JUDGMENT : Mohan Lal, J 1. Instant Criminal Conviction Appeal is directed by the appellant against the judgment of conviction dated 21.11.2013 r/w order of sentence dated 26.11.2013 rendered by the court of Pr. Sessions Judge Kargil in File No. 03/Sessions bearing FIR No. 68/2010 of Police Station Kargil for commission of offence punishable under section 302 RPC titled State through Police Station Kargil Vs. Bhagwat Dass, whereby, appellant has been held guilty, convicted and sentenced to life imprisonment and fine of Rs. 5000/- for murder of one small baby girl of 3 years of age. The trial judge has also made a reference to this court vide his order dated 26.11.2013 for confirmation of the sentence which has been registered as Criminal Reference No.9/2013. 2. Aggrieved of and dissatisfied with the impugned judgment of conviction and order of sentence, appellant has assailed it’s legality, propriety and correctness, and moreso, Ld. Counsel Sh. The trial judge has also made a reference to this court vide his order dated 26.11.2013 for confirmation of the sentence which has been registered as Criminal Reference No.9/2013. 2. Aggrieved of and dissatisfied with the impugned judgment of conviction and order of sentence, appellant has assailed it’s legality, propriety and correctness, and moreso, Ld. Counsel Sh. Muzaffar Nabi Lone appearing for the appellant has strenuously argued and vehemently sought the setting aside of impugned judgment and acquittal of the appellant on the following grounds:- (i) that PW-1 complainant Kamla Devi has turned hostile in the trial court, and therefore whatever she has said in the complaint or even her statement recorded u/s 164-A Cr.pc before the Judicial Magistrate it has lost it’s significance as she has completely denied the commission of offence by appellant/convict, complainant’s evidence has crumbled the entire prosecution story in as much as she has categorically deposed that appellant was always kind to the step children and never took them as burden, even the motive of the crime as projected by the prosecution has lost significance and is completely missing, therefore as the case is built on circumstantial evidence the very foundation of it has crumbled down and smashed the case of prosecution to smithereens; (ii) that in so far as confession is concerned which is stated to have been made by appellant in front of witnesses, the said confessional statement has been made after recovery of dead body and the same therefore carries no significance and weight, even otherwise also there is contradiction among prosecution witnesses in as much as PW-5 Haji Ali has deposed that the accused/appellant confessed his guilty in Hindi Language whereas PW-8 I/O has deposed that appellant has confessed his guilty in Urdu, which creates cracks in the veracity of confession; (iii) that PW-1 Kamla Devi on 22.09.2010 at 12 pm lodged complainant/ written report in P/S Kargil leveling allegations against appellant of beating her children as he being her 2nd husband, not only this it is only the complainant who has first disclosed that she found dead body of her daughter “Anu Pawan” in a septic tank at the court yard of one Haji Mohd Ali (PW-5), so without any ambiguity it can be said that it is not the police or accused/appellant who have first seen the dead body in septic tank, PW-5 Haji Mohd Ali in his deposition has stated that he saw the lid of septic tank in wrong position and on his instructions labourers took away the lid of the septic tank and saw dead body of the child and on this wife of accused told him that accused had killed the child and threw her in the septic tank, complainant PW-1 Kamla Devi in her statement during cross-examination stated that when she reached home Anu was not present there and during night when she did not see the daughter in her home she did not enquire from police and slept; (iv) PW-1 Complainant Kamla Devi in her complaint and deposition before the trial court has stated that PW-5 Haji Mohd Ali searched her daughter, on the contrary I/O PW-8 ASI Mohd Yousaf has deposed one Haji Ibharim met the complainant in the morning and found daughter of complainant from septic tank, this contradiction again create crack and doubt in the prosecution story; (v) that if Haji Ibharim is the person who searched the daughter of the compliant then why I/O has not cited him as prosecution witnesses, the said witness was star witness of prosecution regarding the search and recovery of deceased child, the said important aspect has not been taken note of by the trial court; (vi) that so far weapon of offence i.e. stone is concerned there are contradictory statements of the prosecution witnesses, in as much as, PW-6 Mohd Baquir has stated before the trial court that he has seen the injury behind the head of deceased and blood was oozing out from the said injury, whereas PW-7 Dr. Jalil (M.O) in his deposition has stated that only swelling has been found on the forehead of deceased, PW-6 Mohd Baquir and PW-5 Haji Ali have deposed before the trial court that there was hair on the stone which is alleged weapon of offence, but I/O PW-8 who seized the stone has stated that there was no hair on the stone at the time of seizure, the said glaring contradictions go to the root of the case; (vii) that the “Last Seen Theory” ought not to have been applied in the case of appellant, the deceased was though in the company of appellant but all of them were sleeping as well as complainant on her turn slept and appellant remained in complainant’s company for 12 hours till recovery of dead body, had the appellant been guilty or had done any crime he would have escaped or run away in such a long time gap, there are chances that the complainant herself may even be the murderer of the deceased, regarding last seen evidence it is well settled that the principal of last seen comes into play only when the time gap between the point of time when the accused and deceased was seen alive and when the deceased is found dead is so small that the possibility of any person other than accused being the author of the crime becomes impossible, in the case in hand appellant had not been seen with deceased because complainant for 12 hours was in the company of deceased, so the principle of last seen theory does not apply and the prosecution case becomes doubtful. 