JUDGMENT : Per, Shree Chandrashekhar, J. Kuru P.S. Case No. 54/2006 was lodged against the accused persons, namely, Sudin Ansari, Akhtar Ansari, Jahir Ansari, Sanif Ansari, Babulal Ganju and 8-10 unknown extremists, on the basis of the fardbeyan of Hafiz Md. Ayub Ansari, the son of the deceased which was recorded in the morning of 04.06.2006. After the investigation, the police has submitted charge sheet against six accused persons including Hanif Ansari. One of the charge-sheeted accused, namely, Sudin Ansari has died and hence the proceeding against him was dropped. 2. The remaining five accused persons have faced the trial on the charge under section 364/34 IPC, section 302/34 IPC, section 120-B IPC, section 27 of the Arms Act and section 17/18 of the CLA Act. 3. The appellants, namely, Akhtar Ansari, Jahir Ansari and Sanif Ansari have been convicted under section 364/34 IPC, section 302/34 IPC and section 27(1) of the Arms Act. 4. The co-accused persons, namely, Babulal Ganju and Hanif Ansari have been acquitted of the charges framed against them and the charges under section 120-B IPC and under section 17/18 of the CLA Act have not been found proved against any accused person. 5. During the trial, the prosecution has examined altogether 11 witnesses; informant is PW-4. 6. The prosecution has projected Sayed Ansari- PW-1, Ainul Ansari-PW-2, Sakina Khatoon-PW-3, Ayub Ansari-PW-4 and Shams Tabrej-PW-5 as eye-witnesses, but the other witnesses – PW-6, PW-7 and PW-8 – have been declared hostile. 7. The dead body of Md. Yaseen Ansari was found on 04.06.2006 at Barwatoli Chowk, however, there is no eye witness to the occurrence in which Md. Yaseen Ansari was killed. 8. Dr. Ashok Kumar Oriya-PW-11, who conducted the post-mortem examination on the dead body of Md. Yaseen Ansari, has found the following injuries on Md. Yaseen Ansari: “I. Entry wound on the base of neck, left side ½” lateral to mid line of neck. Margin of the wound is inverted. Entry wound extending obliquely upward in muscle deep. Exit wound on the posterior aspect of Right Ear, 3” into brain deep. II. There is fracture of occipital bone with brain matter coming out of the exit wound. III. Bruise of the mid thigh 1 ½” x ½” Thoracic cavity: Both lungs pale in the heart, Right chamber and left chamber both empty. Abdominal cavity: Liver, kidney spleen all were pale. II. There is fracture of occipital bone with brain matter coming out of the exit wound. III. Bruise of the mid thigh 1 ½” x ½” Thoracic cavity: Both lungs pale in the heart, Right chamber and left chamber both empty. Abdominal cavity: Liver, kidney spleen all were pale. Time elapsed since death: Approximately 24 hrs. Cause of death: Shock and massive hemorrhage. Injury caused by firearm.” 9. PW-11 has found fire arm injuries on Md. Yaseen Ansari. According to him, the time elapsed since death was approximately 24 hours. He has found fracture of occipital bone with brain matter coming out of the wound and he has noticed bruise in front of mid-thigh of the extent of 1 ½” x ½”. 10. The learned Sessions Judge has noticed that the homicidal death of Md. Yaseen Ansari was not disputed by the accused persons. 11. Mr. Sarfraz Ahmed Ansari, the learned counsel, appears for the appellant Sanif Ansari in Cr. Appeal (D.B.) No. 460 of 2009; Mr. Rana Surjit Singh, the learned counsel appears for the appellant Jahir Ansari in Cr. Appeal (D.B.) No. 638 of 2009 and Mr. B.M. Tripathy, learned senior counsel appears for the appellant Akhtar Ansari in Cr. Appeal (D.B.) No. 639 of 2009. 12. The learned counsels appearing for the appellants have submitted that: (i) identification of the accused persons in the dark night is doubtful; (ii) there is serious discrepancy in the evidence of the prosecution witnesses on the time of occurrence, the manner of occurrence and presence of the appellants at the place of occurrence; (iii) motive for the occurrence has not been proved, at least against Jahir Ansari, and (iv) the chain of circumstances is not complete. 13. Lastly, it is contended on behalf of the appellants that only on the basis of the last-seen-together evidence, the appellants cannot be convicted for murder of Md. Yaseen Ansari. 14. Sri Satish Kumar Keshri, the learned APP has submitted that the post-mortem report would disclose that the dead body of Md. Yaseen Ansari was recovered soon after he was done to death and the direct evidence of abduction and assault of Md. Yaseen Ansari by the appellants would conclusively prove the charges under section 364/34 IPC and under section 302/34 IPC against them. Yaseen Ansari was recovered soon after he was done to death and the direct evidence of abduction and assault of Md. Yaseen Ansari by the appellants would conclusively prove the charges under section 364/34 IPC and under section 302/34 IPC against them. To fortify his contentions, the learned APP has relied on the decision in “Sucha Singh Versus State of Punjab” reported in (2001) 4 SCC 375 , wherein the Supreme Court has observed that the abductors alone could tell the Court as to what happened to the deceased after they were abducted. 