JUDGMENT : SIDDHARTHA ROY CHOWDHURY, J. 1. Challenge in this appeal is to the judgment and order of conviction passed by the learned Additional Sessions Judge, North and Middle Andaman at Mayabunder, in Session Trial No. 20 of 2019. 2. By the impugned order and judgment, the learned Trial Court was pleased to record an order of conviction against Animesh Majumder for committing offence under section 302/201 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life. 3. Briefly stated one Shri Narayan Mondal, Member Ward No. 2, Bakultala set the criminal administration of justice into motion by informing the jurisdictional police authority about the unnatural death of a lady. According to Narayan Mondal on 15th April, 2019 at about 01:30 PM when he was taking lunch, one of his tenants Smt. Bina Sajal told him about emission of some foul smell. He suggested Smt. Bina to go further to find out the source of such odour and after a while he heard Bina Sajal shouting at the top of her voice. He came out of his house, went to Bina Sajal and he was told that a dead body was lying inside the well with bangle in hand. He told Keshab Kabiraj to inform Bakultala Chowki Police. After a while police came. Narayan Mondal further stated that the dead body could be the dead body of wife of Animesh Mazumder - one of his tenants. On the basis of such statement, UD FIR No. 06 of 2019 dated 15th April, 2019 was registered under section 174 of Code of Criminal Procedure. 4. Inquest examination was held over the dead body by the Sub Divisional Magistrate at Rangat and it was found that a nylon rope was tied around the dead body along with cloth. After holding an inspection of the place of occurrence, Sub Inspector, S. Kannan prepared a site plan, recorded statement of available witnesses, sent the dead body to mortuary room of Community Health Centre, Rangat for post-mortem examination. 5. On 16th April, 2019 post-mortem was conducted. After holding an inspection of the place of occurrence, Sub Inspector, S. Kannan prepared a site plan, recorded statement of available witnesses, sent the dead body to mortuary room of Community Health Centre, Rangat for post-mortem examination. 5. On 16th April, 2019 post-mortem was conducted. Thereafter police searched the room of the deceased with the help of FSL team, seized incriminating articles from the house of Animesh Majumder and having found prima facie materials constituting cognizable offence, S.I. S. Kannan requested the competent authority to convert the UD FIR into a specific case under section 302 of the Indian Penal Code and accordingly on 16th April, 2019 Rangat PS FIR No. 66 of 2019 was registered at 20.30 hours. 6. Police then took up the investigation, arrested the accused from Ganganapur, Nadia, West Bengal. Examined available witnesses, recorded their statement, forwarded some articles seized in course of investigation for forensic examination and after completion of investigation submitted charge sheet against the accused Animesh Majumder. 7. Trial was commenced on 27th day of September, 2019 after compliance of the provisions of 207 and 209 of the Code of Criminal Procedure. Charge was framed under section 302/201 of the Indian Penal Code against the accused person and pleading his innocence the accused person claimed to be tried. 8. To bring home charges prosecution examined 31 witnesses. Learned Trial Court after considering the evidence led by prosecution, passed the impugned judgment. 9. Mr. D.C. Kabir, learned counsel for the appellant assails the impugned judgment by submitting that this case is absolutely based on circumstantial evidence. But prosecution has failed to establish the complete chain of circumstances. Admitting the relationship between the appellant and deceased Anjana Sarkar and also admitting the fact that they used to live in house of Narayan Mondal as tenant, Mr. Kabir submits that the relationship between the couple was good. Even the neighbouring people or co-residents of the house did not claim to have heard any sound indicating fight or quarrel between the two on the alleged night of incident. 10. The landlord Narayan Mondal as PW-1 stated that he met Animesh on 8th April, 2019 as he did not pay the rent for the said month for which the rent was due. 11. PW-1 did not make any claim to have seen the accused person and Anjana Sarkar, the deceased together. 10. The landlord Narayan Mondal as PW-1 stated that he met Animesh on 8th April, 2019 as he did not pay the rent for the said month for which the rent was due. 11. PW-1 did not make any claim to have seen the accused person and Anjana Sarkar, the deceased together. There is no evidence sufficient to support the prosecution case as to the presence of Animesh Majumder at the place of occurrence on the alleged date of incident. There is no evidence as to when Animesh left the house or as to when the deceased Anjana was seen for the last time in the company of the accused Animesh Majumder. 12. Prosecution witnesses like PW-2, PW-4 and PW-5 stated that Anjana Sarkar was carrying but such claim was not substantiated by cogent evidence. Post-mortem examination report does not indicate any sign of pregnancy. 13. It is contended by Mr. Kabir that prosecution had the obligation to prove the charges beyond reasonable doubt but prosecution failed to prove the exact date of incident, the nature of death whether homicidal or not and even the cause of death. 14. With the help of stock witnesses or pocket witnesses and manufactured documents, prosecution has textured a story that the accused Animesh Majumder left his residence and went to Port Blair. There is no evidence to show that the accused person fled away immediately after the alleged incident. Prosecution even failed to prove in which convoy the accused person travelled. The official register maintained in Middle Strait Out Post for the vehicles passing through Jarawa Reserve area was not seized, the declaration form Exhibit-13 admittedly was not written by Animesh Majumder. 15. It is adverted by Mr. Kabir that the prosecution witnesses like PW-24 and PW-25 claimed to have brought the accused person back to Port Blair under arrest from Ganganapur, district Nadia, West Bengal but no document was produced to substantiate such claim. 16. The evidence adduced by prosecution witnesses to prove recovery of certain articles consequent upon the statement made by the accused person while in custody of police is not reliable and inadmissible in evidence. According to Mr. Kabir, the Investigating Agency even failed to prove the scientific evidence like DNA profiling and matching. 16. The evidence adduced by prosecution witnesses to prove recovery of certain articles consequent upon the statement made by the accused person while in custody of police is not reliable and inadmissible in evidence. According to Mr. Kabir, the Investigating Agency even failed to prove the scientific evidence like DNA profiling and matching. There is no documentary evidence to substantiate the fact that the accused person was taken to Government Hospital and blood sample was taken from the accused person. FTA card was not properly taken on 7th June, 2019. The said card was sent to FSL for examination on 10th August, 2019 and there is no evidence as to the authenticity of such FTA card. Therefore the possibility of doctoring the said scientific evidence cannot be ruled out. 17. It is strenuously argued by Mr. Kabir that PW-1 Narayan Mondal is not worth credence. On the basis of his maiden statement, police registered the UD FIR No. 06 of 2019 on 15th April, 2019 under section 174 of the Code of Criminal Procedure, Exhibit 29 and there is no whisper in the said statement regarding his interaction with Animesh Majumder on 08th April, 2019, which he stated on oath as PW-1. It is but an embellishment. 18. Drawing our attention to the report of the Autopsy Surgeon, Exhibit-24, Mr. Kabir submits that the prosecution has miserably failed to ascertain not only the cause and nature of death but also the time of death as well. Therefore, prosecution case cannot be said to have been proved. 19. According to the Autopsy Surgeon Mr. Kabir submits, the death took place more than 72 hours prior to post-mortem examination, that was held on 16th April, 2019. It is the specific case of the prosecution that the accused person left Bakultala early in the morning of 9th April, 2019. Therefore, there is every reason to presume that the alleged incident took place after the accused person left Bakultala for Port Blair. 20. It is submitted by Mr. Kabir that when two views are possible, one that tilts in favour of the accused person should be accepted to extend benefit of doubt to the accused person. 21. Drawing our attention to Exhibit-32 a confessional statement of accused person, recorded by police and used as statement under section 27 of the Evidence Act, Mr. It is submitted by Mr. Kabir that when two views are possible, one that tilts in favour of the accused person should be accepted to extend benefit of doubt to the accused person. 21. Drawing our attention to Exhibit-32 a confessional statement of accused person, recorded by police and used as statement under section 27 of the Evidence Act, Mr. Kabir submits that the learned Trial Court recorded the order of conviction based on evidence otherwise inadmissible. The statement allegedly made by the accused person was while in police custody and, therefore, it is not admissible in its entirety. Only the part of the statement that could have been led to discovery of fact ought to have been admitted into evidence. The learned Trial Court in breach of sections 25, 26 and 27 of the Evidence Act relied upon the said document, Exhibit-32. 22. According to Mr. Kabir the flight manifest, Exhibit-17 cannot be said to have any probative value for the simple reason that it lacks the certificate required to be given under section 65(B) of the Evidence Act. Even if it is assumed, Mr. Kabir, submits, that the accused person left for Kolkata by flight No. 6A973, there is no evidence to suggest that he decided to leave the islands only after the alleged incident. 23. Admittedly, the family of the accused person is staying in West Bengal. Who could say with certainty that it was not a pre-scheduled plan of the accused person to go to West Bengal on that particular date. In absence of any ticket or other evidence indicating the date of purchase of ticket, it cannot be said with all certainty that Animesh Majumder absconded after the alleged incident. 24. It is submitted by Mr. Kabir that provisions of section 106 of the Evidence Act can be invoked only after the prosecution proves the case beyond reasonable doubt. It does not relieve the prosecution from the burden of proving the charges beyond reasonable doubt. 