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2020 DIGILAW 524 (GAU)

Tappunu v. State of Arunachal Pradesh

2020-05-22

NANI TAGIA, SONGKHUPCHUNG SERTO

body2020
JUDGMENT : Songkhupchung Serto, J. 1. This is a Criminal Appeal directed against the Judgment and Order dated 02.09.2014 and the order dated 28.10.2014, passed by the learned Sessions Judge, West Sessions Division, Yupia in Sessions Case No. 132/2010 arising out of Ziro P.S. Case No. 22/2010 under Section 302 & 436 of the Indian Penal Code, wherein, appellant/accused herein, was convicted of the offences punishable under the sections of the Indian Penal Code mentioned above and, sentenced to Rigorous Imprisonment for life with a fine of Rs. 10,000/- with default stipulation and also sentenced to undergo Rigorous Imprisonment of 5(five) years with a fine of Rs. 5,000/- with default stipulation and, directed that the 2(two) terms of imprisonment should run concurrently. 2. Heard Ms. D. Yoka, learned Amicus Curiae appearing for the appellant, Mr. T. Ete, learned Addl. Public Prosecutor appearing on behalf of the State of Arunachal Pradesh and Mr. K. Dubey, learned counsel who appears on behalf of complainant/respondent No. 2. 3. The facts and circumstances which led to the filing of this appeal briefly stated are as follows; On 06.04.2010, an FIR was registered by the Officer-in-Charge of Ziro Police Station on a complaint submitted by one Shri Habung Obing, S/o the deceased/victim which stated that his mother has been murdered at their residence situated at Sululya, Ziro with a dao during the previous night-around 10:00 P.M. inside her shop attached to their house and thereafter, their house have been set on fire to destroy the evidence. It was also stated that one Nyishi man was seen sitting with his mother by his younger brother Shri Habung Loder around 09:00 PM of that day. After the registration of the FIR one Mr. K. Ronya, S.I. was entrusted with the investigation. In pursuance of the endorsement, the I.O. of the case took up the investigation and as part of the investigation, the I.O. caused the Post Mortem conducted over the dead body and arrested the appellant/accused who was absconding and, after all the formalities of the investigation was completed, submitted the Charge Sheet wherein the appellant/accused was charged of the offence under Section 302 & 436 of the Indian Penal Code. After hearing the charge, the learned Sessions Judge, West Sessions Division, Yupia took cognizance of the offence against the appellant/accused and proceeded with the trial. During the trial, as many as 10(ten) PWs were examined. After hearing the charge, the learned Sessions Judge, West Sessions Division, Yupia took cognizance of the offence against the appellant/accused and proceeded with the trial. During the trial, as many as 10(ten) PWs were examined. On being satisfied that there are sufficient evidence proving that the appellant/accused was guilty of having committed the offence charged against him, the Trial Court gave the appellant/accused an opportunity of explaining the incriminating circumstances against him under Section 313 of Cr.P.C. Thereafter, the learned Sessions Judge, West Sessions Division, Yupia heard the learned Public Prosecutor and the defence counsel and on careful examination of the evidence came to the conclusion that the appellant/accused was guilty of having committed the offence punishable under Section 302 & 436 of the Indian Penal Code. Accordingly, the appellant/accused was convicted vide the impugned judgment and order dated 2.9.2014 and sentenced him to the terms of imprisonment and fine stated above in the order dated 28.10.2014. 4. Being aggrieved by the impugned judgment and order and the sentence order, the appellant/accused is before this Court. The grounds on which the appellant/accused assailed the impugned judgment and order, as given in the appeal memo, are reproduced here below: "I) For that the learned Trial Court failed to appreciate that there is no eye witnesses or direct evidence who has seen the commission of murder and there is no sufficient evidence against the appellant/accused for conviction; (II) For that learned Trial Court failed to appreciate the evidence available on records and there by erred in law and fact in holding the appellant guilty of offence under Section 302/436 of IPC based on surmise, presumption and not supported by evidence: (III) For that learned Trial Court failed to appreciate that in the present case there is lack of credible evidence. It is hazardous to rely on the testimony of PW-2 & 4 which are inconsistent and the same cannot be rely for doesn't established or give direct evidence for the commission of murder of deceased but learned Trial Court seriously erred in placing reliance on the same for arriving at the finding of guilt proving the same beyond reasonable doubt; (IV) For that the learned Trial Court failed to appreciate that the statement of the accused/appellant recorded under Section 313 of the Cr.P.C. is not a piece of substantive evidence but in this case, the learned Trial Court convicted the accused/appellant on the basis of statement recorded under Section 313 of