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Madhya Pradesh High Court · body

2016 DIGILAW 904 (MP)

Ramkishore v. State Of M. P.

2016-10-05

N.K.GUPTA, VIVEK AGARWAL

body2016
JUDGMENT : N. K. GUPTA, J. The appellant has preferred the present appeal being aggrieved with the judgment dated 11-10-2002 passed by the First Additional Sessions Judge, Bhind (M.P.) in ST No. 65/98 whereby the appellant has been convicted of offence under sections 302 and 201 of Indian Penal Code and sentenced to Life Imprisonment with a fine of Rs. 1,000/- and seven years’ rigorous imprisonment with a fine of Rs. 1,000/- respectively. 2. The prosecution’s case, in short, is that on 11-9-1995, the appellant was working as a constable in Border Security Force (hereinafter it shall be referred to as “the BSF”) and was posted at outpost Sheela near Amritsar (Punjab). On 11-9-1995, at about 07:55 a.m. on his complaint of illness, he was relieved to report at Headquarters at Amritsar for his treatment. On 13-9-1995, at about 04:00 p.m. he returned at outpost Sheela and requested his superior officers to show his arrival as on 12-9-1995. He requested one constable Surajbhan (PW-19) and Sub-Inspector Omprakash (PW-20), however, his officers could not mark his presence on 12-9-1995 because it was against the rules and the general diary (movement book) kept in the office of dated 12-9-1995 was already complete. After sometime, Shri I. P. Bhatt (PW-22), the Commandant, came for inspection and general book was demanded, which was found missing. On search that book was found with the appellant Ramkishore and a few pages of that book were torn out. On asking, the appellant returned such pages relating to entry dated 11-9-1995 upto 13-9-1995. The photocopies of such torn pages were provided by the concerned BSF authorities to the police as Ex.P-22 to P-33. When higher officers of the appellant asked him as to why did he tear those pages then the appellant stated before Shri Y. P. Mehta (PW-18), his superior officer, that instead of going to hospital he went to his house at village Dhonchara, Police Station Umri, District Bhind where he killed his wife. Shri Mehta (PW-18) gave a report Ex.P-35 to his higher officers and Shri I. P. Bhatt (PW-22) made a confirmation remark on that document because the appellant had also confessed before Shri Bhatt and report was forwarded to the commandant. Shri Mehta (PW-18) gave a report Ex.P-35 to his higher officers and Shri I. P. Bhatt (PW-22) made a confirmation remark on that document because the appellant had also confessed before Shri Bhatt and report was forwarded to the commandant. By the order of the Commandant, the appellant was taken into custody and a letter was sent to the Superintendent of Police, Bhind and Deputy Commissioner, Bhind (M.P.) to take action against the appellant. 3. Initially, an enquiry was given to the Head Constable Jitendra Singh (DW-2) who went to the house of the appellant at village Dhonchara and he found the deceased Maya Devi present in the house. He took one Chowkidar, namely, Banshi Singh (DW-1) along with him and gave a report that there was no problem to Maya Devi, wife of the appellant and she was happily residing in the house of appellant at Dhonchara. However, again, a letter was written by the higher authorities of BSF. The Superintendent of Police, Bhind got the matter re-enquired and in his report Ex.P-43 he found that the enquiry done by Head Constable Jitendra Singh (DW-2) and ASI Parashuram Shukla was performed in a negligent manner and it was full of mistakes and therefore disciplinary action was taken against Jitendra Singh (DW-2) and his other superior officers. Ultimately, the appellant was arrested vide arrest memo Ex.P-18. Also his father Ramendra Singh was arrested who accepted the guilt in the memo recorded under section 27 of the Evidence Act and on his information one axe was recovered from him. During investigation, Keshav Singh (PW-10), Makhan Singh (PW-1) and Ramraj Singh (PW-2), relatives of the deceased, were examined where they had shown that there were tensed relations between the deceased Maya Devi and the appellant. Keshav Singh (PW-10), after keeping his daughter at his house for sometime, had left her at the house of the appellant at village Dhonchara and thereafter she was found missing. He had also moved a petition of Habeas Corpus before the Allahabad High Court but Maya Devi could not be traced. After due investigation, the charge-sheet was filed before the Judicial Magistrate First Class concerned who committed the case to the Court of Sessions and ultimately it was transferred to the First Additional Sessions Judge, Bhind (M.P.). 