25. It is further adverted by Mr. Kabir that soon after receipt of information over phone the police came to the spot. There is every reason to presume that before leaving the police station, the police would have registered a GD entry recording the information received over phone. But the said GD entry was not produced, therefore maiden statement containing the narrative of the incident was withheld by the prosecution. There is every reason to presume that before leaving the police station, the police would have registered a GD entry recording the information received over phone. But the said GD entry was not produced, therefore maiden statement containing the narrative of the incident was withheld by the prosecution. On that score as well benefit of doubt ought to have been extended to the accused person. 26. It is further submitted that last seen theory alone is not sufficient to record an order of conviction. To buttress his point Mr. Kabir relies upon the decision pronounced in Boby vs. State of Kerela, 2023 SCC Online SC 50. It is contended further that the factum of recovery of incrementing articles are doubtful. Learned Defense Counsel relying upon the judgment in Jaffar Hussain Dastagir vs. State of Maharashtra, (1969) 2 SCC 872 submits that prosecution case is shrouded with shadow of suspicion and when charges have not been proved, the order of acquittal is fait accompli. 27. According to Mr. Kabir, the learned Trial Court with a closed mind considered the evidence on record that resulted into absolute miscarriage of justice. According to Mr. Kabir, prosecution even failed to prove the motive of the case, though a feeble attempt was made by depicting the victim Anjana Sarkar as a pregnant lady, to attribute a motive to the commission of offence. The Autopsy Surgeon could not trace any ingredient to indicate the pregnancy of the victim. In a case based on circumstantial evidence motive plays a crucial role, the prosecution cannot be said to have proved the charges beyond reasonable doubt if the motive is not established. 28. It is submitted by Mr. Kabir that the testimony of the driver PW-14 cannot be relied upon and Exhibit-13, the document containing the detail of the passenger, to be submitted at Baratang out post before entering into Jarawa Reserve, cannot be relied upon as well because of discrepancy in the hand writing. 29. Mr. Kabir submits that the attending circumstances may give birth to strong suspicion but suspicion howsoever strong, cannot substitute for the legal proof required to substantiate charge of commission of crime. 30. Mr. Kabir places his reliance upon following judgments of the Hon’ble Supreme Court in Ashish Bhatham vs. State of M.P. (2002) 7 SCC 317 . 31. Refuting such contention, Mr. 30. Mr. Kabir places his reliance upon following judgments of the Hon’ble Supreme Court in Ashish Bhatham vs. State of M.P. (2002) 7 SCC 317 . 31. Refuting such contention, Mr. Salim Mohhamed, learned Counsel representing the State submits that the case is based on circumstantial evidence. The witnesses like PW-1, PW-2, PW-3, PW-4 and PW-5 stated in unison that Animesh Majumder and deceased Anjana Sarkar used to stay in the house of Narayan Mondal as tenant and on 8th April, 2019, Animesh and Anjana were found in the company of each other. 32. On 08th April, 2019 at about 08:00 PM Ashoke Kabiraj PW-3 who resides next to the room of the Animesh and Anjana, heard the voice of Animesh. PW-3 also found Animesh and Anjana on 08th April, 2019 in the house. From the morning of 09th April, 2019 the room was found under lock and key till the lock was broken by the police. 33. Mr. Salim further draws our attention to the testimony of Shri Azhagar Swamy who as PW-14 indentified the accused person on dock and stated that one day prior to panchayat election of 2019 at about 4 AM in the morning, he was at Bakultala with his vehicle bearing registration No. AN01N5771; being requested by the accused person, whom the witness identified in Court, he gave him a lift. At Baratang he filled up the form and, thereafter, person accompanying him wrote his name in passenger column - Exhibit 13 is the said document. During cross-examination PW-14 further stated that when they reached at Baratang an entry was made and the boy with him was asked by the administration to produce proof of identity. 34. According to Mr. Salim this testimony of the PW-14, unerringly suggests that on 09th April, 2019 in the morning the accused person left Bakultala. The manifest Exhibit-17 further demonstrates that the accused person left for Kolkata by taking the flight on the following day. He was brought back under arrest from Ranaghat and produced before the jurisdictional Magistrate on 09th June, 2019 - two months after the date of incident. 35. It is submitted further that it was the obligation of the accused person to explain as to what happened to his partner Anjana Sarkar before he left the house at Bakultala. When did he take the decision to leave for West Bengal via Port Blair? 35. It is submitted further that it was the obligation of the accused person to explain as to what happened to his partner Anjana Sarkar before he left the house at Bakultala. When did he take the decision to leave for West Bengal via Port Blair? When did he purchase the ticket? He had the opportunity to give his explanation but during examination under section 313 of the Code of Criminal Procedure, the accused person preferred to claim his innocence without explaining the incriminating circumstances. Therefore the accused person has failed to discharge his obligation under section 106 of the Evidence Act. 36. As to the cause of death, it is the submission by Mr. Salim that the Autopsy Surgeon after going through the report sent by CFSL gave her opinion, admitted as Exhibit-24 wherein in no uncertain term she stated that body of the deceased was recovered from the well. Since no diatoms were found in the bone of the deceased it could be a post-mortem drowning. This Autopsy Surgeon was examined as PW-22. 37. Mr. Salim further submits that the body was recovered from the well, it was wrapped with piece of cloth and nylon rope was tied around. This condition rules out the possibility that the lady on her own jumped into well to commit suicide. It also does not allow any man of ordinary prudence to presume that it was an accidental death. The absence of diatoms indicates that the lady was not thrown in the well alive otherwise diatoms could have been detected in blood. It was post-mortem drowning and none but the accused person committed the mischief to wipe out the evidence. 38. True it is that this case is absolutely based on circumstantial evidence, there is no direct evidence as to the commission of offence. Therefore, prosecution is to prove the chain of circumstances in such a manner that would lead to only conclusion that none but the accused person alone committed the offence. 39. The conduct of accused person who fled away from the place of occurrence becomes a relevant fact and should be treated as one of the circumstances and his silence to explain the situation is further strengthening the case of prosecution. 40. 39. The conduct of accused person who fled away from the place of occurrence becomes a relevant fact and should be treated as one of the circumstances and his silence to explain the situation is further strengthening the case of prosecution. 40. From the attending fact of the case it is established that Animesh Majumder and Anjana Sarkar both came to Bakultala and started residing together in the house of Narayan Mondal and according to Narayan Mondal PW-1 on 8th April, 2019 he had seen Animesh Majumder and his wife in the rented house when he demanded rent from Animesh Majumder and he was told by Animesh Majumder that he would pay rent after some days. But from 09th April, 2019 the room of Animesh Majumder was found to be under lock and key. On 15th April, 2019, following an odour, the dead body of a female person was recovered from the nearby well. 41. PW-2 Smti Bina Sajal a co-tenant of Animesh Majumder stated that two years prior to the incident Animesh and Anjana came to stay in the house of Narayan Sir as tenant. They were residing as husband and wife and on 08th April, 2019 she found Animesh in the house. 42. PW-3 Urmila Kabiraj another co-tenant also stated that Anjana Sarkar and Animesh Majumder were known to her as they were residing in the house of Narayan Sir as tenant and they used to live adjacent to her room. On 08th April, 2019, she found Animesh and Anjana in the house. On 09th April, 2019 she saw the room of Animesh was locked, Animesh and Anjana did not return for 4/5 days. 43. PW-4 Ashok Kabiraj stated that he has been residing in the house of the Narayan Mondal for seven years. Animesh and Anjana had been residing in the house of Narayan Mondal since 2017. On 08th April, 2019 in the evening he found Animesh, while he was going to market. At about 8:30 PM he heard the voice of Animesh from his room. On 09th April, 2019 he left for work and from 09th April, 2019 he found the said room of Animesh was under lock and key. During the cross-examination he stated that the room where Animesh used to live was adjacent to his room. At about 8:30 PM he heard the voice of Animesh from his room. On 09th April, 2019 he left for work and from 09th April, 2019 he found the said room of Animesh was under lock and key. During the cross-examination he stated that the room where Animesh used to live was adjacent to his room. He did not see Animesh to return to his room on 08th April, 2019 and he did not seen Animesh and Anjana together. During the cross examination the witness PW-4 further stated that two pieces of rope were seized from the room of Animesh and he was not aware the owner of said rope. 44. In our humble opinion, the testimony of PW-1, PW-2, PW-3, PW-4 and PW-5 are worth credence. Nothing has transpired by way of cross-examination to impeach the credibility of those witnesses who used to reside in the same house along with the accused and victim. They cannot be said to be interested in getting Animesh convicted. That apart Exhibit-5 and 6 are lending support to these witnesses. 45. It is correct that UD case was registered on the basis of a statement made by PW-1 and there is no whisper as to the interaction between PW-1 Narayan Mondal and the accused person. But in our humble opinion, such fact, if it is assumed to be an omission, however, does not have the potential to dent the prosecution case. Hon’ble Apex Court in Alamgir vs. State reported in AIR 2003 SC 282 held: “The second limb pertains to the statement u/s 161 Cr.P.C. Admittedly, this piece of evidence was not available in the statement of witness u/s 161 Cr.P.C. but does it take away the nature and character of the evidence in the event, three is some omission on the part of the police official. Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence, the answer, in our view, cannot but in the negative.” 46. Even if it is assumed that the document Exhibit-17 is not admissible for want of certificate required under section 65 (B) of the Evidence Act, as adverted by Mr. Kabir, it has been proved by prosecution witnesses that the accused Animesh Majumder was brought under arrest from State of West Bengal. 