the Cr.P.C. which is miscarriage and most illegal; (V) For that the learned Trial Court fail to appreciate that to established chain of events for proving the guilt there is a long distance to travel and the distance must be covered by prosecution by legal reliable and unimpeachable evidence before an accused can be convicted. And the statement recorded under Section 313 Cr.P.C. inferred the finding of guilt of the accused on presumption; (VI) For that the learned Trial Court failed to appreciate that in this case that whether the same weapon has been used by the accused/appellant which resulting into the death of deceased which alleged to happen on 5.4.2010. (VII) For that the learned Trial Court failed to appreciate that in this case that seized weapon (dao) used in the offence alleged to have been found in the place of occurrence could not be send to the Forensic science laboratory for seeking expert opinion as there has been was no blood stain in the dao, deposed by the PW. 10 (I.O.) and whereas the seizure witness PW. 5 specially mentioned that there was blood stain in weapon. As such, the prosecution failed to established the case against the appellant beyond reasonable shadow of doubt since there has been doubt in the prosecution story and evidence; (VIII) For that the learned Trial Court failed to appreciate that the fact of the case on circumstantial evidence for arriving at the finding of guilt against the accused appellant and thereby failed to appreciate and correctly apply the law of circumstantial evidence. The chain of events in this present case was not only incomplete but same was also grossly inadequate and could not even remotely connect the accused/appellant with the occurrence of murder; (IX) For that the learned Trial Court fails to appreciate that the testimony of PW-2, PW-4 & P.W.-10 to show chain of events as both are contradictory. Hence, there being lack of evidence place by the prosecution case. And the learned Trial Court seriously erred in placing reliance on the same for arriving at the finding the guilt of the accused appellant proving the same beyond reasonable doubt; (X) For that the learned Trial Court failed to appreciate that in regard to the involvement of the accused/appellant in the crime is based on misappreciation of evidence and in consideration of legally in admissible evidence; (XI) For that the learned Trial Court failed to appreciate that to prove the case beyond reasonable doubt and by coming to a finding of guilt against the accused appellant on the basis of probability and unproved piece of evidences. The evidences and the chain of events clearly established that the accused appellant may or may not be the persons who caused the murder of deceased person. There is serious contradiction regarding the identification of the accused appellant and as well the weapon of offence in this instant case. Therefore, the learned Trial Court acted contrary to the cardinal principle of criminal jurisprudence that where two views are possible, the view favoured to the accused is to be adopted; and (XII) For that there is no cogent evidence sufficient to convict the accused/appellant and the learned Trial Court made a serious error of law in placing reliance on the testimony of PW-2, PW-4, PW-5 & PW-10 in arriving at the finding of appellant being guilty. Hence, the impugned judgment dated on 02.09.2014 is liable to be set aside and quash." 5. Ms. D. Yoka, learned Amicus Curiae appearing for the appellant submitted that though the trial court heavily relied on the evidence given by PW-2 and PW-4, PW-2, during his deposition, never identified the appellant/accused. Hence, the impugned judgment dated on 02.09.2014 is liable to be set aside and quash." 5. Ms. D. Yoka, learned Amicus Curiae appearing for the appellant submitted that though the trial court heavily relied on the evidence given by PW-2 and PW-4, PW-2, during his deposition, never identified the appellant/accused. The learned counsel further submitted that according to the prosecution story-PW-2, namely, Nani Sambyo was the person who was present in the house of the deceased/victim along with the appellant/accused in the night when the incident took place, therefore, he should have been the one who should have identified the appellant/accused But since, the witness PW-2 did not identify the appellant/accused, the case of the prosecution is shrouded with doubt. The learned counsel further submitted that the statement of the PW-2 is also not trustworthy since there was contradiction between his statement given in his examination-in-chief and his statement given in his cross-examination-To substantiate his point, the learned counsel submitted that though PW No. 2 had stated in his examination in chief that, in that evening Habung Loder (PW-4) also came inside the house and after sitting with them for some time he went to sleep, however, he stated in his cross-examination that he did not sit with them after coming to the house but straightaway went to sleep. The learned counsel, thereafter, submitted that in a case like this where prosecution case is based on circumstantial evidence all the facts linking the circumstances must