled away from the said house/place of occurrence and surrendered before the court after 10-12 days of the incident in question, for which no cogent explanation was given by the side of the appellants during trial, failing which, Section 106 of the Evidence Act certainly would come into play in this case. The learned Sessions Judge has correctly convicted the surviving appellants alongwith two other co-accused (since deceased) by a reasoned judgment and order in question, and as such there is no scope for interference by this appellate court in the impugned judgment and order. 19. 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. 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." 20. 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. 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." 21. 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. 22. Firstly, we would like to have a glance at the medical evidence, which is in the form of statement of Dr. V. K. Tripathi (P.W.3) and postmortem report (Ext. Ka-6). Though on behalf of the defence death/murder of Venkatesh alias Munni has not been disputed, we are duty-bound to examine whether any offence was committed and if so, by whom. 23. While proving the said postmortem report (Ext.Ka-6), Dr. V. K. Tripathi (P.W.3), in his statement has stated that he was posted as Medical Officer, District Hospital, Fatehpur on 29.10.1981. On that date at about 2.00 P.M. he conducted the post-mortem examination on the corpse of Venkatesh alias Munni, whose age was about 42 years. He found the following ante-morterm injuries on the dead body:- 1. Incised wound 1" x 1/4" x bone deep on the right side fore-head 2" above the eye brow. 2. Incised wound 1-1/4" x 1/4" x bone deep on the left side fore-head 2-1/2" above the eye brow. 3. Incised wound 1/4" x 1/4" x scalp deep on the left lateral side fore-head near injury no.2. 4. Incised wound 1" x 1/4" x bone deep on the right side fore-head 2" above the eye brow. 2. Incised wound 1-1/4" x 1/4" x bone deep on the left side fore-head 2-1/2" above the eye brow. 3. Incised wound 1/4" x 1/4" x scalp deep on the left lateral side fore-head near injury no.2. 4. Incised wound 6-1/2" x 3" x brain cavity deep on the right lateral and posterior side of lower part of head and neck under neath occipital Maxilla, mandible, brain, cervical vertebrae cut. 5. Incised wound 4" x 3" x right half neck deep on the right side neck near the base, right clavicle bone cut. 6. Incised wound 2" x 1" x muscle deep on the back side neck near the base. 7. Incised wounds two in number half an inch apart 3" x 1" x bone deep 2-1/2" x 1" x muscle deep on the upper most part of right upper arm. 8. Incised wound 3-1/2" x 1/2" x scapula bone deep on the upper part of right scapula region of the back. 9. Incised wound 2" x 1" x muscle deep on the medial part of right shoulder upper side. 10. Incised wound 2" x 1" x muscle deep on the right scapular region of back below injury no. (8). 11. Incised wound 2" x 1" x bone deep at the base of the left thumb. 12. Incised wound 3" x 1" x left chest cavity deep on the left side, middle third part of left chest, underneath 5" to 6" rib cut. 24. Upon internal examination, he found membrane, brain, base of skull, cervical 2,3,4 vertibrae cut, left pleura cut, larynx, trachea cut, left lung cut and clotted blood in chest cavity present. About 2 oz. of semi-digested food present in stomach, small intestine normal and empty, large intestine normal and faecal matter present and the rest of the internal organs normal. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. He also found one Dhoti, one Langota, one Kurta, one vest (Bandi), one sacred-thread (Janeu) on the dead body and therefore, he put the same in a sealed cover and delivered it to the constable carrying the dead body. 25. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. He also found one Dhoti, one Langota, one Kurta, one vest (Bandi), one sacred-thread (Janeu) on the dead body and therefore, he put the same in a sealed cover and delivered it to the constable carrying the dead body. 25. According to him (P.W.-3), the death of the victim may have been caused on 27.10.1981 at any time from 5.00 to 6.00 p.m. All these injuries of the deceased could have been caused with 'Kulhadi'. The cumulative effect of all such injuries was sufficient to cause his death in the ordinary course of nature. 26. The Doctor (P.W-3) further said in his cross-examination that all such injuries, could have been caused by 'Kanta', 'Farsa' or 'Gandasa' also. He then said that in winter days, by or about 2-4 days from the date of occurrence, i.e., 27th October, 1981, duration of passing of rigor mortis from both the limbs could have been 48 hours. He also said that there may have been difference of 8-10 hours either side in the time of death of the victim. He further stated that the food which a man of normal health takes, remains in the stomach for 4 to 6 hours. According to him (P.W.-3), on account of the fact that semi digested food was present in the stomach, it could be said that the victim may have been murdered 3-4 hours after taking food. Faecal matter may remain present in the large intestine of a person having constipation even after easing. Although the Doctor (P.W.-3) has stated that he received the papers for postmortem on 29.10.1981 at 10 a.m., he also admitted that the body of the deceased reached the mortuary on 28.10.1981 at 6.30 p.m. Therefore, it is apparent that the delay in postmortem proceeding was caused on the part of the Mortuary Staff or non-availability of Doctor, because the body could not be kept in the Mortuary without complete papers. 27. We have gone through the deposition of Dr. V.K. Tripathi and it appears that he was mainly cross-examined on the point that the twelve ante-mortem incised wounds found on the body of the deceased could not be caused by the 'axe' but the P.W.-3 Dr. 27. We have gone through the deposition of Dr. V.K. Tripathi and it appears that he was mainly cross-examined on the point that the twelve ante-mortem incised wounds found on the body of the deceased could not be caused by the 'axe' but the P.W.