47. Even if it is assumed that the document Exhibit-17 is not admissible for want of certificate required under section 65 (B) of the Evidence Act, as adverted by Mr. Kabir, it has been proved by prosecution witnesses that the accused Animesh Majumder was brought under arrest from State of West Bengal. 47. Upon reading of the document Exhibit-13 therefore, there is every reason to presume that Animesh Majumder left his rented accommodation in the witching hour of night of 08th April, 2019 or at the dawn of 9th April, 2019. The evidence of PW-14, the driver who stood the test of cross-examination is lending support to the case of the prosecution on this point. 48. True it is the neighbouring people did not notice or perceive any untoward or perceive incident that happened between the couple on 8th April, 2019. It is expedient to reproduce the extract from Modi’s Medial Jurisprudence & Toxicology (Twenty-Second Edition) opined that: “Lastly, it must be borne in mind that strangulation may be committed without any noise or disturbance; even if other persons are in close vicinity, they may not be aware of the act. This may happen in garroting, where a victim is suddenly overpowered from behind, by using a rope, dhoti or the hands.” 49. Even if it is assumed that relationship between Animesh Majumder and Anjana Sarkar was quite cordial and Animesh was affectionate to Anjana Sarkar, what surprises us is the conduct of Animesh. A man who left his rented accommodation leaving his beloved wife or partner alone in the house never made any attempt to know about her wellbeing, either from Anjana or from his neighbours. 50. It is correct that the cause of death could not be ascertained by the Autopsy Surgeon as the body was in highly decomposed condition. But upon carefully perusal of the post-mortem report as well as Exhibit-1 the inquest report, we find that the dead body was tied with a cloth and the cloth was tied below the cheek with a visible knot. Nylon rope was there around the dead body. This finding of fact rules out the possibility of accidental death or suicidal death. 51. True it is the Autopsy Surgeon being an expert could not ascertain the cause of death. The Autopsy Surgeon however detected cervical C6-C7 joint was separated, the skull joint was separated, skull was intact but exposed. Nylon rope was there around the dead body. This finding of fact rules out the possibility of accidental death or suicidal death. 51. True it is the Autopsy Surgeon being an expert could not ascertain the cause of death. The Autopsy Surgeon however detected cervical C6-C7 joint was separated, the skull joint was separated, skull was intact but exposed. These findings further lend support to the fact that the dead body was thrown inside the well. It has become settled principle of law that the real function of the expert is to put before the Court all the materials together with the reasons, goading the court to the conclusion. An expert is not a witness of fact and the evidence of expert is of an advisory character. The Court although not an expert may form its own judgment taking into consideration those materials, and in the absence of any evidence to the contrary suggesting ante mortem drowning, there is every reason to presume that it was post mortem drowning. 52. Though Mr. Kabir strenuously argued that the opinion of Autopsy Surgeon as to the probable time of death indicates that the deceased was alive when the accused left Bakultala, but this preposition cannot be accepted by any man of ordinary prudence because of the simple reason that Anjana Sarkar was also not found by the co-tenants on or from 9th April, 2019 when the room was under lock and key. When it transpires that the Anjana Sarkar found alive in the company of the Animesh Majumder on 8th April, 2019, the onus of course shifts upon the accused person to say what had happened to Anjana when he left Bakultala. The accused person was given the opportunity to explain the incriminating circumstances but he preferred to maintain silence and not to give any explanation. 53. Therefore the infirmity in the case of prosecution as indicated by Mr. Kabir in ascertaining the time or cause of death is of no consequence, particularly when it is established both Anjana the victim and Animesh the accused were not seen from 9th April, 2019 and on 15th April, 2019, dead body of Anjana was found in a nearby well and Animesh was brought under arrest after two months and his silence as to the death of Anjana, appears to be eloquent on two aspects: (i) Anjana was killed on 8th April, 2019. (ii) Was thrown inside the well. 54. The question that calls for consideration next is, who is the person responsible for such unnatural death of the victim. 55. As we have already pointed out that Animesh Majumder and Anjana Sarkar were staying in the house of Narayan Mondal. Animesh and Anjana were found in the company of each other on 08th April, 2019, in the evening of 08th April, 2019 Animesh was found inside his room and PW-4 heard the voice of Animesh from inside the room. 56. From the morning of 09th April, 2019 Animesh and Anjana both were found absent and their tenanted room was found under lock and key. After a week, following the strange smell, dead body of a female person was recovered and subsequently identified to be the dead body of Anjana Sarkar. Animesh Majumder was absconding and ultimately brought under arrest after two months. This conduct of Animesh Majumder who left the tenanted premise and did not make any attempt to know the wellbeing of his wife Anjana Sarkar becomes relevant under section 8 of the Evidence Act and in absence of any evidence as to the presence of any third person in their life, there is every reason to draw inference that Animesh committed the murder and fled away. Incident took place in the privacy of a room and accused person was there with the victim. 57. Animesh Majumder had the opportunity to explain the incriminating circumstance as he had the special knowledge as to the physical existence of Anjana Sarkar as on 08th April, 2019. But he did not even try to give any explanation during his examination under section 313 of the Code of Criminal Procedure. Where the duty of Animesh Majumder was to speak his silence becomes eloquently counterproductive. 58. We have perused the aforesaid judgments: In Bhupendra Nath Prasad vs. State of Bihar, (1992) 3 SCC 547 , conviction was recorded under Section 328/302 of the Indian Penal Code but without there being any chemical examination report. The fact of the said case (Bhupendra Nath Prasad) is not in pari-materia with the fact of the case at hand. In Boby vs. State of Kerela, 2023 SCC Online SC 50, Hon’ble Supreme Court overturned the order of conviction which was recorded solely on the basis of last seen theory. The fact of the said case (Bhupendra Nath Prasad) is not in pari-materia with the fact of the case at hand. In Boby vs. State of Kerela, 2023 SCC Online SC 50, Hon’ble Supreme Court overturned the order of conviction which was recorded solely on the basis of last seen theory. In the said case unlike the case at hand, the chain was not complete as there was lack of proximity in time between the recovery of dead body and the victim last seen in the company of the accused. In Jaffar Hussain Dastagir vs. State of Maharashtra, (1969) 2 SCC 872 , there was recovery following the statement leading to discovery under Section 27 of the Evidence Act which was found to be insufficient. In our case we have not accepted the statement made by the accused person while in custody of police though learned Trial Court relied upon the said statement made before the police which was inculpatory in nature. In Kala alias Chandrakala vs. State through Inspector of Police, (2016) 9 SCC 337 , the accused person found to have given an explanation while being examined under Section 313 of the Cr.P.C. In our case the accused person maintained stunning silence. In Mani vs. State of Tamil Nadu, (2009) 17 SCC 273 , there was recovery pursuant to the statement recorded under Section 27 of the Evidence Act. As we have stated hereinabove, in our case we refused to accept such evidence leading discovery as it was done in the breach of the provision as laid down under Section 25, 26 and 27 of the Evidence Act. In Mohd. Aman Babu Khan and Another vs. State of Rajasthan, (1997) 10 SCC 44 , Hon’ble Apex Court did not find the well linked chain of circumstances as fingerprint and footprint were not worth credence. In our case at hand we did not rely upon the report of CFSL because of the fact that the expert was not brought to the witness box to face cross-examination. In Munikrishna alias Krishna vs. State by Ulsoor P.S. AIR Online 2022 SC 874, the prosecution relied upon the inculpatory statement given before the police officer. In our case also we refused to accept the inculpatory statement made by the accused person while in police custody. In Munikrishna alias Krishna vs. State by Ulsoor P.S. AIR Online 2022 SC 874, the prosecution relied upon the inculpatory statement given before the police officer. In our case also we refused to accept the inculpatory statement made by the accused person while in police custody. In Ramesh Chandra Agarwal vs. Regency Hospital Limited and Others, (2009) 9 SCC 709 , Hon’ble Apex Court did not take into consideration the opinion of expert who was not cited as witness. In our case also while considering the appeal we refused to take cognizance of the CFSL report on the sole ground that expert was not examined. 59. It goes without saying that judgment of Courts are not to be construed as statute there is also peril in treating the words of judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterance are made in the settings of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between the conclusions of two cases. Unless and until the facts and circumstances in a cited case is in pari-materia in all respect with the facts and circumstances of the case in hand, it will not be proper to treat an earlier case as precedent to arrive at a definite conclusion. [2002 AIR SCW 1334 : 2006 AIR SCW 6216 at 6221] 60. There is no doubt that in view of Section 101 of the Evidence Act the burden was upon the prosecution to prove the charge against the accused person beyond reasonable doubt. Section 106 of the Evidence Act is an exception to Section 101 of the said Act. In Sambhu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404 , Sir Vivian Bose, J. had observed that: “Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra vs. The State of Ajmer, 1956 SCR 199 the learned Judge has stated the legal principle thus: “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. In Shambu Nath Mehra vs. The State of Ajmer, 1956 SCR 199 the learned Judge has stated the legal principle thus: “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.” 61. The Hon’ble Supreme Court in the case of State of West Bengal vs. Mir Mohammad Omar and Others, (2000) 8 SCC 382 held the following: “31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 32. In this case, when prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.” 