JUDGMENT : Shree Chandrashekhar, J. The sole convict, namely, Sunil Bari has challenged the judgment of his conviction dated 28.5.2014 under sections 366/34, 302/34 and 201/34 of the Indian Penal Code in Sessions Trial No. 302 of 2007. 2. A First Information Report vide Jhinkpani P.S. Case No. 36 of 2007 was lodged on the basis of the fardbeyan of Jonga Sundi which was recorded on 24th July, 2007. In her fardbeyan, the informant has stated that on 14.7.2007 she along with her sisters Madey Sundi aged about 19 years and Palong Sundi aged about 16 years had gone for shopping to Jorapokhar market. On that day, at about 2 p.m., when they were standing at Jorapokhar Bus Stand, Sunil Bari and Tatu Bari came there and started talking to Madey Sundi, her sister. Sunil Bari on the pretext of marketing took Madey Sundi to the market asking the informant to wait for them at the bus stand. However, when they did not come back she and Palong Sundi returned home and informed their father about her sister Madey Sundi leaving them with Sunil Bari. Her family members thereafter started search for Madey Sundi and the accused persons but they could not be traced out. The informant has stated that Madey Sundi and Sunil Bari had love affair but it was not known to her parents. Both the accused persons used to come to her village and meet Madey Sundi. She has raised an apprehension that Sunil Bari and Tatu Bari had abducted Madey Sundi with a view to marry her. After the investigation, a charge-sheet was submitted under sections 366, 302 and 201/34 of the Indian Penal Code against Sunil Bari and Tatu Bari; the accused Tatu Bari was declared juvenile and his case record was split up. 3. During the investigation, the prosecution has examined 13 witnesses to prove the charge framed against the appellant; Jonga Sundi and Pelong Sundi, sisters of the victim girl, have been examined as PW-1 and PW-2. Father of the deceased and his cousin have also been examined during the trial. 4. Dr. Ashwani Kumar Das, PW-13 who had conducted the post-mortem examination has found the following injuries on the dead body of an unknown female: (i) Lacerated wound, right side of the neck, below the mendible of size 2”x1”x muscle depth. (ii) Bruise lower part of the sternum bone of size 3”x2”. 4. Dr. Ashwani Kumar Das, PW-13 who had conducted the post-mortem examination has found the following injuries on the dead body of an unknown female: (i) Lacerated wound, right side of the neck, below the mendible of size 2”x1”x muscle depth. (ii) Bruise lower part of the sternum bone of size 3”x2”. (iii) Cut injury on the left breast just lateral to nipple of size 2 ½”x ½ ” gland depth. Retraction of the skin over the breast, exposing the memory glands. (iv) Abrasion, right shoulder region of size 2 ½” x 2” (v) Lacerated wound, left elbow joint area on outer aspect of size 2”x1/2” skin depth. 5. According to PW-13, the death has occurred within 18 to 24 hrs. from the time of the post-mortem examination; post-mortem examination was conducted on 15.7.2007 at 2:45 p.m. The deceased female was found carrying dead foetus of 24-28 weeks. He has rendered an opinion that the injuries found on the dead body were ante-mortem in nature and sufficient to cause death. 6. During the trial, the prosecution has tendered in evidence written report, signature of Bahadur Sundi, Palong Sundi and Punduwa Singh Kuntia on the written report, formal FIR, confessional statement of Tatu Bari, post-mortem report and four photographs of Madey Sundi which were marked as Ext. I to Ext.IV without objection. 7. Mr. Sheo Kumar Singh, the learned Amicus submits that: (i) there is no corroborative evidence to the last-seen-together evidence relied upon by the prosecution, (ii) time of death and place of occurrence have not been proved by the prosecution, (iii) the motive for the crime has not been brought on record, and (iv) no witness to recovery of the dead body or any independent witness has been examined during the trial. 8. By now, the law on the last-seen-together evidence is well-settled. In a catena of judgments the Supreme Court has held that once it is proved that the deceased was seen lastly in the company of the accused and immediately thereafter the dead body is recovered, the law presumes that it was the accused who has committed the crime. 