3. Sh. T. M. Shamsi, Ld. DSGI for the respondent per-contra, has supported the impugned judgment of conviction and order of sentence awarded by the trial court of Ld. 3. Sh. T. M. Shamsi, Ld. DSGI for the respondent per-contra, has supported the impugned judgment of conviction and order of sentence awarded by the trial court of Ld. Principal Sessions Judge Kargil, and has strenuously canvassed arguments and sought the confirmation of the sentence on the following counts:- (i) Motive For The Crime Proved/Established By The Prosecution:- It is argued, that complainant PW-1 Kamla Devi in her complaint and in her statement recorded u/s 164-A Cr.pc has categorically levelled allegations of murder of her minor deceased child against her husband appellant/convict, complainant has stated in regard to motive behind the killing as appellant wanted to get rid of the burden of children of former husband of his wife as appellant use to complain his wife by rebuking, threatening and thrashing them, because of which their relations remained strained as appellant/accused always tortured her for having children of former husband which appellant has taken burden to feed, though the complainant has turned hostile before the trial court but at the same time in her cross-examination she has admitted that whatever she has stated before the Magistrate u/s 164-A Cr.pc is true, therefore even while turning hostile she has fully supported the case of prosecution, law is well settled that the testimony of hostile witness can be relied upon and admitted into evidence for the purpose of convicting the accused; (ii) Complainant’s (PW-1 Kamla Devi) Statement Under Section 164-A Cr.pc Made Out Of Free Will and Duress:- It is argued, that the statement of complainant (PW-1 Kamla Devi) recorded u/s 164-A Cr.pc before the Magistrate is out of her free will and consent as nowhere it has come before the trial court that the said statement was made under duress, the said statement gets corroborated by all the independent prosecution witnesses who have no inimical relations with appellant/accused, and therefore the defence cannot take the plea that witnesses have unnecessarily dragged appellant in the case; (iii) Medical Evidence of PW-7 Dr. Jalil Supports The Case Of Prosecution:- It is argued, that the medical evidence tendered by PW-7 Dr. Jalil supports the case of prosecution, as in his opinion Dr. Jalil Supports The Case Of Prosecution:- It is argued, that the medical evidence tendered by PW-7 Dr. Jalil supports the case of prosecution, as in his opinion Dr. Jalil has clearly mentioned that, “death caused due to fracture and dislocation of C1 & C2 might have been due to strangulation by both hands and mark of sharp object could be nail of accused which was found in post-mortem examination, following compression by heavy object on throat which could lead to cardio respiratory arrest”, therefore, the expert opinion completely matches and corroborates the prosecution case; (iv) Last Seen Theory Proved:- It is vehemently argued, that the “last seen theory” goes against appellant/convict, the minor deceased was left in the home alongwith other children by complainant PW-1 Kamla Devi who had a quarrel with appellant/convict on the issue of children as the appellant used to threaten to kill the minor deceased, accused was at home, just after sometime when PW-1 Kamla Devi returned home deceased was missing, there was no evidence of intervention of any 3rd person in this time gap and in the backdrop of conduct of accused it was only he who did this crime as the deceased was in the company of appellant alongwith other children left by the complainant; 4. We have heard Sh. Muzaffar Nabi Lone Ld. Counsel for appellant/convict & Sh. T. M. Shamsi, Ld. DSGI for respondent. We have also perused the impugned judgment and record of the trial court. Be it noted, that the case of prosecution is tried to be proved by “circumstantial evidence”. The appellant before the trial court has not produced any defence evidence to demolish the case of prosecution. Appellant has preferred this criminal appeal from jail which has been registered as Criminal Appeal No. 6/2018, whereas, Ld. Pr. Session Judge Kargil has also made a reference to this court in terms of Section 374 of the Code of Criminal Procedure (hereinafter referred as the ‘Code’) vide his order dated 26.11.2013 for confirmation of sentence imposed upon the appellant. The appeal as well as the reference shall be decided by this judgment. 5. Pr. Session Judge Kargil has also made a reference to this court in terms of Section 374 of the Code of Criminal Procedure (hereinafter referred as the ‘Code’) vide his order dated 26.11.2013 for confirmation of sentence imposed upon the appellant. The appeal as well as the reference shall be decided by this judgment. 5. To prove the case against appellant/convict, prosecution in the trial court has only relied upon the “circumstantial evidence” and has examined as many as 6 witnesses out of total listed 8 in the charge sheet viz; PW-1 Kamla Devi (complainant), PW-2 Deepak Pawan (eyewitness), PW-5 Haji Mohd Ali (witness to seizure of dead body, disclosure statement of accused, recovery of weapon of offence & supporting lodging of FIR), PW-6 Mohd Baquir (witness to seizure of dead body, disclosure statement of accused, recovery of weapon of offence & supporting lodging of FIR), PW-7 Dr. Jalil, MO (witness to post-mortem report) & PW-8 ASI Mohd Yousaf ( IO). Be it noted, that the prosecution witnesses 3 & 4 namely Om Bahadur (eyewitness) & Mst. Dhandsahra (w/o Om Bahadur, eyewitness) have remained unexamined by the prosecution for the reasons best known to it. 6. The prosecution has examined 6 “circumstantial witnesses” as under:- PW Name Role 1 Kamla Devi Complainant, witness to identification of dead body 2 Deepak Pawan Eyewitness (Hostile) 5 Haji Mohd Ali witness to seizure of dead body, disclosure statement of accused, recovery of weapon of offence & support lodging of FIR. 6 Mohd Baquir witness to seizure of dead body, disclosure statement of accused, recovery of weapon of offence & support lodging of FIR. 7 Dr. Jalil, MO Witness to post-mortem report. 8 ASI Mohd Yousaf I/O who conducted investigation of the case. 7. Before coming to the conclusion whether prosecution has successfully proved charges against appellant/convict beyond hilt, we find it pertinent to give a brief resume of the evidence tendered by the 6 witnesses examined by the prosecution before the trial court. Relevant portions of the testimonies of the examined prosecution witnesses are summarized as under:- PW-1 Kamla Devi (Complainant, witness to identification of dead body) on 02.11.2010 has deposed in examination-in-chief that her first marriage came to be solemnized with some Nepali. She resided in India for the last 3/4 years. She is having two children of her first husband i.e. son and daughter. The name of son is Deepa. She resided in India for the last 3/4 years. She is having two children of her first husband i.e. son and daughter. The name of son is Deepa. Her first husband died and she thereafter contracted 2ndmarriage with the accused present in the court from whom she is having one child. Accused used to quarrel with her on his step-children. During previous month a quarrel occurred between the accused and her. She has no knowledge who killed her Anu. On this she has declared hostile by the PP. During cross-examination witness deposed that the statement she has given before the court u/s 164-A Cr.P.C is true and correct on which she has put her thumb impression which is exhibited as EXP-1/1. During cross-examination by defence counsel she has deposed that she does not remember when she contracted her 1st marriage. The age of Anu Pawan was three years. She has come to the court at her own choice and gave her statement. She firstly came to police thana and then has come to court. She stated at her own and police men have not threatened her. When she had marriage with accused, the two children from her first