4. The appellant abjured his guilt. After due investigation, the charge-sheet was filed before the Judicial Magistrate First Class concerned who committed the case to the Court of Sessions and ultimately it was transferred to the First Additional Sessions Judge, Bhind (M.P.). 4. The appellant abjured his guilt. He took a plea that the deceased Maya Devi was taken by her father Keshav Singh (PW-10) and she entered into a second marriage with someone. In defence, Chowkidar Banshi Singh (DW-1) and Head Constable Jitendra Singh (DW-2) were examined. 5. The trial Court after examining the evidence adduced by the parties acquitted the accused Ramendra Singh and Shanti Devi, parents of the appellant, from all the charges but convicted and sentenced the appellant as mentioned above. 6. We have heard learned counsel for the parties at length. 7. In the present case, there is no ocular evidence against the appellant whereas the chain of circumstantial evidence depends upon the extra-judicial confession done by the appellant before his higher authorities. In this connection, the learned counsel for the appellant has mainly submitted that such confession was not admissible and acceptable. Reliance has been placed upon the judgment passed by the Apex Court in the case of State of Punjab vs. Bhajan Singh and others, AIR 1975 SC 258 and Sahadevan and anr. vs. State of Tamil Nadu, AIR 2012 SC 2435 . It is also submitted that circumstances in the present case were not proved whereas extra-judicial confession is a weak type of evidence. It is submitted that the evidence of last seen together was not proved by the prosecution. The deceased Maya Devi was taken back by her father Keshav Singh (PW-10) and therefore by mere extra-judicial confession, the appellant could not be convicted. Reliance has been placed upon the judgment passed by the Apex Court in the case of Ashok vs. State of Maharashtra, (2015) 4 SCC 393 . 8. Initially, if circumstances as proved against the appellant are considered then the first circumstance is the extra-judicial confession done by the appellant before his superior officers. Shri Y. P. Mehta (PW-18) has categorically stated that on being asked about the torn out pages of general diary, the appellant had accepted that instead of going to the medical institute he went to his house at his native place, killed his wife and came back. He also requested the witness Shri Y. P. Mehta (PW-18) to save him. Shri Y. P. Mehta (PW-18) has categorically stated that on being asked about the torn out pages of general diary, the appellant had accepted that instead of going to the medical institute he went to his house at his native place, killed his wife and came back. He also requested the witness Shri Y. P. Mehta (PW-18) to save him. He had also shown reason for such murder document Ex.P-35 that his wife was characterless. Shri Mehta (PW-18) has proved the document Ex.P-35 in which he gave a report to his superior officers about such confessional statement of the appellant. Such statement was duly supported by Shri I. P. Bhatt (PW-22) who went on inspection of that particular outpost and he also asked the appellant as to why he had torn the pages of general diary and thereafter Shri Bhatt directed to take the appellant into custody when he confessed before Shri Bhatt. Shri Bhatt also endorsed such note on the document Ex.P-35 and matter was forwarded to the Commandant. Learned counsel for the appellant has submitted that one of the officers, namely, SI Omprakash (PW-20) has accepted, in para 5, that when he was strict to the appellant on queries, he accepted that he killed his wife and therefore the confession as obtained from the appellant was due to coercion of his superior officers, however, such contention cannot be accepted. Initially, the appellant tried that his presence at outpost Sheela be marked for 12-9-1995 and he requested the constable Surajbhan (PW-19) and sub-inspector Omprakash (PW-20). SI Omprakash (PW-20) has categorically accepted that when the appellant was asked as to why he had torn the pages of general diary, he started weeping and thereafter he accepted that he killed his wife because he has a suspicion about her character. Also Sub-Inspector Ishwar Singh (PW-21) has accepted that the appellant came back to the outpost Sheela on 13-9-1995 and he tried to get his arrival to be marked on 12-9-1995, at the first instance. 