JUDGMENT : RAMESH SINHA, J. 1. Since the aforesaid two criminal appeals have been filed against the impugned judgment dated 6.7.2022 passed by the First Additional Sessions Judge, Balod, District Balod in Sessions Case No. 30/2019, they were clubbed & heard together and are being disposed of by this common judgment. 2. Appellant-Mamta Yadav has preferred Criminal Appeal No. 1204/2022 under Section 374(2) of the CrPC questioning the impugned judgment dated 6.7.2022 passed by the First Additional Sessions Judge, Balod, District Balod in Sessions Case No. 30/2019, by which she has been convicted for offence under Section 201/34 of the IPC and sentenced to undergo RI for three years and fine of Rs.500/- in default of payment of fine to further undergo RI for 15 days. 3. Appellant-Siddharth Yadav @ Jimmy has preferred Criminal Appeal No. 1382/2022 under Section 374(2) of the CrPC questioning the impugned judgment dated 6.7.2022 passed by the First Additional Sessions Judge, Balod, District Balod in Sessions Case No. 30/2019, by which he has been convicted for offence under Sections 302 and 201/34 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.500/- in default of payment of fine to further undergo RI for 15 days and RI for three years and fine of Rs.500/- in default of payment of fine to further undergo RI for 15 days. 4. Case of the prosecution, in nutshell, is that on 26.3.2019 Kotwar Bharat Ram Netam made an information to the police of Police Station-Balod that one dead body of a woman is floating in Gangrel water canal at village Khairdih Khar, which was kept near the canal by the villagers of Dhanpuri. Neck of the dead body was broken and one rope is fastened on the leg. The police registered the case and took the matter under investigation. The dead body was identified as Kumari Anchal R/o Dhamtari. The police recorded the statement of the witnesses. During the course of investigation, accused Siddharth Yadav has stated in his memorandum statement that he along with her mother committed murder of the deceased by knife and thereafter loaded the dead body in the car and thrown in canal. 5. Merg intimation was recorded by Bharatram Netam vide Ex.P-1 and on the basis of merg intimation, FIR was registered vide Ex.P-26. Inquest was prepared vide Ex.P-3. Spot map was prepared by the investigating officer vide Ex.P4. 5. Merg intimation was recorded by Bharatram Netam vide Ex.P-1 and on the basis of merg intimation, FIR was registered vide Ex.P-26. Inquest was prepared vide Ex.P-3. Spot map was prepared by the investigating officer vide Ex.P4. Nazri naksha was also prepared vide Ex.P-5. Dead body of the deceased was sent for postmortem to Community Health Center, Gurur, where Dr. Aarti Dhruv (PW-2) and Dr. Karun Bambeshwar (PW-9) conducted postmortem vide Ex.P6 and found following injuries: (i) Abrasion present on outer side of nose 2 x 1 cm. (ii) Abrasion on left leg (2.5 x 0.5 cm) (iii) Incised wound on left index finger (1.05 x tendon deep). (iv) Abrasion on left arm above elbow (2.5 x 1.5 cm.) (v) Abrasion on forehead right side (2 x 1 cm.) (vi) Superficial pattern (round) injury on abdomen left side (4 x 3 cm.) (vii) All injuries are antemortem in nature. (viii) Stab wounds are fresh injury (Edges and injured tissue) (ix) Abrasion are fresh injury (Dark red in colour). The doctors opined that cause of death was due to antemortem ligature strangulation with stab injury and death was homicidal in nature. On 27.03.2019 laptop, pen drive, memory card, dongal WSB devise, one register, agreement paper, bank cheque book and 20 signed blank cheque book of Vineet Kumar were seized by the investigating officer vide Ex.P-7 from premises where deceased Anchal was residing on rent. Memorandum statement of appellant-Siddharth Yadav was taken vide Ex.P-9. Blood marks were seized from wall and wooden of house of the appellants vide Ex.P-11. The properties belonging to the deceased were seized vide Ex-12. Spot map was also prepared vide Ex.P-13. Bloodstained and plain soil were recovered from the spot where dead body of the deceased was thrown in presence of appellant-Siddharth Yadav vide Ex.P-15. Dead body identification panchnama was prepared vide Ex.P-31. Dead body supurdnama was prepared vide Ex.P-22. Stepney of the car in which blood marks were found was seized vide Ex.P-25. The appellant-Siddharth Yadav was arrested vide arrest memo Ex.P-27. Appellant-Mamta Yadav was arrested vide arrest memo Ex.P-28. Articles seized from the appellant and blood seized from the spot and from wall of house of the appellant were sent for chemical examination to FSL and in FSL it was opined that it was human blood. 