62. The accused person has the obligation under section 106 of the Evidence Act to disclose what was within his special knowledge. He deliberately maintained silence when it was the duty of the accused person to speak, a silence is considered as eloquent on his culpability in commission of offence. 63. In Wazir Khan vs. State of Uttarakhad, AIR 2023 SC 3778 wherein Hon’ble Apex Court held: “23. In a case based on circumstantial evidence where no eye witness is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court, namely Nika Ram vs. State of Himachal Pradesh, AIR 1972 SC 2077 , Ganesh Lal vs. State of Rajasthan, (2002) 1 SCC 731 : 2001 AIR SCW 5251 and State of U.P. vs. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 . 25. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show, like in the present case, that shortly before the commission of the crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not dispute his presence at home at the relevant time and does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. 29. 29. If an offence takes place inside the four walls of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in the circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence, is insisted upon by the Courts. Reference could be made to a decision of this Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra, 2007 Cri. L.J. 20 : 2006 AIR SCW 5300, in which this Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. This Court proceeded to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led, or at any rate, extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case.” 64. Hon’ble Apex Court in Mani Kumar Thapa vs. State of Sikkim, (2002) 7 SCC 157 held: “4.........What is therefore required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. [See Sevaka Perumal and Another vs. State of Tamil Nadu, 1991 (3) SCC 471 ]......” 65. When PW-4 Ashok Kabiraj says that he informed the police over phone about the dead body, it rules out the contention that maiden information as to the incident was suppressed by the prosecution. 66. We are in agreement with Mr. Kabir that Exhibit-32 that contains inculpatory statement of the accused is inadmissible in evidence. It was done in the breach of Section 25, 26 and 27 of the Evidence Act, 1872. 66. We are in agreement with Mr. Kabir that Exhibit-32 that contains inculpatory statement of the accused is inadmissible in evidence. It was done in the breach of Section 25, 26 and 27 of the Evidence Act, 1872. We are also not inclined to consider the report of CFSL, as no expert was examined and learned Defence Counsel raised objection, while such report was tendered and learned Trial Court did not decide the issue. 67. We have no reason to disagree with Mr. Kabir that in a case based on circumstantial evidence, the chain of circumstance are required to be proved. In the regards, We wish to rely upon the judgment of Hon’ble Supreme Court pronounced in the case of Hanumant vs. State of Madhya Pradesh, (1952) SCR 1091 wherein Hon’ble Supreme Court laid down five golden principles constitute panchsheel of the proof of a case based on circumstantial evidence in the following manner: “1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. 2. The facts so established should be consistent with the hypothesis of guilt and 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. 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.” 68. In our humble opinion following circumstance have been established against the accused person: (i) Animesh Majumder, the accused person and Anjana Sarkar, the victim used to stay together and they were found in the company of the each other till 08th April, 2019. (ii) On and from 09th April, 2019 neither of them was seen by the neighbour. (iii) On 09th April, 2019 the accused crossed the Jarawa Reserve from Middle Strait, Baratang to Port Blair. (iv) The accused person left Port Blair for Kolkata on the following day. (v) On 15th April, 2019 dead body of Anjana Sarkar was recovered from the well in highly decomposed condition full with maggots. (iii) On 09th April, 2019 the accused crossed the Jarawa Reserve from Middle Strait, Baratang to Port Blair. (iv) The accused person left Port Blair for Kolkata on the following day. (v) On 15th April, 2019 dead body of Anjana Sarkar was recovered from the well in highly decomposed condition full with maggots. (vi) Dead body was wrapped with a piece of cloth up to the cheek, a knot was visible and a nylon rope was all around the body which rules out the possibility of accidentally or suicidal death. (vii) Two months after the incident accused was brought under arrest and judicial record suggests, following due process of law. (viii) The accused did not explain the incriminating circumstances. 69. During his examination under Section 313 of Cr.P.C. accused Animesh Majuder despite having an opportunity to explain the incriminating circumstances preferred to maintain silence. Such silence would form an additional link in the chain of circumstances. 70. In Phula Singh vs. State of H.P. (2014) 4 SCC 9 Hon’ble Supreme Court held: “11. The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. [Vide Ramnaresh vs. State of Chhattisgarh, (2012) 4 SCC 257 : (2012) 2 SCC (Cri) 382, Munish Mubar vs. State of Haryana, (2012) 10 SCC 464 : (2013) 1 SCC (Cri) 52 : AIR 2013 SC 912 and Raj Kumar Singh vs. State of Rajasthan, (2013) 5 SCC 722 : (2013) 4 SCC (Cri) 812 : AIR 2013 SC 3150 ].” 71. In Rajkumar vs. State of M.P. (2014) 5 SCC 353 Hon’ble Apex Court held: “22. The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. In Rajkumar vs. State of M.P. (2014) 5 SCC 353 Hon’ble Apex Court held: “22. The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. [Vide Ramnaresh vs. State of Chhattisgarh, (2012) 4 SCC 257 : (2012) 2 SCC (Cri) 382, Munish Mubar vs. State of Haryana, (2012) 10 SCC 464 : (2013) 1 SCC (Cri) 52 : AIR 2013 SC 912 and Raj Kumar Singh vs. State of Rajasthan, (2013) 5 SCC 722 : (2013) 4 SCC (Cri) 812].” 72. We do feel that attention of accused person during his examination under Section 313 Cr.P.C. was not drawn to all the incriminating circumstances meticulously. But there is no prejudice cry as well. 73. In Alister Anthony Pareira vs. State of Maharashtra, (2012) 2 SCC 648 , it is held by Hon’ble Supreme Court: “61. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law, firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of the prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.” 74. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.” 74. In Paramjeet Singh vs. State of Uttarakhand, (2010) 10 SCC 439 Hon’ble Apex Court held: “30. Thus, it is evident from the above that the provisions of Section 313 Cr.P.C. make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court.” 75. In Subramanya vs. State of Karnataka, 2022 SCC Online SC 1400, Hon’ble Apex Court held: “95. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.” 76. That apart the FSL report suggests that blood strains detected on the cloth of Mr. Animesh Majumder matched with the DNA of deceased Anjana Sarkar which is another incriminating circumstance. But as indicated earlier, that evidence cannot be used to decide this case. 77. Much has been adverted by the learned counsel for the parties about the motive. That apart the FSL report suggests that blood strains detected on the cloth of Mr. Animesh Majumder matched with the DNA of deceased Anjana Sarkar which is another incriminating circumstance. But as indicated earlier, that evidence cannot be used to decide this case. 77. Much has been adverted by the learned counsel for the parties about the motive. It has become settled principle of the law that the motive is something which is known to the accused person and prosecution should not be expected to prove something which is not possible to prove, motive is one such thing. In a case of circumstantial evidence motive no doubt is a relevant factor. However it is the perpetrator of the crime alone who is aware of the circumstance that prompted him to adopt certain course of action leading to the commission of the crime. 78. Hon’ble Supreme in State through C.B.I. vs. Mahendra Singh Dahiya, (2011) 3 SCC 109 held: “28. Upon consideration of the evidence on record, the High Court concluded as follows: “Bearing in mind the legal position emerging out of the said authorities and having regard to the totality of the facts and circumstances which can be said to have been established on record, it is not possible to infer any motive on the part of the appellant what to talk of a motive so strong to commit the crime.” 29. In assessing the evidence, the High Court was aware of the legal principles that absence of motive may not necessarily be fatal to the prosecution. Where the case of the prosecution has been proved beyond reasonable doubt on the basis of the material produced before the Court, the motive loses its significance. But in cases based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the Court on its guard to scrutinize the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof. [See Surinder Pal Jain vs. Delhi Administration and Tarseem Kumar vs. Delhi Administration] 31. We may also notice here the observations in Subedar Tewari vs. State of U.P. wherein it has been observed that: (SCC p. 115, Para 20) “20..........The evidence regarding existence of motive which operates in the mind of an assassin is very often than (sic) not within the reach of others. We may also notice here the observations in Subedar Tewari vs. State of U.P. wherein it has been observed that: (SCC p. 115, Para 20) “20..........The evidence regarding existence of motive which operates in the mind of an assassin is very often than (sic) not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to the evil thought in the mind of the assassin.” 31. Again reiterating the role played by motive in deciding as to whether the prosecution has proved the case beyond reasonable doubt against an accused, this Court in the case of Suresh Chandra Bahari vs. State of Bihar held as under: (SCC p. 95, Para 21) “21.........sometimes motive plays an important role and become a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act with illegal means with a view to achieve that intention. In a case where there is motive, it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the evidence bearing on the guilt of the accused nonetheless becomes untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading to the commission of the crime.” 79. Hon’ble Apex Court in Rohtash Kurmar vs. State of Haryana and Others, AIR 1989 SC 3733 held that: “If the evidence on record suggested adequately the existence of necessary motive required to commit a crime it may be conceived that the accused is in fact committed the crime. With the risk of repetition we would like to record that the chain of circumstance so established in this case unerringly inspire to draw the interference that none but the accused person is responsible for the commission of the offence.” 