JUDGMENT : Kailash Prasad Deo, J. Heard, learned Amicus Curiae, Mrs. Renu Bala and learned counsel for the State, Mr. Ravi Prakash, learned Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 23.05.2015 and order of sentence dated 25.05.2015, passed by learned Additional Sessions Judge-3rd, Hazaribag, in Sessions Trial No. 358 of 2008, whereby the sole appellant has been convicted for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded imprisonment for life with fine of Rs.10,000/-, in case of default in payment of fine, further to undergo simple imprisonment for one year. In addition, appellant shall remain in jail till natural life. 3. The prosecution case is based upon fardbeyan of Israt Khatoon (P.W.1) recorded by S.I., E. Munda of Pelawal Out Post on 31.01.2007 at 09.00 Hours at Lederi Muhalla Pelawal. The informant has alleged that she went to see Moharram procession on 30.01.2007 (yesterday) at 6.00 P.M. and her brother and sister also went to see the procession of Moharram at Chhadwa Dam and at that time her mother Bano Khatoon (victim) aged about 40 years was alone in the house. The informant has stated that after returning from procession along with her brother they saw that the room of her mother is closed from the inside and at that time it was 9.00 P.M. The informant asked her mother to open the door, upon which her father Haider Ali (appellant), son of late Nasruddin, village-Lederi Muhalla, Pelawal asked them that they are sleeping and as such, they should also go and sleep but sound of her mother was not heard at that time. The informant has stated that today in the morning at 7.00 A.M. (31.01.2007) the informant's youngest sister, Nusrat Praveen went in the room of her mother to awake her, then she saw that door is open and her mother has sustained injury, her intestinal part has come out of her abdomen with bleeding and her mother has died, thereafter, all the children started crying. They saw a sharp cut weapon kept near the dead-body of her mother. After hearing the brawl of the informant, neighbors came there and with the help of the co-villagers they started to search their father Haider Ali but he was not found. They saw a sharp cut weapon kept near the dead-body of her mother. After hearing the brawl of the informant, neighbors came there and with the help of the co-villagers they started to search their father Haider Ali but he was not found. The informant has claimed that her father Haider Ali has killed her mother while she was alone by means of Bhujali (sharp cut weapon) as they used to quarrel since before. 4. On the basis of the 'fardbeyan' of informant, the Police has registered First Information Report bearing Katkamsandi P.S. Case No.31 of 2007 dated 31.01.2007 under Section 302 of the Indian Penal Code against Haider Ali. 5. On completion of investigation, Police has submitted charge sheet vide No. 45 of 2008 dated 24.04.2008 under Section 302 of the Indian Penal Code against Haider Ali. 6. The cognizance of the offence has been taken vide order dated 28.04.2008 and the case has been committed to the court of sessions vide order dated 19.06.2008. 7. The learned trial Court has framed charge against sole appellant, Haider Ali under Section 302 of the Indian Penal Code on 25.09.2008, which has been explained and read over to him in Hindi to which he has denied and claimed to be tried. 8. The prosecution, in order to prove its case, has examined altogether eight prosecution witnesses and also exhibited a number of documents up to exhibits-6. Israt Khatoon, informant of the case, has been examined as P.W.1. She has proved her signature on the fardbeyan, which has been marked as exhibit-1. Nusrat Praween, daughter of the deceased and sister of the informant has been examined as P.W.2. Tewaran Oraon, part investigating officer of the case, who has submitted the charge-sheet, has been examined as P.W.3, this witness has proved formal F.I.R. bearing signature of officer-in-charge, Bal Kishore Kisku, which has been marked as exhibit 2. The endorsement with signature on the fardbeyan of Officer-In-Charge, Bal Kishore Kisku has been proved and marked as exhibit-3. The fardbeyan recorded by S.I., E. Munda in his handwriting and signature has been proved and marked as exhibit-3/1. The seizure list dated 31.01.2007 prepared in the handwriting and signature of S.I., E. Munda has been proved and marked as exhibit-4. The endorsement with signature on the fardbeyan of Officer-In-Charge, Bal Kishore Kisku has been proved and marked as exhibit-3. The fardbeyan recorded by S.I., E. Munda in his handwriting and signature has been proved and marked as exhibit-3/1. The seizure list dated 31.01.2007 prepared in the handwriting and signature of S.I., E. Munda has been proved and marked as exhibit-4. Mehboob Alam co-villager has been examined as P.W.4, Mahmood Ansari another co-villager has been examined as P.W.5 and has proved his signature on inquest report, which has been marked as exhibit-5. Mohammad Eqbal, another co-villager, has been examined as P.W.6 and Mohammad Rijwan another co-villager has been examined as P.W.7 both P.W.6 and P.W.7 have been declared hostile by the prosecution. Dr. Chandra Prakash Choudhary, Medical Officer, Sadar Hospital, Hazaribagh has been examined as P.W.8. He has proved the postmortem report of Bano Khatoon, daughter of late Rajbali Mian, village-Lederi Mohalla, Pelawal, P.S.