JUDGMENT : VIJAY KUMAR SHUKLA, J. The present appeal is filed under section 374(2) of the Code of Criminal Procedure challenging the order of conviction and sentence, dated 16-7-2009, passed by the learned First Additional Sessions Judge, Panna, District Panna in S.T. No. 107/2008 [State of M.P. vs. Krishnakant alias Vineet], whereby the accused-appellant has been convicted and sentenced as follows : Conviction Sentence Under section 302 of the Indian Penal Code. Life imprisonment and fine of Rs.10000/-, in default, to suffer further R.I. for 1 years. Under section 201 of the Indian Penal Code. R.I. for 2 years and fine of Rs.1000/­, in default of payment of fine, to undergo further R.I. for one month. Both the sentences to run concurrently. 2. Filtering the unnecessary details, the prosecution case, briefly stated, is that on 6-6-2008 at about 03:20 A.M. the accused-appellant lodged a written complaint in respect of murder of his elder brother – Shivkant Goswami by two unknown persons. The police registered an FIR under sections 449 and 302/34 of the Indian Penal Code, initially against unknown persons, subsequently the investigation revealed that the accused-appellant himself has committed murder of his brother and in order to mislead the investigating agency, he gave a false information to the police. 3. The appellant has given a written report on 6-6-2008 at the Police Station, Saleha alleging that his elder brother – Shivkant after completing training from Navy was taking coaching of English at Satna. Today, he had come back from Satna by Parihar bus. In the night both of them had taken dinner on the roof and thereafter they had come down for sleeping in the room at downstair. At that time his brother was studying. As alleged, around 12:00 to 12:30 A.M. in the night on receiving splash of blood over his face, he got up and saw two persons present in the room. One of them was thin and another was fat having almost same height. They were aged between 30 to 40 years. The fat person was armed with a ‘baka’ (a sharp edged weapon) and the other one was not having any weapon. One had inflicted injuries on the neck of the deceased. He immediately got up from the cot but by that time both the persons fled away. They were aged between 30 to 40 years. The fat person was armed with a ‘baka’ (a sharp edged weapon) and the other one was not having any weapon. One had inflicted injuries on the neck of the deceased. He immediately got up from the cot but by that time both the persons fled away. It is further stated that upon hearing his shouting his father who was sleeping on the first floor of the house came down and both of them had seen the two persons running away. 4. The aforesaid intimation of unnatural death of Shivkant, was registered as Marg No. 21/08, Ex.P/8. For investigation of the crime, he went to the spot for investigation and prepared site plan, Ex.P/13 in presence of witnesses. He seized blood stained soil and pillow cover, vide Ex.P/8. He recorded statements of Brijlal, Achhelal Choudhary, Sitaram Sharma and Dharampal Kevat on 6-6-2008 itself, and thereafter statements of Ashish Kushwaha and Smt. Savitri Devi were recorded on 12-6-2008 and 15-6-2008 respectively. During investigation, on the basis of information received from the informant and taking circumstances of the case into account, he suspected the accused-appellant and arrested him on 16-6-2008. On disclosure statement of the accused, Ex.P/4, ‘baka’ and ‘baniyan’ were seized, vide Ex.P/7. 5. The seized articles were sent for chemical examination. The spot was also inspected by District Incharge of the Forensic Science Laboratory and photographs of the scene of occurrence were also taken. 6. The investigating agency after completing investigation filed chargesheet before the competent court of jurisdiction, which in its turn, committed the matter to the Court of Sessions for trial. 7. The learned trial Judge, appreciating the evidence in proper perspective, recorded the finding that the accused-appellant himself has committed murder of the deceased – Shivkant Goswamy and convicted and sentenced him, as has been indicated hereinabove. 8. Learned senior counsel appearing for the appellant has assailed the order of conviction mainly on the ground that the prosecution witnesses have not supported the prosecution case and the conviction of the accused is based on circumstantial evidence. He asserted that in a criminal trial the accused is presumed to be innocent till his guilt is proved beyond all reasonable doubt. He asserted that in a criminal trial the accused is presumed to be innocent till his guilt is proved beyond all reasonable doubt. In support of his contention the learned senior counsel placed reliance on the judgment rendered by the Apex Court in the case of Harbeer Singh vs. Sheeshpal and others, (2016) 16 SCC 418. He further argued that even if a wrong defence has been taken by the