-3 Dr. V.K. Tripathi categorically denied the suggestion and specifically stated that the said injuries could be possible by any of the sharp-edged weapons like 'Axe', 'Gadansa', 'Farsa' or 'Kanta'. Therefore, the entire prosecution case as well as the testimony of the eye-witnesses is corroborated by the evidence of Dr. V.K. Tripathi (PW-3) and by the postmortem report (Ext.Ka-6) prepared by him which discloses that the deceased died almost instantly due to said injuries. The date and time are also in consonance with the said evidence as well as the prosecution version. 28. Now, we deal with the direct ocular evidence placed by the prosecution on record. Broad features of their testimony are given as follows:- The informant Ram Sajivan was examined by the prosecution as PW-2. In his statement the witness has corroborated the entire facts stated in the FIR (Ext.Ka-1), lodged by him along with the cogent explanation for the delay in lodging the said FIR, which are in consonance with the facts and circumstances of the place at the time of the incident. He proved that the appellants are members of one family residing in his village. He also proved the entire topography of the place of occurrence vis-a-vis his house and the residence of the deceased and the disputed land which are in consonance with the site plan (Ext.Ka-16), prepared by the I.O.. The witness (P.W.-2) also proved the motive for murder in detail, which was shown in the FIR (Ext.Ka-1) itself. Proving the copy of the complaint (Ext.Ka-4), written by the deceased and addressed to the S.O. concerned and against the appellants, he (P.W.-2) has stated that this land dispute was the bone of contention between the deceased and the family of the appellants, which resulted in the incident. The said disputed land has also been shown by the I.O. in the site plan (Ext.Ka-16). 29. The said disputed land has also been shown by the I.O. in the site plan (Ext.Ka-16). 29. Corroborating the date, time, place of occurrence, the sequence of entire incident before and after the murder of his brother, deceased Munni Lal, the weapons apparently used by the assailants/appellants, the place, in the closed house of the appellants where the body of the deceased was found in a pool of blood along with the weapons of assault (three axes) and the manner in which the appellants had executed the entire incident, after dragging the deceased from the road situated in front of their house as well as in the vicinity of the houses of the deceased and of the witnesses and after closing all the doors there, surreptitiously committed the crime of murder inside their house. 30. The witness (PW-2) further stated that after commission of the offence and the pretending by one of the appellant's Smt. Ram Kali (since deceased) to open the latch of the southern door from inside while holding an earthen lamp, the remaining appellants in the meantime, broke open the (Nakab), i.e., the 'katchcha' wall on the western side of their house, whereupon all the appellants fled away in the darkness of the Deepawali evening. Despite the fact that on the call of his brother Munni Lal to save his life, the witness along with other eye-witnesses, namely Nootan (P.W.-4), the wife of the deceased, wife of the informant and some other village folks who gathered there and tried their best to open the doors, by raising a hue and cry and surrounding the house of the appellants from three sides, mainly towards the doors in the southern and northern side, their efforts proved to be futile. 31. According to the witness (P.W.-2), during the presence of the witnesses and some other village folks and their keeping watch on the doors of the house of the appellants, they heard cries of the deceased Munni Lal as well as the sound of 'Khatpat' and after a few minutes they did not hear anything from the deceased. 32. P.W.-2 also stated that when he tried to keep a lantern in the western side of the house of the appellants where there was darkness, he noticed that the western wall of the said house was broken open (Nakab). 32. P.W.-2 also stated that when he tried to keep a lantern in the western side of the house of the appellants where there was darkness, he noticed that the western wall of the said house was broken open (Nakab). Then he called out from there and with the lantern and the gun in his hand, which he procured from his house later on, he went through the broken wall in the said house and found that none of the appellants were there. And when he reached the inside verandah ('Barotha') situated near the main door of the house, he saw that the body of Munni Lal lying in a pool of blood. There were multiple wounds on his body and three blood stained axes were also lying on the floor. He opened the main door and his sister-in-law and other witnesses present there as well as other family members then entered into the house and started wailing. 33. According to him (P.W.-2), due to the fact that it was night coupled with non-availability of conveyance in the forest area at that time and also due to fear, he did not proceed to lodge the FIR then and there in the said night. Next morning he got the written report (Ext.Ka-5) prepared by the scribe one Brij Kishore and then proceeded to lodge the FIR. He reached the police station at about 7-7.15 a.m. The witness (P.W.-2) has proved the written report (Ext.Ka-5). He further proved the lodging of the FIR (Ext.Ka-1) by the Head Moharrir of the police station and initiation of the investigation by the I.O./the then S.O., recording of his statement on the same day and later all the police proceedings were executed before him by the Investigating Officer (PW-5). 34. Searching cross-examination was done at length from the side of the appellants and in the said cross-examination they (the appellants) did not dispute the homicidal death of the deceased in their house by the cutting weapons as well as the factum of recovery of dead body of the deceased and the weapons of assault from their house. 