husband were also with her and their entire expenses were borne by the accused himself. He was sometimes showing love and sometimes getting annoyed with the children. Before the occurrence she had gone to the house of one Bahadur at about 8/9 pm. Accused has never resorted to any beating to her. Accused sometimes gave threat to the children and sometimes taking them for visits. When she reached home Anu was not present there. During night when she did not see daughter in the home. She did not enquire from police and she slept. She was since long working in the home of Haji. Anu was not with her when she was at another residence. She remained at the residence of another Nepali upto 9 pm. At that time where Anu went she cannot say. Before day of occurrence accused quarrelled with her and not with deceased. On domestic affairs we had some quarrel. Accused sometimes offered biscuits to children including Anu and sometimes rebuked them like father and not out of hate. She remained at the residence of another Nepali upto 9 pm. At that time where Anu went she cannot say. Before day of occurrence accused quarrelled with her and not with deceased. On domestic affairs we had some quarrel. Accused sometimes offered biscuits to children including Anu and sometimes rebuked them like father and not out of hate. PW-2 Deepak Pawan (eyewitness):- So far as witness PW-2 Deepak Pawan is concerned his age is 11 years, he was brought in the court on 02.11.2010, Court put some preliminary questions to him to know of his competence to testify, however, on the basis of replies given by said witness, the court recorded its finding in the words i.e. "...looking to the answers given by the witness, I am of the opinion that witness is not capable of giving evidence in court". PW No. 5 Haji Mohammad Ali (witness to seizure of dead body, disclosure statement of accused, recovery of weapon of offence & support lodging of FIR) on 06.04.2011 has deposed in examination-in-chief that he knows the accused present in the court. On 22.09.2010 at 10 O'clock he reached at his new house which is under construction. Meanwhile wife of accused came weeping and crying and said that her child has gone missing. He alongwith labourers started search of the child. Meanwhile he saw the lid of septic tank was in wrong position. On his instructions labourers took away the lid of septic tank. Here he saw dead body of child. Wife of accused told him that accused has killed the child and threw her in septic tank. At that time accused was preparing to run away from the spot, however, he told his labourers to restrain him from leaving the spot. Thereafter police came on the spot and arrested the accused. At this time accused made disclosure in his presence. His signatures were taken on arrest memo which he recognize. The contents of arrest memo have been read over and explained to him which are true and correct and is exhibited asEXPW5/A. Accused admitted his guilt in his presence that he after killing the minor girl threw her in septic tank. Thereafter on his identification dead body was taken out from the septic tank. The contents of arrest memo have been read over and explained to him which are true and correct and is exhibited asEXPW5/A. Accused admitted his guilt in his presence that he after killing the minor girl threw her in septic tank. Thereafter on his identification dead body was taken out from the septic tank. Contents of recovery memo have been heard by him which are correct and is exhibited as EXPW-5/B. A stone identified by the accused also came to be seized by police. Contents of seizure memo were read over and explained to him which are true and correct and is already exhibited as EXPW-5/B. He saw seized stone which is same which was seized by police on identification by accused and it is marked as 'A'. Contents of disclosure memo are heard by him which are true, it contain his signatures. Defence counsel objected that disclosure papers are inadmissible and cannot be exhibited). Objection of defence counsel is admitted and disclosure memo is exhibited to this extent as EXPW5/C. Accused disclosed that he can identify this stone and can also produce it. During cross-examination he has deposed that around the place of occurrence some other people also reside on rent basis. None reached on the spot before he and his labourers were on work. Accused and his wife were also working under his supervision and they were interacting with other labourers also. He has no knowledge whether wife of accused has told other labourers with regard to missing of her child or not. He knew the deceased. Wife of accused told him that she enquired also from the labourers about her missing child, however, they have expressed no knowledge. The accused and his wife were not having good relations. He has no knowledge how the accused and his wife were living at their home and what was the attitude of accused towards the children. The name of his other labourers are Mohammad Qasim, Mohammad Hussain, Haji Mohammad Ali, Mohammad Yousuf, Haji Ali and Mohammad Huaain. Two labourers are from Batambis and others are from Chaskor. On the day of occurrence these labourers were present on the spot and have watched the whole scene. Police started investigation at 10 0'clock and recorded his statement. Septic tank belongs to him and was not in use. A man can easily lift the lid of septic tank. Two labourers are from Batambis and others are from Chaskor. On the day of occurrence these labourers were present on the spot and have watched the whole scene. Police started investigation at 10 0'clock and recorded his statement. Septic tank belongs to him and was not in use. A man can easily lift the lid of septic tank. On the day of occurrence, it had rained and there were some foot marks around the septic tank which he did not tell to the I/O. Police took over the dead body of minor girl and there was no blood in the septic tank. Head was not hit but there was one number of injuries on the head of the deceased and blood was oozing out from it. On the back of head blood was clotted. The distance between his house and the septic tank is equivalent to what is form "lijlas' to main gate. Police reached on the spot after about one hour. If accused would have intention to run away from the spot he could have easily runaway. Police reached on the spot. After seeing the tank, police straightway went to accused. Accused was alone at-his rented room. Accused made disclosure in Hindi. He has no knowledge what kind of document was firstly prepared nor remembers on what document he has signed first, and he did not read the document while signing. He can read Urdu and has signed on four pages. He has been shown arrest memo of the accused by the counsel of accused over which he expressed that it does not carry his signature. However, the name, parentage and residence of witness is written which is correct. Today he has seen four documents in the file. He has also signed on his statement recorded u/s 161Cr.P.C. There can be many stones like the seized stone, however, on the seized stone a hair was affixed and was marked with white colour as "A" by I.O. During the course of investigation he has not