6. The appellant-Siddharth Yadav was arrested vide arrest memo Ex.P-27. Appellant-Mamta Yadav was arrested vide arrest memo Ex.P-28. Articles seized from the appellant and blood seized from the spot and from wall of house of the appellant were sent for chemical examination to FSL and in FSL it was opined that it was human blood. 6. After due investigation, the appellants were charge-sheeted for the aforesaid offences in which they abjured the guilt and entered into defence stating inter-alia that they have not committed any offence and they have falsely been implicated in crime in question. 7. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 40 documents Exs.P-1 to P-40. The defence did not examine any witness nor did it lead any documentary evidence. 8. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 6.7.2022, convicted and sentenced the appellants as aforementioned, against which, these criminal appeals have been preferred. 9. Mr. Kunwar Lal Sahu, learned counsel appearing for the appellant in CRA No. 1204/2022 would submit that there is no direct evidence to prove that the appellant is involved in the offence in question. The present case is based on circumstantial evidence and the prosecution has utterly failed to discharge the burden of proof to link the entire chain of circumstances to prove its case against the appellant. The prosecution has also failed to prove its case beyond reasonable doubt that the appellant has caused disappearance of evidence. The present appellant has been roped in crime in question only on the basis of memorandum statement (Ex.P-9) of co-accused Siddharth Yadav that his mother was present in the house at the time of commission of offence. Except the memorandum statement of co-accused Siddharth Yadav, no other direct or indirect evidence is available on record to show the involvement of the present appellant in crime in question. As such, criminal appeal filed on behalf of appellant-Mamta Yadav deserves to be allowed and the conviction and sentence awarded to her deserve to be set aside. 10. Mr. Awadh Tripathi, learned counsel appearing for the appellant in CRA No. 1382/2022 would submit that in the present case, there is no eye witness and whole case of the prosecution is based on circumstantial evidence. 10. Mr. Awadh Tripathi, learned counsel appearing for the appellant in CRA No. 1382/2022 would submit that in the present case, there is no eye witness and whole case of the prosecution is based on circumstantial evidence. The learned trial Court has held that there is no motive for murder of sister by the brother and according to the memorandum statement of the appellant dated 31.03.2019, on the date of incident dated 25.03.2019 he told his sister why you are uploaded his dirty photographs in face-book and internet, but the deceased told that you are my brother, don’t be behave like father and firstly, the deceased assaulted the appellant and caused injuries and thereafter the appellant also caused two stab injuries to his sister by knife and that resulted she died. So, the appellant for the very purpose to save himself from the aforesaid offence, thrown the dead body of the deceased into water. He further submitted that the injuries whatsoever found on the person of the deceased were not grievous in nature. During the course of the trial, memorandum and seizure witnesses namely Rajudas Manikpuri (PW-7) and Neelkamal Sahu (PW-8) have not at all supported the case of the prosecution and they have turned hostile. The prosecution has not examined Tuman Lal @ Piku and Sanjay Dhruv who are seizure witnesses of stepney of the car, therefore, seizure has not bee proved by the prosecution. He also submitted that the whole case of the prosecution is based on the evidence of Dr. Aarti Dhruv (PW-2), Dr. Karun Bambeshwar (PW-9) and investigating officer Manish Sharma (PW-11). So far as Dr. Aarti Dhruv (PW-2) and Dr. Karun Bambeshwar (PW-9) are concerned, they have conducted postmortem of the deceased and Dr. Karun Bambeshwar (PW-9) is the person who has conducted an inquiry about blood marks