JUDGMENT (Per Hon’ble Sri Justice A.V.Sesha Sai) Sole-accused in Sessions Case No.102 of 2010 on the file of the Court of the XI Additional District and Sessions Judge (Fast Track Court), Kakinada, East Godavari District, is the appellant in the present Criminal Appeal, preferred under sub- section (2) of Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to, as ‘Cr.P.C.’). In the present Criminal Appeal, appellant herein assails the judgment dated 29.12.2011, rendered by the learned Sessions Judge in the said Sessions Case. By way of the impugned judgment, the learned Sessions Judge convicted the accused-appellant herein for the offences alleged under Sections 302 and 392 I.P.C. and sentenced him with life imprisonment for the offence under Section 302 I.P.C. and with rigorous imprisonment for a period of ten years for the offence under Section 392 I.P.C. 2. The case of the prosecution, in nutshell, is as follows: The deceased was a native of Kulla village and his family owned Acs.5.00 cents of land in the said village and out of the said extent of land, the deceased and his brothers owned Acs.2.30 cents of land. The deceased migrated to Kakinada and along with his family, he was residing in Island colony, Turangi, Kakinada Rural Mandal. The deceased was an agent of Agri Gold Agencies and he was looking after the management of the above said Acs.5.00 cents of land. The accused and his paternal uncle one Mr. Deyyala Ramanjaneyulu (P.W.7), were cultivating the above said land of Acs.5.00 cents on lease basis. The deceased and his paternal uncle had the intention to sell Acs.2.30 cents of land and when they informed the same to the accused and his paternal uncle (P.W.7), they arranged the purchasers and one Smt. Namala Anantha Lakshmi of Rajahmundry, who was examined as P.W.11, agreed to purchase the land. The deceased and his paternal uncle had the intention to sell Acs.2.30 cents of land and when they informed the same to the accused and his paternal uncle (P.W.7), they arranged the purchasers and one Smt. Namala Anantha Lakshmi of Rajahmundry, who was examined as P.W.11, agreed to purchase the land. In furtherance of the said transaction, the purchaser paid a sum of Rs.10,000/- to the deceased towards advance and the deceased requested the purchaser to pay an amount of Rs.2,00,000/- as an advance and on 16.06.2008, at about 2-00 p.m., P.W.7 and P.W.8 went to the house of Anantha Lakshmi (P.W.11) at Rajahmundry and P.W.11 had given Rs.2,00,000/- to hand over the same to the deceased and P.W.8 kept the said cash bundles in polythene cover and later they brought the amount to Kulla village in between 5-00 and 6-00 p.m. on the same day and by the time the deceased came to the village from Kakinada and was waiting to collect the amount and Bodapati Surya Chandra Rao (L.W.8) handed over the said amount to the deceased and the deceased counted the cash and kept it in a small rexine bag. From there, the deceased went to his old tiled house along with the accused and both of them spent some time and thereafter, both of them left Kulla village on their respective motorcycles separately. The accused came to Gangavaram village and parked his motorcycle in the premises of K.Venkata Rao, APSRTC Complex and he brought one hammer and kept it at his waist secretly and asked the deceased to take him to Kakinada and then, the accused boarded the motorcycle of the deceased at about 8-00 p.m. The father-in-law of the deceased telephoned to him and enquired his whereabouts and the deceased informed him that he was in Gorripudi and he was returned to his house about half an hour and at about 8-10 p.m., Palepu Rambabu (P.W.12) also telephoned to the deceased and came to know that the accused was present along with him and contacted the accused and the accused informed that both of them were at Kulla village. During the night of the same day, on the way to Kakinada, when the deceased and the accused reached the fields of one Mr. During the night of the same day, on the way to Kakinada, when the deceased and the accused reached the fields of one Mr. Atla Venkanna, the accused asked the deceased to stop the motorcycle and accordingly the deceased stopped the motorcycle and the accused attacked him with hammer and killed him by strangulation with the belt of the bag and escaped from the scene of offence with an amount of Rs.2,00,000/-. With the above allegations, the police filed a charge sheet for the offences punishable under Sections 302 & 392 I.P.C. for alternatively Section 411 I.P.C. and the same was numbered as P.R.C. No.13 of 2009 and thereafter, the learned Magistrate committed the P.R.C. to the Court of Sessions. The learned Sessions Judge framed the charges against the accused for the alleged offences under Sections 302 & 392 I.P.C. 3. In order to substantiate its case, the prosecution examined P.Ws.1 to 21 and marked Exs.P.1 to P.12 and Exs.D.1 and D.2, apart from M.Os.1 to 18 and no witnesses were examined on behalf of the accused nor any documents were marked. Subsequent to the closure of the evidence of prosecution witnesses, the accused-appellant herein was examined under Section 313 Cr.P.C. and the accused denied the commission of offence. 