34. Searching cross-examination was done at length from the side of the appellants and in the said cross-examination they (the appellants) did not dispute the homicidal death of the deceased in their house by the cutting weapons as well as the factum of recovery of dead body of the deceased and the weapons of assault from their house. On the contrary, they indirectly admitted the crime by suggesting to the witness (P.W.-2) that the previous enmity of the deceased with the rival group of the village Shivari probably caused the murder of the deceased, and when the unknown persons of the rival group tried to catch hold the deceased, he entered the house of the appellants and the said persons, by breaking open (Nakab) the western wall of the said house, entered inside and killed the deceased, alleging false implication of the appellants. 35. Moreover, the said suggestion of the appellants falls flat because the witness (P.W.-2) has clearly stated in his cross-examination that the members of his said rival group, almost all, were languishing in jail at that time and only two very old and infirm persons were granted bail, therefore, the question of their presence at the place of occurrence, which is 1-1/4 - 1- 1/2 Kosa (4.00- 4.80 kms.) from Shivari village and of committing this incident did not arise at all. 36. Further, the appellants have suggested to the witness (P.W.-2) the previous enmity and litigation inter se between the family of the deceased and that of their rival groups of Shivari village, which is fairly admitted by the witness. From the side of the appellants the 'pleas of alibi' for some of the appellants have been suggested but all the said alibis were denied by the said witness. Hence this witness has narrated the entire prosecution story in a trustworthy manner. There are some minor contradictions in his statement but appraisal of his evidence in totality would reveal that his entire testimony is unshaken and consistent even after searching cross-examination at length. He appears to be a natural and probable witness with full of credence. 37. Similarly, the other eye-witness P.W.-4 Nootan Prasad, cousin of the informant has also supported the entire prosecution story which demonstrates their (witnesses named in the FIR) presence at the place of occurrence as well as witnessing the minute details of the incident in question. He appears to be a natural and probable witness with full of credence. 37. Similarly, the other eye-witness P.W.-4 Nootan Prasad, cousin of the informant has also supported the entire prosecution story which demonstrates their (witnesses named in the FIR) presence at the place of occurrence as well as witnessing the minute details of the incident in question. According to him, at the time of the incident, he was drawing water from the well, which is adjoining the house of the deceased in the west. When he heard the hue and cry from the house of the appellants, he quickly ran towards the said house and saw these four appellants catching hold of the deceased from the road, dragging him in their said house and after pushing him in, they closed the door from inside. He also vividly described the place of occurrence as well as the topography of its vicinity. He further endorsed that the deceased was crying for his life and he along with the informant, his wife and the deceased's wife, were the first to arrive at the spot, but the appellants had already closed the door of the said house. 38. He (P.W.-4) further stated that they made sufficient effort to get the door open but they could not do so. Later the voice of Munni Lal "Bachao Bachao", which was coming from inside, could not be heard, but a noise of 'Khatpat' was coming from inside the house. They, along with some other folks of the locality, surrounded the two doors situated in the northern and the southern side of the house. Some time thereafter, opening of the latch from inside the house was heard. Then Smt. Ram Kali was seen knocking at the latch of the southern door from inside the house holding an earthen lamp in her hand. They immediately moved in that direction towards the side of the window, but soon thereafter there was darkness again. They kept on watching from all directions but no one could be seen. In the meantime it came to their notice that the wall on the western side was broken open (Nakab), when the informant went there with a lantern saying that it was dark, he cried that the said 'katchcha' wall had been broken open, i.e., 'Nakab' made. 39. They kept on watching from all directions but no one could be seen. In the meantime it came to their notice that the wall on the western side was broken open (Nakab), when the informant went there with a lantern saying that it was dark, he cried that the said 'katchcha' wall had been broken open, i.e., 'Nakab' made. 39. According to him (P.W.-4) thereafter, Ram Sajivan, the informant went inside the house through that 'Nakab' with the lantern and a gun in his hand and he opened the northern door. Then all of them (witnesses) went inside the house of the appellants and saw that the dead body of the deceased was lying there in a pool of blood in the Verandah (Barotha) of appellant Shiv Ram's house and there were many injuries on his body. Two or three blood stained axes were lying there and the appellants appeared to have fled through the said broken wall (Nakab). Thereafter, when the Investigating Officer reached the spot for investigation he narrated the entire incident to him. The said witness was also thoroughly cross-examined by the defence at length but he also stood intact during the cross-examination. He had also admitted the enmity of the deceased's family with the rival group of Shivari village but he categorically stated that all the members, except two infirm and older people, were languishing in jail at the time of the incident. He (P.W.-4) further denied the factum of 'pleas of alibi' of some of the appellants. 