accused, the prosecution is not absolved on their duty to prove the case beyond the accused by cogent, legal and reliable evidence. To bolster his contention he placed reliance on the judgment of the Supreme Court passed in the case of Aher Raja Khima vs. State of Sourashtra, AIR 1956 SC 217 . In sums and substance, the argument of the learned senior counsel for the appellant is that, burden lies on the prosecution to prove its case beyond all reasonable doubt and only if the accused wants to bring in the case within any of the general exceptions or any special exception as envisaged under section 302 of the Indian Penal Code. Besides, the onus shall shift on the accused only after the prosecution has proved its case beyond reasonable doubt and if the accused pleads any exception in defence. The learned senior counsel vehemently urged that the evidence of the Investigating Officer is not admissible in the present case, as it is hit by section 162 of the Criminal Procedure Code. 9. It was further argued on behalf of the accused-appellant that the map prepared by the Investigating Officer on the basis of information given by the witnesses would not be admissible. Only that portion would be admissible which he has marked on his personal seen on the spot. Reliance has been placed on the authorities reported in AIR 1962 SC 399 , Tori Singh and another vs. State of Uttar Pradesh; (1997) 6 SCC 171 , Vijender vs. State of Delhi and AIR 1972 SC 102 , Rameshwar Singh vs. State of Jammu and Kashmir. 10. In the site plan (Ex.P/13) prepared by the Station House Officer, entrance of the house was shown as ‘F’, and another door ‘E’ was pointed out. It was reported that one could have reached to the place where the deadbody was lying, only from the aforesaid doors. 10. In the site plan (Ex.P/13) prepared by the Station House Officer, entrance of the house was shown as ‘F’, and another door ‘E’ was pointed out. It was reported that one could have reached to the place where the deadbody was lying, only from the aforesaid doors. He has found that the chain and hook of the door were not broken and the door of the room was easily being closed from both sides. In the site plan, he mentioned that there were two floors in the house but there was no approach to reach in the said room from the courtyard or from the adjoining houses. The doors of the room where the deadbody was lying were not found to be broken and their latches and chain were also intact. He had noted that as per narration made by the appellant the unknown persons had entered from the doors marked as ‘B’ and had fled away from the doors marked as ‘F’. As per narration given by the accused and his father – Brajlal (PW3) and mother – Savitri Devi (PW2), there were four persons in the house at the time of the incident : the accused, the deceased, mother – Savitri Devi and father – Brijlal. Therefore, it is apt to consider the statement of Smt. Savitri Devi (PW2) and Brijlal (PW3) before adverting to the statements of neighbourers and other witnesses. Savitri Devi (PW2) in her deposition has stated that Shivkant and Krishnkant are her sons and the deceased Shivkant was taking a coaching at Indore and Krishnkant was looking after the grain shop in the village itself. Shivkant had taken Navy training and at Satna he was taking coaching for English. On the date of the incident he had come from Satna in the night. Her husband – Brajlal and both sons – Shivkant and Krishnkant had taken dinner and thereafter they went to sleep in the room downstairs and she was asleep along with her husband on the top floor. At about 12 A.M. she heard shouting of Krishnakant that somebody has killed the brother. Thereafter, her husband and Krishnkant went outside the house to watch. They had seen two persons running from the spot. On hearing the shouting the neighbourers – Achhelal and Dharmpal Kashyap also reached at the spot. At about 12 A.M. she heard shouting of Krishnakant that somebody has killed the brother. Thereafter, her husband and Krishnkant went outside the house to watch. They had seen two persons running from the spot. On hearing the shouting the neighbourers – Achhelal and Dharmpal Kashyap also reached at the spot. She had seen that there was a wound on the neck of the deceased from where blood was oozing. Thereafter, Sachhu was called on phone and thereafter she was unconscious and did not know as to what had happened. She stated that there was no enmity of the deceased with anyone, but there was enmity of her husband with some persons of Village, Garda District Chhatarpur. She had not seen anybody killing the deceased. 