-Katkamsandi, District-Hazaribagh, conducted on 31.01.2007 at 11.40 A.M. by Dr. A. K. Sinha prepared in his handwriting and signature, which has been marked as exhibit-6. The doctor has categorically stated that he has worked with Dr. A. K. Sinha till 2007. 9. After closure of prosecution evidence, statement of accused/appellant has been recorded under Section 313 Cr.P.C. on 25.04.2015, where appellant has denied about his involvement in the case and claimed himself to be innocent but no defence evidence oral or documentary has been produced by the defence. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has held the appellant guilty under Section 302 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellant has preferred the present criminal appeal before this Hon’ble Court, assailing the same. 11. Heard, learned Amicus Curiae, Mrs. Renu Bala. Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus curiae has submitted that there is no eye witness to the occurrence. Even the informant, Israt Khatoon, who has been examined as P.W.1 and sister of the informant, Nusrat Praween, who has been examined as P.W.2 are not the eye witnesses to the occurrence nor they have seen the appellant fleeing away after commission of the offence. Learned Amicus curiae has submitted that there is no eye witness to the occurrence. Even the informant, Israt Khatoon, who has been examined as P.W.1 and sister of the informant, Nusrat Praween, who has been examined as P.W.2 are not the eye witnesses to the occurrence nor they have seen the appellant fleeing away after commission of the offence. Learned Amicus curiae has further submitted that weapon seized by the police and brought on record as exhibit-4 has not been sent for forensic examination before the Forensic Science Laboratory, so as to establish by Serological test of the weapon, that death of deceased has been caused by said weapon nor the finger print of the appellant on the weapon has been established by the prosecution. Learned Amicus curiae has further submitted that P.W.4, Mahboob Alam and P.W.5, Mahmood Ansari are hearsay witnesses and P.W.6, Mohammad Eqbal and P.W.7, Mohammad Rijwan have not supported the case of the prosecution. Learned Amicus curiae has further submitted that Tewaran Oraon, is not the investigating officer, who has investigated the case rather he has submitted the charge-sheet on the basis of material collected by the investigating officer but the said investigating officer has not been examined in this case. Learned Amicus curiae has further submitted that Dr. A. K. Sinha, who has conducted the postmortem of the deceased has also not been examined in this case and as such, the medical evidence has not been proved legally before the court below so as to based conviction of the appellant under Section 302 of the Indian Penal Code. Learned Amicus curiae has further submitted that appellant was aged about 65 years, at the time of his statement recorded under Section 313 Cr.P.C. and he remained in custody for more than 11 years and he may be acquitted from the charge and conviction under Section 302 of the Indian Penal Code. 12. Heard, learned counsel for the State Mr. Ravi Prakash, Additional Public Prosecutor. Learned counsel for the State has vehemently argued the case and has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court, on the basis of materials available on record. Learned counsel for the State has further submitted that appellant is non-else than husband of the deceased, Bano Khatoon and father of informant Israt Khatoon (P.W.1) and Nusrat Parween (P.W.2). Learned counsel for the State has further submitted that appellant is non-else than husband of the deceased, Bano Khatoon and father of informant Israt Khatoon (P.W.1) and Nusrat Parween (P.W.2). There is no reason that both the daughters will falsely implicate her own father in the case of murder of her mother. Learned counsel for the State has further submitted that appellant was found with the victim Bano Khatoon (deceased) in the previous night, when Israt Khatoon asked her mother to open the door, then instead of giving any reply by her mother, it was replied by her father Haider Ali (appellant) that they are sleeping, as such, she should also go and sleep. In the morning when Nusrat Parween, P.W.2 went to meet her mother in her room, at that time the door was opened and her mother was found dead whose internal organs were out of the abdomen, cut by a bhujali, which was kept near the dead body and at that time, her father was missing. Learned counsel for the State has submitted that in view of Section 106 of the Evidence Act, the appellant having special knowledge, of the circumstances of death, instead of explaining the situation has fled away and he was arrested by police after lapse of more than one year and three months of the occurrence on 08.04.2008, after execution of all process against the appellant. Learned counsel for the State has further submitted that burden of proving facts specially within the knowledge has not been discharged by the appellant, Haider Ali nor he has given any satisfactory reply in his statement recorded under Section 313 