40. After careful scrutiny with caution, we find that there is no material contradiction in the inter-se testimony of the aforesaid two ocular witnesses examined by the prosecution and some minor contradictions as alleged by the learned counsel for the appellants do not corrode the testimony of the said witnesses. The evidence of both the direct ocular witnesses gets corroboration from the facts narrated in the FIR (Ext.Ka-1), site plan (Ext.Ka-16), inquest report (Ext.Ka-9), memo of recovery of blood stained and plain earth (Ext.Ka-17), recovery memo of blood stained Axe (Ext.Ka-18), recovery memo of black shoes (Ext.Ka-19), copy of G.D. (Ext.Ka-2), application written by the deceased about the land dispute (Ext.Ka-4) and entire police papers as well as evidence of the Medical Officer P.W.-3 Dr. V. K. Tripathi and postmortem report (Ext.Ka-6). 41. V. K. Tripathi and postmortem report (Ext.Ka-6). 41. The evidence adduced by the said eye-witnesses (P.W.-2 and P.W.-4) are clear, credible, cogent, coherent, consistent, natural, without considerable contradictions and in consonance with the natural human conduct as well as duly corroborated by medical evidence. After scanning the testimony of the said witnesses, with due care and caution as per law, we find a ring of truth in it and there is no reason to discard their testimony only on the ground of previous enmity or relationship or on being marked as interested witnesses. There is no iota of evidence on record which points towards the alleged defence version. Therefore, in our opinion, both the eye-witnesses are trust-worthy and the Trial Judge has rightly based on their testimony and the medical evidence while convicting the appellants in this case. Moreover, in the light of the facts and circumstances of the present case, it is not at all possible that the real brother of the deceased, the informant, would spare the actual assailants and implicate these appellants for the sake of the old land dispute. 42. In addition to the above witnesses, the prosecution has examined P.W.-1 Head Moharrir Shiv Nandan Prasad, who has proved the lodging of FIR on the written report (Ext.Ka-5) furnished by the informant. He also proved the process of sending of special report in this case vis-a-vis connected G.D. (Ext.Ka-3). He was also cross-examined at length by the defence. Much emphasis was laid by the defence on the point of query to the informant made by him at the time of lodging of the FIR about the delay in lodging the FIR, but the witness had satisfactorily answered the questions during cross-examination. Therefore, the papers produced by him as well as the testimony of this witness also corroborate the prosecution version. 43. Lastly, the prosecution has examined the I.O. of the case, P.W.-5 S.O. Manokanyaka Singh. The Investigating Officer in his entire evidence as P.W.-5 has stated that on the registration of the FIR in this case, he moved for investigation of the crime with utmost promptness on the same day in the morning. 43. Lastly, the prosecution has examined the I.O. of the case, P.W.-5 S.O. Manokanyaka Singh. The Investigating Officer in his entire evidence as P.W.-5 has stated that on the registration of the FIR in this case, he moved for investigation of the crime with utmost promptness on the same day in the morning. He narrated the details of the steps taken by him during the course of the investigation and proved the inquest report (Ext.Ka-9), diagram of the corpse (Ext.Ka-10), challan of the dead body (Ext.Ka-11),letter to the CMO for returning the bloodstained clothes of the deceased (Ext.Ka-12 to Ext.Ka-15), Site plan (Ext.Ka-16), recovery memo of blood stained and plain earth (Ext. Ka-17), recovery memo of blood stained axe (Ext.Ka-18), recovery memo of black shoes (Ext.Ka-19) and charge sheet dated 6.5.1983 (Ext.Ka-20) and also proved the material Exhibits recovered, blood stained and plain earth (material Exts.-1 and 2), blood stained axes (material Exts.-3,4,5) and the classic shoes of the deceased (material Ext.-6). He also proved that at the time of investigation, the house in question of the appellants was open and after investigation he locked the house. He was in search of the appellants till 6.11.1981 but it was revealed that three of them had surrendered before the court of C.J.M. on 4.11.1981. After getting the report of postmortem of the deceased body and an inquest report, he filed the charge-sheet against the appellants. 44. He (P.W.-5) was also being cross-examined in detail but nothing concrete was elicited by the defence in his cross-examination. He fairly admitted with regard to the omission committed by him by not sending the recovered blood stained axes (material Exts. 3 to 5) and the blood stained earth and plain earth (material Exts. 1 and 2) for chemical examination. By admitting his mistake, he put forth some explanation, out of which one is of his sudden transfer and denied the suggestion of the defence that there was no blood stain present on the weapons of assault. Except this lapse in his entire investigation, there was no material omission, illegality or irregularity present in his cross-examination, which would suggest that the entire investigation was defective or tainted. Except this lapse in his entire investigation, there was no material omission, illegality or irregularity present in his cross-examination, which would suggest that the entire investigation was defective or tainted. Therefore, the evidence of the I.O. and the police papers prepared by him are also corroborating the entire prosecution story and there was nothing present on the record to show the probability of alleged defence version and the pleas of alibi suggested by the appellants. 45. The argument has been raised that FIR was not promptly transmitted to the Magistrate. We believe that FIR should have been transmitted to the Magistrate with a little haste, but that by itself would not necessarily affect the prosecution case adversely. We believe that no material omission, illegality or irregularity was committed during investigation though the Investigating Officer could have sent blood stained materials for chemical examination and used the forensic evidence. However, in our opinion, these weaknesses in investigation are not so serious enough to render the entire prosecution case unworthy or unreliable. 