80. With the risk of repetition we would like to record that the chain of circumstance so established in this case unerringly inspire to draw the interference that none but the accused person is responsible for the commission of the offence.” 80. Upon careful perusal of the evidence, we are of the view that the chain of evidence in this case is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. If we consider the attending facts and circumstances from the point of view of human probability we feel no hesitation to hold that none but the accused person was responsible for the unnatural death of the victim which was homicidal in nature. Accordingly, we do not find any merit in the appeal. Thus the appeal is dismissed. 81. The pending application, if any, stands dismissed. 82. Copy of the judgment immediately be given to the appellant/convict and another copy be made available to the Superintendent and/or the Officer-in-charge of the concerned Correctional Home. In consonance with the direction of Hon’ble Supreme Court given in Writ Petition (Criminal) No. 312 of 1994 in Supreme Court Legal Services Committee vs. Union of India and Others on 18th August, 1998, we are inclined to direct the Superintendent or the Officer-in-charge of the Correctional Home as the case may be: (i) To read the judgment and explained the same to the convict in the language understood by him. (ii) The convict shall have to be informed by the Superintendent of Correctional Home or the Officer-in-charge about the availability of legal services and to ask the convict whether he is desirous of exercising his constitutional right to have the services available under the State Legal Services Act. (iii) If the convict responses in the affirmative, the Superintendent of the Correctional Home or Officer-in-charge of the Correctional Home shall immediately bring the said fact to the concerned authority who shall take appropriate step to secure such right of the convict to prefer appeal challenging this judgment before the Hon’ble Supreme Court. 83. Urgent photostat certified copy of this judgment, if applied therefor, be supplied to the parties upon compliance of all legal formalities. SOUMEN SEN, J. 84. I have read the draft judgment of my esteemed brother Justice Siddhartha Roy Chowdhury and fully concur with the findings. 83. Urgent photostat certified copy of this judgment, if applied therefor, be supplied to the parties upon compliance of all legal formalities. SOUMEN SEN, J. 84. I have read the draft judgment of my esteemed brother Justice Siddhartha Roy Chowdhury and fully concur with the findings. I however, wish to express my views on circumstantial evidence and theory of last seen together. 85. The disappearance of the victim from the residence where the accused and victim have been living together, recovery of the victim from an unused concrete well near the place of residence, arrest of the accused based on the statement of neighbours, recovery of incriminating materials and evidence of the neighbours strongly suggesting and establishing that the accused and the victim were seen together last before the sudden and inexplicable disappearance of the accused led to the conviction of the appellant. 86. This order is under challenge. 87. Mr. D.C. Kabir, the learned counsel representing the appellant has strenuously argued that the prosecution has failed to establish the involvement of the accused in the alleged death of the victim. The entire statement of the accused that lead to the recovery of the offending materials could not have been admitted to evidence as it is well settled that any such alleged confessional statement recorded by the police is inadmissible in evidence and could not have formed the basis of conviction. The learned Trial Judge in remiss of the settled principle of law marked the entire statement of the accused as Exhibit-32 and relied upon the said statement to return a finding against the appellant. It is submitted that the FSL report has not been proved. The post-mortem report has clearly stated that no fracture was found in the neck which clearly disproves the case of strangulation. The post-mortem cannot definitely state cause of death and the date and time of such death. A decomposed body was alleged to have been recovered from a well. The allegations that the victim was pregnant at the time when she was alleged to have been murdered by the appellant is also disproved by the post-mortem report. 88. Mr. Kabir has referred to the evidence of the landlord and the neighbours to show that they are inconsistent in their statement with regard to disappearance of the accused from the site. 89. 88. Mr. Kabir has referred to the evidence of the landlord and the neighbours to show that they are inconsistent in their statement with regard to disappearance of the accused from the site. 89. Shri Narayan Mondal who is the owner of the property in which the accused was residing along with his wife could not recollect the name of the wife of the accused. Mr. Mondal has deposed that only on 15th April, 2019 he found foul stench coming from somewhere surrounding his house and ultimately one of his tenants Bina Sajjal found dead body in the well situated in the land of Prasanto Mondal. Mr. Mondal has not seen Animesh assaulting his wife and he also cannot depose whether in the rented house in the night of 8th April, 2019, Animesh was present. Mr. Kabir has drawn our attention to the evidence in cross examination of Mr. Mondal where he has stated that he used to go to the police station in connection with different matters and he signed the seizure list relating to seizure of water from the well at police station and the inquest report at his house on being produced by the police. Mr. Kabir submitted that the said evidence would show that he is a pocket witness. 90. In so far as Bina Sajjal is concerned it is submitted that her evidence that the wife of the accused was pregnant is disproved by the post-mortem report. She also has not seen Animesh on the night of 8th April, 2019. The evidence of Smt. Urmila Kaviraj was placed. It has been argued that she also could not say whether Animesh stayed whole night on 8th April, 2019 or not. Mr. Kabir made scathing remarks with regard to the evidence of Shri Ashok Kaviraj who claimed to be a tenant under Narayan Mondal. Ashok has stated in his evidence that Anjana (victim) is pregnant. According to Ashok the police recovered and seized one jeans pant, one vest and full sleeves check shirt from tenanted room of Animesh Majumder in his presence. Subsequently police also seized one padlock, one scissors and one piece of rope and he claimed to have signed one seizure list. However, in cross examination he has admitted that seizure list does not reflect the seizure of any scissors. It clearly shows that he was not present during seizure. Subsequently police also seized one padlock, one scissors and one piece of rope and he claimed to have signed one seizure list. However, in cross examination he has admitted that seizure list does not reflect the seizure of any scissors. It clearly shows that he was not present during seizure. With regard to the evidence of PW-6, Shri Pravesh it is submitted that in his cross examination Pravesh could not recollect whether inquest was held in his presence. The inspector who deposed as PW-7 has stated in his chief that he received the PME report on 16th April, 2019 at night and filled up column 1 to 7 and 13 of PME report pro forma and thereafter put his signature. This evidence totally discredit the PME report as it is admittedly filled up subsequently. 91. One Anil Baipari deposed as PW-10. He was the Zilla Parishad Member. Mr. Kabir submits that the said witness had handed over Election Commission of India Form No. 6 of Animesh and his wife to police alongwith annexure and he had signed the seizure list. However, in cross examination he has stated that he does not know who filled up Form No. 6 in the name of Animesh and his wife. He also could not vouch for the genuineness of the documents annexed to the Form No. 6. He has also submitted that possibly form No. 6 never came in his hand. In cross examination he has stated that he signed the seizure list at the instruction of the police. 92. Mr. Kabir submits that much emphasis has been laid on the evidence of one Shri A. Azger Swamy a driver who in his chief has stated that one day prior to the date of Panchayat Election 2019 he was at Bakultala in the vehicle and he spent that night at Bakultala. In the early morning on the following date at about 4 A.M. the appellant approached him and requested him to give him a lift up to Port Blair. When he reached at Baratang an entry was made in the document showing the destination as South Andaman. On arrival the appellant was asked by the Administration to produce the ID proof and thereafter the appellant filled up the form with his name in the passenger column and handed over the same to the authority. Mr. When he reached at Baratang an entry was made in the document showing the destination as South Andaman. On arrival the appellant was asked by the Administration to produce the ID proof and thereafter the appellant filled up the form with his name in the passenger column and handed over the same to the authority. Mr. Kabir submitted that this evidence is untrustworthy as the said witness could not identify Animesh at the time of TI parade and only during his chief he identified Animesh on dock. He has stated in his cross examination that the form namely Exhibit 13 would show dissimilarities in writing of the person. This evidence would not show that the accused has himself made any entry in the relevant record on the basis of which it can be inferred that he was travelling from Baratang to Port Blair in the said vehicle. 93. Mr. Shiv Shankar Baroi PW-15 although in his chief has stated that he was present at the time of seizure and he put his signature on the seizure list and has stated that police had shown him the wearing apparels and lock and two ropes and subsequently seized the same in his presence. In his cross examination he has admitted that police was already present when he arrived at the spot and that the wearing apparels were kept at the place prior to his signature in the seizure list. He also could not recollect who had kept the wearing apparels at the place. The rope and lock were not produced in the Court. 