be proved and there should be no break in the link. 6. Further, the learned counsel Ms. D. Yoka, submitted that the weapon of offence was seized from the place of occurrence and not from the appellant/accused. There is no evidence establishing that there is any connection between the alleged weapon of offence and the appellant/accused. In continuation, the learned counsel submitted also that the alleged weapon of offence was never sent for expert opinion, therefore, there is no certainty as to whether the same was used in the commission of the crime against the deceased/victim. The learned counsel further submitted that there is also a contradiction between the statement of PW-5 and that of the PW-10 regarding the alleged weapon of crime. The learned counsel further submitted that there is also a contradiction between the statement of PW-5 and that of the PW-10 regarding the alleged weapon of crime. In order to substantiate her submission, the learned counsel submitted that though PW-5 stated that the crime weapon was bloodstained, PW-10, (the I.O. of the case), stated that the same was not bloodstain. Thereafter, the learned counsel submitted that this kind of contradictions in the statements of prosecution witnesses (PWs) creates doubt on the truthfulness of prosecution case which is based on circumstantial evidence. As such, it would be unsafe to hold that the appellant/accused had committed the crime charged against him. 7. The learned counsel, thereafter, submitted that the prosecution story that the appellant/accused was having long hair till the time he committed the offence but cut it on the next day in a barber shop to change his appearance in order to facilitate his escape from Ziro to other places is not supported by evidence because, when appellant/accused met PW-7 on his way to his village, he saw him with a longer hair then he had on that day in the Court room. This shows that he did not cut his hair either on 6.4.2010 or 7.4.2010. Therefore, the prosecution story that the conduct of the appellant/accused after the incident had occurred shows also that he was the one who committed the offence is without any basis. 8. Continuing her submission, the learned counsel also submitted that there are discrepancies and inconsistencies in the deposition of the prosecution witnesses and the same could have been excused if the time gap between the date on which the incident took place and the trial commenced was long enough. However, in this case the FIR was lodged on 06.04.2010 and soon thereafter, the Charge-Sheet was submitted and, the trial commenced and was concluded in the year 2014. Therefore, such discrepancies and inconsistencies which goes to the root of the matter and as such are fatal for the prosecution case should have been taken into consideration. However, the trial court failed to consider this aspect of the matter while considering the evidence given by the prosecution witnesses. Hence, this Court's interference on the impugned judgment and orders is called for. However, the trial court failed to consider this aspect of the matter while considering the evidence given by the prosecution witnesses. Hence, this Court's interference on the impugned judgment and orders is called for. In support of her submission, the learned counsel referred to paragraph-27, 30 and 32 of the judgment of Hon'ble Supreme Court passed in the case of Krishnegowda & Ors. Vs. State of Karnataka, reported in (2017)13 SCC 98 . The contents of the paragraphs of the judgment referred to by the learned counsel are reproduced here in below: "27. ... Generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the court, but if these contradictions create such serious doubt in the mind of the court about the truthfulness of the witnesses and it appears to the court that there is clear improvement, then it is not safe to rely on such evidence. 30. In the evidence of the prosecution witnesses in respect of exact time when the incident had happened, who were the people present at the scene of offence, the time of police reaching the scene of offence, place of registering the complaint, there were lot of variations. According to the PW1 the complaint was recorded at hospital at 12 p.m. whereas the investigation officer deposed that he registered the complaint at 10.30 a.m. at the police station. PWs 1-3 say that they were arrested by the investigating officer but the IO gave a contradictory statement that he has not arrested them. PW1 initially gave a statement before the police saying A-1, A-5, A-3, A-4 had not assaulted him. Later he gave a contradictory statement which is marked as Ext. D-1. 32. It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in the broad daylight. Although there is no absolute rule that the evidence of related witnessed has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. Although there is no absolute rule that the evidence of related witnessed has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of the doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefits of doubt". 