4. The learned Sessions Judge framed the following points for consideration: "1. Whether the accused killed the deceased? 2. Whether the accused robbed the deceased and taken away Rs.2 lakhs from him? 3. Whether the prosecution proved the guilty of the accused beyond all reasonable doubt.” 5. The learned Sessions Judge, by way of the impugned judgment, convicted the accused-appellant herein and sentenced him in the manner indicated supra. Hence, the present Criminal Appeal. 6. Sri Ambati Sreekanth Reddy, learned counsel for the appellant contends that the impugned judgment is highly erroneous and contrary to law and if the same is allowed to sustain, it would result in miscarriage of justice. It is further contended that in the absence of any eyewitnesses, the Court below grossly erred in convicting the accused on presumptions and surmises; that no prosecution witness spoke about the presence of the accused at the time of occurrence of the alleged offence; the prosecution failed to prove that the Court below, without any evidence on record, presumed the involvement of the accused-appellant herein in the alleged offences and the prosecution miserably failed in establishing the continuous link. It is further submitted that having regard to the discrepancies in the evidence of the prosecution witnesses, the learned Sessions Judge grossly erred in convicting the accused-appellant herein. In support of his submissions, learned counsel for the appellant/accused places reliance on the following judgments: 1) Sirima Narasimha Rao Vs. State of Andhra Pradesh, LAWS (APH) 2009 7 101. 2) Sattatiya Alias Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210 . 3) Padala Veera Reddy Vs. State of Andhra Pradesh and others, 1989 Supp. (2) SCC 706. 4) Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 . 7. On the contrary, learned Special Assistant Public Prosecutor, Sri S.Venkata Sainadh, while supporting the case of the prosecution and the judgment impugned, strenuously contends that there is no error nor there exists any infirmities in the impugned judgment and in the absence of the same, the interference of this Court under Section 374(2) Cr.P.C. is not warranted; that there are no contradictions in the evidence of the prosecution witnesses and the evidence let in on behalf of the prosecution is consistent, as such, the conviction cannot be faulted. Learned Public Prosecutor eventually prays this Court to dismiss the present Criminal Appeal. In support of his submissions and contentions, learned Special Assistant Public Prosecutor, Sri S.Venkata Sainadh, takes the support of the following judgments: (1) State, Government of NCT of Delhi Vs. Sunil and another, (2001) 1 SCC 652 . (2) Rajesh Kumar and another Vs. State Government of NCT of Delhi, (2008) 4 SCC 493 . (3) Kiriti Pal Vs. State of West Bengal, (2015) 11 SCC 178 . (4) Munish Mubar Vs. State of Haryana, (2012) 10 SCC 464 . (5) Surajdeo Mahto and another Vs. State of Bihar, 2021 SCC Online SC 542. (6) Kalu alias Laxminarayan Vs. State of Madhya Pradesh, (2019) 10 SCC 211 . (7) Manoj Suryavanshi Vs. State of Chhattisgarh, (2020) 4 SCC 451 . 8. In the above background, now the issues that arise for consideration of this Court in the present Criminal Appeal are as follows: (1) Whether the prosecution proved the guilt of the accused beyond reasonable doubt? (2) Whether the learned Sessions Judge is correct in convicting the accused for the offences under Sections 302 and 392 I.P.C.? (3) Whether the impugned judgment warrants any interference of this Court under Section 374(2) of Cr.P.C.? 9. (2) Whether the learned Sessions Judge is correct in convicting the accused for the offences under Sections 302 and 392 I.P.C.? (3) Whether the impugned judgment warrants any interference of this Court under Section 374(2) of Cr.P.C.? 9. It is a settled and well-established position of law that when there is no eyewitness and the entire case of the prosecution rests on circumstantial evidence, the Courts are required to evaluate, assess and examine the evidence on record in meticulous manner, while arriving at conclusion. Admittedly, in the instant case, there is no eyewitness for the alleged offences and the entire prosecution case rests on circumstantial evidence. 