94. Mr. Kabir has referred to the deposition of PW-17, the Sub Inspector at Swaraj Deep who had produced convoy declaration form dated 9th April, 2019. Mr. Kabir submitted that the SI has clearly stated that the hand-writing in the convoy form is of one single person and the convoy form is maintained properly. Although in the certified copy name of Animesh is written it was not possible for him to say whether Animesh travelled or not and the letter would not show in which convoy Animesh had travelled. PW-17 has categorically stated that the procedure followed is that the passenger filled up the form at first and thereafter he submits it before the constable. Moreover in a private truck apart from the cleaner and driver no private person can travel through the convoy. PW-17 has categorically stated that the procedure followed is that the passenger filled up the form at first and thereafter he submits it before the constable. Moreover in a private truck apart from the cleaner and driver no private person can travel through the convoy. It is on the basis of such evidence that Mr. Kabir wants to disprove the evidence of the truck driver and to establish that the evidence of the truck driver with regard to the dissimilarity in writing is good enough to establish that Animesh was not the passenger travelling in the night in the said truck. Mr. Kabir submits that the manifest list dated 11th April, 2019 showing the name of Animesh said to have travelled on that date is not proved in accordance with law. It is in a printed form and the SI had not printed the form. 95. Mr. Kabir has very emphatically submitted that the report of the Medical Officer addressed to the SHO Rangat would clearly show that the body of the deceased was recovered from the well and since no diatoms were observed in the bones of the deceased it could possibly be an incident of post-mortem drowning. 96. Mr. Kabir has extensively referred to the statements recorded by the police under Section 161 of the Cr.P.C. of various witnesses and submits that the statements recorded by Shri Narayan Mondal does not establish the guilt of the accused and it was only during the examination in chief he tried to improve upon the statements recorded under Section 161 after being tutored by the prosecution. The statements recorded under Section 161 shall be carefully read alongwith the evidence in chief in order to find out whether facts have been truthfully narrated by the witnesses. It is submitted that it is expected that at the time of recording the statement under Section 161 the witness will disclose all relevant details as it is proximate in time to the date of occurrence of the incidents and it is unusual for the witness to remember such details after such a long passage of time. This completely discredits the witnesses. 97. Mr. Kabir submits that although the case of last seen theory has not been established and assumed to have been established it is well settled that the conviction cannot be solely based on the last seen theory. This completely discredits the witnesses. 97. Mr. Kabir submits that although the case of last seen theory has not been established and assumed to have been established it is well settled that the conviction cannot be solely based on the last seen theory. The basic tenet of Anglo Saxon jurisprudence in a criminal trial is presumption of innocence in favour of the accused. Even if the accused remained silent at the stage of recording his statement under Section 313 of Cr.P.C. no adverse inference can been drawn against the accused as the accused cannot be compelled to give any incriminating evidence against him since it would infringe his valuable right under Article 20 of the Constitution of India. 98. Mr. Kabir submits that when the burden of proof is discharged by the prosecution beyond any reasonable doubt then only the accused may be required to clarify things. The FSL report in any event shows that no DNA test was conducted. The CDR was not exhibited and no copies were supplied to the defence. The printout of the document has not been exhibited. Before the appellate Court the prosecution has admitted that it is not relying on the CDR. Mr. Kabir has submitted that there is no evidence to show that the accused was taken to the Government Hospital and requisition was made for the blood sample which is a statutory requirement. Mr. Kabir submits that in absence of proof of the Manifest report, FSL report, post-mortem report, call records and inconsistent and inherent contradictions in the deposition of the prosecution witnesses the trial court could not have arrived at a finding of guilt on the basis of inadmissible evidence. 99. Mr. Kabir submits that the prosecution case fails on the ground of chain of custody and chain of circumstances not being established. 100. In such an event the prosecution makes attempt to prove by collating evidence and thread every bead to complete the chain. One of the vital beads in the thread is the last seen together. If it is proved that the two persons are seen together last before disappearance the accused needs to clarify it in his statement recorded under Section 313 of the Code of Criminal Procedure. 101. One of the vital beads in the thread is the last seen together. If it is proved that the two persons are seen together last before disappearance the accused needs to clarify it in his statement recorded under Section 313 of the Code of Criminal Procedure. 101. I am not referring to the detailed analysis of the evidence and contention raised by the learned Counsel for the parties since brother Justice Roy Chowdhury has painstakingly dealt with it. The analysis of such evidence has led to the affirmation of the sentence primarily based on circumstantial and last seen together test. 102. Conviction based on circumstantial evidence is no more a matter of any debate. It is now well settled that circumstantial evidence can be the basis of conviction. “Let hundred guilty be acquitted but one innocent should not be convicted” is the rubric of criminal justice system. However to dislodge such presumption of innocence in a trial solely based on circumstantial evidence a higher degree of proof is required. In matters where there is no direct evidence the court leans towards circumstances to ascertain if one puts all such circumstances in an organised manner and a chain of events put together strongly suggests the commission of the offence, the court should not hesitate to punish the guilty. A crime committed in secrecy will leave no witness. 103. When the conviction is based on circumstantial evidence as laid down by the Hon’ble Supreme Court in Sharad Birdhi Chand Sarda vs. State of Maharastra, 1984 (4) SCC 116 and subsequent decisions, it is to be seen that the circumstances must not only be individually proved or established but they must form a consistent chain so conclusive as to rule out the possibility of any other hypothesis except the guilt of the accused. These principles clearly placed a burden of greater magnitude upon the prosecution to prove its case. It is only when such burden is discharged is it implicit that any other hypothesis or the innocence of the accused is ruled out and the court may proceed to pass a sentence after returning a finding of guilt. 104. In K.V. Chacko vs. State of Kerela, 2001 (9) SCC 277 the principles of circumstantial evidence are stated in the following words: “5. The law regarding basing a conviction by the courts on circumstantial evidence is well settled. 104. In K.V. Chacko vs. State of Kerela, 2001 (9) SCC 277 the principles of circumstantial evidence are stated in the following words: “5. The law regarding basing a conviction by the courts on circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 105. Again in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 , the said principle has been stated in paragraph 12. It reads: “12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.” (Emphasis supplied) 106. In State of U.P. vs. Satish, 2005 (3) SCC 114 it has been reiterated that there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence. The principles that are required to be followed are laid down in paragraphs 14, 15 and 16: “14. In State of U.P. vs. Satish, 2005 (3) SCC 114 it has been reiterated that there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence. The principles that are required to be followed are laid down in paragraphs 14, 15 and 16: “14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back in 1952.” 15. In Hanumant Govind Nargundkar vs. State of M.P. it was observed thus: “It is well to remember that in case 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.” 16. A reference may be made to a later decision in Sharad Birdhichand Sarda vs. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence must be fully established. They are: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (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. The circumstances concerned must or should and not may be established. (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. (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.” (Emphasis supplied) 107. There are clinching circumstances against the appellant and there was no missing link in the chain of circumstances demonstrated before the trial court. The ultimate conclusion is that the circumstances were incapable of being explained on any other reasonable hypothesis. In the case of Gagan Kanojia vs. State of Punjab, 2006 (13) SCC 516 the Hon’ble Supreme Court held as under: “9. The prosecution case is based on circumstantial evidence. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between “may be true” and “must be true.” Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to the guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on record and analyse and assess the same objectively. 10. We would proceed on the well-known principles in regard to appreciation of the circumstantial evidence which were noticed by the High Court in the following terms: “(1) 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. (2) Circumstantial evidence can be reasonably made the basis of an accused person’s conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. (3) There should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. (4) On the availability of two inferences, the one in favour of the accused must be accepted. (5) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.” (Emphasis supplied) 108. When a crime is perpetrated in secrecy and the victim is dead it is the accused alone who would be the only person to throw light on circumstances that caused death. In Nagendra Sah vs. State Bihar, 2021 (10) SCC 725 it is observed that Section 106 of the Evidence Act which is an exception to Section 101 of the Evidence Act can apply only to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference of commission of an offence can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. It is only when the accused fails to offer proper explanation about the existence of such other facts the court can always draw an appropriate inference. However, in a case governed by circumstantial evidence if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. Mr. Kabir had relied upon this judgment to show that when chain is not complete, falsity of the defence or mere silence or denial by the accused in his statement recorded under Section 313 Cr.P.C. is no ground to convict the accused. Falsity of the defence cannot take the place of proof of facts which the prosecution needs to establish in any event to succeed in the trial. In view of the fact that chain of custody and chain of circumstance is not established merely because the accused may not have given a satisfactory reply during recording his statement under Section 113 does not shift the burden of proof upon the accused. That he is entitled to maintain a silence is the basis of submission of Mr. Kabir to explain away the unsatisfactory response of the accused during recording of his statement under Section 313 Cr.P.C. 109. In our understanding the circumstantial evidence can form the basis of conviction provided it is proved with other circumstances such as the time when the deceased was last seen with the accused and the recovery of the incriminating materials based on the statement of the accused, his inexplicable continued disappearance until arrested and no attempt to establish contact with the victim after he disappeared that are all important events which when established requires the accused to offer some explanation of his sudden disappearance and absconsion till he was arrested. The relationship between the accused and the victim is established. Why a person should flee and remain unheard when he is affectionate to the victim till he was arrested is a relevant question that requires some explanation. 