9. In conclusion, the learned counsel submitted that since the prosecution's case was based on circumstantial evidence and since the accused who is a married man has already spent 10(ten) years in imprisonment, a certain amount of leniency may be shown by this Court. 10. The learned Addl. Public Prosecutor, Mr. Ete submitted that the prosecution story is no doubt based on last seen together theory and circumstantial evidence. However, the evidence given by the prosecution witnesses particularly PW-2 & PW-4 were of sterling quality and they have remained intact specially on the identity of the appellant/accused and on the fact that he was the one who was last seen together with the deceased victim in the night of the incident took place. Furthermore, the evidence of these 2(two) PWs are well corroborated by the evidence given by the I.O. of the case i.e. the PW-10. In support of his submission, the learned Addl. Public Prosecutor submitted that though PW-2 did not identify the appellant/accused either in the identification parade or in the witness box he had stated that in that evening the person who was a bit younger than him, thin and with a height a little bit shorter than him was also present in the house of the deceased victim and at that time, Habung Loder (i.e. one of the son of the deceased victim and who also testified as PW-4) also came inside the house and set with them for some time but left them to sleep. He then went on to submit that this evidence of the witness shows that Habung Loder also show the appellant/accused in that evening of the incident The learned counsel also submitted that this statement of PW-2 was corroborated by the statement of Habung Loder (PW-4) who stated that when he came to the house around 08:30-9:00 PM of that day, he show his mother near by the fire place with 2(two) persons, one of them was Nani Sambyo (PW-2) and the other was a stranger who is in the Court today and whom he had also identified in the identification parade before the Magistrate. The learned counsel, then submitted that all these proves that it was none other than the appellant/accused who was last seen together with the deceased victim and it was none other than him who committed the murder of the deceased victim. The learned Addl. PP further submitted that the evidence given by the 2(two) witnesses are of high quality and unassailable. Therefore, the Trial Court has not committed any error by having relied on their evidence. The learned Addl. PP then referred to the paragraph-15 of the judgment passed by the Hon'ble Supreme Court in the case of Rai Sandeep @ Deepu & Anr. Vs. State of NCT of Delhi, reported in (2012) 8 SCC 21 in support of his submission. The paragraph is reproduced here below: "15. ...In our considered opinion, the sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution the accused. There should not be any prevarication in the version of such a witness. It should be natural and consistent with the case of the prosecution the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even he stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted, by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged". 11. The learned Addl. PP. also submitted that the guilt of the appellant/accused is also proved by his conduct after the incident. He then submitted that there are evidence that he cut his hair on the 6th of April, 2010 i.e. right after the day the crime was committed and he went missing in order to avoid arrest and, when he was confronted by the Police he even tried to escape. Moreover, the fact that he avoided going by vehicle and instead took the jungle route on foot to go to his village from Ziro has been testified by PW-7. The learned Addl. Moreover, the fact that he avoided going by vehicle and instead took the jungle route on foot to go to his village from Ziro has been testified by PW-7. The learned Addl. PP further submitted that though the appellant/accused denied in his examination under section 313 of the Cr.P.C. that he was present in the house of the deceased victim in the night of the incident, he did not produce any evidence to prove that he was some-where else. When a plea of alibi is taken, it is for that person to prove that he was present at that time somewhere else. Since he has not discharge his burden to prove his claim, the same cannot be given any credence. In support of his submission, the learned Addl. PP referred to paragraph-13 of the judgment passed by the Hon'ble Supreme Court in the case of Ashok Vs. State of Maharashtra, reported in (2015) 4 SCC 393 . The aforesaid paragraph is re-produced herein below; "13. ...From the study of above stated judgments and many others delivered by this Court over a period of years, the rule can be summarized as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Indian Evidence Act. Therefore, last seen together it-self is not a conclusive proof but alongwith other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused etc., non-explanation of death of the deceased, may lead to a presumption of guilt". To further strengthen his contentions, the learned Addl. PP also referred to paragraph-4 of the judgment passed by the Hon'ble Supreme Court in the cass of Mulakh Raj, etc. Vs. Satish Kumar & Ors., reported in (1992) 3 SCC 43 . The above stated