9. After considering the statements of such officers including constable Surajbhan (PW-19) and sub-inspector Omprakash (PW-20), sub-inspector Ishwar Singh (PW-21) and I. P. Bhatt (PW-22), it is apparent that the higher officers of the appellant were enquiring about the general diary which was found missing and thereafter it was found with the appellant and some pages of that diary were found to be torn. They did not try to get the extra-judicial confession of the appellant relating to the death of his wife. Hence, none of the officers has asked about the details of overt act of murder done by the appellant. They were enquiring about the presence of the appellant for the period during 11-9-1995 to 13-9-1995, hence, when there was no enmity with his superior officers, statements given by his superior officers are acceptable. There was no need to these officers of BSF to use their authority to force the appellant to make confession and hence, it cannot be said that the confession was made by the appellant due to coercion done by the superior officers. 10. In the judgment as referred by the learned counsel for the appellant in the case of Sahadevan (supra), the Hon. Apex Court has enumerated the following six conditions to consider the extra-judicial confession : “(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” In the light of the aforesaid conditions, in the present case extra-judicial confession done by the appellant is required to be examined. 11. As submitted by the learned counsel for the appellant, witness Y. P. Mehta (PW-18) has accepted that for giving his statement before the Court he came by a train, namely, Chhattisgarh Express. He left Amritsar at about 4 p.m. of 13th and reached at about 12 O’clock on 14th. He has accepted that while travelling by train more than 24 hours were required to visit Bhind whereas Amritsar was 64 kms. away from outpost Sheela. He has also accepted that according to him the distance between post Sheela to Bhind should be about 1000 kms, however, Y. P. Mehta (PW- 18) was not expected to provide any data relating to distance between outpost Sheela to Bhind. away from outpost Sheela. He has also accepted that according to him the distance between post Sheela to Bhind should be about 1000 kms, however, Y. P. Mehta (PW- 18) was not expected to provide any data relating to distance between outpost Sheela to Bhind. He was an officer and therefore he took a train after getting due reservation. According to the investigating officer etc that after committing murder the appellant went to Itawah and thereafter arrived at outpost Sheela. Hence, it was for the appellant to prove that it was impossible for him to visit his village from outpost Sheela and to get back again within those three days. However, no defence evidence has been adduced to show that it was impossible for the appellant to visit his village Dhonchara from outpost Sheela in those three days. If it was impossible to visit and to come back in that period then there was no need to the appellant to insist for an entry that he had arrived at outpost Sheela on 12-9-1995 and there was no need for him to accept before his higher officers that he killed his wife after visiting his native place. Hence, in the absence of any defence evidence, only by evidence of Y. P. Mehta (PW-18) which was given about the distance etc. it cannot be said that it was not possible for the appellant to commit such a crime by leaving the outpost for 2-3 days. The statement of Shri Mehta is not at all acceptable on that count because he had no specific knowledge about the distance from outpost Sheela to village Dhonchara and its route. Possibility cannot be ruled out that the appellant would have visited his village via Itawah etc. and that route was shorter, hence, in the absence of any defence evidence it cannot be said that there was no possibility for the appellant to visit the village Dhonchara and to come back at outpost Sheela during the period between 11-9-1995- 07:55 a.m. to 13-9-1995- 04:00 pm. Hence, submission of impossibility cannot be accepted. 12. If other circumstantial evidence is considered then the second circumstance in the case is that the appellant was not present at outpost Sheela during the period 11-9-1995- 07:55 a.m. to 13-9-1995- 04:00 p.m. and no other explanation could be given by the appellant for that absence. Hence, submission of impossibility cannot be accepted. 