10. As mentioned supra, on behalf of the prosecution, P.Ws.1 to 21 were examined and Exs.P.1 to P.12 were marked, apart from marking Exs.D.1 and D.2 and M.Os.1 to 18. P.W.1 is no other than the father-in-law of the deceased, P.W.2 is the wife of the deceased, P.W.3 is the brother-in-law of the deceased and P.W.4 is the resident of Jagannadhapuram, Kakinada Town. P.W.1, who is the father-in-law of the deceased and who lodged Ex.P.1-complaint, deposed that the accused and one Mr. Anjaneyulu (P.W.7) were jointly cultivating the land on lease basis. He spoke about the transaction pertaining to sale and purchase of the property. During the course of cross-examination, he categorically deposed that the accused was taken to the police station by the police in the evening of 17.06.2008 and that on 18.06.2008, Rs.2,00,000/- cash was recovered. He also deposed that P.W.12 told him that he telephoned to the deceased on 17.06.2008. P.W.2, who is no other than the wife of the deceased, also spoke in the same lines. P.W.3, who is the brother-in-law of the deceased, is also not an eyewitness to the incident. According to P.W.4, he saw the dead body of the deceased which was lying in the fields, situated in between bridge and Patragadda by the side of the road. P.W.5, who is a resident of Tanukuwada village of Kajuluru Mandal and running a medical shop, deposed that on 16.06.2008, while he was going to his village on a motorcycle from Kakinada after purchasing medicines from wholesale dealer, he found one Hero Honda motorcycle bearing registration No.AP 5BE 5739 lying by the side of the road in between Patragadda and Penukuduru which belongs to the deceased. P.W.6, who is also not an eyewitness to the incident, stated that he asked P.W.7 and the accused about the deceased and that he was informed that the deceased was given Rs.2,00,000/- towards sale consideration and the deceased went away. According to P.W.6, he along with one Chintha Venkateswarlu (P.W.4) went to the scene of offence and found the dead body of the deceased lying in the fields and they also found Agri Gold bag, cell phone, belt relating to the pant by the side of the dead body. P.W.7, who is paternal uncle of the deceased, turned hostile. P.W.8, who is a resident of Kulla village, deposed that he along with Veerabhatla Nageswara Rao and P.W.6 arranged the purchase of the land. P.W.9, who is also a resident of Kulla village and the President of Anjuru Co-operative Agricultural Society, spoke about the sale transaction. P.W.10 and P.W.11, who are also the villagers of Kulla village, also spoke about the sale transaction. 11. P.W.15 is a panch witness for Ex.P.7-Mahazar report. P.W.16 is an inquestdar, P.W.17 is the Head Constable, P.W.18 is the doctor, who conducted postmortem examination, P.W.19 is the Sub-Inspector of Police, P.W.20 is the Investigating Officer and P.W.21 is the Nodal Officer of Airtel Company. 12. The prosecution relies upon strongly on the evidence of P.Ws.1, 12, 13, 15, 20 and 21 to substantiate its case. Therefore, this Court needs to examine the evidence of the said witnesses thoroughly. P.W.12 is a practicing PMP doctor and the deceased was the son of his father-in-law’s brother. According to his evidence, he spoke to the accused when he was travelling with the deceased from his cell phone bearing No.9290769743. 13. According to the case of the prosecution, P.W.12 made a call to cell phone No.9908851307 and according to the prosecution case, the said cell number belongs to the accused, but the fact remains that the prosecution utterly failed in adducing evidence to demonstrate that the said cell number belongs to the accused. In fact, a suggestion was also made to him during the course of cross-examination that he had grudge against the deceased for selling the share of his father-in-law without his consent. It is also significant to note that the cell phone alleged to have been used by the accused was also not produced. In fact, a suggestion was also made to him during the course of cross-examination that he had grudge against the deceased for selling the share of his father-in-law without his consent. It is also significant to note that the cell phone alleged to have been used by the accused was also not produced. In the absence of any evidence to show that the accused was travelling with the deceased and P.W.12 telephoned to accused, while he was travelling with the deceased, it is not safe and advisable to come to a conclusion against the accused. In fact, P.W.20-Investigating Officer categorically admitted that he did not file any document showing the cell No.9908851307 belongs to the accused. P.W.21, a Nodal Officer in the Airtel Company, also deposed that he did not bring the particulars of the users’ names. 