paragraph is re-produced herein below: "4. To further strengthen his contentions, the learned Addl. PP also referred to paragraph-4 of the judgment passed by the Hon'ble Supreme Court in the cass of Mulakh Raj, etc. Vs. Satish Kumar & Ors., reported in (1992) 3 SCC 43 . The above stated paragraph is re-produced herein below: "4. The narrative of the facts clearly establishes that the young beautiful lady, aged about 22 years, who had intense and passionate love for the first respondent yearning to have long and happy marital life was exterminated hardly one year and five months after the marriage. As per doctor's evidence, she died of asphyxia, as a result of strangulation, and that 95 percent burn post-mortem injuries were found over the dead body except the feet. Admittedly this was done in the residential home of the respondent. The crucial question whether the theory of suicide propounded by the defence and as accepted by the High Court is true and believable. Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation, to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and sentence would follow". The learned Addl. PP also referred to paragraph-99 & 100 of the judgment passed by the Hon'ble Supreme Court in the case of Sidhartha Vashist @ Manu Sharma Vs. State (NCT of Delhi), reported in (2010) 6 SCC 1 . The contents of the 2(two) paragraphs are reproduced herein below: "99. The learned Addl. PP also referred to paragraph-99 & 100 of the judgment passed by the Hon'ble Supreme Court in the case of Sidhartha Vashist @ Manu Sharma Vs. State (NCT of Delhi), reported in (2010) 6 SCC 1 . The contents of the 2(two) paragraphs are reproduced herein below: "99. ...From the testimony of PW-20 and PW-24, it is proved beyond reasonable doubt that accused Sidharth Vashisht @ Manu Sharma after committing the murder of Jessica Lal fled away from the scene of occurrence. It is further proved from the testimony of PW-100, PW-101, PW-87 Raman Lamba, PW-85 and PW-80 that from afternoon of 30.04.1999 search was made for the black Tata Safari bearing Regn. No. CH-01-W-6535 and for Sidharth Vashisht @ Manu Sharma, Director of Piccadilly Sugar Industries at Bhadson, Kurukshetra, Chandigarh, his farmhouse at Samalkha and Okhla Delhi. It is also proved that even after the seizure of vehicle on 2.5.1999 the search for accused Sidharth Vashisht @Manu Sharma continued and search was made at Piccadilly Cinema. Piccadilly Hotel, his residence at Chandigarh, PGI Hospital where his father was subsequently admitted. However, accused Sidharth Vashisht @ Manu Sharma was not found nor anybody informed his where about and it is only on 06.05.1999 that accused Sidharth Vashisht @Manu Sharma surrendered at Patiala Guest House, Chandigarh in the presence of Shri Harish Ghai, advocate and Sh. Vinod Dada. The above evidence of the witnesses clearly establishes beyond reasonable doubt that accused Manu Sharma absconded after committing the crime and surrendered on 6.5.1999 after extensive searches were made. 100. A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection. that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. In this regard, it is useful to refer Anant Chaintaman Lagu vs. State of Bombay, AIR 1960 SC 500 ". The learned Addl. PP, in addition, to the above judgments also referred to paragraph Nos. 14 & 15 of the judgment passed by the Hon'ble Supreme Court in the case of Nizam & Anr. Vs. State of Rajasthan, reported in (2016) 1 SCC 550 . The learned Addl. PP, in addition, to the above judgments also referred to paragraph Nos. 14 & 15 of the judgment passed by the Hon'ble Supreme Court in the case of Nizam & Anr. Vs. State of Rajasthan, reported in (2016) 1 SCC 550 . The contents of the aforesaid 2 (two) paragraphs are reproduced here below: "14. ... Courts below convicted the appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the appellants on 23.1.2001. Undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 15. Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254 , this Court held as under:- "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 categorical in laying down that when any feet 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. 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 Naina Mohd., Re. ( AIR 1960 Mad 218 )" The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319 ". 12. The learned Addl. PP, thereafter, submitted that the Post Mortem report which was not disputed by the appellant/accused shows that the injuries were severe and brutal and they were caused with a sharp and heavy weapon, all these goes to show that the appellant/accused was intend and determined to kill the deceased victim. With these kind of undisputed evidence in existence, none-sending of the crime weapon to Forensic Science Laboratory cannot in any way change the faith of the prosecution's case. In support of his submission, the learned Addl. PP referred to paragraph-19 of the judgment passed by this High Court in the case of Moina Gogoi @ Bipul Gogoi Vs. State of Assam, reported in 2012 (4) GLT 302: (2016) 4 GauLJ 259 . The contents of the above paragraphs are reproduced here below: "19. ...The chopper was seized from