found on stepney and he also went along with investigating officer Manish Sharma (PW-11) to the spot from where dead body of the deceased was recovered. According to Dr. Aarti Dhruv (PW-2), cause of death was due to antemortem ligature strangulation with stab injury though in Para 9 of her evidence, she has categorically stated that trachea of the deceased is in correct position and there is no damage. According to Dr. Aarti Dhruv (PW-2), cause of death was due to antemortem ligature strangulation with stab injury though in Para 9 of her evidence, she has categorically stated that trachea of the deceased is in correct position and there is no damage. He contended that so far as the evidence available on record against the appellant i.e. blood marks found on stepney of the car, wall of the kitchen and soil of the place from where the dead body was thrown though the same has been presumed on the basis of DNA test report. He would rely upon the judgment of the Supreme Court in the matter of Rahul vs. State of Delhi, Ministry of Home Affairs and Another, (2023) 1 SCC 83 and the judgment passed by this Court in the matter of Kishan Lal alias Champa Yadav vs. State of Chhattisgarh, ILR 2023 Chhattisgarh 789 : AIR Online 2023 Chh. 184 in which it has been held that the prosecution has to establish that appropriate and proper procedure has been followed by collection of blood sample for DNA profiling by leading evidence/material on record though the doctor has opined that the cause of death was due to antemortem ligature strangulation with stab injury, but the doctor has also admitted the injury whatsoever found on neck as well as on stomach, the same neither damaged any vital organ nor damaged the trachea. So, in absence of the ditem test, postmortem report itself creates doubt and looking to the fact that in the present case, the doctors are moving with the investigation officer since from beginning because they are present on the spot where the dead body was found and they are given the suspicious postmortem report and even stepney of the car has also been sent for examination before the aforesaid doctors and that creates doubt about the prosecution case. He also contended that so far as the memorandum witnesses are concerned, they have not supported the case of the prosecution and the witnesses in whose presence the car has been examined and stepney has been seized, they have not been examined during the trial. So, seizure of stepney has also not been proved and accordingly, seizure of blood from wall of kitchen as well as bloodstains soil from the place from where the dead body has been thrown is also not proved. So, seizure of stepney has also not been proved and accordingly, seizure of blood from wall of kitchen as well as bloodstains soil from the place from where the dead body has been thrown is also not proved. In absence of legal evidence, only on the basis of DNA report, conviction of the appellant cannot be sustained because the investigating officer Manish Sharma (PW-11) himself has admitted that there is no evidence which indicates that the aforesaid seized bloodstains material has been properly kept in Malkhana. Even the prosecution agency has not produced any evidence from the aforesaid Malkhana neither examined any Munshi of Malkhana nor produced any register of the aforesaid malkhana, which goes to show that the aforesaid article has not been kept in safe custody. So, it is clear that no proper procedure has been followed by collection of bloodstains. The prosecution has not produced any evidence that the present appellant was present on the spot at the time of occurrence and if on the basis of presumption, the whole case is taken as it is according to the memorandum in absence of motive of the aforesaid murder in which only circumstantial evidence is available, conviction of the appellant under Section 302 of the IPC cannot be sustained in light of the judgment of the Supreme Court in the matters of Santosh alias Bhure vs. State (NCT) of Delhi, 2023 SCC Online SC 538 and Shatrughan vs. State of Chhattisgarh in Criminal Appeal No. 437/2016, decided on 20.7.2023. As such, criminal appeal filed on behalf of appellant-Siddharth Yadav @ Jimmy deserves to be allowed and conviction and sentence awarded to him deserve to be set aside. 