Cr.P.C. As such the learned trial court has rightly convicted the appellant under Section 302 of the Indian Penal Code. Learned counsel for the State has further submitted that Dr. Chandra Prakash Choudhary (P.W.8) is a competent witness to prove the document i.e. postmortem report (exhibit-6) in the handwriting and signature of Dr. A.K. Sinha, who has conducted the postmortem of deceased on 31.01.2007, as this witness has worked with the said doctor till 2007, as such he is competent witness to prove the same under Section 47 of the Indian Evidence Act. A.K. Sinha, who has conducted the postmortem of deceased on 31.01.2007, as this witness has worked with the said doctor till 2007, as such he is competent witness to prove the same under Section 47 of the Indian Evidence Act. Learned counsel for the State has thus submitted that impugned judgment of conviction and order of sentence has been passed by learned trial court on the basis of materials brought on record and does not suffer from any infirmity so as to warrant interference by this Court. As such, the same may be upheld and affirmed by this Court. 13. Heard, learned Amicus Curiae, Mrs. Renu Bala and learned counsel for the State, Mr. Ravi Prakash, Additional Public Prosecutor and perused the materials brought on record including the F.I.R., framing of charge, evidence of eight prosecution witnesses, six prosecution exhibits, statement of the accused recorded under Section 313 Cr.P.C., as well as impugned judgment of conviction and order of sentence. From perusal of the materials brought on record, it appears that deceased Bano Khatoon is non-else than wife of the appellant Haider Ali and mother of informant, Israt Khatoon. The prosecution witnesses P.W.1 (Israt Khatoon) and P.W.2 (Nusrat Parween) are non-else then own daughters of the deceased as well as appellant. Nothing has been brought on record to suggest that these witnesses P.W.1 (Israt Khatoon) and P.W.2 (Nusrat Parween) have any grudge against her father for falsely implicating him in the case of murder of their mother. The evidence further shows that on the fateful night on 30.01.2007 when the informant returned after the procession of Moharram she called her mother to open the door. The mother did not gave any reply rather the room was bolted from inside and father gave reply that they are sleeping as such they should also go sleep. In the morning youngest sister Nusrat Parween (P.W.2) went into the room of her mother. At that time, room was open and father was not in the room rather the dead body of mother with heavy injury caused by sharp cut weapon due to which the internal organs have come out of the abdomen with blood, was lying on the cot and weapon of assault i.e. bhujali, a sharp cut weapon was kept beside the dead body. The father was searched by these two witnesses P.W.1 (Israt Khatoon) and P.W.2 (Nusrat Parween) alongwith co-villagers, who was found missing, for a long time till his apprehension after exhausting all the process under law by police on 08.04.2008. The appellant Haider Ali, being the husband of the deceased, who was found with the deceased on the previous night has not discharged his duty as contemplated under Section 106 of the Evidence Act. In the case of State of Rajasthan Vs. the Kashi Ram as reported in (2006) 12 SCC 254 it has been held para 23, quoted hereunder: “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.” 14. Apart from the above conduct of the appellant is also relevant, as he has absconded from the place of occurrence though his presence has been proved by his daughter P.W.1 (Israt Khatoon). Apart from the above conduct of the appellant is also relevant, as he has absconded from the place of occurrence though his presence has been proved by his daughter P.W.1 (Israt Khatoon). The conduct of the appellant, in view of the circumstances, which we have discussed aboved established by the prosecution is clear that absconding of the accused not only goes with the hypothesis of guilt of the accused but also points out a definite finger towards him. The aforesaid principle has been followed by the Apex Court in the case of Shyamlal Ghose Vs. State of West Bengal as reported in (2012) 7 SCC 646 particularly paragraphs 61 and 65 which read as under:- “61. Even if we assume that absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in criminal cases, but in the present case, in view of the circumstances which we have discussed in this judgment and which have been established by the prosecution, it is clear that absconding of the accused not only goes with the hypothesis of guilt of the accused but also points a definite finger towards them. 65. Accused Ganesh, in his statement under Section 313 Cr.P.C., admitted the fact that he was absconding even till the charge-sheet was filed in the court declaring him absconding and thereafter, he surrendered at the police station after charges were framed. On a specific question as to what he had to say in this regard, except saying that it was correct, he gave no further explanation. This piece of evidence points towards lack of bona fides on the part of this accused. It may also be noticed that all the accused only stated that they did not know anything. However, they did not dispute the period during which they were stated to be absconding. This again is a circumstance which, seen in the light of the prosecution evidence, points towards the guilt of the accused.” 