gone to police station. What is the difference between the safety tank and trench he does not know. He has stated safety tank in his statement but police has written trench in his statement. Accused identified the stone behind his residence. No further question was asked. What is the difference between the safety tank and trench he does not know. He has stated safety tank in his statement but police has written trench in his statement. Accused identified the stone behind his residence. No further question was asked. PW-6 Mohammad Baquir (witness to seizure of dead body, disclosure statement of accused, recovery of weapon of offence & support lodging of FIR) on 06.04.2011 has deposed in examination-in-chief that he knows the accused present in the court. Firstly, stated that occurrence took place on 22.11.2010 then stated on 22.09.2010 at 11 O'clock. He was working in feet factory near petrol pump. He saw people gathered at place of occurrence in large number and he also went to the spot. There were police personnel also and accused in presence of police disclosed his guilt that he killed girl child by choking her throat and by hitting her with stone. He saw that the dead body was present in septic tank. Accused came to be arrested in his presence. He does not remember on how many papers he put signatures. Contents of seizure memo have been heard by him which are correct and it contain his signature at two places, it is exhibited as EXPWS-5/C. The contents of disclosure memo are heard by him which are correct on which he has put his signature which he admits. At this stage learned counsel for accused raised objection that the disclosure document is inadmissible and cannot be exhibited. Objections of counsel of the accused are correct. The disclosure statement to this extent exhibited as EXPW-5/C in advance that the accused disclosed that he can produce the stone after identification. The contents of seizure memo of seized stone are also correct which is exhibited as EXPW-5/B. Seized stone is same which was seized by police on spot. He gave his statement before the police. He heard contents of "Maqboozgi of Naash (recovery memo of dead body) which is true and correct on which he identifies his signature which is exhibited as EXPW/6. Clothes mentioned in EXPW/6 have been seen by him and are same. In cross-examination has deposed, that he has read upto 8th class. There are 28 days in each month of February. He is working in the feet factory. There were 5/6 persons present on the spot before witness. Clothes mentioned in EXPW/6 have been seen by him and are same. In cross-examination has deposed, that he has read upto 8th class. There are 28 days in each month of February. He is working in the feet factory. There were 5/6 persons present on the spot before witness. People had gathered in large number in front of the house of Haji Ali. Deceased was not known to him. He does not know the wife of accused. He alone went from Factory to spot. The persons present already on the spot were not known to him, neither they met except Haji and nor he knows their names except Haji. These people were working in the house of Haji Ali. After 22nd of September, he has not seen the labourer’s son on spot. He reached on the spot at about 11 am. It is true that police was already on the spot before his arrival. He was made to read over and explained the statement on which he put his signatures by the police. It is true that police reached on spot after him. It is wrong that police reached at first as mentioned above. He does not remember on how many papers he put his signatures and what was written on those papers, he has no knowledge. He has weak memory. On spot police recorded his statement. Signatures were taken by police. Except him, Haji Ali put his signature on papers. Police read over the contents of seizure memo of dead body. The age of deceased was about 03 years. Police did not mark the seized clothes in his presence and clothes were of common type. When he reached on the spot, dead body of minor girl child was in the septic tank. At the time of investigation on spot, many people were there. When he reached near septic tank, accused was not present there at that time. On the same day he saw the accused. Accused came to be arrested in his presence at 11 am. On seized stone there was some hair affixed, however, whether it was hair of human being or animal, he cannot say. However, the stone and hair was seized in his presence. Today he was shown only stone but not hair. He saw wound on back side of deceased from which blood oozed out. On seized stone there was some hair affixed, however, whether it was hair of human being or animal, he cannot say. However, the stone and hair was seized in his presence. Today he was shown only stone but not hair. He saw wound on back side of deceased from which blood oozed out. And blood was also present on the clothes of the deceased. He has not seen any blood in the tank as he did not enter into the tank. Accused was interrogated about the incident by the police on spot. While making disclosure by the accused, there were 5/6 persons at spot whose names witness does not know. The statement of witness was taken by the 'Munshi. PW No. 7 Dr. Jaleel M.O, SDH Kargil (witness to post-mortem report) on 09.08.2011 has deposed in examination-in-chief that on 29.09.2010 while he was posted as Ortho surgeon in SDH Kargil, he conducted the post-mortem of Anu Pawan aged 03 years who was identified by Kamla Devi W/O Bhagwat Das, mother of the deceased and Haji Mohammad Ali S/O lbrahim R/o Harn is as a case of alleged assault by her step-father. On the basis of his finding which is recorded in prescribed form comprising of four leaves. He gave the opinion regarding the cause of death of the deceased. The post-mortem findings are under his hand and the report bears his signature. The same is admitted as true and correct and the report is exhibited as EXPW Dr.J. The elaborated opinion regarding the cause of death was given on separate page. The same is in his hand, bears his signature and is enclosed as EXPW Dr. J. As per his opinion the probable cause of death was due to C1 and C2 fracture and dislocation of C1 and C2 leading to cardio respiratory arrest. The duration of death was less than 72 hours. The death caused due to fracture and dislocation of C1 and C2 might have been due to strangulation by both hands and the mark of sharp object could be nail of the accused which was found in post-mortem examination. Following compression by a heavy object on throat which could lead to cardio respiratory arrest. He has also given the opinion regarding object stone which was hit by accused on deceased is most probably by the same stone which he has identified in the open court and signed. Following compression by a heavy object on throat which could lead to cardio respiratory arrest. He has also given the opinion regarding object stone which was hit by accused on deceased is most probably by the same stone which he has identified in the open court and signed. The opinion is also under his hand and bears his signature. The same is exhibited as EXPW Dr J II. In cross-examination by the defence