the house of accused Loknath Gogoi. The chopper was not sent to Forensic Science Laboratory. Since it was not seized from the possession of the accused/appellant, prosecution has not established that the seized chopper was the weapon of assault. But the fact remains that the victim sustained injuries on the date and time of occurrence caused to them by means of a sharp weapon. On careful analysis of evidence of witnesses, more particularly, injured witnesses no discrepancy of any vital nature is found which will affect the credibility of the witnesses. But the fact remains that the victim sustained injuries on the date and time of occurrence caused to them by means of a sharp weapon. On careful analysis of evidence of witnesses, more particularly, injured witnesses no discrepancy of any vital nature is found which will affect the credibility of the witnesses. There are minor discrepancies that do not any way dilute the otherwise cogent evidence of injured witnesses about the role played by the accused/appellant". 13. The learned Addl. PP also submitted that veracity of the identification parade conducted for identification of the appellant/accused was never questioned during the trial and the witnesses were never cross-examined. Therefore, the appellant/accused cannot now challenge the findings based on the same. The learned Addl. PP further submitted that though the appellant/accused has contended that TIP was held after 21 days from the date of arrest, the same is not true because as per record, the TIP was held on the 11th day from the day, the appellant/accused was arrested. Therefore, there was no delay in conducting the TIP of the appellant/accused as alleged. In support of his submission, the learned Addl. PP referred to paragraph Nos. 5 & 6 of the judgment passed by the Hon'ble Supreme Court in the case of Bharat Singh Vs. State of U.P., reported in (1973) 3 SCC 896 . The contents of the above 2(two) paragraphs are reproduced here below: "5. ...Learned Counsel appearing on behalf of the appellant raised many contentions of feet which we do not propose to entertain. His main attack is, however, directed against the manner in which the identification parade was held and we will deal with that point briefly. The contention is that the rules framed by the High Court of Allahabad in regard to identification parades were not observed by the Magistrate who held the parade. Counsel says that a large number of chits were placed on the face of the appellant in order to cover the marks of identification and such extensive covering of the face would render identification impossible. We are unable to accept this contention because Dr. R.S. Asthana, a Magistrate of the First Class who held the identification parade was not cross-examined at all in regard to the manner in which the parade was held or in regard to the number of chits which were placed on the face of the appellant. We are unable to accept this contention because Dr. R.S. Asthana, a Magistrate of the First Class who held the identification parade was not cross-examined at all in regard to the manner in which the parade was held or in regard to the number of chits which were placed on the face of the appellant. The evidence of the Magistrate not having been challenged in the Sessions Court, we cannot permit counsel to raise the contention that the parade was held in an irregular manner, contrary to the Rules framed by the Allahabad High Court. The decision of this Court in Budhsen v. State of U.P. in which it was observed that magistrates who are in charge of identification parades must take due precautions in order to eliminate suspicion of unfairness and to reduce the chances of testimonial error has, for the same reason, no application. 6. In Hasib v. The State of Bihar ( AIR 1972 SC 283 ), it was observed by this Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time. Relying on this decision, counsel for the appellant contends that no support can be derived from what transpired at the parade as it was held long after the arrest of the appellant. Now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the police officer who conducted the investigation should have been cross-examined in that behalf." 14. Lastly, the learned Addl. PP submitted that there is nothing in the evidence to show that there was enmity between the witnesses and the appellant/accused. Lastly, the learned Addl. PP submitted that there is nothing in the evidence to show that there was enmity between the witnesses and the appellant/accused. Therefore, there is no reason why the veracity of the evidence given by the witnesses should be questioned and doubted. The learned Addl. PP referred to paragraph-11 of the judgment passed by the Hon'ble Supreme Court in the case of Manoj Kumar Vs. The State of Uttarakhand, reported in (2019) 5 SCC 663 . The contents of the above paragraph is reproduced herein below: "11. ...In the absence of any existing enmity between the accused and the witnesses there exists no ground to question the veracity of the witnesses or to raise aground of false implication. Therefore, considering the totality of the facts and circumstances, we conclude that the chain