14. Coming to the evidence of P.W.13 -- According to his chief-examination, on 16.06.2008 at about 7-00 p.m., the accused kept his Chetak scooter in his scooter stand and went away and returned at about 12-00 midnight. He also deposed that he does not know the number of the Chetak scooter. He also categorically deposed that he had no acquaintance with the accused and was not in the habit of noting down the names of the persons parking their vehicles in his stand and he did not obtain any licence from the Panchayat. It is also very much clear from his evidence that no identification parade was also conducted. In view of the same, it is not safe to rely upon the evidence of P.W.13 also. 15. Another discrepancy which is fatal to the case of the prosecution is that according to P.W.1, the accused was detained on 17.06.2008 and amount of Rs.2,00,000/- was recovered on 18.06.2008. Coming to the evidence of P.W.15 -- He deposed that on 28.06.2008, he was summoned by the Inspector of Police to go to Kulla village and himself and one Shaik Subhan, Village Servant accompanied the Inspector of Police (P.W.20) and accused was taken into custody. He further deposed that in their presence, M.Os.7 and 18 were recovered. He further deposed that the accused produced the hammer and cash of Rs.2,00,000/- from the hay heap. According to P.W.15, he attested Ex.P.7-Mahazar report. 16. In this context, it may be appropriate to refer to the judgments cited by the learned counsel for the accused- appellant herein. He further deposed that in their presence, M.Os.7 and 18 were recovered. He further deposed that the accused produced the hammer and cash of Rs.2,00,000/- from the hay heap. According to P.W.15, he attested Ex.P.7-Mahazar report. 16. In this context, it may be appropriate to refer to the judgments cited by the learned counsel for the accused- appellant herein. In Sirima Narasimha Rao’s case (1 supra), it is held by the composite High Court at paragraph No.23 as follows: "23. From the principle laid down by the Supreme Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstance in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence.” 17. In Sattatiya Alias Satish Rajanna Kartalla’s case (2 supra), it is held by the Hon’ble Supreme Court at paragraph Nos.10 and 11 as under: "10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The Court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 11. In Hanumant Govind Nargundkar v. State of M.P. [ AIR 1952 SC 343 ], which is one of the earliest decisions on the subject, this court observed as under: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” “ 18. In Padala Veera Reddy’s case (3 supra), the Hon’ble Supreme Court at paragraph Nos.18 to 22 held as under: "18. In Padala Veera Reddy’s case (3 supra), the Hon’ble Supreme Court at paragraph Nos.18 to 22 held as under: "18. No doubt, this murder is diabolical in conception and cruel in execution but the real and pivotal issue is whether the totality of the circumstances unerringly establish that all the accused or any of them are the real culprits. The circumstances indicated by the learned Counsel undoubtedly create a suspicion against the accused. But would these circumstances be sufficient to hold that the respondents 2 to 4 (accused 1 to 3) had committed this heinous crime. In our view, they are not. 19. There are series of decisions holding that no one can be convicted on the basis of mere suspicion, however, strong it may be. Though we feel it is not necessary to re-capitulate a 11 those decisions we will refer to a few on this point. 20. this Court in Palvinder Kaur v. The State of Punjab 1953 SCR 94 has pointed out that in cases dening on circumstantial evidence courts should safeguard themselves against the danger of basing their conclusions on suspicions how so ever strong. 