15. The accused persons have set up a plea of alibi and they have examined five witnesses to establish that on the day of occurrence they were not at the place of occurrence, but somewhere else. 16. The learned Sessions Judge has held that the appellants, namely, Akhtar Ansari and Sanif Ansari have failed to establish their plea of alibi, therefore, we propose to examine the defence story first. 17. The defence witness, namely, Dhaneshwar Oraon- DW-1 has stated that at the place of occurrence Jahir, Akhtar and Ayub were not present and, in fact, Md. Yaseen Ansari was taken away by the extremists. He has also stated that 15 days before the incident the appellant Akhtar had gone to Bhutan for earning livelihood. Md. Israel-DW-2 has deposed that along with a religious troupe Hanif had gone to different places, which was certified by Anjuman by issuing certificates. Ramjan Ansari-DW-3 has also deposed about Sanif Ansari visiting the village Chormunda on 01.06.2006 in connection to negotiation of marriage. The Manager of the Tal Com Mines, namely, Md. Asraf Ali, who has been examined as DW-4, has proved entries in the attendance register and Md. Siyafat-DW-5 has also stated about Hanif coming to his house for negotiation of marriage. 18. The learned Sessions Judge has found substance in the plea of alibi set up by the accused, namely, Hanif Ansari and, accordingly, acquitted him of the criminal charges framed against him. 19. We have carefully examined the evidences led by the accused persons during the trial and find that the plea of alibi set up by the appellants, namely, Akhtar Ansari and Sanif Ansari has rightly not been accepted by the learned Sessions Judge. 20. 19. We have carefully examined the evidences led by the accused persons during the trial and find that the plea of alibi set up by the appellants, namely, Akhtar Ansari and Sanif Ansari has rightly not been accepted by the learned Sessions Judge. 20. A plea of alibi set up by an accused must conclusively prove that in all probability there was no likelihood of the accused being present at the place of occurrence. No such evidence was led by the appellants, namely, Akhtar Ansari and Sanif Ansari. Normally, abscondence of an accused is not taken as an incriminating circumstance against him, but then, as rightly recorded by the learned Sessions Judge neither Akhtar Ansari nor Sanif Ansari has put forward any explanation under what circumstance they have vanished after the dead body of Md. Yaseen Ansari was recovered. The evidences produced by them such as the attendance register, their alleged visit to another place and the certificate issued by Anjuman would not prove that they were not present at the place of occurrence. 21. Now, the point for determination is whether the prosecution has proved the charges levelled against the appellant, which have been held proved by the learned Sessions Judge. 22. In his fardbeyan, the informant has stated that in the night of 01.06.2006 he was present in the house and at about 9:00-10:00 p.m. his father went outside to ease himself. At that time, the accused persons, namely, Sudin Ansari, Akhtar Ansari, Sanif Ansari and Jahir Ansari came there and started abusing his father saying that Babulal Ganju is calling him and they forcibly took him away. Babulal Ganju was waiting near the house of Akthar Ansari, the accused. The informant along with his brother and mother went to the house of Akthar Ansari where he found his father tied from behind and the above-named accused persons along with 8-10 armed MCC extremists were holding him. Thereafter they took him towards Henjla forest. The informant has asserted that they were threatened by the accused persons and asked to wait for communication through Jahir Ansari. He has claimed that his father was abducted at the behest of Sudin Ansari and Akthar Ansari due to land dispute. 23. In the Court, the informant has deposed that his father was abducted by the accused persons in the night of 01.06.2006. He has claimed that his father was abducted at the behest of Sudin Ansari and Akthar Ansari due to land dispute. 