11. Brajlal (PW03), father of the deceased deposed that the deceased after completing Navy training was attending an English coaching at Satna, whereas the accused was engaged in running a grain shop in the village. On the date of the incident the deceased had returned from Satna at about 9:00 PM by Parihar bus. He was in the house along with his wife and sons – Shivkant and Krishnakant. Initially, they all had to sleep on the upper portion of the house but since there was raining, the accused and the deceased went downstairs, and he remained in the upper portion of the house along with wife. It is stated by him that after sometime he came down to take eyedrops and saw that the accused was sleeping and the deceased was studying. Thereafter, he had gone upstairs to sleep. Around 12:00 to 12:30 A.M. he heard the shouting that Papa come down to see that someone had lynched Shrikant. He immediately rushed to the said room along with wife and saw that there was wound on the neck of Shivkant from where there was profuse bleeding. The appellant informed them that two persons had killed the brother and thereafter he chased the aforesaid persons and at a distance he saw those two persons running away. 12. Dharmpal Kashyap was examined as PW01, whose house is adjacent to the house of Brijlal. He deposed that around 12:30 A.M. on hearing the yelling of Brijlal and Krishnakant he came at the scene of occurrence and on being asked he was informed by Brijlal that somebody had killed his son – Shrikant. 12. Dharmpal Kashyap was examined as PW01, whose house is adjacent to the house of Brijlal. He deposed that around 12:30 A.M. on hearing the yelling of Brijlal and Krishnakant he came at the scene of occurrence and on being asked he was informed by Brijlal that somebody had killed his son – Shrikant. Then he went inside the room and saw that Shrikant was lying on the cot. Thereafter, many persons of the locality gathered within 15 to 20 minutes. Sacchidanand was informed by Brijlal on phone and when he came over there, a report was lodged at the police station. He further deposed that the deceased was lying without ‘baniyan’ and the same was kept under the pillow. He further stated that the ‘baka’ was seized from the ‘beshrum’ shrubs. The neighbours – Dharmpal Kashyap and Achhelal Choudhary had also reached at the spot. They had informed Sacchidanand alias Sacchu on phone about the incident. In para 3 of his deposition he stated that there was no enmity with anyone in the family, but in the Village Garda, District Chhatarpur there was some dispute with Ayodhya Prasad and his father with regard to ancestral property. Father of Ayodhya Prasad, namely, Badri Prasad had falsely implicated them in a case of murder. In the morning police had come and inquest proceedings were conducted. He was declared hostile and crossexamined by the Public Prosecutor. In para 5 of his statement he sated that the baniyan belonging to Shivkant was kept underneath his neck and he was sleeping. According to him there was blood stain on the baniyan which was seized by the police. Further, the ‘baka’ was seized from the beshram shrubs by the Investigating Officer which are at the distance of about 70-80 ft. from his house on the opposite side of the road. It is stated that the ‘baka’ was stained with blood when it was seized by the Investigating Officer. 13. Sitaram Sharma (PW4), is the nephew (bhanja) of the accused. He stated that on receipt of a telephonic message from Village Salaiha, sister-in-law of Brajlal, informed him that Shivkant was assassinated. He pleaded his ignorance about the assassination of Shivkant. 14. Ashish Kushwaha (PW5) is the colleague of the deceased. He was studying with him in Class 12. He was roommate of the deceased at Satna. He stated that Shivkant had no enmity with anyone. He pleaded his ignorance about the assassination of Shivkant. 14. Ashish Kushwaha (PW5) is the colleague of the deceased. He was studying with him in Class 12. He was roommate of the deceased at Satna. He stated that Shivkant had no enmity with anyone. He deposed that on the date of the incident Shivkant had gone from Satna to his home. He further deposed that he does not know anything about the murder of Shivkant. 15. Achhelal, PW06 who is the next neighbour of the family of the accused has deposed that on hearing the shriek he came at the spot and was informed by the accused that some unknown persons have killed his elder brother. He stated that at that point of time another neighbour – Dharmpal had also reached at the spot. They went inside the room and saw that Shrikant was lying on the cot and there was a wound on his neck. He stated that Shrikant (the deceased) was only wearing underwear. According to him there was no seizure of ‘baniyan’ by the police. 16. Santu Kushwaha (PW07) stated that he also has a grain shop near the shop of the accused but he expressed his ignorance about the incident. He was declared hostile. 17. Vinod Kumar Sharma (PW08) is a witness of deadbody Panchnama. He stated that he had not seen the deadbody of Shivkant and he did not have any information about the murder. 18. Hajarilal (PW9) is another neighbour of the accused, who also has a grain shop nearby the shop of the accused. He deposed his ignorance about the incident and was declared hostile. 