110. I have carefully read the evidence of the witnesses. I am not inclined to read the way Mr. Kabir has placed the evidence as it would clearly appear from the evidence of almost all the witnesses that they have seen the accused on 8th April, 2019 before he suddenly disappeared. 110. I have carefully read the evidence of the witnesses. I am not inclined to read the way Mr. Kabir has placed the evidence as it would clearly appear from the evidence of almost all the witnesses that they have seen the accused on 8th April, 2019 before he suddenly disappeared. The evidence of the truck driver clearly proves that the Animesh was the passenger who was given a lift by the driver. None of the witnesses have any animosity or enmity against the accused. The defence has not made out a case that due to ill feeling and bad blood all or some of the witnesses have deposed falsely. Narayan in his deposition has clearly stated that on 15th April, 2019 he was informed about foul stench coming from somewhere surrounding his house and also proved the recovery of decomposed body. Although he has stated that he could not say whether in the night of 8th April, 2019 Animesh stayed in the rented room but he has clearly stated that on 8th April , 2009 he had seen Animesh and his wife in the rented house. On 8th April, 2019 he went to the rented room to collect his rent when Animesh told him that he would pay rent after some days. On the next day due to parliamentary election Narayan became busy and on 9th April, 2019 he could not contact Animesh over mobile phone and he also found that the rented house of Animesh was locked. Although Bina Sajjal had stated in her chief that the wife of Animesh was pregnant, she however has, categorically stated that on 8th April, 2019 she had seen Animesh entering his tenanted room on 8th April, 2019 and on the following day she found the tenanted room locked. 111. Urmila Kaviraj has also stated that Animesh and Anjana were seen lastly on 8th April, 2019 and she found the house of Animesh locked on 9th April, 2019. She has also explained how the decomposed body was recovered. 112. Ashok Kaviraj has categorically stated that he had heard the voice of Animesh in the evening of 8th April, 2019 and proved the seizure of the wearing apparels of Animesh from his room. His statement is also corroborated by Shiv Shankar. 113. She has also explained how the decomposed body was recovered. 112. Ashok Kaviraj has categorically stated that he had heard the voice of Animesh in the evening of 8th April, 2019 and proved the seizure of the wearing apparels of Animesh from his room. His statement is also corroborated by Shiv Shankar. 113. Ramesh had also deposed that he had seen Animesh lastly in the morning of 8th April, 2019 and thereafter he met Animesh in market during the day time. On 9th April, 2019 he found the room of Animesh under lock and key. 114. These witnesses are all neighbours of Animesh. 115. It is a normal human behaviour that a person going to the mainland leaving behind his “wife” alone would be in communication with his wife and ascertain her well being in his absence. In the event he is unable to establish any contact with his wife he would try to establish contact with his friends, neighbours and acquaintances residing in and around the area in order to ascertain the whereabouts and condition of his wife. It was in such circumstances that the court expected the accused to make a statement with regard to his conduct after he left for the mainland stealthily. 116. The truck driver, PW-14 in his cross examination has clearly stated that when he reached Baratang an entry was made to reach South Andaman and that the boy (that is accused) was asked by the Administration for placing ID proof, and he denied the suggestion that he filled up form and thereafter he filled up his name in the passenger column and handed over the same to the authority. The sub-inspector of Swarajdeep has deposed that the certified convey declaration form dated 9th April, 2019, Exbt.13 is in respect of passenger, namely, Animesh Mazumdar and the handwriting in the convoy form is of single person. This corroborates the testimony of PW-14. Moreover with regard to the accused leaving Port Blair on 11th April, 2019 it is now established from the evidence of the Airport Manager of Port Blair, PW-19. The said witness has proved the passenger manifest list dated 11th April, 2019 which mentions the name of the appellant as one of the passengers. This evidence is crucial and vital and read with other evidences establishes the chain in circumstances. The said witness has proved the passenger manifest list dated 11th April, 2019 which mentions the name of the appellant as one of the passengers. This evidence is crucial and vital and read with other evidences establishes the chain in circumstances. In this background the statement of the accused recorded under Section 313 Cr.P.C. becomes relevant. The statement of the accused under Section 313 is assessed to find out that in the absence of any ocular evidence and circumstances strongly suggesting the involvement of the accused in the offence his silence or refusal to offer reasonable and proper explanation could be used against the accused. It is to be remembered that Section 313 provides an opportunity to the accused for his defence by making him aware fully of prosecution allegation against him and to answer the same in support of the innocence but equally there cannot be a generalized presumption of prejudice to an accused merely by reason of any omission or inadequate questions put to an accused thereunder. Ultimately it will be a question to be considered in the facts and circumstances of each case, there will have to be a cumulative balancing of several factors. While rights of an accused to a fair trial are undoubtedly important, rights of victim and society at large for eviction of deviant behaviour cannot be made subservient to rights of an accused by placing the latter at a pedestal higher than necessary for a fair trial. [See Fainul Khan vs. State of Jharkhand, 2019 (9) SCC 549 ] 117. The Hon’ble Supreme Court recently in Indrakunwar vs. State of Chhattisgarh, 2023 SCC Online SC 1364 on consideration of various judgments summarized the principles in paragraph 35 with regard to the evidentiary value of a statement under Section 313 of Cr.P.C. “35. A perusal of various judgments rendered by this Court reveals the following principles, as evolved over time when considering such statements. 35.1 The object, evident from the Section itself, is to enable the accused to themselves explain any circumstances appearing in the evidence against them. 35.2 The intent is to establish a dialogue between the Court and the accused. This process benefits the accused and aids the Court in arriving at the final verdict. 35.3 The process enshrined is not a matter of procedural formality but is based on the cardinal principle of natural justice, i.e. audi alterum partem. 35.2 The intent is to establish a dialogue between the Court and the accused. This process benefits the accused and aids the Court in arriving at the final verdict. 35.3 The process enshrined is not a matter of procedural formality but is based on the cardinal principle of natural justice, i.e. audi alterum partem. 35.4 The ultimate test when concerned with the compliance of the Section is to enquire and ensure whether the accused got the opportunity to say his piece. 35.5 In such a statement, the accused may or may not admit involvement or any incriminating circumstance or may even offer an alternative version of events or interpretation. The accused may not be put to prejudice by any omission or inadequate questioning. 35.6 The right to remain silent or any answer to a question which may be false shall not be used to his detriment, being the sole reason. 35.7 This statement cannot form the sole basis of conviction and is neither a substantive nor a substitute piece of evidence. It does not discharge but reduces the prosecution’s burden of leading evidence to prove its case. They are to be used to examine the veracity of the prosecution’s case. 35.8 This statement is to be read as a whole. One part cannot be read in isolation. 35.9 Such a statement, as not on oath, does not qualify as a piece of evidence under Section 3 of the Indian Evidence Act, 1872; however, the inculpatory aspect as may be borne from the statement may be used to lend credence to the case of the prosecution. 35.10 The circumstances not put to the accused while rendering his statement under the Section are to be excluded from consideration as no opportunity has been afforded to him to explain them. 35.11 The Court is obligated to put, in the form of questions, all incriminating circumstances to the accused so as to give him an opportunity to articulate his defence. The defence so articulated must be carefully scrutinized and considered. 35.12 Non-compliance with the Section may cause prejudice to the accused and may impede the process of arriving at a fair decision.” 118. It is well settled that the evidence of witnesses have to be read as a whole and the words and sentences cannot be truncated and read in isolation. 35.12 Non-compliance with the Section may cause prejudice to the accused and may impede the process of arriving at a fair decision.” 