12. If other circumstantial evidence is considered then the second circumstance in the case is that the appellant was not present at outpost Sheela during the period 11-9-1995- 07:55 a.m. to 13-9-1995- 04:00 p.m. and no other explanation could be given by the appellant for that absence. It is apparent from the statements of his higher officers that he was relieved from outpost Sheela so that he could get himself treated or examined at medical institute at Amritsar but he never reached that medical institute and therefore he had no document of his attendance at medical institute and he did not get any relieving letter from that institute that he had visited for his health check-up and thereafter he returned to his outpost Sheela. Hence, no explanation advanced by the appellant for his absence from outpost Sheela for a period of more than two days is a circumstance against the appellant that he was involved in an activity which was illegal one and he could not tell the reason of his absence and if he told the reason then it is his acceptance which should be accepted. 13. Thirdly, constable Surajbhan (PW-19), sub-inspector Omprakash (PW-20) and sub-inspector Ishwar Singh (PW-21) have categorically stated that first the appellant insisted that his attendance be marked in the general diary mentioning that he came back on 12-9-1995 and when his request was not accepted then he stole the general diary of that outpost and tore the pages so that the entry of his departure and arrival cannot be viewed by the concerned police. He also tore other pages so that no one can presume that the pages were torn by the appellant, however, the damaged register was recovered from the appellant himself and also due to discipline of BSF, he could not destroy the torn pages and he returned the same to his higher officers. Hence, it is the third circumstance against the appellant that he was guilty conscious and to save himself he tried to reduce his period of absence so that he could take a plea that within one day he could not go to his house, to kill his wife and as such circumstance, being guilty conscious, goes against him. 14. The extra-judicial confession made by the appellant could be side-tracked only on two grounds. 14. The extra-judicial confession made by the appellant could be side-tracked only on two grounds. First, that it was impossible for him to reach his village Dhonchara to commit the crime and again to go back to the outpost within a period of 2 and 3/4 (quarter to three) days but unfortunately he did not lead any evidence to show that impossibility. Second reason to brush aside his extrajudicial confession could be that at the time of incident his wife was taken by his father in law, namely, Keshav Singh (PW-10) to his house and she was remarried. In this connection, it appears that a compromise had taken place between the appellant and his father in law Keshav Singh (PW-10) and therefore Keshav Singh (PW-10) has turned hostile. He has accepted that his daughter Maya Devi was kept in comfort in the house of the appellant and his father and he tried to establish that the affidavit which was allegedly executed by the deceased Maya Devi was actually executed by her. However, from the circumstantial evidence of documents Ex.P-41 and Ex.P-42 which are the copies of orders passed by the Allahabad High Court it would be apparent that he initiated the proceedings before the Allahabad High Court that his daughter was being tortured by the appellant and his family. The judgment and orders passed by the Court are the public documents and by mere copies of such documents judicial notice is to be taken by the Court that such proceedings were initiated before the Allahabad High Court. 15. Witnesses Makhan Singh (PW-1), Ramraj Singh (PW- 2) and Keshav Singh (PW-10) have accepted that for some time the deceased Maya devi was kept in the house of Keshav Singh and thereafter Keshav Singh went to village Dhonchara along with his daughter and left her in the house of Ramendra Singh, father of the appellant and Ramendra Singh promised that he would keep Maya Devi with comfort. Though Keshav Singh has turned hostile but he confirmed the story that after keeping his daughter Maya Devi with him he left Maya Devi in the house of Ramendra Singh, father of the appellant and therefore, it is established that Maya Devi was residing in the house of Ramendra Singh soon before she disappeared. 16. Though Keshav Singh has turned hostile but he confirmed the story that after keeping his daughter Maya Devi with him he left Maya Devi in the house of Ramendra Singh, father of the appellant and therefore, it is established that Maya Devi was residing in the house of Ramendra Singh soon before she disappeared. 