19. Rangnath Sharma (PW10) is also a witness of deadbody Panchnama. He denied about the neck injury of the deceased. Awadh Bihari (PW11) is another witness of the deadbody Panchnama. He admitted his signature on the aforesaid Panchnama, but stated that he did not see any injury received by the deceased and also did not know that who had assaulted the deceased. 20. Pappu alias Deeplal, PW12, a seizure witness, has admitted his signatures but denied that any weapon was seized in his presence. He stated that his signatures were obtained in a blank paper. Banshgopal Goutam (PW13) stated that ExP/5, seizure memo was prepared in his presence. 20. Pappu alias Deeplal, PW12, a seizure witness, has admitted his signatures but denied that any weapon was seized in his presence. He stated that his signatures were obtained in a blank paper. Banshgopal Goutam (PW13) stated that ExP/5, seizure memo was prepared in his presence. Shaligram (PW14), a relative of the accused stated that the deadbody Panchnama was prepared in his presence and he admitted his signatures on the same as well as notice, Ex.P/3. Indrajeet, PW15, is the conductor of the Parihar bus, who proved the fact that deceased had travelled in the said bus. He boarded from Nagod and had alighted at Bamore but stop, which is between the Village Salaiha and Ganj. 21. Shiv Narayan, PW16, a witness to seizure memo of ‘baniyan’. He denied any seizure of ‘baniyan’ and ‘baka’ on the disclosure statement of the accused. He was declared hostile. He admitted his signatures at Ex.P/6 and Ex.P/7. Vishnu Kumar Goutam, PW17, a constable of police, stated that Ex.P/8 is an application for postmortem of the deceased and the same was submitted before the Primary Health Centre, Devendra Nagar. Bhupendra Singh (PW18) is a constable of Police, who has stated that the ‘baka’ was seized on the discovery statement of the accused which was kept in a room of the house near the inverter. He stated that seizure memo, Ex.P/7 was signed by him whereby ‘baniyan’ and ‘baka’ were seized. Ram Lakhan Kushwaha, PW19 is another witness of Ex.P/4, who was also declared hostile. Admitting his signatures he stated that the same were obtained by the police at the Police Station. Natthulal Prajapati, PW20, a witness to seizure memo, Ex.P/9 whereby blood stained and plain soil were seized. He admitted his signatures at Ex.P/9. Another witness of Ex.P/9 Rajkishore (PW21), admitted his signatures in the seizure memos, pertaining to plain and blood stained soil. 22. Autopsy of the deceased was conducted by Dr. Harish Arya (PW22) along with Dr. Deepak Gupta. He stated that the deceased was wearing a dark grey sando baniyan, a light sky and blue check waist (half pant). He observed that there was a wound on the left side of the neck of the size : 9 cm x 5 cm, deep bone which has damaged cervical vertebra and spinal cord. Blood was clotted around the injuries which were caused by sharpedged weapon within a span of 24 hours. He observed that there was a wound on the left side of the neck of the size : 9 cm x 5 cm, deep bone which has damaged cervical vertebra and spinal cord. Blood was clotted around the injuries which were caused by sharpedged weapon within a span of 24 hours. The cause of death was due to shock on account of excessive bleeding. The testimony of Dr. Harish Arya remained unchanged. 23. Sub-Inspector S.D. Shukla, PW23 stated that on the basis of written report submitted by Krishnakant, a case was registered on 6-6-2008. During investigation, taking into account the facts and circumstances of the case; and on the basis of information received from sources, he suspected complicity of the accused in commission of the alleged offence. The accused-appellant was arrested and site plan, Ex.P/13 was prepared by him. He had marked the door of the room as ‘F’ and another door as ‘E’. According to him after going through these doors, one could have reached to the room where the accused and deceased were asleep. During course of investigation he did not observe any damage on the doors. Hooks and latches of the doors were not found to be broken and doors were being closed easily from inside and outside. He did not find any path to climb on the wall of the house and to enter into the room where the incident took place. There was no door in the courtyard of the house. According to him except from the front doors, there was no any other door to enter into the room of the incident. One could have come only from the roof by using stairs which were passing through the rooms. He also marked the door ‘B’ which was also not found to be damaged. According to him it is alleged that the accused persons had entered from the door ‘B’ and had run away from door ‘F’. He found that all the doors were opened. He deposed that there was no explanation that as to how the doors were opened by the accused persons for