46. In this case, two eye-witnesses have deposed before the trial court in a natural and trustworthy manner and narrated the entire incident. There is absolutely no reason for them to spare real cusprits of the crime and to falsely implicate the appellants. The incident occurred in their presence (so much of the prosecution incident) which they had seen have been vividly described by them. The delay in lodging the FIR was also explained by them with cogent reasons. On scrutinising their statements with due care and caution and after corroboration by medical evidence and police papers, it is evident that the prosecution story is proved beyond reasonable doubt. 47. Inquest report (Ext.Ka-9) in this case also discloses that the corpse of the deceased and the weapons of assault were found in the house of the appellants and none of the appellants were present after the incident. In the cross-examination it is specifically stated by the I.O. Manokanyaka Singh (PW-5) that the southern wall of the house was broken open (Nakab) from the inside and not from the outside. Therefore, the contention that the unknown persons, with a view to kill the deceased, could have broken open the said wall from outside, as suggested by the defence, clearly did not appeal to our conscience. Therefore, the contention that the unknown persons, with a view to kill the deceased, could have broken open the said wall from outside, as suggested by the defence, clearly did not appeal to our conscience. The said 'Nakab' is also shown in the site plan (Ext.Ka-16) by the I.O., and hence the alleged defence posed by the side of the appellants gets a nose dive. Admittedly, therefore, we have no reason to dis-agree with the conclusion of the trial court. 48. By filing the extracts of Kutumb register (Ext.Kha-1 to Ext.Kha-4) the appellant Prem Narain alias Baboley tried to prove his plea of alibi that actually he was a resident of village Janta and not of village Sarai but he has not filed the extract of the Kutumb register Part-I of village Janta to strengthen his plea. The appellant has examined D.W.-1 Lakhan Lal who is the real elder brother of appellant Shiv Ram Lohar. He tried to prove that appellant Prem Narain was his adopted son. In his cross-examination, he did not furnish cogent explanation as to why the appellant Prem Narain was not there when the I.O. visited his place at village Janta. According to him, the appellant was working in the village Gokulpur, but he did not explain why he had not communicated all these facts to the Investigating Officer. 49. Further, according to the witness (DW-1), later on when the appellant came to village Janta, he told him about the incident in question. He then produced the appellant in the court through the lawyer and moved bail application but he was not in a position to say that the lawyer had incorporated this plea of alibi in the bail application of the applicant Prem Narain or not. He also did not explain as to why he himself or through the lawyer had not moved any application to the higher authorities in this regard. The person at whose place the appellant was allegedly working at Gokulpur, namely Durga Prasad Yadav, has also not been examined by the side of the appellant, who could throw some light on the said plea of alibi of the appellant, as he was a material witness on this point. 50. Similarly, D.W.-2 Raja Ram, Ex. The person at whose place the appellant was allegedly working at Gokulpur, namely Durga Prasad Yadav, has also not been examined by the side of the appellant, who could throw some light on the said plea of alibi of the appellant, as he was a material witness on this point. 50. Similarly, D.W.-2 Raja Ram, Ex. Pradhan of village Janta tried to show that on the date of the incident at about 5.30 - 6 p.m. it was Diwali festival and the appellant met him twice when he was lighting an earthen lamp in the temple. In his cross-examination, he admitted that the lighting of earthen lamps started from the dusk and continued till 7-8 p.m. and the appellant Prem Narain only once met him on the date of the incident (Diwali festival) and prior to it, two years before. He also stated that on the date of the incident the sun set about 30-35 minutes after the lighting of earthen lamps but he was unable to explain as to why this fact had not been communicated by him to the Investigating Officer when he later met him. He has admitted that the village Sarai, where the incident in question occurred, is only 11-12 miles from his village, connected with concrete road, on which mode of communication like motor, bus, truck and tempo are always available. Whereas, according to the Investigating Officer the distance between village Janta and Sarai is only 12-13 Kms. 51. Last witness D.W.-3 Raghunandan Lal tried to make out a case for the appellant Prem Narain that his sons were studying in Primary Pathshala Janta since 1.12.1973. On perusal of extracts of Scholar register (Ext.Kha-5) and School Leaving Certificate (Ext.Kha-6), it appears that parentage of Anuj Kumar was written previously as Puttu Lal instead of Prem Narain. It was then struck off and below it the name of appellant Prem Narain was written by putting his initials but the witness was, however, not in a position to explain this anomaly. He has admitted that he had cordial terms with the appellants' family. 52. On analysing the aforementioned evidence adduced by the side of the appellants to prove the plea of alibi pertaining to appellant Prem Narain, it appears that the entire defence evidence is unnatural and manufactured as well as against natural human conduct. He has admitted that he had cordial terms with the appellants' family. 