21. In Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra, it has been observed: “It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety.” 22. In Sharad Birdhichand Sarda v. State of Maharashtra, this Court has reiterated the above dictum and pointed out that the suspicion, however, great it may be, cannot take the place of legal proof and that "fouler the crime higher the proof". “ 19. In Sharad Birdhichand Sarda’s case (4 supra), the Hon’ble Supreme Court at paragraph No.153 held as follows: "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra [SCC para 19. P.807 : SCC (Crl) p.1047] where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.” (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 20. Coming to the judgments cited by the learned Public Prosecutor -- In State, Government of NCT of Delhi’s case (5 supra), the Hon’ble Supreme Court held as under: "19. In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. vs. S. Sardar Ali & ors. (1983 SC 1225). Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: (SCC p.254, para 8). “Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself.” 21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post- independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.” 21. In Rajesh Kumar’s case (6 supra), the Hon’ble Supreme Court at paragraph No.9 held as follows: "9. A bare reading of sub-sections (1) and (2) of Section 293 shows that it is not obligatory that an expert who furnishes his opinion on the scientific issue of the chemical examination of substance, should be of necessity made to depose in proceedings before the Court. This aspect has been highlighted by this Court in Ukha Kolhe v. State of Maharashtra [ AIR 1963 SC 1531 ] and Bhupinder Singh v. State of Punjab [ (1988) 3 SCC 513 ]. This aspect has been highlighted by this Court in Ukha Kolhe v. State of Maharashtra [ AIR 1963 SC 1531 ] and Bhupinder Singh v. State of Punjab [ (1988) 3 SCC 513 ]. Therefore, there is no substance in the revision petition so far as the conviction is concerned.” 22. In Kiriti Pal’s case (7 supra), the Hon’ble Supreme Court held at paragraph No.18 as follows: "In State of U.P. vs. Satish (2005) 3 SCC 114 , this Court had stated 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 State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254 , in paragraph 23, this Court has held as under:- (SCC p. 265). 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. 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., In Re.” 23. In Munish Mubar’s case (8 supra), the Hon’ble Supreme Court at paragraph Nos.31 and 32 held as follows: "23. The issue of non-examination of independent witnesses and reliance upon the deposition of police officials as “Panch witnesses” was considered at length by this Court in State, Govt. of NCT of Delhi v. Sunil & Anr., (2001) 1 SCC 652 , wherein this Court held as under: “20. ….But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. 21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust……… At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross- examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.” It is obligatory on the part of the accused, while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation, even in a case of circumstantial evidence, so to decide, whether or not, the chain of circumstances is complete. The aforesaid judgment has been approved and followed in Musheer Khan v. State of Madhya Pradesh, (2010) 2 SCC. (See also Transport Commr. V. S.Sardar Ali (1983) 4 SCC 245: AIR 1983 SC 1225 . 32. In view of the aforesaid discussion, it is evident that in spite of the fact that in case there is no independent witness of recoveries and panch witnesses are only police personnel, it may not affect the merits of the case. In the instant case, the defence did not ask this issue in the cross-examination to Inspector Shamsher Singh (PW.21) as why the independent person was not made the panch witness. More so, it was the duty of the appellant to furnish some explanation in his statement under Section 313 Cr.PC., as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, it was the duty of the appellant to furnish some explanation in his statement under Section 313 Cr.PC., as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, the call records of his telephone make it evident that he was present in the vicinity of the place of occurrence and under what circumstances recovery of incriminating material had been made on his voluntary disclosure statement. Merely making a bald statement that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allegations made by the appellant could be established.” 