counsel, he has stated that the injury mark of nail mentioned above was ante mortem in nature. The same is mentioned in post-mortem. The stone must have hit on the head and swelling with haematoma of the temporal bone of deceased. He cannot state as to what was the duration of injury on head of the deceased. Exceptionally the injury and dislocation can be due to fall from height. However, in the instant case it could not have been possible. He has also given the opinion regarding the eyes and tongue of the deceased. The eyes were not bulged and tongue not protruded. There was fracture of hyoid bone and haematoma on surrounding areas. It is not necessary that there should be eye bulging. Stone could have caused the fracture of temporal bone which was not the cause of death in this case. At las Axis leads to cardio respiratory arrest and instant death. Medulla oblongata was not affected but spinal card was lacerated. Fracture of larynx and haematoma in neck region and ptechieal haemorrhage in lungs could be because of blood from mouth. Ptechieal haemorrhageis due to compression which must have lead to internal pressure in lungs and consequent haemorrhage. No other bodily injury mark other then ptechieal haemorrhage, haematoma on head or C1& C2 dislocation and fracture of hyoid bone was found by me on the deceased. There was rigor mortis in periphery. No further question was asked by PP and defence counsel. PW 8 Mohammad Yousuf ASI (I.O of the case) on 09.03.2012 has deposed in examination-in-chief that occurrence took place in the year 2010. On 22nd September 2010 at 12 O'clock Mst. Kamla Devi W/O Bhagwat Das R/O Kharkhan presently near petrol pump Kargil filed a written report before the police station Kargil to the extent that she alongwith her family is residing near petrol pump in connection with labour. On 22nd September 2010 at 12 O'clock Mst. Kamla Devi W/O Bhagwat Das R/O Kharkhan presently near petrol pump Kargil filed a written report before the police station Kargil to the extent that she alongwith her family is residing near petrol pump in connection with labour. On 21 September 2010 at evening at about 9 pm a quarrel occurred between the complainant and her husband with regard to maltreatment of children. Although complainant had two children (son and daughter) age 08 & 03 years respectively which she had of her earlier husband Bhim Bahadur who expired. Complainant being annoyed of her husband went to the neighbour's house. They later persuaded her and sent her back to her own residence. On reaching at her residence she found her daughter Anu Pawan missing. On enquiry from her son Deepak Pawan who pleaded no knowledge, the complainant started search and searched her daughter Anu Pawan during the whole night. In the early morning she started search again and she met with one Haji Mohammad Ibrahim R/O Pushkam and narrated her about the absence of her daughter Anu Pawan. Haji also accompanied her to search. During search complainant found dead body of her daughter in the septic tank situated in the premises of under-constructed house of one Haji Mohammad Ali. Complainant stated that her husband Bhagwat Das killed the child as he was treating them as step-children and was always beating them without any rhyme or reason. A written report filed by the complainant is on the file and is exhibited as EXPW-8. On this report a case under FIR No. 68/2010 u/s 302 RPC came to be registered in P/S Kargil and investigation set into motion. On spot after verification and identification by the complainant, the dead body of minor girl was recovered from septic tank of the residence of Haji Ali. The recovery memo of dead body was prepared. The same is annexed with the file and penned and signed by witness. It is marked as EXPW-8/1. On spot the photographs were taken which are annexed with the file. They are five and are marked as EXPVW-8/A. 8/B,8/C, 8/D and 8/E. On spot he in presence of other witnesses took the body after post-mortem and in this regard prepared a separate recovery memo of dead body on spot. It is marked as EXPW-8/1. On spot the photographs were taken which are annexed with the file. They are five and are marked as EXPVW-8/A. 8/B,8/C, 8/D and 8/E. On spot he in presence of other witnesses took the body after post-mortem and in this regard prepared a separate recovery memo of dead body on spot. Recovery memo of dead body is annexed with the file and is penned and signed by the witness which is already marked as EXPW-6. Dead body was taken to hospital for post-mortem and he went to the spot for spot inspection. On identification by complainant of residential room of occurrence inspected the same and prepared the separate site plan of place of occurrence. Site plan of spot is annexed with the file and is written and signed by witness and is marked as EXPW-8/3. Accused was present on spot as his residence is at the same place. He came to be arrested under section 54 Cr.P.C in presence of witnesses and he accordingly prepared arrest memo which is on the file, exhibited as EXPW-5/A. During interrogation accused admitted his guilt in presence of witnesses and disclosure memo came to be prepared accordingly in presence of witnesses on which the accused put his thumb impression and signatures of witness exhibited as EXPW5/C. The contents of disclosure memo are as follows:-"... pressed her throat and hit her head with stone and killed her and threw into septic tank... "He also seized one stone from the spot being pointed out by accused and prepared seizure memo on which accused has put his thumb impression and he has put his signatures, exhibited EXPW-5/B. Accused was brought in police station and a separate docket was prepared in this regard. The clothes being worn by deceased at the time of her death came to be seized and seizure memo was prepared, exhibited as EXPW-8/4 and dead body was handed over to her mother for last rites and memo on which accused put his thumb impression and witnesses have put their signatures, exhibited as EXPW-5/B. Accused was brought in police station and a separate docket was prepared in this regard. The clothes being worn by deceased at the time of her death came to be seized and seizure memo was prepared, exhibited as ERXPW-8/4 and dead body was handed over to her mother for last rites and memo of receipt of dead body was prepared and exhibited as EXPW-8/5. Seized stone came to be medically examined and a separate docket came to be prepared in this behalf. During the course of investigation he recorded the statements of complainant and other witnesses wherein it was revealed that accused Baghwat Das treated the nourishment of his children as burden on his shoulders and was beating and rebuking them day-in and day-out without any rhyme or reason. Lastly as per the facts and circumstances of the case and the evidence collected, witness prima-facie proved the offence u/s 302 RPC against the accused and presented the charge sheet against him in the court of law for its judicial determination. In cross-examination has deposed that at 12.35 O'clock he was assigned the job of investigation in the instant case. Whether complainant is Urdu knowing or not, he does not