16. Learned counsel for the appellant took a plea that before the deceased Maya Devi had disappeared she was taken by her father Keshav Singh (PW-10) to perform her second marriage and therefore she was not present at village Dhonchara on 12-9-1995 for the appellant to kill her. Unfortunately, such submission has no basis. When the relatives of the deceased Maya Devi, namely, Makhan Singh (PW-1) and Ramraj Singh (PW-2) were examined, no compromise took place between the parties and therefore they did not turn hostile but Keshav Singh (PW-10) father of the deceased Maya Devi turned hostile, however, no suggestion was given to the witness Keshav Singh (PW-10) that ultimately he took his daughter with him or on 12-9-1995 his daughter deceased Maya Devi was not present in the house of Ramendra Singh at village Dhonchara. Similarly, the pretext that the deceased Maya Devi was taken by her father is developed afterwards because initially the appellant and his parents had managed the defence witnesses i.e. Chowkidar Banshi Singh (DW-1) and Head Constable Jitendra Singh (DW-2) who have stated that they went to the house of Ramendra Singh where they found that the deceased Maya Devi was present at the house and whose statement was recorded by Head Constable Jitendra Singh (DW-2) with the pretext that she was present in the house and was happy in the family though it was a cooked evidence and Head Constable Jitendra Singh (DW-2) was punished by Superintendent of Police, Bhind due to his misconduct and negligence. He was punished with censure warning. However, it was the defence of the appellant and his family that Maya Devi was alive and she was very much present in the house of Ramendra and was happy in that house whereas Maya Devi was not at all available on that day. By defence evidence, it is proved beyond doubt that Keshav Singh never took the deceased Maya Devi from the house of the appellant at village Dhonchara and before her disappearance she was residing at the house of appellant situated at village Dhonchara. By defence evidence, it is proved beyond doubt that Keshav Singh never took the deceased Maya Devi from the house of the appellant at village Dhonchara and before her disappearance she was residing at the house of appellant situated at village Dhonchara. Hence, it was for the appellant and his family members to reply the question as to when and where the deceased Maya Devi had gone and if she had gone from the house whether any missing report was lodged by the appellant or his family members. This is a strong circumstance which goes against the appellant. 17. It was also tried to prove that the deceased Maya Devi was mentally sick and unfortunately the hostile witness Keshav Singh (PW-10), father of the deceased, has accepted such a fact and a plea was also taken that Maya Devi left the house of the appellant due to her mental condition and therefore the appellant and his family members had no knowledge about the missing of deceased Maya Devi. However, according to various documents, it appears that there was a quarrel between the deceased and the appellant. She resided in her father’s house for a longer period and thereafter her father Keshav Singh left her in the house of Ramendra Singh and Ramendra Singh accepted her in the house with the promise that he will keep her with comfort. If the deceased was suffering from any mental illness then it was not possible for the appellant and his father to permit the witness Keshav Singh to leave his daughter at appellant’s place. They would have insisted that after her cure she would be sent. In these circumstances, the testimony of witness Keshav Singh (PW-10) etc. cannot be accepted that the deceased Maya Devi was mentally ill when she was left in the house of the appellant and Ramendra Singh at village Dhonchara. 18. If it is presumed that she was mentally ill and she left the house of the appellant situated at village Dhonchara due to her mental illness then when she left the house it was a natural conduct of the appellant – Ramkishore that either he or his father would have lodged a missing report that wife of the appellant was missing. She was not found in the house on a particular day. She was not found in the house on a particular day. It was the natural conduct of Ramendra Singh that on missing of the deceased Maya Devi he would have informed his son and the appellant would have taken leave from his superior officers to search his wife and then he would have lodged a missing report at police station Umri that his mentally sick wife was missing, however, it is not established that either appellant Ramkishore or his father Ramendra Singh had ever lodged such a missing report or the appellant had applied to his superior officers of BSF to visit his native place for search of his wife and therefore looking to the conduct of the appellant and his father theory of missing of the deceased Maya Devi goes away that she left the house due to her ill mental condition. 