15. Apart from this, the last seen theory of the appellant with the deceased is such that there is definite link between the time when the accused Haider Ali was last seen with the deceased and the fact of the death of deceased coming to the light. Apart from this, the last seen theory of the appellant with the deceased is such that there is definite link between the time when the accused Haider Ali was last seen with the deceased and the fact of the death of deceased coming to the light. There is reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but this principle is to be applied depending upon facts and circumstances of a given case. Hon'ble Supreme Court has held the same in the case of Sk. Yusuf vs. State of West Bengal as reported in (2011) 11 SCC 754 paragraph 21 of which quoted hereunder: “21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.” In the case of Md. Azad vs. State of West Bengal (2008) 15 SCC 449 it has been held that the purpose of applying these principles while keeping the time factor in mind is to enable the court to examine that whether the time of last seen together and the time when the deceased was found dead is sought, inevitably leads to inference that the accused person was responsible for commission of the crime and the onus was on him to explain how the death occurred. In the present case, the fact shows that appellant being the husband was with his wife in the previous night and at that time the door was locked from inside when he was found alongwith the deceased by P.W.1 (Israt Praveen) daughter and in the very morning door was open and dead body of Bano Khatoon was found in pool of blood with internal organ out of abdomen and the husband, Haider Ali was not present. At that time, the door was open and the weapon was kept near the dead body. Subsequent thereto the appellant was missing for a period of one year three months till he was apprehended by police on 08.04.2008. Apart from the above, other material circumstances are also proved by the prosecution. Signature of P.W.5 (Mahamood Ansari) on the inquest report has been proved and marked as exhibit-5. Subsequent thereto the appellant was missing for a period of one year three months till he was apprehended by police on 08.04.2008. Apart from the above, other material circumstances are also proved by the prosecution. Signature of P.W.5 (Mahamood Ansari) on the inquest report has been proved and marked as exhibit-5. The postmortem report has been proved as exhibit-6 by Dr. C.P. Choudhary (P.W.8) being a competent witness, which shows following injuries :- “(1) On external examination:-following Ante-mortem injuries found over the dead body:- (i) Incised wound:- 02”x 1”x bone deep- over right breast. (ii) Incised wound :- 3”x 1” x bone deep – over left breast. (iii) Incised wound:-01” x 1/2” x bone deep – below left breast. (iv) Incised wound :-3” x 2” x abdominal cavity deep – at the mid of abdomen with omentum and large intestine sharply cut. Part of intestine comes out through the wound. (2) On internal examination :-on opening of thoracic and abdominal cavity:-Both lungs-intact and pale. Heart– both the chambers are empty. Liver, spleen & kidneys:-All intact & pale. Stomach-wall normal, contains mucoid fluid of about four ounces. Uterus-Normal, non gravid. Urinary bladder–empty. Vagina– nad. (3) On opening of skull – Brain - nad Time elapsed since death :-within six hours to thirty six hours.” 16. We are of the opinion that in absence of any specific explanation by the appellant and in presence of such incriminating evidence against the appellant the learned trial court has rightly convicted the appellant under Section 302 of the Indian Penal Code and awarded imprisonment for life with fine of Rs.10,000/-and in case of default in payment of fine to undergo further simple imprisonment for one year but we are not upholding that part of the sentence awarded by the learned trial court where by the appellant has to remain in jail till natural life which is incongruous. As such, the sentence shall remain as imprisonment for life with fine of Rs.10,000/-and in case of default in payment of fine the appellant has to further undergo simple imprisonment for one year. 17. Accordingly, the Criminal Appeal is hereby dismissed except with certain modification in the manner of sentence as above. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned. 19. Before parting with the judgment, this Court appreciates the assistance rendered by learned Amicus Curiae, Mrs. 17. Accordingly, the Criminal Appeal is hereby dismissed except with certain modification in the manner of sentence as above. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned. 19. Before parting with the judgment, this Court appreciates the assistance rendered by learned Amicus Curiae, Mrs. Renu Bala in assisting the Court in hearing of the present criminal appeal. The Secretary, Jharkhand Legal Services Authority is directed to release the legal admissible remuneration to learned Amicus Curiae, Mrs. Renu Bala, within four weeks from the date of production of certified copy of this order. Appeal dismissed.