know. However, she lodged a written report in Urdu. Where she has got her report written, he has not inquired. Deceased was daughter of complainant from her first husband. During investigation it came to know that the first husband of complainant was Nepali. However, his ancestral background was not known. Complainant has stated that she went to another Nepali's residence and returned from there during night. As per the evidence collected, Kamla Devi met with Haji lbrahim and both have taken out the dead body from the septic tank. He recovered the dead body from septic tank and prepared the recovery memo. He sent the dead body for conducting post-mortem. There is no anymore neighbour adjacent to the residence of complainant. As per complainant she left her two children in the custody of accused when she went to the house of next neighbour. There is no any witness. However, the disclosure statement of accused is available. It does not mention where he hit the head of the deceased. However, during investigation it came to know that accused hit her outside his residence, the colour of head of deceased was dark blue (Nilgoon). No injury was visible on head and blood was not oozing out. However, the disclosure statement of accused is available. It does not mention where he hit the head of the deceased. However, during investigation it came to know that accused hit her outside his residence, the colour of head of deceased was dark blue (Nilgoon). No injury was visible on head and blood was not oozing out. What witness Mohammad Ali and Mohammad Baquir deposed regarding the wound, he cannot say anything because it is their concern. From the place of occurrence he seized the stone as an instrument of murder. There was no hair affixed on stone at the time of seizure. Statements u/s 161 Cr.P.C were recorded by him himself. What witness Mohammad Baquir stated that his statement has been recorded by the 'Munshi' is not correct but it was recorded by him. Disclosure statement contains the signature of Haji Ali. Disclosure statement contains the signature of Haji Ali. Disclosure was made in Urdu. Disclosure by accused was made at about 1 pm. In disclosure statement time is not mentioned. Accused was arrested outside of his rented accommodation. He came to lift his small daughter. The statement of Haji Ibrahim and other witnesses were recorded by him. At the time of disclosure statement Haji Ali and Baquir were present and no other civilian was present. Complainant was present there. No 'Nepali' was present there. 8. We have perused the impugned judgment of the trial court and have found that there is no direct evidence to the incident. The prosecution case entirelyrests upon the “circumstantial evidence”. With the assistance of Ld. Counsel for the parties, we have scrutinized the entire evidence on record in depth. The law with regard to conviction in cases based on circumstantial evidence has been very well crystallized in the celebrated judgment of Hanumant, son of Govind Nargundkar V. State of Madhya Pradesh rendered by Hon’ble Supreme Court in 1952 SCR 1091 , wherein a three Judge Bench of Hon’ble Supreme Court speaking through Mehr Chand Mahajan J; observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should 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 much have been done by the accused." It is thus clear that for resting a conviction in the case of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn, should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. 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. There must be a chain of evidence so 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 probabilities, the act must have been done by the accused. Subsequently, Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984)4 SCC 116 , observed thus: "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that Hon’ble Supreme Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by Hon’ble Supreme Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 where the observations were made. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by Hon’ble Supreme Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 where the observations were made. "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between’ may be and ‘must be is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." As has been held by Hon’ble Supreme Court aforesaid, in a case of circumstantial evidence, before the case can be said to be fully established against an accused, it is necessary that the circumstances from which the conclusion of guilt is to be drawn, should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. They should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. They should exclude every hypothesis except the one to be proved. 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 probabilities, the act must have been done by the accused. The aforesaid view of Hon’ble Supreme Court has been consistently followed by all the courts of the Country in a catena of decisions. 9. The aforesaid view of Hon’ble Supreme Court has been consistently followed by all the courts of the Country in a catena of decisions. 9. The circumstances, which the trial court has culled out in it’s impugned judgment while holding that the prosecution has proved it’s case beyond reasonable doubt can be conveniently grouped under the following headings: (i) Motive:- Evidence of PW-1 complainant Kamla Devi that accused/ appellant used to quarrel with her children from first husband and sometimes give threats to them; (ii) Evidence of Last Seen together:- Evidence of PW-1 complainant Kamla Devi (real mother of deceased) that deceased Anu Pawan was in the company of the appellant when complainant on a squabble with her husband (appellant) left her house to pay visit to the house of a Nepali neighbourer and on coming back complainant found her minor daughter Anu Pawan missing; (iii) Disclosure Statement made by accused & recovery of dead body of deceased and weapon of offence at the instance of appellant/accused:- Evidence of PWs 5&6 namely Haji Mohd Ali and Mohd Baquir to the effect, that the appellant/accused in police custody made disclosure statement in their presence that he after killing the minor girl threw her in a septic tank, and on his disclosure the recovery of dead body of deceased and weapon of offence was effected; (iv) Medical Evidence:- Evidence of PW-7 Dr. Jaleel (M.O. SDH Kargil) to prove the postmortem report that the probable cause of death of deceased was fracture and dislocation of her C1 & C2 (Spinal Motion Segment) leading to her cardio respiratory arrest. 