running away from the spot. The incident is said to have taken place at about 12 to 12:30 A.M. in the night. Information in that regard was given to the police at about 03:30 A.M.. PW23 had promptly reached at the spot at 04:00 A.M. itself. The incident is said to have taken place at about 12 to 12:30 A.M. in the night. Information in that regard was given to the police at about 03:30 A.M.. PW23 had promptly reached at the spot at 04:00 A.M. itself. As per his testimony the house was completely safe and there was no possibility of any third person to reach in the room where the deceased and the accused were sleeping. He specifically denied that boundary walls of Sevalal and Dharmpal are adjacent to the house of the accused. At southern side there was no house. It was only one stair case which was passing from the courtyard to the second floor of the house and in the room there was a door, which according to Savitri Devi (PW02) was closed before sleeping. 24. The defence chose to examine Sacchidanand alias Sacchu as DW01, who deposed that on receiving information through phone he immediately reached to the house of the accused and saw that about 50-60 persons had gathered. He was informed that some unknown persons had lynched the deceased and fled away. He stated that the house of the accused is adjoined to the house of the neighbours and one could easily reach to the room where the deceased was sleeping. However, the aforesaid fact is contrary to the observations made in the site plan, Ex.P/3 and spot map, Ex.P/26. These exhibits were signed by Brijlal, the father of the deceased. The witness also stated that there was a function held in the house of Choudhary in the village, where about 20-25 persons were present and 8-10 persons had seen two persons running away from the spot. However, this fact was not stated by Brijlal (PW3) – father of the accused himself and no such person has been examined who had attended the said function and saw two persons fleeing away from the spot. 25. It is argued that the prosecution could not prove seizure of weapons from exclusive possession of the accused. The prosecution witnesses turned hostile and did not support the prosecution story. Seizure witness – Pappu alias Deendayal turned hostile though, he has stated that he had signed paper but the same was blank. 25. It is argued that the prosecution could not prove seizure of weapons from exclusive possession of the accused. The prosecution witnesses turned hostile and did not support the prosecution story. Seizure witness – Pappu alias Deendayal turned hostile though, he has stated that he had signed paper but the same was blank. In the same manner, other seizure witnesses of Ex.P/9, Shiv Narayan (PW16), Nathhulal (PW20) and Rajkishore (PW21) of ‘baniyan’ and plain and blood stained soil, turned hostile but they admitted their signatures thereon. 26. The weapon used in commission of the offence ‘baka’ was recovered from the house, as proved by Bhupendra Singh (PW18). Though the seizure witnesses have turned hostile, however, they admitted their signatures on the exhibits. The defence that the weapon was seized from the nearby ‘beshram’ shrubs from an open space, could not be proved. The recovery can be proved by evidence of the investigating officer. Reference may be made to the judgments of the Apex Court reported in (1978) 4 SCC 435 [Madan Singh vs. State of Rajasthan] and (2004) 10 SCC 657 [Anter Singh vs. State of Rajasthan] wherein it has been held that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. 27. It was argued by the learned counsel appearing for the appellant that the prosecution could not establish its case beyond any reasonable doubt on the basis of circumstantial evidence and the chain of circumstantial evidence is not complete. Therefore, the accused-appellant is entitled for acquittal. 28. As per testimonies of PW2, Savitri Devi; PW03, Brijlal; Shivkant; and Krishnakant – father, mother, the deceased and accused respectively, four persons were present in the house, at the time, when the incident took place. It has also come on record that Smt. Savitri Devi and Brijlal were sleeping in the upper portion of the house, whereas the accused along with the deceased were sleeping in the room at downstairs on the same cot. The other witnesses, upon hearing the shouting of the accused and his father, reached at the spot and were informed that some unknown persons had inflicted injuries to the deceased but they did not see any person running from the spot. The other witnesses, upon hearing the shouting of the accused and his father, reached at the spot and were informed that some unknown persons had inflicted injuries to the deceased but they did not see any person running from the spot. From their testimonies it could not be established that the house of the deceased was connected with the adjoining houses, and it was not possible to a person to come in the house of the deceased from the adjacent houses. PW02, Smt. Savitri Devi and PW3, Brijlal have stated that they were sleeping in the upper portion of the house and the same was bolted from inside. The neighbours – Dharmpal Kashyap (PW1) and Achhelal have stated that the family of the accused always used to sleep by closing outside doors and they did not notice that the doors were broken. 