JUDGMENT : Bela M. Trivedi, J. 1. The appellant - accused has preferred the present appeal under Section 374 of Cr.P.C., challenging the judgement and order dated 17.2.2014 passed by the Sessions Court, Surat (hereinafter referred to as "the trial Court") in Sessions Case No. 136 of 2012, whereby the appellant - accused has been convicted and sentenced for life imprisonment and to pay a fine of Rs. 5,000/-, in default thereof, to undergo imprisonment for one month for the offence under Section 302 of IPC. 2. At the outset, it may be stated that as per the jail report, the appellant was granted the benefit of remission of sentence and was released prematurely from jail on the occasion of 68th Republic Day Celebration vide Home Department Order dated 25.1.2017, however, subsequently the jail authority having realized that the appellant was given unauthorized benefit of the remission of sentence, in view of the order dated 4.8.2017 issued by the office of the Additional DGP and IG (Prison), he was directed to be arrested. However, the appellant - accused is not being traced out and he has not been arrested so far. This Court vide order dated 26.10.2018 had recorded the said fact and directed the jail authority to report to the Court as and when the appellant is traced out. Today, the learned APP Ms. Chetna Shah has stated that the appellant is still absconding and not traced out. Be that as it may, since the learned Advocate Mr. Hardik Rawal is appearing for the appellant, the matter is heard on merits. 3. The case against the appellant - accused was registered at the Sachin GIDC Police Station, Surat as C.R. No. I-52/2011, for the offence under Section 302 of IPC on 8.9.2011, for allegedly causing murder of one Dipendra Kamlesh Agnihotri. The Investigating Officer, after completing the investigation and collecting sufficient evidence against the appellant -accused had laid the charge-sheet in the Court of Judicial Magistrate First Class, Surat, where it was registered as the Criminal Case No. 26479 of 2011. The offence being triable by the Court of Sessions, the said case was committed to the Sessions Court, Surat under Section 209 of Cr.P.C., where it was registered as Sessions Case No. 136 of 2012. The Sessions Court had framed the charges against the appellant - accused for the offence under Section 302 of IPC. The offence being triable by the Court of Sessions, the said case was committed to the Sessions Court, Surat under Section 209 of Cr.P.C., where it was registered as Sessions Case No. 136 of 2012. The Sessions Court had framed the charges against the appellant - accused for the offence under Section 302 of IPC. The accused having denied the charges, he was tried for the said offence by the Sessions Court. The prosecution had examined as many as 11 witnesses and produced documentary evidence to prove the charge against the accused. 4. As per the case of the prosecution, the complainant - Anilkumar Kasturchand Jain, resident of Omprakash Chawl, Room No. 59, Sachin G.I.D.C, Surat had lodged the complaint on 8.9.2011 alleging inter alia that the deceased Dipendra Agnihotri was staying in the Room No. 58 and was serving at the same place where the complainant was serving as a Security Officer. On 7.9.2011, when the complainant left for his office, he had seen that the said Dipendra Agnihotri was having his tea in his room and the accused Ajayabsingh Ramsingh Jaat was washing his face outside the room. When he came back from his office at about 8 p.m., he saw that the room of the said Dipendra was open and the lights in his room were also on. He also saw that the said Dipendra was lying on the floor with his face covered with blood and he appeared to have died. He, therefore, called the other persons from the neighbourhood and informed the police. He had further alleged in his complaint that the accused - Ajayabsingh Ramsingh Jaat, who was from Punjab was staying with the said Dipendra in his room, and that few days back, some quarrel had taken place between the deceased Dipendra and the accused with regard to theft of some articles of Dipendra, and at that time the accused was driven out by the said Dipendra from his room, however, he had seen the accused again in the room of Dipendra on the date of incident. 5. The said complainant Anilkumar Jain was examined by the prosecution as PW-4 at Exh. 26 before the trial Court. In his substantive evidence before the Court, he had corroborated the contents of the complaint, which was exhibited at Exh. 27. 