of events has been rightly analysed by both the courts below and the same leads towards proving the culpability of the accused. (See Prakash v. State of Rajasthan, (2013) 4 SCC 668 )" 15. Mr. K. Dubey, the learned counsel appearing for the complainant/informant submitted that the last seen together theory based on which the appellant/accused has been found guilty, convicted and sentenced is well supported by the evidence given by the PW-2 and PW-4. The Learned counsel in support of his submission referred to the evidence given by the PW-2, wherein, he stated that when he left the house of the deceased victim, the boy who was also present there in that house (i.e. appellant/accused) was still in the house. The learned counsel then referred to the statement of PW-4, wherein, the witness stated that the person standing in the dock is that person who was sitting with his mother in the evening when the incident took place and he had also identified him in the TIP. The learned counsel, thereafter, submitted further that the conduct of the appellant/accused after the incident happened is also relevant especially the fact that he fled away from Ziro after cutting his hair that too on foot and not by any vehicle and, when he was found by the police he tried to run away from them. The learned counsel, then, submitted that all these shows that there was element of guilt present in him. The learned counsel, then, submitted that all these shows that there was element of guilt present in him. The learned counsel, thereafter, submitted also that the question raised in the appeal regarding weapon of crime was never raised before the learned trial court, therefore, it is too late for the appellant/accused to do so at this stage. 16. Lastly, the learned counsel submitted that the time gap between the time a suspect was seen together with the victim and the time when the crime was committed is an important fact in a case based on last seen together theory. He then went on to submit that in this case, the appellant/accused was seen together with the deceased/victim by PW-4 around 8:30 p.m. to 9:00 p.m., and PW-2 left the place of occurrence only thereafter, and the fact that the fire broke out in the house where the place of occurrence took place was noticed around 11:30 p.m. by the PW-4 and the fact that it was only than that the victim's dead body was found shows that the time gap between the two times is very small. Therefore, it can safely be concluded that there could be no other person than the appellant/accused who would have committed the crime. In support of his submission, the learned counsel referred to the paragraph-22 of the judgment passed in case of State of U.P. Vs. Satish, reported in (2005) 3 SCC 114 . The contents of the relevant paragraphs are as follows: "22. 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW2". 17. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW2". 17. We have considered the submissions of both the learned counsels, perused the impugned judgment and the sentence order and the entire record. We have also gone through the depositions of the witnesses and gave our utmost consideration. On a careful reading of the impugned judgment and order, we find that the learned Trial Court convicted the appellant/accused based on the last seen together theory. In our considered view, the learned Sessions Judge, West Sessions Division, Yupia had recorded the evidence and at the same time appreciated the same in the correct manner as per law arrived at the conclusion correctly. His conclusions recorded at Paragraph-27 on wards of the judgment, in our considered view, are very well crafted and are based on evidence and relevant laws, therefore, the same needs no interference. However, we may point out some of the evidences recorded, because of which, we declined to interfere with the judgment. The fact that the appellant/accused was the last person to be seen together with the deceased victim is testified by PW-2 & PW-4. PW-2 had stated that on 05.04.2010 (in the evening of which the incident took place) at about 6:00 PM he was at the residence of Lt. Habung Chunia(deceased victim) drinking local rice beer and at that time there was also another person who was a little younger than him and look a little thin and also shorter than him. He had also stated that in that evening Habung Loder (PW-4 and son of deceased victim) also came into the house and sat with them for some time but left for sleep. The P.W. had also clarified and stated that when Habung Loder came into the house, the younger person (i.e. the appellant/accused) was still there. Further, it was also stated by the witness that after Habung Loder left them he also left the house but the boy (the appellant/accused) still remained inside the house. The evidence of PW-2 and PW-4 are corroborated and co-related with each other. Further, it was also stated by the witness that after Habung Loder left them he also left the house but the boy (the appellant/accused) still remained inside the house. The evidence of PW-2 and PW-4 are corroborated and co-related with each other. The PW (PW-4) stated that on 05.04.2010, around 08:30-9:00 PM when he came