JUDGMENT : PRAKASH GUPTA, J. 1. Aggrieved by the judgment dated 26th March, 2011 passed by the learned Additional Sessions Judge, (Fast Track) No.4, Jaipur City, Jaipur, the appellant, Abrar Ansari has filed the present appeal. 2. By the said judgment, the learned Judge convicted the appellant for offences under Sections 302 and 201 IPC. By an order of even dated, the learned Judge had sentenced the appellant as under:- Offence Sentence Under Section 302 IPC To undergo life imprisonment and to pay a fine of Rs. 500/- In default of payment of fine, to further undergo two months' rigorous imprisonment. Under Section 201 IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs.200/- In default of payment of fine, to further undergo rigorous imprisonment for one month. 3. In nut-shell, the facts of the case are that on 5th June, 2010, complainant Asgar Ansari (PW.6) submitted written report (Ex.P.6) to the Station House Officer, Police Station Vaishali Nagar, Jaipur Stating therein that the dead body of deceased Ayub Ansari was found lying on the railway track. The written report, when translated into English, reads as under:- To, The Station House Officer, Police Station, Vaishali Nagar, Jaipur City South. Subject: For lodging the report. Sir, It is submitted that I am a resident of village Chihutia, Police Station Vishnugarh, District Hajaribagh Jharkhan and residing here at Minawala with my family. Ayub Ansari, who was my contractor resident of Beliatat near to my village was residing in a shop infront of Masjid in Mahant Colony. Today on 5th June, 2010 about 6.30 in the morning Naushad Bhai son of Haji came to me at my house and told that the dead body of Ayub Ansari was lying on the railway track, so come and identify the same. I accompanied them up to the shop where Ayub was living and saw that the shutter of the shop was half open. When I saw inside then found that the floor of the shop was cleaned and blood stains were there on the carpet and walls. Out side the shop there were marks of dragging. I went to the railway track and found that the dead body was lying there in pieces. Some body after committing murder of Ayub Ansari had put the dead body on the railway track to hide the incident. Report is submitted for necessary action. Out side the shop there were marks of dragging. I went to the railway track and found that the dead body was lying there in pieces. Some body after committing murder of Ayub Ansari had put the dead body on the railway track to hide the incident. Report is submitted for necessary action. Applicant (Asgar Ansari) son of Shri Nehpal Ansari, by caste Musalman aged 37 years, resident of Chihutiya, PS Vishnugarh District Hajaribagh, Jharkhand Plot No.3, Shiv Vihar, Laxmi Vihar, Minawala, PS Karni Vihar, Jaipur Mob. 9001715719 dated 5.6.10. 4. On the basis of this written report (Ex.P.1) the police chalked out a formal First Information Report (Ex.P.31) i.e. FIR No.353/2010 for offence under Sections 302, and 201 IPC and commenced investigation. 5. During investigation, the police arrested appellant Abrar Ansari on 5th June, 2010 vide arrest memo Ex.P.17 and after the completion of investigation the police filed challan against the appellant for offence under Sections 302 and 201 IPC. The appellant was charged for offences under Sections 302, 201 IPC. 6. In order to support its case, the prosecution examined thirteen witnesses, and submitted thirty three documents. Although, the defence did not examine any witness, it had exhibited two documents. After the completion of trial, the learned Judge convicted the appellant as aforementioned. Hence, the present appeal before this Court. 7. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. Mr. Anshuman Saxena, the learned counsel for the appellant has raised the following contentions before this Court:- Firstly, the case is entirely based on circumstantial evidence, but the prosecution has failed to establish its case beyond a reasonable doubt. Secondly, the prosecution has relied on the following evidence to establish its case:-(a) There is evidence of last seen proved by Noor Mohammad (PW.1), Naushad Ali (PW.3), Haji Sikandar Khan (PW.4), Haji Sha. Mohammad Pathan (PW.7) and Parvesh (PW.8); (b) upon an information furnished by the appellant under Section 27 of the Evidence Act (Ex.P.32), a blood stained spade was recovered vide recovery memo (Ex.P.16); 9. On behalf of the accused appellant three fold arguments have been raised which are as under:- (1) There is no eye witness of the occurrence. The case of prosecution rests solely on the basis of circumstantial evidence. There are missing links in the evidence. The blood on the walls etc. On behalf of the accused appellant