24. In Surajdeo Mahto’s case (9 supra), the Hon’ble Supreme Court at paragraph Nos.26, 28, 29, 30, 31 and 39, held as follows: "26. Regardless of such self-imposed restrain, and in the interest of justice, we have given thoughtful consideration to the rival submissions and have endeavored to peruse and discussed the entire evidence on record to ascertain whether or not the concurrent finding of conviction suffers from any perversity and/or whether the conviction of the appellants is legally and factually sustainable. A. Whether the guilt of the accused has been proved beyond reasonable doubt? 28. These five cardinal principles have been reiterated on numerous occasions, including in the recent decisions in Mohd. Younus Ali Tarafdar v. State of W.B9 & R. Damodaran v. State Represented by the Inspector of Police (1984) 4 SCC 116 and 153 (2020) 3 SCC 747 . Keeping these conditions in mind, we shall now examine the case at hand. 29. It appears to us that the following circumstances need to be considered to arrive at the guilt of the appellants: (i) Last seen theory; (ii) Motive & (iii) false information provided and subsequent conduct of the appellants. (i) Last seen theory. 30. The case of the prosecution in the present case heavily banks upon the principle of ‘Last seen theory’. Briefly put, the last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Briefly put, the last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Elaborating on the principle of “last seen alive”, a 3-- judge bench of this Court in the case of Satpal v. State of Haryana [ (2018) 6 SCC 610 ] has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence. The Court further held: “……………..Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.” 31. We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused. 39. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused. 39. If motive in a case is attributed to an accused(s) and thereafter proved, the probability of the crime being committed by the said accused is intensified. It is for this reason, that in cases of overwhelming circumstantial evidence, proof of motive will be an important piece of corroborative evidence, as well as, form a vital link in the chain of evidence.” 25. In Kalu alias Laxminarayan’s case (10 supra), the Hon’ble Supreme Court held at paragraph No.11 as follows: "10. The aforesaid factors leave us satisfied that the prosecution has been able to successfully establish a case for a homicidal death inside the house where the deceased resided with the appellant alone. The conduct of the appellant, in the aforesaid background, now becomes important. If the deceased had committed suicide, we find it strange that the appellant laid her body on the floor after bringing her down but did not bother to inform anyone living near him much less the parents of the deceased. There is no evidence that the information was conveyed to the family members of the deceased by the appellant or at the behest of the appellant. The appellant was also not found to be at home when her family members came the next morning. The appellant offered no defence whatsoever with regard to his absence the whole night and on the contrary PW 3 attempted to build up a case of alibi on behalf of the appellant, when he himself had taken no such defence under Section 313, Cr.P.C.” 26. In Manoj Suryavanshi’s case (11 supra), the Hon’ble Supreme Court held at paragraph No.18 as follows: "16. Before considering the submissions made on behalf of the accused, few findings recorded by the learned Trial Court and confirmed by the High Court, are required to be first referred to. The prosecution has been successful in establishing and proving that the accused was having enmity with Shivlal father of the three deceased minor children. The same has been established and proved by the prosecution by examining ShivlalP.W.18, Manisha P.W.20 and Rameshwar P.W.11. The prosecution has been successful in establishing and proving that the accused was having enmity with Shivlal father of the three deceased minor children. The same has been established and proved by the prosecution by examining ShivlalP.W.18, Manisha P.W.20 and Rameshwar P.W.11. The prosecution has been successful in proving that on 11.02.2011 all the minors deceased Ajay, Vijay and Kumari Sakshi went to the school from their house. The prosecution has also been successful in establishing and proving that on 11.02.2011 at about 11.30 hours the deceased minors left for home on foot; that the minors did not return to their home. On 11.02.2011 at about 12.00 noon - 1.00 pm, the deceased were seen going with the accused in school uniform with their school bags. Therefore, the accused was last seen together with the