19. When it is established beyond doubt that the deceased was residing at village Dhonchara and thereafter she could not be found either on that place or any other place and no missing report had been lodged by the appellant or his father Ramendra Singh then this conduct of the appellant goes against him and it is also one of the circumstances in relation to his extra-judicial confession and crime committed by him. 20. The witnesses Makhan Singh (PW-1) cousin brother of the appellant and Ramraj Singh (PW-2) have stated that they had seen the appellant along with deceased Maya Devi leaving his house at village Dhonchara with the pretext that since Maya Devi was not happy in the house of the appellant at village Dhonchara the appellant was taking her to the place of his posting. So many questions were asked to the witness Makhan Singh (PW-1) who was the distant uncle of the deceased Maya Devi and cousin of the appellant but no enmity of appellant was shown with the witness Makhan Singh (PW-1) so that his testimony may be discarded. 21. Similarly, Ramraj Singh (PW-2) has accepted that he was known to Keshav Singh and his daughter and he has expressed that Maya Devi was dealt with cruelty in the house of the appellant at village Dhonchara. 21. Similarly, Ramraj Singh (PW-2) has accepted that he was known to Keshav Singh and his daughter and he has expressed that Maya Devi was dealt with cruelty in the house of the appellant at village Dhonchara. He has also stated that when he was going near the shop of blacksmith he saw the appellant along with his parents and Maya Devi and on his asking the appellant told that he was taking Maya Devi to the place of his posting. Learned counsel for the appellant has indicated the contradiction in the evidence of this witness before the Court and his case diary statement Ex.D-2, however, such statement that Keshav Singh stayed in the house of Ramraj Singh (PW-2) is not so important and therefore the contradiction between the statement of witness Ramraj Singh (PW-2) with his case diary statement is not a material contradiction and therefore though these two witnesses did not mention a specific date when they had seen the appellant with the deceased Maya Devi, their evidence is acceptable that they saw the appellant as well as his parents along with Maya Devi when the appellant was taking Maya Devi to his place of posting whereas he never took her to his place of posting. This evidence is nothing but an evidence of last seen together. 22. Learned counsel for the appellant has again submitted that the evidence of last seen together is not a conclusive evidence. He placed his reliance on the judgment rendered by the Apex Court in the case of Ashok (supra) to show that it was for the prosecution to prove the evidence of “Last seen together” and that fact itself is not a conclusive proof of guilt of the accused. It is true that only by the fact of “last seen together” no-one can be convicted but if the chain of circumstantial evidence is complete then the accused can be convicted. As discussed above, it is proved that the appellant was missing from his duties between 11-9-1995 at about 07:55 a.m. up to 13-9-1995 at about 04:00 p.m. He could not give any explanation about his absence except extra-judicial confession made by him before his superior officers. Hence, the law laid down by the Apex Court in the case of Ashok (supra) cannot help the appellant in the present case due to factual difference. 23. Hence, the law laid down by the Apex Court in the case of Ashok (supra) cannot help the appellant in the present case due to factual difference. 23. Learned counsel for the appellant had relied upon the judgment of Bhajan Singh (supra) by contending that the evidence of extra-judicial confession is a weak piece of evidence but in this connection the judgment rendered by the Apex Court in the case of Narayan Singh and others vs. State of Madhya Pradesh, AIR 1985 SC 1678 may be referred in which it is held that it is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak such a confession. According to the Apex Court, extra-judicial confession is a also a substantive piece of evidence. Hence, if the facts and circumstances of the present case are considered in the light of the law laid down by the Apex Court in the case of Narayan Singh (supra) and Sahadevan (supra) then it would be apparent that there was no coercion or pressure done by the superior officers of BSF upon the appellant to confess about the murder. It was made voluntarily and it appears to be truthful because the appellant could not give any other explanation about his absence on his duty place in that particular period and he was seen by the witnesses when he was taking his wife to his place of duty whereas he never took his wife to his place of duty. The extrajudicial confession made by the appellant inspires confidence. It is duly supported by other circumstances as the appellant himself proved by the defence witnesses that after alleged death, the deceased Maya Devi was present at his father’s house. On minutely examining the extrajudicial confession made by the appellant with greater care and caution, it would be apparent that it does not suffer from any discrepancy or any inherent improbability. Hence, in the light of the judgment passed by the Apex Court in the case of Sahadevan (supra), the extra-judicial confession made by the appellant before his higher authorities is acceptable. 