back to his house, he found his mother sitting near the fire place with 2 (two) persons one of which was Nani Sambyo(PW-2) and the other one a stranger. He had also stated in the witness box that he can recognize the stranger who was in their house that evening with Nani Sambyo and his mother, and he infact, had identified the appellant/accused as that very person. The witness, thereafter, also had stated that he had earlier identified that per-son in the dock before the Magistrate also and, he had signed on the documents prepared by the Magistrate. He then exhibited his signature Exhibit-3(a) on exhibit-P which is the document prepared by the Magistrate concerned during the identification parade. The two facts which are proved by the deposition of both the PWs mentioned above are; one is the fact that PW-2 and PW-4, the deceased victim and the appellant/accused were present at the place of occurrence in that evening of 5.4.2010 at about 08:30-9:00 PM. The other is that after PW-2 left the place of occurrence, the appellant/accused was still there with the deceased victim and that would have been well after 09.000 PM when he finished drinking his rice beer. These 2(two) facts leaves no room for doubt that the appellant/accused was the last person to be seen together with the deceased victim. 18. Moreover, as stated above, the time around which the P W-2 left the place of occurrence and the time PW-4 was awaken by me fire that was burning their house which he stated was around 11:30 PM is not a long gap which can raise suspicion that the deceased victim might have been with any other person The appellant/accused was given a chance to clarify or explain his stand taken during his examination under Section 313 of the Cr.P.C. that he was not present in the house of Habung Chunia (place of occurrence) at the time the incident took place. However, he did not pro-duce any evidence to prove that he was not present at the place of occurrence and was not the last person to be seen together with the deceased victim, though, by then, the burden was on him to do so. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Therefore, to prove his claim that he was not present at the place of occurrence in the evening of the day on which the incident took place, it was for the appellant/accused to produce evidence in support of such claim. Having not done so, the learned Trial Court was right in having concluded that the appellant/accused was the last person to be seen together with the deceased/victim and therefore, it was none other than him who had committed the crime. 19. Now, coming to the conduct of the appellant/accused after the incident had happened; As alleged by the prosecution the fact that he cut his hair right after the incident to change his appearance so that he can abscond is supported by his own statement given under section 313 of the Cr.P.C., wherein he had stated that he cut his hair either on 6th or 7th April, 2010 i.e. the next day or the day after the incident occurred. Secondly, the allegation of the prosecution that he absconded the very next day of the day of occurrence from Ziro where he was residing till then, towards his village, that too on foot and through the jungle route to avoid being noticed and apprehended by the Police is well supported by the evidence of PW-7 (whose village is at a place between Ziro and the village of the appellant/accused) who stated that he was told by the appellant/accused that he came from Ziro to go to Loth village to ask for bridal price of his sister and he came on foot. There was no discrepancy or contradiction in the evidence of this PW. More-over, this PW had also stated that the distance from Ziro to Loth village would be about 20 Kms. There was no discrepancy or contradiction in the evidence of this PW. More-over, this PW had also stated that the distance from Ziro to Loth village would be about 20 Kms. This statement of PW-7, is infact, con-firmed by the appellant/accused himself when he gave his statement under Section 313 of the Cr.P.C. Statement of an accused recorded under Section 313 of Cr.P.C. is not substantive evidence but has corroborative value. 20. In view of the facts and circumstances mentioned above which are supported by evidence that are consistent, reliable and beyond doubt and, guided by the principles of law referred to by the learned Addl. PP and the learned counsel appearing for the complainant, we are of the considered view that the impugned judgment and order dated 02.09.2014 and the impugned sentence order dated 28.10.2014, passed in Sessions Case No. 132/2010 arising out of Ziro P.S. Case No. 22/2010 needs no interference. Accordingly, the appeal is dismissed. 21. Before we part with the impugned judgment, we may mention here that though it is unfortunate that a young man having a family should spend the better part of his life under imprisonment we cannot over-look the larger public interest, for whom laws are made. Therefore, we are unable to show any leniency towards the appellant. 22. The High Court Legal Services Authority shall pay Ms. D. Yoka, learned Amicus Curiae her professional fees as per the entitlement under the relevant rules.