29. Upon assimilation of entire facts and circumstances of the case and testimonies of witnesses, the following circumstantial evidence are proved beyond any reasonable doubts : (I) At the time of the incident only four persons – Smt. Savitri Devi (PW2), Brajlal (PW03) – parents of the deceased; the accused-appellant and the deceased were present in the house. PW02 and PW03 were sleeping in the upper portion of the house whereas the accused and the deceased were asleep in the ground floor at the downstairs on the same cot. (II) As per testimonies of PW02 and PW03 after taking dinner the accused was sleeping with the deceased in the same room and on the same cot. Thus, the accused-appellant was last seen with the deceased in the room where the incident occurred. (III) As per testimony of PW03, father of the deceased Rs.2,00,000/-were earned by the accused from the grainshop which was to be given to the deceased for further study in Europe, which the accused did not want to part. (IV) As per evidence discussed hereinabove, there were only two doors in the room, which have been shown as ‘E’ and ‘F’ in Ex.P/13, through which one could go from outside to the room where the deceased was asleep. The doors of the rooms have been found to be undamaged and latches and hooks of these doors were found to be intact, and these doors were easily being closed from inside or outside. The doors of the rooms have been found to be undamaged and latches and hooks of these doors were found to be intact, and these doors were easily being closed from inside or outside. There was only one staircase which was coming from the room of the roof to the courtyard of the house. There was a door on the roof which was also found to be closed on the date of the incident, as per testimony of Smt. Savitridevi (PW02), mother of the deceased. There was no any other way to enter into the room of the house where the deceased was sleeping, unless the doors and latches and hooks are broken. (V) The prosecution has successfully proved that the room, where the deceased and the accused-appellant were sleeping, was completely safe and there was no other path to enter into the said room. It was improbable to enter into the house by an outsider without breaking the doors. The accused-appellant stated that he was awakened when splash of blood fell on his face, but the prosecution witnesses, who immediately reached at the spot, namely, Dharmpal Kashyap (PW01) and Acchhelal (PW06) nowhere have stated that they saw any blood drops on the face of the accused. Besides, they did not see any person fleeing away from the spot. (VI) All the prosecution witnesses have deposed that the deceased was not wearing ‘baniyan, which was proved by Dr. Harish Arya (PW22), Bhupendra Singh (PW18) and Sub-Inspector S. D. Shukla (PW23). 30. In the opinion of this Court, the aforesaid links, firmly established a complete chain of circumstances pointing unerringly towards the guilt of the accused. Scrutinized on the anvil of the aforesaid facts, circumstances and evidence of the present case, we are disposed to think that the judgments relied in the cases of Harbeer Singh (supra), Aher Raja Khima (supra), Tori Singh (supra), Vijender vs. State of Delhi (supra) and Rameshwar Singh (supra) by the learned counsel for the appellant would not apply in the facts and circumstances of the present case, as discussed in the preceding paragraphs. 31. Section 106 of the Evidence Act shifts burden of proof on the accused as in the present case, the accused-appellant was there in the same room of the house at the time of the incident and, therefore, it could have been only within his knowledge as to how the deceased died. 31. Section 106 of the Evidence Act shifts burden of proof on the accused as in the present case, the accused-appellant was there in the same room of the house at the time of the incident and, therefore, it could have been only within his knowledge as to how the deceased died. If the said offence was committed by someone else, the onus would lie on the appellant to establish that a third person had sufficient opportunity and access to the deceased in order to commit the said offence. 32. Parallel hypothesis set up by the defence has not been proved. The inescapable inference on account of circumstances is that it was only the appellant herein, who committed the alleged offence. 33. Exconsequenti, the appeal fails; the impugned order of the trial Court is upheld; and the conviction and sentence of the accused-appellant are affirmed. Appeal dismissed.