5. The said complainant Anilkumar Jain was examined by the prosecution as PW-4 at Exh. 26 before the trial Court. In his substantive evidence before the Court, he had corroborated the contents of the complaint, which was exhibited at Exh. 27. He had also identified the accused sitting in the Court and had also identified the muddamal articles, which were seized from the scene of offence on the date of incident. In the cross-examination he had admitted that the deceased Dipendra was a drunkard, however, he had denied that because he used to drink, the other neighbours in the Chawl used to quarrel with him. He admitted that normally he would not pass through the room of Dipendra while going to his job, however, had denied that he had given false complaint against the accused. 6. In the light of the said evidence of the complainant, the evidence of Premsinh Satyanarayan Thakore (PW-9), who was examined as PW-34 would be relevant. The said witness was staying in Room No. 60 of the said Omprakash Chawl and was working as a Security Supervisor at a mill known as Sakshi Processors. He had stated before the trial Court that on the date of incident at about 8.30 p.m., he had come back to his room from his job and when he was opening the lock of his room, the complainant, who was staying in the room adjacent to his room, had called him and told him to see what had happened to Dipendra. He then saw that Dipendra Awasthi was lying dead with many injuries on his body. He had further stated that the accused Ajayabsingh Ramsingh Jaat was staying with the deceased Dipendra since last 15 days of the date of incident and both of them used to drink liquor. He also stated that both were quarreling often and on the date of incident, when he left for his job he had seen both of them in the room of Awasthi (Dipendra). He had identified the accused sitting in the Court. In the cross-examination he had adhered to his version that he had seen the deceased and the accused together in the room of the deceased in the morning when he left for his job. 7. The prosecution had examined the Dr. Chirag Navinchandra Gajera (PW-2) at Exh. 16, who had carried out the postmortem of the deceased. In the cross-examination he had adhered to his version that he had seen the deceased and the accused together in the room of the deceased in the morning when he left for his job. 7. The prosecution had examined the Dr. Chirag Navinchandra Gajera (PW-2) at Exh. 16, who had carried out the postmortem of the deceased. In his evidence before the Court, he had stated about 38 external injuries on the dead body of the deceased and had further stated that the cause of death was "Asphyxia due to Throtting". Nothing material turns out from his cross-examination, except that he had clarified that earlier he had written the cause of death as "Asphyxia due to strangulation" as there were injuries found on the neck, however, it was corrected that the cause of death was "Asphyxia due to Throtting". 8. The other witnesses examined by the prosecution were, one Jashuben Parbhubhai Khalsi (PW-6), who used to sell liquor and Surendrasinh Rambarisinh Rajput (PW-8), who was the neighbour, however, both of them had turned hostile and not supported the case of the prosecution. The panch witness Mayadin Rajkumar Verma (PW-1), in whose presence the articles like blood-stained Tava (frying pan) and bloodstained pillow cover etc., were seized, had supported the contents of the panchnama at Exh. 15. Gautam K. Thakore (PW-3) - the panch witness, in whose presence the accused was arrested and his clothes were seized, had also duly supported the contents of the panchnama at Exh. 24. The I.O. (PW-11) - Nikulsinh Mahipatsinh Chudasma had also stated about the investigation carried out by him and the arrest of the accused. In the cross-examination he had admitted that the blood stains were found on the underwear, which was seized from the scene of offence. 9. From the serological report produced by the prosecution at Exh. 41 it was found that the blood group "O" found on the shirt and underwear of the accused was the same blood group found on the pillow cover and frying pan. 10. In the instant case, it is true that the entire case of prosecution is based on circumstantial evidence, and that it is the duty of the prosecution to duly prove all the circumstances when taken cumulatively, should form a chain so complete that it would unerringly point to the guilt of the accused. 10. In the instant case, it is true that the entire case of prosecution is based on circumstantial evidence, and that it is the duty of the prosecution to duly prove all the circumstances when taken cumulatively, should form a chain so complete that it would unerringly point to the guilt of the accused. In the instant case, as such there was no eye witness to the alleged incident, however, from the afore-stated evidence adduced by the prosecution, more particularly of the complainant - Anilkumar Jain (PW-4) and evidence of Premsinh Satyanarayan Thakore (PW-9), it was duly established that both the witnesses were the neighbours of the deceased Dipendra, and that the accused was staying with the deceased, and used to quarrel with the deceased. From their evidence, it was duly established that the accused was seen last together with the deceased in his room. 11. It is also pertinent to note that the bloodstained muddamal articles found from the scene of offence, the clothes of the deceased and the clothes of the accused seized after his arrest were sent to FSL, Surat, for examination vide Despatch Note at Exh. 38, and as per the Biological analysis report at Exh. 40 read with the serological analysis report at Exh. 41, the blood group 'O' was found on the muddamal articles Frying Pan and Cover seized from the scene of the offence, on the clothes of the deceased recovered from the dead body of the deceased, and also on the clothes of the accused seized after his arrest on 8.9.2011 as per the Panchnama Exh. 24. 