deceased minors. That, after the incident, the accused was not found at his house and was missing even from the village. During the search by ShivlalP.W.18 and others and after the accused was not found in the village, there were phone calls on the mobile of the accused. That, thereafter, the accused was found from the house of his relative Ashok Kumar MadhukarP.W.13. Immediately after his arrest, the dead bodies were recovered/found along with the school bags etc. from the place shown by the accused himself. The aforesaid are the chain of events which led to the conclusion that the accused first kidnapped the three minor children and thereafter killed all of them. The phone calls made to the accused has been established and proved by the prosecution by examining the Investigating Officer and by producing the call details from the mobile company as Ex.P.30.” 27. It is significant to note that no witness examined on behalf of the prosecution deposed that he/she saw the accused accompanying the deceased from Kulla village to Kakinada. Though P.W.13 deposed that the accused parked his vehicle in his parking area at about 7-00 p.m. and he came back at about midnight at 12-00 a.m., from the said version of P.W.13, it can neither be presumed not it can be inferred that the accused accompanied the deceased from Kulla village to Kakinada and no credence can be given to his evidence to link the accused with the commission of the offence and it is not safe to convict the accused on the basis of the said evidence of P.W.13. 28. Coming to the last scene theory sought to be pressed into service by the prosecution, it needs to be noted that the prosecution neither produced the cell phone said to have been used by the accused nor the prosecution was successful in establishing that cell phone No.9908851307 belongs to the accused. The attempt of the prosecution to connect the accused with the commission of the offence on the basis of the phone call said to have been made by P.W.12 also cannot stand in view of the same. The reason for not furnishing the name of the owner of the SIM number is not forthcoming and it is undoubtedly fatal to the case of the prosecution and the said failure on the part of the prosecution in connecting the link undoubtedly enures to the benefit of the accused. Absence of any suggestion to the said effect during the cross-examination of P.W.12, in the considered opinion of this Court, cannot be the basis to connect the accused with the commission of offence and it is the duty of the prosecution to demonstrate the existence of the continuous chain of links to prove the guilt of the accused. In the considered opinion of this Court, the judgments cited by the learned counsel for the appellant-accused would squarely apply to the facts and circumstances of this case and the judgments sought to be pressed into service by the learned Assistant Public Prosecutor, having regard to the facts and circumstances of the case, would not render any assistance to the case of the prosecution. 29. In the absence of examining Sri Shaik Subhan who also accompanied P.W.15 on the date of Ex.P.7, it is also not safe to place reliance on the evidence of P.W.8 to come to a conclusion against the accused-appellant herein. In view of the reasons mentioned supra, this Court has absolutely no scintilla of hesitation to arrive at a conclusion that the prosecution utterly failed to prove the guilt of the accused/appellant herein beyond reasonable doubt. 30. For the aforesaid reasons, the Criminal Appeal is allowed and the conviction and sentence recorded against the appellant herein-accused, vide judgment dated 29.12.2011, by the XI Additional District and Sessions Judge (Fast Track Court), Kakinada, East Godavari District, in Sessions Case No.102 of 2010, are hereby set aside. 30. For the aforesaid reasons, the Criminal Appeal is allowed and the conviction and sentence recorded against the appellant herein-accused, vide judgment dated 29.12.2011, by the XI Additional District and Sessions Judge (Fast Track Court), Kakinada, East Godavari District, in Sessions Case No.102 of 2010, are hereby set aside. The appellant herein- accused is found not guilty of the offences with which he is charged and is accordingly, acquitted of the same. The appellant herein-accused shall be set at liberty and he shall be released forthwith, if he is not required in any other case. Fine amount, if any paid by the appellant herein-accused, shall be refunded to him. As a sequel, miscellaneous petitions, if any pending in this appeal, shall stand closed.