10. Motive For Crime:- The 1st Circumstance relied by the prosecution against appellant/convict is the motive for crime. Motive is a thing which is primarily known to the accused himself and it may not possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. Looked at from psychological stand point motive is the particular stimulus that arouses a striving towards some definite end. Motive pervades in all human actions and behaviour but difficult to determine its true character. The inferences are invariably drawn applying the legal tests but they need not be accurate in all given situations. Looked at from psychological stand point motive is the particular stimulus that arouses a striving towards some definite end. Motive pervades in all human actions and behaviour but difficult to determine its true character. The inferences are invariably drawn applying the legal tests but they need not be accurate in all given situations. The Supreme Court in Krishna Pillai Sreekumar V. State of Kerala ( AIR 1981 SC 1237 ) remarked that the variations in human nature are being so vast murders are actuated by much lesser motives. The absence of motive is of no consequences when cogent and reliable evidence as to the guilt of the accused is available. However, under Section 8 of the Evidence Act any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Therefore the evidence of motive is always relevant and admissible, although it is not necessary for the prosecution to offer evidence of motive, inasmuch as the motive does not form part of essential ingredients of the offence of murders. On the question of motive, Wharton says: “An enquiry in this regard is often of great importance, particularly in case of circumstantial evidence. It assists in fixing the crime upon the proper person and, in some cases is strongly instrumental in determining the degree of the offence.” The Supreme Court ardently projects the impressive role of motive in evaluating the circumstantial evidence to prove the offences of murder in Mulakh Ram V. Satishkumar ( AIR 1992 SC 1175 ) as under: “Undoubtedly in cases of circumstantial evidence motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non- existence.” Therefore, it cannot be said that the motive is not a link in the chain of circumstances pointing to the guilt of the accused when it is clearly and cogently established. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non- existence.” Therefore, it cannot be said that the motive is not a link in the chain of circumstances pointing to the guilt of the accused when it is clearly and cogently established. But the Supreme Court in Mulakh Raj’s Case (Supra) has also laid down “the absence of proof of motive does not break the link in the chain of the crime, nor militates against prosecution case.” The reason is that the motive is not an essential ingredient of an offence and proof of motive is never an indispensable for conviction.” It is unambiguously reiterated here, that on 22.09.2010 at 1200 hours complainant PW-1 Kamla Devi (w/o Bhagwat Das R/O Jharkhand) lodged a written report before SHO Police Station Kargil which resulted in registration of FIR No. 68/2010 u/s 302 RPC against appellant/convict with the allegations, “that she is presently living with her 2nd husband (appellant) and children at Kharbathan near Patrol Pump Kargil as labourer, she has two children viz; Son Deepak Pawan (age 8 years) & daughter Anu Pawan (age 3 years) from her 1st husband late Bhim Bahadur, she has also female child 8 months of age from her 2nd husband (appellant/convict) who usually resort to ruthless beating to her children from 1st husband, because of this she oftenly remain fed up with accused, accused was threatening that he will kill Anu Pawan as he is not in a position to feed the bally of his step children, yesterday on 21.09.2010 during night hours a quarrel occurred between her and accused on the same matter and she after giving meals to her husband and children and after getting the children slept left the home and went to the house of some neighbourer, after sometime she returned her home and found Anu Pawan missing, she asked her husband with regard to absence of Anu Pawan but he pleaded no knowledge, she searched Anu Pawan during whole of the night and unfortunately found her dead body in the septic tank at the court yard of one Haji Mohd Ali, on seeing her child dead she lost her mental balance and has become unconscious, she alleges that accused has killed Anu Pawan and threw her dead body in the septic tank, she has prayed that accused be dealt under law”. PW-1 Kamla Devi (complainant) during her deposition before the trial court has categorically tendered evidence that after the death of her 1st husband she contracted 2nd marriage with accused from whom she has one child, but the accused (appellant/convict) use to quarrel with her in regard to his step children. Even during the cross-examination PW-1 Kamla Devi has withstood the test of cross-examination and has corroborated her version in examination-in-chief by testifying that the accused sometimes would get annoyed with her children from 1st husband and sometimes he use to threaten the children. Even PW-1 Kamla Devi has testified the correctness of her statement recorded before the Judicial Magistrate 1st Class in terms of Section 164-A Cr.pc (EXP-1/1), wherein, she has categorically stated that the accused/appellant use to quarrel with her on his step children from former husband. The motive, therefore, gets crystallized as appellant/convict was step father of the children and never accepted them, and was always in search of opportunity to get rid of them, and even sometimes he had threatened to kill the minor deceased. We are of the firm view that the prosecution has brought overwhelming circumstances in the form of the evidence of PW-1 complainant Kamla Devi to prove motive as connecting link in the chain of events leading to the guilt of appellant/convict. 11. Evidence of Last Seen together:- The 2nd circumstance relied by the prosecution to prove the guilt of appellant/convict is, the evidence of last seen theory. What is meant by this theory ? It is only this: In whose company the victim was found together last. It may be a company of one or more person. The person or persons in whose company the victim was found together last may be innocent and no involvement in the crime can be attributed to him or them. The presence of a victim in the company of another may be accidental. In the ordinary course of social life the persons may be sometimes faced with strange situations and miraculous co-incidences which are difficult to explain. Therefore, the last found together/last seen theory is not an absolute rule or inflexible formula but it is totally dependent on the facts of each case. When the motive of a person or persons to commit an offence is sufficiently established this rules assumes much importance. Therefore, the last found together/last seen theory is not an absolute rule or inflexible formula but it is totally dependent on the facts of each case. When the motive of a person or persons to commit an offence is sufficiently established this rules assumes much importance. Elaborating the principle of “last seen alive” in State of Rajasthan vs. Kashi Ram , (2006) 12 SCC 254 , Hon’ble Supreme Court held as under:- “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. ( AIR 1960 Mad 218 )” The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal , (2015) 5 Scale 319 . Further, Hon’ble Apex Court in the case of Sham Lal Ghosh Vs. The principle has been succinctly stated in Naina Mohd., Re. ( AIR 1960 Mad 218 )” The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal , (2015) 5 Scale 319 . Further, Hon’ble Apex