11. On the other hand, Mr. H.S. Ahluwalia, learned Deputy Advocate General for the respondent/State would submit that the conviction of the appellants/accused is based on direct as well as circumstantial evidence. The prosecution during investigation recorded the statements of the prosecution witnesses in which they have categorically deposed in their statements regarding conduct and commission of offence by the accused/appellants, which is concurrent evidence against the accused/appellants and thus, the learned trial Court has rightly convicted and sentenced the accused/appellants. Therefore, the instant appeals deserve to be dismissed. He would further submit that Dr. Aarti Dhruv (PW-2) and Dr. Therefore, the instant appeals deserve to be dismissed. He would further submit that Dr. Aarti Dhruv (PW-2) and Dr. Karun Bambeshwar (PW-9) conducted postmortem of the deceased and submitted report that there was stabbing injuries on stomach, injury on middle finger of left hand, index finger, scratches on left knee. In memorandum statement of accused-Siddharth Yadav, he admitted his crime and on the basis of his memorandum statement, the police has seized jewelry and other articles belonging to the deceased from the possession of accused-Siddharth Yadav. He also submitted that blood of the deceased was found on stepney of the car near Balodgahan canal, which proves the prosecution story. He contended that the learned trial Court has come to the conclusion regarding involvement of the accused/appellants in the crime in question under the concluding paras of the judgment in which the the learned trial Court has observed all incriminating circumstances against the accused/appellants, which connect them with the instant crime and chain of circumstances are fully linked and completed with each other. Thus, the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and proper and does not call for any interference by this Court and as such, criminal appeals filed on behalf of appellants-Mamta Yadav and Siddharth Yadav deserve to be dismissed. 12. We have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 13. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased Anchal was homicidal in nature? 14. The trial Court relying upon the statements of Dr. Aarti Dhruv (PW-2) and Dr. Karun Bambeshwar (PW-9), who have conducted postmortem on the body of deceased Anchal vide Ex.P-6, have clearly come to the conclusion that death of deceased Anchal was homicidal in nature. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellants. We hereby affirm the said finding. 15. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellants. We hereby affirm the said finding. 15. The learned trial Court after appreciating oral and documentary evidence available on record has convicted appellant-Siddharth Yadav for offences under Sections 302 and 201/34 of the IPC by recording the following finding: ^^¼55½ bl ekeys esa vkjksih ls bl rF; dk Li"Vhdj.k visf{kr Fkk fd mlds ?kj esa e`frdk dk [kwu dSls vk;k o dkj esa j[ks LVsiuh pDdk esa yxs e`frdk ds [kwu ¼tcfd ml dkj dh pkch vkjksih ds ikl Fkh½ dSls vk;k] ftl laca/k esa vkjksih dksbZ larks"ktud o fo’okl fd;s tkus ;ksX; Li"Vhdj.k ugha fn;k gSA ¼56½ cpko i{k dk rdZ gS fd vkjksih fl}kFkZ ds ikl viuh cgu vkapy dh gR;k djus dk ^^gsrqd** ugha FkkA fu%lansg ifjfLFkfrtU; lk{; ds ekeyksa esa gsrqd egRo j[krk gSA dHkh&dHkh vkjksih ds fnekx esa gsrqd can jgrk gS] ftls tkuuk eqf’dy jgrk gSA yksx fcuk gsrqd ds dk;Z ugha djrsA ysfdu tgka vpkud fdlh ckr dks ysdj fookn gksus ij bl Ádkj dh ?kVuk ?kfVr gksus ij vijk/k djus ds gsrqd dk irk yxkus dh foQyrk vijk/k uk gksus dk ladsr ugha nsrh gSA gsrqd lkfcr djus esa foQyrk bl ekeys esa ?kkrd ugha ekuk tk ldrkA ¼57½ ÁLrqr ekeys esa vkjksih fl}kFkZ viuh cgu dh gR;k fd;k gSA mDr fLFkfr esa muds e/; vpkud fdlh ckr dks ysdj fookn gksus ij bl Ádkj dh ?kVuk ?kfVr gksus dh laHkkouk ls badkj ugha fd;k tk ldrkA oSlh Hkh bl ekeys esa e`frdk vius HkkbZ o eka ¼vkjksihx.k½ ls i`Fkd jk;iqj esa jgrh Fkh] tcfd mldk jk;iqj esa vyx jgus] vFkkZr ogka dksbZ dk;Z ds flyflys esa vyx jguk Áekf.kr ugha gSA mDr ifjfLFkfr vkjksihx.k o e`frdk ds e/; e/kqj laca/k ugha gksus dh vksj b’kkjk dj jgs gSA bl Ádkj mijksDr ifjfLFkfr;ka ;gh fufnZ"V djrh gS fd vkjksih fl}kFkZ gh e`frdk dh gR;k djus dk mRrjnk;h gSA ¼58½ tgka rd /kkjk 201@34 HkkŒnaŒlŒ dk Á’u gS fd vkjksih ds ?kj esa e`frdk dk [kwu feyk gS o e`frdk dh dkj] ftlesa j[ks LVsiuh ds pDdk esa e`frdk dk [kwu yxk gS