12. Though the incriminating evidence was brought to the notice of the appellant - accused while recording his further statement under Section 313 of Cr. P.C., he had failed to offer any explanation to the same. It is axiomatic that the purpose of recording further statement of the accused is to give him an opportunity to explain the circumstance, which was proved against him by the prosecution. At this juncture, it would be also relevant to refer Section 106 of the Evidence Act, which states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 13. At this juncture, it would be also relevant to refer Section 106 of the Evidence Act, which states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 13. Though the burden of proving the fact in criminal trial is on the prosecution, if the circumstance against the accused is put to him in his further statement under Section 313, his non-explanation will be a missed link which can be used against him. In this regard, beneficial reference of the decision of the Supreme Court in case of State of Rajasthan Vs. Kashi Ram, reported in (2006) 12 SCC 254 be made:- "23. It is not necessary to multiply with authorities. 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. The principle has been succinctly stated in Re. Naina Mohd. (AIR 1960 Madras, 218)." 14. The principle has been succinctly stated in Re. Naina Mohd. (AIR 1960 Madras, 218)." 14. In view of the above settled legal position, it can be safely held that the appellant - accused by not offering any explanation as to how and when he parted the company of the deceased on the day of incident in question, he had failed to discharge his burden under Section 106 of the Evidence Act, which would provide an additional link in the chain of circumstances proved against him. 15. Though it was sought to be submitted by the learned Advocate Mr. Rawal for the appellant - accused that there was no motive proved by the prosecution against the accused, the said submission cannot be accepted. It is settled legal position that the proof of motive is not sine qua non for convicting the accused. 16. Mr. Rawal for the appellant had also tried to point out certain discrepancies appearing in the evidence of the witnesses, however, as held by the Supreme Court in case of State of Madhya Pradesh Vs. Dal Singh & Ors., reported in AIR 2013 SC 2059 , discrepancies, embellishments and improvements are bound to occur in every criminal trial. They do not erode the credibility of witness unless they materially affect trial or core case of prosecution. Paragraph 7 of the said judgement reads as under:- "7. So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at the time of occurrence. The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements, as the same may be elaborations of a statement made by the witness at an earlier stage. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e. which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited. Where such omission(s) amount to contradiction(s), raising serious doubts about the truthfulness of a witness, and other witnesses also make material improvements before the court in order to make their evidence acceptable, it cannot be said that it is safe to rely upon such evidence. (Vide: A. Shankar v. State of Karnataka, AIR 2011 SC 2302 ). Whether 100 per cent burnt person can make a dying declaration or put a thumb impression:" 17. Having regard to the totality of the circumstances and the evidence adduced by the prosecution, the Court is of the opinion that the prosecution had proved the chain of circumstances unerringly point the guilt of the appellant, and therefore, had proved the charges levelled against him beyond reasonable doubt by producing cogent evidence. The trial Court, therefore, had rightly convicted the appellant - accused for the offence under Section 302 of IPC. 18. In that view of the matter, the Court does not find any illegality or infirmity in the judgement and order dated 17.2.2014 passed by the Sessions Courts, Surat in Sessions Case No. 136 of 2012. The judgement and order of the Sessions Court in Sessions Case No. 136 of 2012 dated 17.2.2014 is hereby confirmed. The appeal is dismissed.