52. On analysing the aforementioned evidence adduced by the side of the appellants to prove the plea of alibi pertaining to appellant Prem Narain, it appears that the entire defence evidence is unnatural and manufactured as well as against natural human conduct. Any innocent person on the information that his name finds place in a murder case and that the Sub-inspector of police is in search of him would ordinarily not behave in the manner, the appellants behaved or the witnesses (DW-1 and DW-2) have dealt with, as it appeared from the evidence. Therefore, the testimony of all the above witnesses (DW-1 to DW-3) does not inspire confidence and their evidence appears to be an afterthought and a cooked-up story. The said witnesses do not appear to be trustworthy, rather they can be christened as 'got up witnesses'. It further shows that a person present in village Sarai at the time and place of the occurrence, after committing the crime, could reach village Janta, within one hour or so, in the same evening. Therefore, the evidence on the plea of alibi put forth by the side of the appellant Prem Narain is not of such a nature as to enable the court to arrive at the conclusion that the appellant was actually not present at the time of the incident or that he could not reach the village Janta after committing the crime. 53. In view of the above discussions, we are unable to accept the alleged plea of alibi of the appellant Prem Narain. Similarly, the pleas of alibi raised by the other two appellants Satya Narain and Shiv Ram Lohar also neither appears to be proved by the evidence on record placed by the prosecution nor have the appellants adduced any evidence in support of their plea. Therefore, we are of the opinion that the finding of the trial court on not accepting the pleas of alibi of the appellants is well- founded on the material available on record and no error has been committed by the trial court below in appreciating the evidence in this regard. 54. Therefore, we are of the opinion that the finding of the trial court on not accepting the pleas of alibi of the appellants is well- founded on the material available on record and no error has been committed by the trial court below in appreciating the evidence in this regard. 54. On the above critical appreciation of the evidence placed by the prosecution as well as the defence, it goes without saying that the prosecution has proved beyond reasonable doubt that in this case murder of the deceased Munni Lal was committed by all the four appellants on the date, time, place and manner as stated by the prosecution, in their house situated at Sarai, by closing all the doors and windows and after committing the crime they ran away by breaking open the western wall of their house (Kachcha wall) in the darkness, surreptitiously while pretending that the appellant Ram Kali with a lighted earthen lamp in her hand was going to open the southern door of the house and misleading the witnesses. 55. Further, the prosecution has proved beyond doubt that all the three 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 the wall of the said house and on the floor. 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, who was dragged by them, were present and no one else. 56. 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 three cutting edged axes, no other than the aforesaid persons were present. Hence it is also proved that this last part of the incident was 'especially in the special knowledge of the appellants' and none other. Thus, it is obligatory on the part of the appellants while being examined under Section 313 Cr.P.C. to furnish some 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 Musheer Khan Vs. State of M.P., (2010) 2 SCC 748 . 57. 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. 58. 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. 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." 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 had no explanation to offer. 59. Similarly, in the case of Sahadevan Vs. 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. Now, on applying the above settled legal principles in this case, it appears that the appellants did not even attempt to explain or clarify or give any explanation whatsoever, as regards the aforementioned incriminating circumstances put to them under Section 313 Cr.P.C. rather, they have made only a bald denial of all the incriminating circumstances inculpating and connecting them 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 appellants closed from inside as well as the Kachcha southern wall of the said house that was broken open (Nakab) from the inside, put to them and they had no explanation to offer. 61. 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. 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. 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. 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." 62. 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." 62. 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 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. 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. 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 ." 63. 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." 64. 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'. 65. In the present case also, by the ample cogent evidence, the prosecution did proceed on the footing that the aforesaid facts (remaining part of the incident committed inside the closed house in the presence of the appellants) were 'especially within the knowledge of the accused', therefore, the principle of Section 106 of the Evidence Act shall apply in this case. 66. 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. 67. 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 . 68. 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 accused to offer an explanation as to how the homicidal death of the deceased happened in their house and their sterling absence from their house closing the same from inside (from all sides) and breaking open the Kachcha wall of the western side (Nakab) of the house on the date, time and place of the occurrence. When the appellants could not offer any explanation as to the above facts, which were 'especially within their knowledge' it is a strong circumstance against the accused persons that they and they alone are responsible for the commission of the crime. 69. In addition to it, the conduct of the appellants by absconding themselves from their house since the date and time of murder till they surrendered before the court also point towards the guilty conscience of the appellants in this case, suggesting cumulatively that they are guilty of this crime. 