o ckyksnxgu ugj [kku flapkbZ ds ikl ls e`frdk dk [kwu feyk gS] ftlls ;g dM+h iwjh gksrh gS fd vkjksih fl}kFkZ }kjk vius ?kj esa e`frdk vkapy dh gR;k djus ds ckn] dkj ls e`frdk dh yk’k ckyksnxgu ugj [kkj ds ikl ys tkdj Qsad fn;k] vFkkZr mijk/k djus ds Ik’pk~r lk{; dk foyksiu djus ds vk’k; ls vkapy dh yk’k dks ckyksnxgu ds ikl ugj esa Qsad fn;kA The trial Court has also convicted appellant-Mamta Yadav for offence under Section 201/34 of the IPC by recording the following finding: ¼59½ tgka rd vkjksih eerk dk Á’u gS ;g Lohd`r gS fd vkjksih eerk] vkjksih fl}kFkZ dh eka gSA ;g Hkh Lohd`r gS fd vkjksih eerk] vkjksih fl}kFkZ vius csVs ds lkFk fuokl djrh Fkh] tcfd vkjksih eerk dk ;g cpko ugha gS fd og ?kVuk fnukad dks og ?kj esa ugha Fkh] ml fLFkfr esa mUgsa vius ?kj esa gqbZ ?kVuk dh tkudkjh u gks] ;g ugha ekuk tk ldrkA bl Ádkj mUgksaus gR;k dk vijk/k dk Kku j[krs gq, ?kVuk ds ckn ?kVuk dh tkudkjh iqfyl dks ugha fn;s gS] ftlls nf’kZr gksrk gS fd os e`rd vkapy dh gR;k ds Ik’pk~r lk{; foyksiu djus ds vk’k; ls vius yM+ds vkjksih fl}kFkZ ds lkFk feydj vkapy ds 'ko dks ckyksnxgu ds ikl cgrs uxg esa Qsad nh FkhA** 16. It is the case of no direct evidence, rather conviction is based on circumstantial evidence. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 which state as under: “(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. (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.” 17. In the present case, the prosecution has proved the following circumstantial evidence against appellant-Siddharth Yadav: (i) Dead body identification panchnama (Ex.P-21) dated 26.03.2019 by accused Siddharth Yadav and uncle Dinesh Ramteke. (ii) Dr. Arti Dhruv (PW-2) and Dr. Karun Bambeshwar (PW-9) who conducted postmortem have specifically mentioned in its report (Ex.P-6) that the deceased incurred eight injuries on different parts of the body and cause of death is due to antemortem ligature strangulation with stab injury and manner of death to be homicidal in nature. (iii) On the basis of memorandum statement of accused Siddharth Yadav (Ex.P-9), at his instance location of spot where the appellant thrown the dead body into Balodgahan irrigation canal was found. (iv) Seizure witnesses Rajudas Manikpuri (PW-7) and Neelkamal Sahu (PW-8) though turned hostile, but they have admitted their signatures on memorandum (Ex.P-9), spot verification (Ex.P-10), seizure memo (Ex.P-11) and (Ex.P-12) and spot panchnama (Ex.P-13). (v) Investigating Officer Manish Sharma (PW-11) in para- 86 of his Court statement has denied the suggestion given by the defence that memorandum statement of accused Siddharth Yadav has not been recorded as per accused version. (v) Investigating Officer Manish Sharma (PW-11) in para- 86 of his Court statement has denied the suggestion given by the defence that memorandum statement of accused Siddharth Yadav has not been recorded as per accused version. (vi) Spot verification (Ex.P-10) dated 31.3.2019 of house of accused-Siddharth Yadav where blood marks were found on wall and on wooden frame and seizure memo (Ex.P-11) contains seizure of blood marks on wall and on wooden frame. (vii) Spot panchnama of Balodgahan irrigation canal (Ex.P-14) where dead body was thrown by accused Siddharth Yadav and seizure memo (Ex.P-15) by which bloodstains soil and plain soil were seized. Further, the investigating officer Manish Sharma has stated in Para 13 of his Court statement that accused Siddharth Yadav has identified the spot from where the dead body was thrown. (viii) Investigating officer Manish Sharma (PW-11) in Para 7 of his Court statement has stated that car of the deceased was found in the house of accused Siddharth Yadav and key was handover by the accused himself. Vide Seizure memo (Ex.P-25) one stepney seized from car of the deceased bearing care registration number CG- 04 LJ-0004, on which blood marks were spotted. Further, as per tyre query report (Ex.P-19) proved by Dr. Karun Bambeshwar (PW-9), two blood mark spots were seen outside of tyre and tyre was sent to FSL for chemical analysis. (ix) Through seizure memo (Ex.P-23), blood sample of deceased Anchal was taken, swab taken from vagina, swab taken from labia, nail scrap from left hand, nail scrap from right hand and sent to FSL in sealed cover vide Ex.P-35. (x) DNA report (Ex.P-39) indicates that DNA profile obtained from E-956 (swap taken from vagina), F-957 (swab taken from labia majora), G-958 (Nail scrapping from left hand), H-959 (Nail scrapping from right hand) and I-960 slides of the deceased matched with DNA profile contained from J-961 stepney tyre, K-962 blood marks found on wall, L-963 blood marks found on wooden palate, M-964 bloodstains soil seized from irrigation canal. 