118. It is well settled that the evidence of witnesses have to be read as a whole and the words and sentences cannot be truncated and read in isolation. Minor contradiction and/or inconsistencies regarding the recovery of the offending materials is also immaterial. In a fairly recent decision in Wazir Khan vs. State of Uttarakhand, 2023 (8) SCC 597 the Hon’ble Supreme Court has clearly stated that when incriminating circumstance is put to the accused and the accused either offers no explanation or offers explanation which is found to be untrue then the same becomes an additional link in the chain of circumstances to make it complete. In a situation where the offence takes place within the four walls of a house and in such circumstances when the assailant got the opportunity to plan and commit the offence at his own time and convenience and circumstances were favourable for him to commit the crime, it would be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused and in such a situation if the strict principle of circumstantial evidence is insisted upon by the Court it would result in failure of justice. It is indeed the duty of the court to see that a guilty person does not escape. The duty of the prosecution is to lead such evidence which it is capable of leading having regard to the facts and circumstances of the case and the court cannot insist to lead evidence of such a character which is impossible to lead. In paragraph 20 of the said decision, State of West Bengal vs. Mir Mohammad Omar, 2000 (8) SCC 382 was considered and followed. We may fruitfully refer to paragraph 18 to 24 of the said decision: “18. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by this court in State of West Bengal vs. Mir Mohammad Omar. 19. In Mir Mohammad Omar, the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused, and took him away at about 2:30 in the night. The next day in the morning, his mangled body was found lying in the hospital. 19. In Mir Mohammad Omar, the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused, and took him away at about 2:30 in the night. The next day in the morning, his mangled body was found lying in the hospital. The Trial court convicted the accused under Section 364, read with Section 34 IPC, and sentenced them to ten years’ rigorous imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder. The accused had not given any explanation as to what happened to Mahesh after the he was abducted by them. The learned Sessions Judge, after referring to the law on circumstantial evidence, had observed that there is a missing link in the chain of evidence after the deceased was last seen together with the accused persons, and the discovery of the dead body in the hospital,, and concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. 20. This Court in Mir Mohammed Omar took note of the provisions of Section 106 of the Evidence Act, and laid down the following principles in Para-31 to 34 of the report: “31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption in a course of recognised by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption in a course of recognised by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches of logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody.” 21. Applying the aforesaid principles, this Court in Mir Mohammed Omar while maintaining the conviction under Section 364 read with Section 34 IPC, reversed the order of acquittal under Section 302 read with Section 34 IPC and convicted the accused under the said provision and sentenced them to imprisonment for life. 22. In a case based on circumstantial evidence where no eyewitness is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation of offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation of offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court, namely Nika Ram vs. State of Himachal Pradesh, Ganesh Lal vs. State of Rajasthan and State of U.P. vs. Ravindra Prakash Mittal. 23. When the attention of the convict appellant Wazir Khan was drawn to the incriminating circumstances that inculpated him in the crime, he failed to offer appropriate explanation or gave a false answer. The same can be counted as providing a missing link for completing a chain of circumstances. 24. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show, like in the present case, that shortly before the commission of the crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not dispute his presence at home at the relevant time and does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. (Emphasis supplied) 119. In the instant case, shortly before the commission of the crime the parties were seen together and more particularly the accused was seen by his neighbours and even one of the neighbours have heard his voice during his stay in the dwelling house on the fateful night and the prosecution is able to establish such facts along with the fact that they have been living in the said dwelling house for a considerable period of time as husband and wife and manifest reports being Exhibit Nos. 13 and 15 showing his travel from Baratang to Port Blair and thereafter from Port Blair to Kolkata. It is imperative for the accused to offer credible explanation of his sudden disappearance or the circumstances in which she might have died. 120. The aforesaid conduct of the accused clearly establishes his involvement in the murder. 121. 13 and 15 showing his travel from Baratang to Port Blair and thereafter from Port Blair to Kolkata. It is imperative for the accused to offer credible explanation of his sudden disappearance or the circumstances in which she might have died. 120. The aforesaid conduct of the accused clearly establishes his involvement in the murder. 121. In Sahadevan vs. State of Tamil Nadu, AIR 2012 SC 2435 the Hon’ble Apex Court has summarized the last seen theory in the following words: “(i) The only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded. [1994 (2) RCR (Crl) 609 relied] (ii) Merely being last seen together is not enough - what has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must to aware as also proximate to the time of being last seen together. [2003 (2) RCR (Crl.) 106 : 2004 (1) Apex Criminal 22 relied] (iii) Principle of last seen 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 possible [2005 (1) Apex Crl. 437 relied] (iv) Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty - but this theory should be applied while 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.” (Emphasis supplied) 122. In fact in paragraph 68 of the Judgment authored by Justice Roy Chowdhury the circumstances have been summarised which the prosecution was able to establish against the accused. 123. In fact in paragraph 68 of the Judgment authored by Justice Roy Chowdhury the circumstances have been summarised which the prosecution was able to establish against the accused. 123. In Ram Gopal vs. State of Madhya Pradesh, 2023 (5) SCC 534 it has been reiterated that though the last seen theory as propounded by the prosecution in a case based on sudden evidence may be a weak kind of evidence but it should not be completely disregarded when the said theory is proved 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 the very close proximity of time. In such circumstances when the accused does not offer any explanation or furnish a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapons etc. forming a chain of circumstances is established, the conviction could be based on such evidence. 124. It is equally settled that the motive is a factor that may weigh in favour of the accused in a case based on circumstantial evidence. Motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of accused, the same is not weakened even if the motive is not a very strong one. [See Prem Singh vs. State of NCT of Delhi, 2023 (3) SCC 372 at paragraph 50] 125. In the instant case it has been argued that motive is not established as the pregnancy of the victim is not proved. However, it is not material in the instant case having regard to unambiguous and clear evidence and the circumstances strongly suggesting the involvement of the accused in the crime. In the instant case the various links in the chain of evidence have been established and the circumstances has been meticulously referred to by Justice Roy Chowdhury and as alluded to above clearly points to the guilt towards the accused with reasonable definiteness and the circumstances in proximity to the time and situation. 126. In Pattu Rajan vs. State of Tamil Nadu, 2019 (4) SCC 771 the doctrine of last seen in the context of circumstantial evidence has been elaborately discussed. It will be relevant to refer to the following observation of the Apex Court: “30. 126. In Pattu Rajan vs. State of Tamil Nadu, 2019 (4) SCC 771 the doctrine of last seen in the context of circumstantial evidence has been elaborately discussed. It will be relevant to refer to the following observation of the Apex Court: “30. Before we undertake a consideration of the evidence supporting such circumstances, we would like to note that the law relating to circumstantial evidence is well settled. The Judge while deciding matters resting on circumstantial evidence should always tread cautiously so as to not allow conjectures or suspicion, however strong, to take the place of proof. If the alleged circumstances are conclusively proved before the Court by leading cogent and reliable evidence, the Court need not look any further before affirming the guilt of the Accused. Moreover, human agency may be faulty in expressing the picturisation of the actual incident, but circumstances cannot fail or be ignored. As aptly put in this oft-quoted phrase: “Men may lie, but circumstances do not.” 63. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the Accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the Accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances. [See Rohtash Kumar vs. State of Haryana, (2013) 14 SCC 434 , Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 ] 66. In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No. 2 and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No. 2 and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the Accused. In our considered opinion, the prosecution has proved the complicity of all the Appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger-Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the Rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful. [See Inder Singh vs. State (Delhi Administration), (1978) 4 SCC 161 , State of H.P. vs. Lekh Raj and Another, (2000) 1 SCC 247 , Takhaji Hiraji vs. Thakore Kubersing Chamansing and Others, (2001) 6 SCC 145 , Chaman and Another vs. State of Uttarakhand, (2016) 12 SCC 76 ].” (Emphasis supplied) 127. The evidence of the prosecution has established the applicability of the doctrine of last seen along with other cogent evidence as elaborately discussed and analysed by Justice Roy Chowdhury in His Lordship’s judgment. The evidence of the witnesses has been discussed in detail by Justice Roy Chowdhury. When the evidence on record is analysed in the background of principles highlighted above, the inevitable conclusion is that the prosecution has established its accusations. 128. The reasons furnished by me are only supplementing the views taken by Justice Roy Chowdhury. 129. Under such circumstances conviction is upheld. The appeal stands dismissed.