three fold arguments have been raised which are as under:- (1) There is no eye witness of the occurrence. The case of prosecution rests solely on the basis of circumstantial evidence. There are missing links in the evidence. The blood on the walls etc. was found cleaned and the witnesses have stated that none of them saw the accused cleaning the same; (2) There is no proved motive of the occurrence. The recovery of articles at the instance of the accused is fake and has not been proved by the prosecution; and (3) The alleged story of last seen is also not such as to link the accused with the alleged crime. Mere fact that both deceased and accused used to sleep in the shop does not prove the guilt of the accused. PW.1 Noor Mohammad and PW.4 Hazi Sikander Khan have stated that they saw the accused going on the roof of the shop. However, according to the learned counsel for the appellant, if all these pieces of evidence were accepted, even then the prosecution has not covered the distance between "may be true" and "must be true". 10. On the other hand, the learned Public Prosecutor, Mr. Aladeen Khan has argued that although there is no eye-witness to the occurrence but the evidence produced by the prosecution is sufficient to forge a complete chain of circumstances which unerringly points towards the guilt of the appellant. Hence, the learned Public Prosecutor has supported the impugned judgment and submitted that the impugned judgment calls for no interference. The learned Public Prosecutor has prayed for dismissal of the appeal. 11. Having heard the learned counsel for the parties, we have perused the impugned judgment and examined the record. 12. Before we proceed further to deal with the contentions raised by the learned counsel for the appellant, it would be appropriate to examine the evidence of the relevant witnesses. 13. Undoubtedly, the present case is based on circumstantial evidence. The rule governing appreciation of evidence in case based on circumstantial evidence is not only well known, but has also been recently reiterated by the Apex Court in the case of Balkar Singh v. State of Haryana [ 2014 (13) SCALE 63 ]. 13. Undoubtedly, the present case is based on circumstantial evidence. The rule governing appreciation of evidence in case based on circumstantial evidence is not only well known, but has also been recently reiterated by the Apex Court in the case of Balkar Singh v. State of Haryana [ 2014 (13) SCALE 63 ]. The Hon'ble Supreme Court has observed as under:- (1)….Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 14. Therefore, these principles would have to be kept in mind while appreciating the evidence in the present case. 15. Noor Mohammad (PW.1) has stated that he was living on rent in the Madrsa from 3-4 years and was doing labour work. Abdul Ansari was known to him from 3-4 years because he used to come for Namaj. Ayub Ansari was living on rent in the shop of Madarsa and was a building contractor. Abrar Ansari was living with him from 4-5 days. In the night of 5.6.10 at about 2.00 AM he was in the house and came to the chowk to open the tap of water at that time Abrar Ansari was going to the roof of the Madarsa for sleeping. When he asked the reason of going there from him, he replied that there was hot in the shop so he is going to sleep on the roof. He went in the house and slept and Abrar Ansari also went to sleep. In the morning of the next day at about 6.00 AM he saw crowd at the railway track and police came there. He went in the house and slept and Abrar Ansari also went to sleep. In the morning of the next day at about 6.00 AM he saw crowd at the railway track and police came there. He also went there and found that the dead body of Ayub Bhai was lying there in three-four pieces. He along with other persons identified the dead body as that of Ayub. When he reached at the shop of Madarsa, he noticed that the floor of the shop was cleaned and there were blood stains here and there. There were utencil and bed in side the shop. He did not asked about Ayub Ansari from Abrar Ansari. He saw signs of dragging and blood stains on the way. Signs of dragging were up to the railway track. To conceal the murder, the dead body of Ayub Ansari was thrown on the railway track. 16. In the cross examination, he has admitted that after the incident Abrar Ansari was present at the house. There were blood stains on the way to show dragging from the shop to railway track. At the time of incident, Abrar Ansari was neither weeping nor there were any sign of shame on his face. The witness has stated that in the dark he can see up to 6-7 feet and in the light he can see up to 10-12 feet. There is a distance of about 20 meter in between water tank and Madarsa. He also admitted that when he came out of his room, Abrar Ansari entered the gate of Madarsa. 