70. In view of the above discussions, we are of the view that the prosecution has proved the charge against the appellants beyond reasonable doubt. 71. Now, we deal with the remaining arguments advanced by the learned counsel for the appellants. 72. 70. In view of the above discussions, we are of the view that the prosecution has proved the charge against the appellants beyond reasonable doubt. 71. Now, we deal with the remaining arguments advanced by the learned counsel for the appellants. 72. Learned counsel for the appellants argued in depth that no independent witnesses, admittedly present on the spot, were examined by the prosecution, rather prosecution has examined inimical and related witnesses or who may also be categorized as 'chance witness', the testimony of whom does not inspire confidence. We do not agree with the argument advanced by the learned counsel for the appellants. 73. 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. " 74. 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. 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." 75. Now, with regard to the argument of non-examination of any material or independent witness alleged to be present on the spot, 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 the 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 the 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 ]. Therefore, we cannot derail the entire case of the prosecution on the ground of absence of the testimony of any material or independent witness. In view of the above ratio of law laid down by the Supreme Court, we do not find any substance in the argument of the learned counsel for the appellants 76. It is also contended by the learned counsel for the appellants that the medical and ocular evidence are not in consonance which create doubt on the prosecution story. We do not endorse the submission of the learned counsel for the appellants. In our opinion, the said submission is misconceived. 77. It is also contended by the learned counsel for the appellants that blood stains found on the weapon of assault (axes) and blood stained earth and plain earth of the place of occurrence were alleged to be sent for the chemical examination but its chemical examination report was not there on the record, which creates doubt on the prosecution evidence as well as place of occurrence and weapons of assault. But in our opinion, the same by itself would not negate the glaring evidence and circumstances which have proved the guilt of the appellants beyond all reasonable doubt, as has been held in the case of Raj Kumar Prasad Tamarkar Vs. But in our opinion, the same by itself would not negate the glaring evidence and circumstances which have proved the guilt of the appellants beyond all reasonable doubt, as has been held in the case of Raj Kumar Prasad Tamarkar Vs. State of Bihar and another (2007) 10 SCC 433 . 78. Learned counsel for the appellants has further argued that some unknown persons, specifically the rival group of the deceased, of village Shivari probably had committed the crime and they by breaking the southern wall of the house of the appellants killed the deceased. As discussed above, this argument from the side of the appellants has no legs to stand on. From the testimony of P.W.-2 informant Ram Sajivan, P.W.-4 Nootan and P.W.-5 S.O. Manokanyaka Singh, the I.O. as well as from the perusal of the site plan (Ext.Ka-16), all the recovery memos prepared at the spot (Ext.Ka-17 to Ext.Ka-19) and the inquest report (Ext.Ka-9) it is clear that the southern wall of the house of the appellants was broken open (Nakab) from the inside and not from the outside and the murder of the deceased was committed in the house of the appellants after closing all the doors and windows of the house. Thereafter, all the appellants fled away from the house in question through the said 'Nakab'. The conduct of the appellants (relevant under Section 8 of the Evidence Act) also corroborates that the murder was committed by them only. Therefore, there is no question of committing murder by any unknown group or persons as alleged by the defence. It is also proved by the evidence of the aforesaid witnesses that except for two old persons, the rest of the members of the rival group of the deceased, of the village Shivari were languishing in jail at the time of the incident. Hence, the question of committing of crime by them does not arise and thus, there is no force in this argument of the learned counsel for the appellants also. 79. Learned counsel for the appellants further argued that Section 106 of the Evidence Act cannot be applicable in this case and it is the duty of the prosecution in this case of direct ocular evidence, to prove the entire prosecution case, till the execution of the alleged murder by the appellants. 79. Learned counsel for the appellants further argued that Section 106 of the Evidence Act cannot be applicable in this case and it is the duty of the prosecution in this case of direct ocular evidence, to prove the entire prosecution case, till the execution of the alleged murder by the appellants. We do not agree with the contention of the learned counsel for the appellants, rather we agree with the submissions made in this regard by the learned A.G.A. that in this case the provisions of Section 106 of the Evidence Act especially comes into play, as earlier discussed in detail by us. 80. Moreover, in a recent decision of the Supreme Court in Tulshiram Sahadu Suryawanshi and another Vs. State of Maharashtra (2012) 10 SCC 373 the Court in para-19 has held as under:- "19. It is settled law that 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 position is strengthened in the Section 114 of the Evidence Act, 1872. 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. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized by making it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the prosecution has succeeded in proving group of facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his especial knowledge regarding such facts failed to offer any cogent explanation, which might derive the court to draw different inference. It is useful to quote the following observation in State of West Bengal Vs. Mir Mohammed Omar (2000) 8 SCC 382 : 38. It is useful to quote the following observation in State of West Bengal Vs. Mir Mohammed Omar (2000) 8 SCC 382 : 38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra Vs. State of Ajmer the learned Judge has stated the legal principle thus: 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." 81. Therefore, Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon that person. Since it is proved from the record that at the time of the murder, the house of the appellants was closed and except for the appellants and the deceased, no one else was there in the house, therefore, it was only the appellants who were there with the deceased at the time of his death and it is for them to show as to how he died; particularly when the prosecution has successfully proved that the deceased was dragged by the appellants in their house where they closed all the doors and windows and after breaking open the southern wall of the said house, when there was darkness outside, they (appellants) surreptitiously fled away and surrendered before the court after 6 -10 days of the incident. The body of the deceased was lying in a pool of blood and three blood stained weapons of assault (axes) were found there on the floor. Blood stains were also found on the wall of the said house. The shoes of the deceased were also found there. Therefore, there is no force in the argument of the learned counsel for the appellants in this context. 82. Blood stains were also found on the wall of the said house. The shoes of the deceased were also found there. Therefore, there is no force in the argument of the learned counsel for the appellants in this context. 82. Learned counsel for the appellants also argued that there are discrepancies, contradictions in the evidence of ocular witnesses of the prosecution. We do not agree with the view of the learned counsel for the appellants in this respect. It is pertinent to point out that every discrepancy, contradiction, and variation in prosecution evidence may not be sufficient to adversely affect the prosecution case. Sometimes, variation merely indicates that witnesses have not been tutored and are natural. So long as the core of the prosecution evidence is intact and trustworthy, minor discrepancies in the prosecution evidence are not sufficient to discard the otherwise trustworthy testimony of the prosecution witnesses. The Apex Court in Meharban Singh and others Vs. State of Madhya Pradesh, (1996) 10 SCC 615 , has held that it is the duty of the courts to evaluate the discrepancy and to see whether minor discrepancy in fact adversely affects the trustworthy character of evidence or not. If the courts can believe the trustworthy character of evidence, then minor discrepancies are not sufficient to discard the evidence of otherwise trustworthy witnesses. 83. Further, the contention of the learned counsel for the appellants also cannot be accepted for the simple reason that after scanning the oral testimony of the entire prosecution witnesses with due care and caution by us, we are of the view that they have narrated the involvement of all the appellants in the incident in question in a very clear, cogent, conclusive and trust-worthy manner without considerable contradictions. There is nothing on record to demonstrate that appellants were not present on the spot on the date and time of the incident. Therefore, in the light of the cogent, natural and trustworthy evidence of the prosecution, the mere fact that some minor discrepancies can be pointed out in their evidence, is not a ground to reject their testimony/evidence. 84. There is nothing on record to demonstrate that appellants were not present on the spot on the date and time of the incident. Therefore, in the light of the cogent, natural and trustworthy evidence of the prosecution, the mere fact that some minor discrepancies can be pointed out in their evidence, is not a ground to reject their testimony/evidence. 84. Therefore, in view of the entire cogent evidence of the prosecution, as discussed above, as well as the incriminating circumstances against the appellants for which there is no cogent explanation offered from the side of the appellants except bald denial and instead they tried to offer some blatantly false pleas of alibi, the learned trial judge has rightly believed the truthfulness of the prosecution version and rightly recorded the finding of guilt against the present appellants. Accordingly, we do not find any ground to differ from the finding of guilt recorded by the learned Sessions Judge. Consequently, the judgment and order dated 22.8.1983, passed by the IInd Additional Sessions Judge, Fatehpur in S.T. No. 146 of 1982 (State Vs. Prem Narain alias Baboley and others), arising out of Crime No. 111 of 1981, P.S. Jafarganj, District Fatehpur does not require any interference by this Court. 85. In view of the above, these appeals appear to be bereft of merit and are accordingly dismissed. 86. The conviction and sentence awarded by the trial court against the surviving accused/appellants Prem Narain alias Baboley and Satya Narain are confirmed. The accused/appellants Prem Narain alias Baboley and Satya Narain are directed to serve out the remaining part of the sentences awarded by the learned trial Judge in the impugned judgment. Surviving accused appellants Prem Narain alias Baboley and Satya Narain are on bail. They shall surrender before the trial court for serving out the sentence within 15 days from the date of this judgment, failing which the trial court shall ensure their arrest and shall send them to jail for serving out the remaining sentences in accordance with law. 87. The copy of the judgment and entire record shall be transmitted back to the concerned trial court through Sessions Judge, Fatehpur for compliance within ten days. The concerned court will thereafter report the compliance to this Court within a month.