24. Hence, in the light of the judgment passed by the Apex Court in the case of Sahadevan (supra), the extra-judicial confession made by the appellant before his higher authorities is acceptable. 24. Learned counsel for the appellant has also submitted that if the appellant had killed the deceased Maya Devi then there must be some evidence with him to trace the dead body of the deceased and the mode of causing death. However, if the appellant left his place of posting with a plan that he was sick he never attended any medical institute thereafter and again went on his duty then certainly according to his plan he would have killed his wife and destroyed all the evidence relating to her death including her dead body, hence, if the dead-body is not found then only by that fact the appellant cannot be given any advantage. In this connection, the judgment passed by the Apex Court in the case of Suresh Chandra Bahri vs. State of Bihar, AIR 1994 SC 2420 may be referred in which it is laid that in certain cases even the dead body of the deceased person is not recovered or seized but if there is a positive evidence to connect the culprit, it cannot be said that the offence of murder is not established. 25. So far as the circumstantial evidence as established against the appellant is concerned it is not only an extrajudicial confession but also some other circumstances are there against him. It is also mentioned in the judgment passed by the Apex Court in the case of Madan Gopal Kakkad vs. Naval Dubey and another, 1992 SCC (Cri.) 598 that if extra judicial confession is not obtained by coercion, promise of favour or false hope etc. is plenary in character and voluntary in its nature acknowledging his guilt and made in presence of a body of persons at various occasions then it can be acted upon. In the present case, it is established that superior officers of BSF were enquiring against the appellant as to why he tore the pages of general diary and thereafter they did not accept the request of the appellant to receive his attendance at outpost Sheela on 12-9-1995. In the present case, it is established that superior officers of BSF were enquiring against the appellant as to why he tore the pages of general diary and thereafter they did not accept the request of the appellant to receive his attendance at outpost Sheela on 12-9-1995. They did not give any promise of favour or a false hope to the appellant whereas it was the voluntary conduct of the appellant that he told before his colleagues including sub-inspector Omprakash (PW-20), sub-inspector Ishwar Singh (PW-21) as well as he confessed before Shri Y. P. Mehta (PW-18), his superior most officer of outpost Sheela and also Shri I. P. Bhatt (PW-22), the Commandant, who visited the outpost for inspection and both of them made a note of that confession at document Ex.P-35, which was sent to the higher officers. Thereafter the appellant was taken into the custody, hence, the extra-judicial confession made by the appellant fulfils all the conditions as mentioned in the judgment of the Apex Court in the case of Sahadevan (supra) and Madan Gopal Kakkad (supra). Apart from such extrajudicial confession, there are circumstances against the appellant. 26. He was absent from his duties during the period from 11-9-1995-07:55 a.m. upto 13-9-1995- 04:00 p.m. and no explanation is given by the appellant before the trial Court even for his absence for that period. It cannot be said that it is only for the prosecution to prove the case and the accused will get a benefit of doubt. According to the provisions of section 105 of the Evidence Act burden of proof is on the accused if he wishes to establish his case within any of the general exceptions of Indian Penal Code. Similarly, according to section 106 of the Evidence Act, the burden of proof lies on the person who has specific knowledge of a particular fact. According to the provisions of section 105 of the Evidence Act burden of proof is on the accused if he wishes to