23. In the Court, the informant has deposed that his father was abducted by the accused persons in the night of 01.06.2006. He was present in the house at that time along with other family members. He says that at about 9:30 p.m. his father had gone outside to ease himself; his mother was already outside. He has made a specific allegation against the appellants of catching hold of his father and taking him with them where co-accused, namely, Babulal Ganju and others were waiting for him and there he has seen the accused persons and others who were variously armed assaulting his father. He has also seen the appellants and others taking away his father toward the Henjla forest. Another son of the deceased, namely, Ainul Ansari who has been examined as PW-2 has deposed in the Court that at the time when the appellants had forcibly taken away his father he was present in the house. He stated that appellants along with the extremists have taken his father to the Henjla forest. He has also seen the appellants and others assaulting his father. The widow of the deceased, namely, Sakina Khatoon PW-3 has deposed that in the night of 01.06.2006 she was at home and the entire family had sat together for dinner. Her husband, the deceased, after offering Namaz came to house but after some time he went outside to ease himself. She was also outside at that time. She has stated that the appellants and the co-accused, namely, Sudin started dragging her husband saying that Babulal Ganju is calling him. She has also seen the accused persons who were holding lathi and gun assaulting her husband. PW-4 and PW-5 also are the eye-witnesses. In their examination-in-chief, they have narrated a similar story of the incident as has been portrayed by their mother and brothers. They have also spoken of taking away of their father by the appellants and the co-accused, namely, Sudin and assault upon their father by the appellants. The eye-witnesses are consistent in their testimony and their presence in their house and at the first stage of occurrence was natural. 24. They have also spoken of taking away of their father by the appellants and the co-accused, namely, Sudin and assault upon their father by the appellants. The eye-witnesses are consistent in their testimony and their presence in their house and at the first stage of occurrence was natural. 24. All the prosecution witnesses who have seen the incident have deposed that they were asked to wait for communication through Jahir and the said Jahir turned up next day and asked them to bring the land papers. They have also stated that Jahir had told them that they should not worry about Md. Yaseen Ansari as Sudin, Sanif and Akhtar were with him. The appellants are the co-villagers and it has come on record that the appellants, namely, Akhtar Ansari and Sanif Ansari had a land dispute with Md. Yaseen Ansari. It has also come on record that in this regard a Panchayati was convened by Anjuman of which Jahir Ansari was President. The learned Sessions Judge has rightly held that the motive for the occurrence has been proved by the prosecution through the evidence of PW-1, PW-3 and PW-4. 25. The offence under section 364 IPC makes kidnapping or abduction of any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered punishable. To constitute the offence under section 364 IPC, the prosecution must prove that the victim was kidnapped or abducted with an intention to murder. The evidences led by the prosecution through PW-1, PW-2, PW-3, PW-4 and PW-5 clearly establish that Md. Yaseen Ansari was abducted by the appellants with an intention to kill him. The evidence of the prosecution witnesses regarding dragging of Md. Yaseen Ansari, assault upon him, his taking away to the forest and recovery of his dead body with gunshot injury are cogent evidence which prove the intention of the appellants. In this state of evidence, the plea that the last-seen-together evidence led by the prosecution is not sufficient to conclude that the appellants have killed Md. Yaseen Ansari is found bereft of substance. Once it is proved that Md. Yaseen Ansari was abducted by the appellants and they had held threats and assaulted him, in law it is for them to say what has happened after they were seen lastly in the company of Md. Yaseen Ansari. Yaseen Ansari is found bereft of substance. Once it is proved that Md. Yaseen Ansari was abducted by the appellants and they had held threats and assaulted him, in law it is for them to say what has happened after they were seen lastly in the company of Md. Yaseen Ansari. The intention of the appellants is reflected in the words attributed to them. In the case of “State of W.B. Versus Mir Mohammad Omar and others” reported in (2000) 8 SCC 382 , the Hon’ble Supreme Court has held as under: “31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 34. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody. 35. During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise. 36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. 38. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. 38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus: “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.” 39. In the present case, the facts which the prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the victim sustained fatal injuries and the proximity of the place within which the dead body was found are enough to draw an inference that victim’s death was caused by the same abductors. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts, the inference would stand undisturbed.” 26. The evidences laid by the prosecution prove abduction of Md. Yaseen Ansari by the appellants and their proclaimed intention when they have been found dragging him, beating him and taking him to the forest. The prosecution has proved the presence of the appellants at the place of occurrence during the first stage and their active participation in the entire episode. The evidences laid by the prosecution prove abduction of Md. Yaseen Ansari by the appellants and their proclaimed intention when they have been found dragging him, beating him and taking him to the forest. The prosecution has proved the presence of the appellants at the place of occurrence during the first stage and their active participation in the entire episode. The deceased has been seen lastly in the company of the appellants and thereafter also he was in custody of the appellants stands proved through the evidence of the eye-witnesses who have spoken of taking away of Md. Yaseen Ansari to the Henjla forest. The visit of Jahir Ansari to the house of the informant and his asking him to bring the land papers in the forest are the clinching evidences on this issue. 27. Now, nothing comes from the appellants on what happened next. In this crime scenario, an inference that the appellants have killed Md. Yaseen Ansari has to be drawn. 28. On the delay in lodging the First Information Report, the learned Sessions Judge has observed as under: “24. It is also argued that there has been inordinate delay in lodging the case. The deceased was abducted on 1.6.2006, but the case was lodged on 4.6.2006 without any sufficient explanation for the same. I find that this argument devoid of any merit. The deceased was abducted by the accused persons with the help of armed extremists party and taken into forest. In the very Fardbeyan it has come up that they were threatened from not disclosing this matter to the police. On the next morning, when Zahir Ansari came, this threat was renewed. When the deceased was in such a precarious situation and his fate hanged in balance in the clutches of the accused persons, none reporting of the case at that stage is quite understandable. The priority at that time was to secure the release than to report the matter to the police. But once the dead body was found the case was registered without any delay.” 29. The above view taken by the learned Sessions Judge is based on the materials on record and is a probable one. The apprehension in the mind of the family members of Md. Yaseen Ansari that if the matter is reported to the police he would be killed was real. The above view taken by the learned Sessions Judge is based on the materials on record and is a probable one. The apprehension in the mind of the family members of Md. Yaseen Ansari that if the matter is reported to the police he would be killed was real. The assurance given by Jahir Ansari when he turned up the next day that nothing would happen to Md. Yaseen Ansari was definitely a reason not to take any further action by the family of Md. Yaseen Ansari. 30. In the final analysis, we find that in view of the consistent evidence of the prosecution witnesses; may be they all are family members of Md. Yaseen Ansari, the minor discrepancies in the time of occurrence, source of light and absence of any motive on the part of Jahir Ansari would not shake the foundation of the prosecution’s case. The prosecution has laid cogent evidences to prove the charges under section 364/34 IPC and under section 302/34 IPC against the appellants. 31. In the above facts, having examined the records of Sessions Trial No. 217/2006, we find no infirmity in the judgment of conviction and the order of sentence dated 17.04.2009, rendered by the learned Sessions Judge, Lohardaga against the appellants in Sessions Trial No. 217/2006. 32. In the result, Cr. Appeal (D.B.) No. 460 of 2009, Cr. Appeal (D.B.) No. 638 of 2009 and Cr. Appeal (D.B.) No. 639 of 2009 are dismissed. 33. Let lower court records be transmitted to the court concerned, forthwith.