17. Naushad Ali (PW.3) has stated that he is residing at the given address along with his parents. Madarsa and the shops of Madarsa are situated in front of their house. In one of the shops Ayub Ansari and Abrar Ansari were residing on rent who were bona fide residents of Jharkhand. Ayub Ansari was a building contractor and Abdul Ansari was working with him. Earlier, Ayub Ansari was living in house No.82 Mahant Colony. In the morning of 5.6.10 he woke up at about 6.00-6.30 and came out of the home and found that persons were collected on the railway track then he also went there and found that pieces of the body of Ayub Ansari were lying here and there. Abrar Ansari was also standing there and there was no sign of stress on his face. Abrar Ansari was also standing there and there was no sign of stress on his face. Abrar Ansari identified the dead body of Ayub Ansari. Abrar Ansari told that he was sleeping on the roof and Ayub Ansari was sleeping inside of the shop of Madarsa. When they returned to the shop then they found that there were blood stains on the walls of the shop and the carpet was also having blood stains. Floor of the shop was washed out by Abrar Ansari with intention to hide the evidence. Both Ayub Ansari and Abrar Ansari used to sleep inside the shop. Abrar Ansari has committed murder of Ayub Ansari and put his dead body on the railway track in the night. From the shop and the railway track there were blood stains and signs of dragging. 18. In cross examination the witness has stated that he did not see Abrar Ansari cleaning the floor of the shop. He neither heard or saw any quarrel in between the accused and the deceased. 19. Haji Sikandar Khan (PW.4) deposed that he was residing at the given address along with his family. Ayub Ansari and Abrar Ansari, residents of Jharkhand were living in the shop of Madarsa. Ayub Ansari was a building contractor and Abrar Ansari was working with him. Earlier both these persons were living in Mahant Colony. On 5.6.2010 after 5.30 AM, after performing Namaj, he was sitting on the roof of his house. He saw that Abrar Ansari was sleeping on the roof of the madarsa. On hearing cries, Abrar Ansari came down. Near the railway track so many persons were collected then he also went there and saw the dead body of Ayub Ansari in pieces. Head, body and legs were lying separately here and there. Abrar Ansari identified the dead body that of his maternal uncle Ayub Ansari. Police came at the place of occurrence. He noticed that blood stains were there on the walls of the shop where the deceased was living and there were blood stains on the Gudadi also. Floor was cleaned by Abrar Ansari. Abrar Ansari committed murder of Ayub Ansari and with intention to hide the evidence put the dead body on the railway track. In cross examination the witness has stated that he saw Abrar Ansari about 6.00 AM. He heard the persons saying that Abrar Ansari murdered Ayub Ansari. Floor was cleaned by Abrar Ansari. Abrar Ansari committed murder of Ayub Ansari and with intention to hide the evidence put the dead body on the railway track. In cross examination the witness has stated that he saw Abrar Ansari about 6.00 AM. He heard the persons saying that Abrar Ansari murdered Ayub Ansari. He did not see Abrar Ansari committing murder of Ayub Ansari. He also did not see Abrar Ansari cleaning the floor of the shop. 20. Haji Sha. Mohammad Pathan (PW.7) stated that the deceased and the accused were living together in one of the shops of the madrsa. On 5.6.2010 at about 6.30 in the morning he received a phone call that Ayub Ansari was murdered and the parts of his body were spreading on the railway track. There were blood stains on the walls of the shop and the floor was cleaned. Ayub Ansari and Abrar Ansari used to sleep in the shop. Abrar Ansari committed murder of Ayub Ansari in the shop of madarsa and with intention to hide evidence, put his body on the railway track. Signs of dragging were there from the shop to the railway track and blood stains were also there. 21. In the cross examination the witness has stated that he does not remember that any quarrel took place in between the deceased and the accused. Blood stains were there from the shop to the railway track. It is true that nobody saw the accused committing murder of deceased. It is also true that he did not see the accused cleaning the floor of the shop. 22. To the similar effect is the statement of Parvesh (PW.8) that both accused and deceased were living together in the shop of madarsa and in the morning of 5.6.2010 pieces of dead body of deceased were found lying on the railway track. 