18. The next question for consideration would be, whether the trial Court has rightly held that the appellants are author of the crime by relying upon the following circumstances: (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P-6) of Dr. Arti Dhruv (PW-2) and Dr. Karun Bambeshwar (PW-9) who conducted autopsy. 18. The next question for consideration would be, whether the trial Court has rightly held that the appellants are author of the crime by relying upon the following circumstances: (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P-6) of Dr. Arti Dhruv (PW-2) and Dr. Karun Bambeshwar (PW-9) who conducted autopsy. (ii) As per the case of the prosecution, the fact of death of deceased Anchal was within the knowledge of the appellants, however, there was no any explanation given by the appellants in their statements under Section 313 of the Cr.P.C. Thus, burden of proof was on the appellants to explain such circumstance, which they failed to explain. 19. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not? 20. Section 106 of the Indian Evidence Act, 1872, states as under: “106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 21. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 22. In the matter of Shambhu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404 their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act 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. 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 Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J. observed as under: “11...........The word “especially” stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle vs. The King, 1936 PC 169 (AIR V 23) and Seneviratne vs. R. 1936 (3) ER 36.” Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 23. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval in the matter of Nagendra Sah vs. State of Bihar, (2021) 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under: “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. 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. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 24. Similarly, the Supreme Court in the matter of Gurcharan Singh vs. State of Punjab, AIR 1956 SC 460 while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him. 25. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships of the Supreme Court in the matter of Sawal Das vs. State of Bihar, AIR 1974 SC 778 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 26. 26. The Supreme Court in the matter of Sucha Singh vs. State of Punjab, (2001) 4 SCC 375 has held that once the person concerned has been shown as having been kidnapped, the onus would shift on the kidnapper to establish how and when the kidnapped individual came to be released from his custody. In the absence of any such proof produced by the kidnapper, it would be natural to infer/presume that the kidnapped person continued in the kidnapper’s custody till he was eliminated. In this regard, in Sucha Singh (supra), their Lordships of the Supreme Court have held as under: “15. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased. 19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference. 20. We have seriously bestowed our consideration to the arguments addressed by the learned Senior Counsel. We only reiterate the legal principle adumbrated in State of West Bengal vs. Mir Mohd. Omar, (2000) 8 SCC 382 that when more persons than one have abducted the victim, who was later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e. whether he left his associates en route or whether he dissuaded others from doing the extreme act etc. etc. 21. We are mindful of what is frequently happening during these days. etc. 21. We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle to be laid down is that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others.” 