8. By now, the law on the last-seen-together evidence is well-settled. In a catena of judgments the Supreme Court has held that once it is proved that the deceased was seen lastly in the company of the accused and immediately thereafter the dead body is recovered, the law presumes that it was the accused who has committed the crime. There are of course exceptions to this theory and there may be circumstances under which only on the basis of the last-seen-together evidence conviction of an accused can not be recorded; one of such circumstances is the time-gap between the last-seen-together and recovery of the dead body [refer: “Navaneethakrishnan v. State by Inspector of Police”, (2018) 16 SCC 161 ]. If section 106 of the Evidence Act comes into play, the law requires that the accused must offer a plausible explanation what has happened after he was seen lastly in the company of the deceased. In “Sucha Singh Vs. State of Punjab” reported in (2003) 7 SCC 643 , the Supreme Court has held that it is for the abductor to explain what has happened to the victim after his abduction. In ““State of W.B. Versus Mir Mohammad Omar and others” reported in (2000) 8 SCC 382 , Supreme Court has observed as under: “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. 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. 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.” 9. In the present case, Madey Sundi was seen lastly in the company of the appellant on 14.7.2007 at about 2 p.m. in Jorapokhar market, the dead body was recovered on 15.7.2007 and the post-mortem examination was conducted at 2:45 p.m. on 15th July, 2007. The place where the dead body of an unknown female was recovered was near Railway Electric Pole no. 3.9.614, Sunda Basti, Kasm Campus, Barbil. The evidence of PW-1 and PW-2 is corroborated by other prosecution witnesses, particularly, PW-11 and PW-12. They have stated about PW-1 and PW-2 going to Jorapokhar market with Madey Sundi and Madey Sundi becoming traceless thereafter. The other prosecution witnesses; PW-3, PW-4, PW-6, PW-7 and PW-8, are co-villagers and they have also deposed about missing of Madey Sundi from 14.7.2007. The opinion of the doctor about the time of death; 18 to 24 hours from the post-mortem examination, corroborates the time of missing of Madey Sundi after she was seen lastly in the company of the appellant. Thus, there is sufficient corroboration to the last-seen-together evidence led by the prosecution through PW-1 and PW-2. This piece of evidence was specifically brought to the notice of the appellant during his examination under section 313 Cr.P.C., however, he has failed to offer any plausible explanation. Thus, there is sufficient corroboration to the last-seen-together evidence led by the prosecution through PW-1 and PW-2. This piece of evidence was specifically brought to the notice of the appellant during his examination under section 313 Cr.P.C., however, he has failed to offer any plausible explanation. The failure of the accused to explain an incriminating circumstance during his examination under section 313 Cr.P.C. cannot be the sole ground to convict him, but then, to wriggle out from the rigors of section 106 of the Evidence Act the accused must say something what has happened to the victim after he was seen lastly in the company of the victim. 10. On identification of the female whose dead body was recovered on 15.7.2007, the prosecution has led evidence through PW-1, PW-2, PW-11 and PW-12. The investigating officer who has been examined as PW-10 has deposed that he received an information from Barbil Police Station about recovery of dead body of a female and there he was given four photographs of the dead woman. These photographs were marked as Ext. I to IV for identification and both the sisters of the deceased, namely, Jonga Sundi and Palong Sundi have deposed that the female in those photographs was their sister. Their father has also deposed that those were photographs of Madey Sundi. These photographs were received in evidence without objection from the defence. 11. Mr. Sheo Kumar Singh, the learned Amicus has contended that on such evidence identification of the dead body as of Madey Sundi is not proved, more precisely, objection or no objection by the accused to tendering of the photographs in evidence would not prove that the woman found dead was Madey Sundi. 12. The evidence of PW-1, PW-2, PW-11 and PW-12 has remained unshaken. On the point of identification of the dead body, there is virtually no cross-examination by the defence. The witnesses have identified the picture of the dead woman vide Ext. I to Ext. IV and clothes, sandal etc. belonging to Madey Sundi. The investigating officer has stated that after the accused Tatu Bari gave his confessional statement he spoke to the officer-in-charge of Barbil Police Station who had informed him about recovery of dead body of a female. He has further stated that he along with the family members of Madey Sundi had gone to Barbil after obtaining order from his superior police officers. He has further stated that he along with the family members of Madey Sundi had gone to Barbil after obtaining order from his superior police officers. He has obtained photographs, clothes and sandal of the deceased which were identified by PW-1, PW-2, PW-11 and PW-12 belonging to Madey Sundi. He has received photocopy of the inquest report, post-mortem report and First Information Report in Barbil Police Station case no. 133 of 2007 which was lodged on 15.7.2007 under section 302/201 of the Indian Penal Code. 13. In our opinion, on the basis of the aforesaid evidences the prosecution has proved that dead body of the female which was recovered on 15.7.2007 near Railway Electric Pole no. 3.9.614, Sunda Basti, Kasm Campus was of Madey Sundi. 