establish his case within any of the general exceptions of Indian Penal Code. Similarly, according to section 106 of the Evidence Act, the burden of proof lies on the person who has specific knowledge of a particular fact. In the present case, when the prosecution has proved the extra-judicial confession done by the appellant then it was for him to prove his whereabouts for the period commencing from 11-9-1995 at about 07:55 a.m. to 13-9-1995 at about 04:00 p.m. When the prosecution has proved that the appellant gave an extrajudicial confession before his superior officers then onus was shifted upon the appellant to establish that extrajudicial confession done by him was factually not correct and in the aforesaid period he was present at a particular place and not at his native place to kill his wife. After shifting of the burden of proof if appellant did not give any explanation about his whereabouts for the aforesaid period to discharge that burden and hence the fact that the appellant has no explanation of his absence from duty for aforesaid period, is also a circumstance which goes against him. 27. Also he tried with constable Surajbhan (PW-19), Sub-Inspector Omprakash (PW-20) and Sub-Inspector Ishwar Singh (PW-21) that his presence should be marked that he attended his duty on 12-9-1995 which indicates that he was guilty conscious. He was also found with his wife and parents by the witnesses Makhan Singh (PW-1) and Ramraj Singh (PW-2) and he told them that he was taking his wife to the place of his duty but he did not reach along with his wife at the place of duty. It is also established that in the past there was a quarrel between the appellant and the deceased and therefore his wife had resided with her father for a longer period and thereafter Keshav Singh (PW-10) had dropped his daughter to the house of the appellant at village Dhonchara and his father Ramendra Singh accepted her with the assurance that she would be kept with comfort. The appellant has failed to prove that his wife was taken by her father Keshav Singh thereafter. The appellant has failed to prove that his wife was taken by her father Keshav Singh thereafter. On the other hand, the defence witness i.e. Chowkidar Banshi Singh (DW-1) and Head Constable Jitendra Singh (DW-2) have tried to prove that they found Maya Devi in the house of the appellant Ramkishore though she was not alive at that time. The Head Constable Jitendra Singh (DW- 2) was punished for such type of negligent enquiry and the appellant could not prove as to where the deceased had gone thereafter. Also it is not established that as to why after disappearance of Maya Devi appellant or his father did not lodge any missing report at police station Umri or any other police station having jurisdiction. If all such circumstances are collectively considered then the chain of circumstantial evidence against the appellant is complete. He cannot get any advantage of the fact that the dead body of the deceased could not be traced. By completion of chain of circumstantial evidence, the only inference which could be drawn is that the appellant had rightly confessed before his superior officers of BSF that he killed his wife and disposed off her dead body in such a manner that it could not be traced. Hence, the trial Court has rightly convicted the appellant of offence under sections 302 and 201 of Indian Penal Code. 28. So far as the sentence is concerned, the trial Court did not inflict the death sentence to the appellant whereas no such appeal has been filed by the State for enhancement of the sentence, hence, the appellant has been given the lowest sentence for the offence under section 302 of Indian Penal Code. As far as sentence of offence under section 201 of Indian Penal Code is concerned, looking to the period of sentence, it cannot be further diluted in favour of the appellant. He had also undergone the period of that jail sentence. 29. In the result, the appeal filed by the appellant is not acceptable either on merits or on the question of sentence. Consequently, it is hereby dismissed in toto by confirming the judgment of conviction and order of sentence recorded by the trial Court against the appellant. 30. The appellant is in custody and therefore he shall continue in it so that his sentence may be executed. 31. Consequently, it is hereby dismissed in toto by confirming the judgment of conviction and order of sentence recorded by the trial Court against the appellant. 30. The appellant is in custody and therefore he shall continue in it so that his sentence may be executed. 31. A copy of this judgment be sent to the Court below along with its record for information.