27. The principle of law laid down in Sucha Singh (supra) was followed with approval by the Supreme Court in the matter of Sunder alias Sundararajan vs. State by Inspector of Police, (2013) 3 SCC 215 and it has been held that once it is duly established that the deceased has been kidnapped by the accused, the burden lies on him to explain release of the victim from his custody. It was observed as under: “36. Since in the facts and circumstances of this case, it has been duly established that Suresh had been kidnapped by the accused-appellant; the accused-appellant has not been able to produce any material on the record of this case to show the release of Suresh from his custody. Section 106 of the Indian Evidence Act, 1872 places the onus on him. In the absence of any such material produced by the accused-appellant, it has to be accepted that the custody of Suresh had remained with the accused-appellant, till he was murdered. The motive/reason for the accused-appellant for taking the extreme step was, that ransom as demanded by him had not been paid. We are therefore satisfied that in the facts and circumstances of the present case, there is sufficient evidence on the record of this case on the basis whereof even the factum of murder of Suresh at the hands of the accused-appellant stands established. 37. We may now refer to some further material on the record of the case to substantiate our aforesaid conclusion. 37. We may now refer to some further material on the record of the case to substantiate our aforesaid conclusion. In this behalf, it would be relevant to mention that when the appellant-accused was detained on 30-7-2009, he had made a confessional statement in the presence of Kasinathan (PW13) stating that he had strangulated Suresh to death, whereupon his body was put into a gunny bag and thrown into Meerankulam tank. It was thereafter on the pointing out of the appellant-accused that the body of Suresh was recovered from Meerankulam tank. It was found in a gunny bag, as stated by the appellant-accused. Dr. Kathirvel (PW12) concluded after holding the post-mortem examination of the dead body of Suresh that Suresh had died on account of suffocation prior to his having been drowned. The instant evidence clearly nails the appellant-accused as the perpetrator of the murder of Suresh. Moreover, the statement of Kasinathan (PW13) further reveals that the school bag, books and slate of Suresh were recovered from the residence of the appellant-accused. These articles were confirmed by Maheshwari (PW1) as belonging to Suresh. In view of the factual and legal position dealt with hereinabove, we have no doubt in our mind, that the prosecution had produced sufficient material to establish not only the kidnapping of Suresh, but also his murder at the hands of the appellant-accused.” 28. Similarly, in the matter of Suresh and Another vs. State of Haryana, (2015) 2 SCC 227 their Lordships have held as under: “8. The learned counsel for the State opposed the above statement and pointed out that the dead bodies were recovered at the instance of the appellants, apart from the recovery of car and personal belongings of the deceased. SI Rajender Singh (PW-14) and Inspector Randhir Singh (PW-17) had overheard the conversation of the accused making demand of ransom on telephone at the STD Booth. The accused refused to give their voice sample as recorded in the order dated 1-1-2001 passed by the Additional Chief Judicial Magistrate, Gurgaon on application (Ext. PF). Pooja Chopra (PW-12) deposed that the deceased Devender Chopra had a talk with her mother on 18-12-2000 that the deceased had been kidnapped for ransom which was followed up by further conversation with the kidnappers. Raman Anand (PW-2) also had talks with the kidnappers from the mobile phone of his friend Neeraj. PF). Pooja Chopra (PW-12) deposed that the deceased Devender Chopra had a talk with her mother on 18-12-2000 that the deceased had been kidnapped for ransom which was followed up by further conversation with the kidnappers. Raman Anand (PW-2) also had talks with the kidnappers from the mobile phone of his friend Neeraj. According to the post-mortem reports, the death of Devender Chopra was on account of strangulation and cutting of throat by sharp weapon. Death of Abhishek Chopra was on account of stab injuries in chest and abdomen and the head injury caused by blunt force impact. 