14. The death of Madey Sundi can be examined from another angle also. It is well accepted that recovery of corpus delicti is not necessary before conviction of an accused can be recorded for the offence of murder. All that what is required in law is that there should be cogent and reliable evidence to establish death of a person (refer, “Ram Chandra Vs. State of U.P.” AIR 1957 SC 381 ). Madey Sundi was seen lastly in the company of the appellant at about 2 p.m. on 14th July, 2007 at Jorapokhar Bus Stand. The sisters of the deceased, namely, Jonga Sundi and Palong Sundi have deposed in the court that on 14.7.2007 she along with her sisters had gone to Joraphokhar market for shopping and when they were standing at Jorapokhar bus stand the appellant and Tatu Bari came there and on the pretext of marketing took away their sister with them. Thereafter, Madey Sundi did not come back home. They have also deposed about previous visits of Sunil Bari to their home and love affair between their sister and Sunil Bari. They have said that these facts were not known to the other family members. In a case based on the circumstantial evidence motive provides a vital link in the chain of circumstances. It has come in the evidence that the appellant is a married man but he had love affair with Madey Sundi, who at the time of her death was pregnant. In a case based on the circumstantial evidence motive provides a vital link in the chain of circumstances. It has come in the evidence that the appellant is a married man but he had love affair with Madey Sundi, who at the time of her death was pregnant. In our opinion, may be the investigating officer has not attended this aspect of the matter carefully, but on the basis of the aforesaid evidences it can be concluded that the appellant had a motive to commit murder of Madey Sundi. 15. On such facts, we find that murder of Madey Sundi has been clearly brought out by the prosecution. 16. We find that the testimony of PW-1 and PW-2 is of such sterling quality that it leaves no manner of doubt on the complicity of the appellant in the crime and the prosecution has established that it was the appellant and the appellant alone who has committed murder of Madey Sundi. In the facts of this case, the delay of ten days in lodging the First Information Report is not fatal to the prosecution. The appellant was known to the family of Madey Sundi and her sisters had knowledge of their love affair and they suspected that Madey Sundi has been taken away for the purpose of marriage with Sunil Bari. The story has unfolded only after the co-accused Tatu Bari has given his confessional statement and the investigating officer spoke to the officer-in-charge Barbil Police Station. In these circumstances, it is quite natural that the family members of Madey Sundi would wait for some time for her to return home. 17. From the evidences led during the trial of Sessions Trial no. 302 of 2007, we find that no other hypothesis consistent with the innocence of the appellant can be inferred in the facts and circumstances of this case. 18. In the above scenario, having examined the evidences led by the prosecution during the trial, we find that the learned Sessions Judge has rightly convicted the appellant under section 302/34 of the Indian Penal Code and section 201/34 of the Indian Penal Code. On this issues, the view taken by the learned Sessions Judge is proper and plausible and it is based on the evidences laid before him. However, the appellant’s conviction under section 366/34 of the Indian Penal Code is not sustainable. On this issues, the view taken by the learned Sessions Judge is proper and plausible and it is based on the evidences laid before him. However, the appellant’s conviction under section 366/34 of the Indian Penal Code is not sustainable. The prosecution has failed to establish that Madey Sundi was kidnapped or abducted with intention to compel her to marry the appellant. 19. In view of the aforesaid discussions, we find that on conviction of the appellant under section 302/34 I.P.C. and section 201/34 I.P.C. there is no merit in Cr. Appeal (DB) No. 526 of 2014 and, accordingly, it is dismissed to that extent. 20. In the result, Cr.Appeal (DB) No. 526 of 2014 is partly allowed. 21. Let lower court records be transmitted to the Court concerned, forthwith. 22. We appreciate the assistance rendered by Mr. Sheo Kumar Singh, learned Amicus.