23. In cross examination this witness also deposed that he never heard about any quarrel between the deceased and the accused. 24. PW.9 Hari Singh, at the relevant time was posted at Police Station Vaishali Nagar, Jaipur. He stated that on the fateful day, the Investigating Officer prepared the panchnama of the dead body of deceased Ayub Ansari and obtained signatures of the witnesses including himself. 24. PW.9 Hari Singh, at the relevant time was posted at Police Station Vaishali Nagar, Jaipur. He stated that on the fateful day, the Investigating Officer prepared the panchnama of the dead body of deceased Ayub Ansari and obtained signatures of the witnesses including himself. It is further stated by this witness that in his presence the Investigating Officer inspected the shop and the way and the site plan of the way/road where blood stains were found was prepared. Blood stains found on the floor of the shop were also lifted. Pillow cover stained with blood was also seized. From the evidence of the aforesaid witnesses it is revealed that both the deceased and the accused were living together in the shop of madarsa and both slept in the shop thereafter dead body of deceased Ayub Ansari was found in pieces on the railway track. PW.1 Noor Mohammad has clearly stated that in the night of the occurrence at about 2.00, accused Abrar Ansari was going to sleep on the roof of the shop. 25. From the evidence of PW.1 Noor Mohammad it is also clear that in the morning when he reached to the shop in question, the shop was found to be cleaned but there were blood stains here and there. He also saw the signs of dragging and blood stains in the way from the shop to the railway track. From the evidence of PW.3 Nausad Ali, PW.4 Hazi Sikander Khan, PW.5 Mohammad Arif, PW.6 Asgar Ansari, PW.7 Hazi Sha Mohammad and PW.9 Hari Singh it is also clear that the deceased was murdered in side the shop and then his dead body was dragged up to the railway track. 26. So far as recovery of Fawda (spade), Gudadi stained with blood, one lower, one jaw stained with blood having four teeth and one molar and cover of the pillow, vide recovery memo (Ex.P-15) from the dustbin of Nagar Nigam situated in Mahant Colony near to Railway Track, is concerned the same has been proved by the investigating Officer PW-13 Raisingh Beniwal. Ex.P-32, the information given by the accused under Section 27 of evidence Act has also been proved by PW-13. 27. Raisingh Beniwal PW-13 on 5.6.2010 was posted as incharge Police Station, Vaishali Nagar. Ex.P-32, the information given by the accused under Section 27 of evidence Act has also been proved by PW-13. 27. Raisingh Beniwal PW-13 on 5.6.2010 was posted as incharge Police Station, Vaishali Nagar. He has stated that on that day in the morning he received information to the effect that on the railway track near Mahant Colony one dead body was lying. He reached at the place of occurrence where the complainant Asgar Ansari submitted a written report (Ex.P-6) upon this report he proceeded further. He inspected the place and prepared the necessary memos. From the place of occurrence (Room of the deceased), blood stained Tat Patti and controlled sample of Tat Patti, blood stained cap were recovered and sealed. Accused Abrar Ansari was arrested vide arrest memo Ex.P-17 during custody he made a voluntary disclosure statement (Ex.P-32) under Section 27 of the Evidence Act to the effect that he has concealed one blood stained spade, one blood stained Gudri and one lower in the dustbin of Nagar Nigam situated near the railway track. On the basis of the information furnished by the accused under Section 27 of the evidence act, at the instance of the accused recovery of red coloured blood stained pillow cover, blood stained lower and one spade were recovered. There was cement and sand on the spade along with blood. One blood stained Gudri of blue coloured and one lower of Grey colour with blood stains were seized and sealed, and the seizure memo is Ex.P-15. 28. In cross-examination, he has stated that he cannot say that out of the persons named in Ex.P-12 who has been made witness and that at what time Ex.P-13 was prepared. Ex.P-32 is the recovery memo of spade and blood was found on the back side of the spade. Hair of the head were also found. Accused Abrar Ansari gave information under Section 27 of the evidence Act in the Police Station. Whether it was before sun set or after sun set, he cannot say. It is true that Abrar Ansari was living with Ayub Ansari in the shop. 29. From the statement of the investigating Officer Raisingh Beniwal PW-13, it is revealed that accused Abrar Ansari gave voluntary information Ex.P-32 regarding the blood stained spade Gudri and lower and at his instance all the items were recovered vide recovery memo Ex.P-15. 