9. Apart from the above, this is a case where Section 106 of the Evidence Act is clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of dead bodies from covered gutters and personal belongings of the deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give an explanation or giving of false explanation is an additional circumstance against the accused as held in number of judgments, including State of Rajasthan vs. Jaggu Ram, (2008) 12 SCC 51 .” 29. The learned trial Court in Para-59 of its judgment has held that as far as accused Mamta is concerned, it is accepted that the accused Mamta is the mother of the accused Siddharth. It is also accepted that accused Mamta was residing with her son accused Siddharth, whereas it is not the defense of accused Mamta that she was not present in the house on the date of the incident. In that case, it cannot be presumed that she was not aware of the incident in her house. Thus, having knowledge of the crime of murder, she did not inform the police about the incident after the incident. In that case, it cannot be presumed that she was not aware of the incident in her house. Thus, having knowledge of the crime of murder, she did not inform the police about the incident after the incident. It is seen that after committing murder, accused Mamta with the help of her son Siddharth for concealing the evidence of criminal case has thrown the dead body near Balodgahan irrigation canal. 30. The prosecution has implicated appellant-Mamta Yadav in he present case only on the basis of memorandum statement of appellant-Siddharth Yadav, but the prosecution has not taken memorandum statement of appellant-Mamta Yadav. At the time of the Court statement of the witnesses, none of the witnesses have stated that appellant-Mamta Yadav was present in the house at the time of occurrence and she was actively involved in crime in question. As such, conviction and sentence imposed upon appellant-Mamta Yadav deserve to be set aside. 31. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: “27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 32. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 33. The Supreme Court in the matter of Asar Mohammad and Others vs. State of U.P. AIR 2018 SC 5264 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya vs. King Emperor, AIR 1947 PC 67 observed as under: “13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare vs. State of Maharashtra, (2015) 1 SCC 253 in particular, paragraphs 23 to 29 thereof. The same read thus: “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya vs. King Emperor (supra) has held thus: (IA p. 77) “.........it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx” 34. But if to the statement the words be added ‘with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx” 34. The judgments i.e. Rahul (supra), Kishan Lal alias Champa Yadav (supra), Santosh alias Bhure (supra) and Shatrughan (supra) relied upon by the learned counsel for appellant-Siddharth Yadav in CRA No. 1382/2022 are not helpful to him and are distinguishable to the facts of the present case as in the present case the prosecution has proved the incriminating circumstances against appellant-Siddharth Yadav and has rightly convicted & sentenced as aforementioned. 35. Considering the facts and circumstances of the case, material available on record, also considering the evidence of Dr. Aarti Dhruv (PW-9), Dr. Karun Bambeshwar (PW-9), evidence of investigating officer Manish Sharma (PW-11) and circumstantial evidence proved by the prosecution against appellant-Siddharth Yadav, we are of the considered opinion that the trial Court has rightly convicted and sentenced appellant-Siddharth Yadav for offence under Sections 302 and 201/34 of the IPC. However, the prosecution has failed to prove its case beyond reasonable doubt against appellant-Mamta Yadav for offence under Section 201/34 of the IPC. 36. For the foregoing reasons, Criminal Appeal No. 1204/2020 filed on behalf of appellant-Mamta Yadav is allowed and her conviction and sentence under Section 201/34 of the IPC are hereby set aside. She is on bail. She is not required to surrender. Her bail bonds are cancelled and sureties stands discharged. However, Criminal Appeal No. 1382/2022 filed on behalf of appellant-Siddharth Yadav is dismissed. 37. Keeping in view the provisions of Section 437-A Cr.P.C. the accused-appellant, namely, Mamta Yadav is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 38. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.