30. It is true that Abrar Ansari was living with Ayub Ansari in the shop. 29. From the statement of the investigating Officer Raisingh Beniwal PW-13, it is revealed that accused Abrar Ansari gave voluntary information Ex.P-32 regarding the blood stained spade Gudri and lower and at his instance all the items were recovered vide recovery memo Ex.P-15. 30. The recovery has been proved from the statement of Harisingh PW-9. The recovered articles were sent for to the FSL for examination. The FSL report Ex.P-13 reveals that on spade, Gudri, Lower, Jaw and on pillow cover human blood was found. 31. So far as offence under Section 201 IPC is concerned, from the prosecution evidence, it is clear that accused Abrar Ansari after committing murder of deceased Ayub Ansari in the shop where both were living put the dead body on the railway track so as to able to disappear the evidence of murder and to give a safe of suicide. 32. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 33. It is well settled that Section 106 of the Evidence Act does not relieve the burden of prosecution to prove guilt of the accused beyond reasonable doubt but where the prosecution has succeeded to prove the facts from which a reasonable inference can be drawn regarding the existence of certain other facts and the accused by virtue of special knowledge regarding such facts fail to offer any explanation then the Court can draw a different inference. 34. The applicability of the above provision has been explained by the Supreme Court in State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 and the Supreme Court held as under: "23. ……………………The principle is well settled. 34. The applicability of the above provision has been explained by the Supreme Court in State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 and the Supreme Court held as under: "23. ……………………The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain." 35. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him." In Ram Gulab Chaudhary v. State of Bihar, (2001) 8 SCC 311 , the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. 36. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. 36. 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 with a "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. The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 . In this case this Court has held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. 37. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. 38. In the instant case the prosecution has been able to prove the fact that the deceased and the appellant slept in the shop and thereafter the dead body of the deceased was found on the railway track. Therefore, it was the duty of the accused to offer explanation as to what had happened during the intervening night but the accused has failed to offer any explanation and there is also no cross-examination from any of the prosecution witness to this effect that the deceased and the accused appellant were not sleeping together. It is revealed from the record that except the accused nobody else had access to the shop in which the accused and deceased were sleeping. In the statement of the appellant under Section 313 Cr.P.C. he has not stated that any other person had committed the murder of the deceased. Thus, presumption of Section 106 of the Evidence Act can very well be drawn in this case. Therefore, we are of the opinion that in the instant case the prosecution has been able to prove the circumstances in such a manner which are sufficient to forge a complete chain of circumstances which unerringly points towards the guilt of the appellant. 39. Therefore, we are of the opinion that in the instant case the prosecution has been able to prove the circumstances in such a manner which are sufficient to forge a complete chain of circumstances which unerringly points towards the guilt of the appellant. 39. In addition to it, it is amply proved from the statement of Rai Singh Beniwal PW.13 and other witnesses namely; Hari Singh PW.9 of recovery memo Ex.P.16 of Fawada (Spade) stained with blood, one red coloured pillow cover, one carpet, one lower belonging to the deceased and one jaw of the deceased all sustained with blood, were recovered at the instance of the accused on the information given by him under Section 27 of the Evidence Act and human blood was also found on these recovered articles. In his statement under Section 313 Cr.P.C., the accused has offered no explanation about these facts i.e. last seen and recovery. In view of the above, we find no merits in the appeal and the same is, hereby, dismissed.