Court in the case of Sham Lal Ghosh Vs. State of West Bengal (2012) 7 SCC 646 has explained that once last seen theory comes into play, onus shifts upon the accused to explain as to what has happened to the deceased after the accused and deceased were last seen alive. The Apex Court has further explained that there must be a reasonable proximity of time between the period of accused and deceased were last seen together and the time when fact of deceased having expired comes into play and what would be reasonable is to be determined in the facts and circumstance of the each case. In the present case, the witness who spoke for the position that deceased Anu Pawan (age 3 years) was found in the company of appellant/convict being her step father is PW-1 complainant Kamla Devi (real mother of deceased) who is the star witness of the prosecution to prove the last seen theory. PW-1 complainant Kamla Devi though has been declared hostile by the prosecution, but in her deposition before the trial court has categorically putforth evidence that her statement recorded before the court u/s 164-A Cr.pc is true and correct and the same has been exhibited as EXP-1/1. Complainant’s consistent stand taken in the complaint and in her statement u/s 164-A Cr.pc before the court leave no room for doubt that on the fateful night of 21.09.2010 when appellant quarrelled with the complainant she left alone the home at 8/9 pm and went to the house of neighbourer Bahadur. Accused/appellant alongwith the children including minor deceased were at home and when complainant came back about 9 pm from the residence of one Nepali, the minor deceased Anu was missing. It is pertinent to mention here, that the quarrel between the appellant and complainant took place only on the basis of her two children from former husband including deceased Anu to whom appellant had threatened to kill. The time gap between last seen together of appellant and deceased and the complainant coming back at her home is so small that there is no possibility of others intervening. The time gap between last seen together of appellant and deceased and the complainant coming back at her home is so small that there is no possibility of others intervening. The third person’s involvement even does not seem to be probable, moreover, when there is no evidence on record in regard to the hostile or inimical relation of family of the complainant with anyone else. Deceased Anu (minor age 3 years) alongwith other children were kept by the complainant at her home in the custody/care of appellant as she had gone to the house of her neighbourer having a tiff/squabble with her husband (appellant) and when she came back she did not see the deceased and enquired from the appellant who expressed no knowledge. It was the appellant last seen in the company of deceased Anu, therefore, under the provisions of Section 106 of Evidence Act appellant has to offer an explanation as to how and when he parted the company of deceased, and what happened to the minor deceased child who was alive in his company, and if he fails to offer an explanation of the facts within the special knowledge, he fails to discharge the burden cast upon him by section 106 of Evidence Act and that itself provides an additional link in the chain of circumstances proved against him. In the case in hand, on examination of the entire evidence in its entirety, we are of the considered opinion that appellant/convict was last seen in the company of deceased Anu Pawan (minor). Appellant has failed to offer any explanation as how deceased Anu who was in his company died. Therefore, failure of the appellant to adduce any explanation is an additional link which proves theory of last seen evidence against appellant and completes the chain, the stand of defence that last seen theory is not applicable is rejected. 12. Disclosure Statement made by accused and recoveries effected thereof:- The 3rd Circumstance relied by the prosecution to prove the guilt of appellant/convict is, the disclosure statement made by appellant/convict and recovery of weapon of offence at his instance. To prove the said circumstance, prosecution has heavily relied upon the evidence of independent witnesses viz; PW-5 Haji Mohd Ali and PW-6 Mohd Baquir. To prove the said circumstance, prosecution has heavily relied upon the evidence of independent witnesses viz; PW-5 Haji Mohd Ali and PW-6 Mohd Baquir. PW-5 Haji Mohd Ali in his examination-in-chief has putforth evidence before the trial court that police came on spot and arrested the accused, accused made disclosure in his presence wherein he admitted his guilt that he after killing the minor threw her in septic tank, on the identification of the accused dead body of deceased was taken out from the septic tank, contents of disclosure statement made by accused EXPW5/C are true and correct on which he identifies his signature. In his pungent cross-examination nothing has been elicited by the defence to demolish the version of the witness recorded in examination in chief, in as much as, in the cross-examination the witness has further corroborated the prosecution story by deposing, that there were number of injuries on the head of deceased from where blood was oozing out and on the back of head of the deceased blood had clotted. PW-5 Haji Mohd Ali has further admitted the correctness of the contents of recovery & seizure memo of dead body of deceased and weapon of offence stone EXPW-5/B. PW-6 Mohd Baquir also independent witness to the disclosure statement of accused and recovery of the dead body and weapon of offence, has corroborated the evidence of PW-5 Haji Mohd Ali by deposing, that accused came to be arrested in his presence and disclosed his guilt that he killed minor girl child by chocking her throat and hitting her with stone, contents of disclosure statement EXPW-5/C are true and correct on which he identifies his signature. The witness has further gone to the extent of testifying that at the instance of the accused the dead body of deceased and the weapon of offence were recovered and seized vide exhibits EXPW5/B and EXPW/6 whose contents are true and correct on which he identifies his signature. In cross-examination, nothing could be elicited from the witness by the defence to demolish his veracity of the evidence tendered in examination-in-chief, in as much as, the witness in cross-examination has further corroborated the prosecution story that he saw a wound on the back side of deceased from where blood was oozing out which was present on the clothes of the deceased. The above mentioned independent witnesses have led cogent, conclusive, reliable and trustworthy evidence and have proved that appellant made disclosure statement before them while in police custody and on his disclosure the dead body of the deceased alongwith weapon of offence stone was recovered from the septic tank. On the identification by appellant the dead body of deceased was brought out from the septic tank, moreso appellant also identified the stone with which he struck on the head of deceased. It is pertinent to mention here, that this entire exercise/ investigation has been made by the I/O in presence of aforesaid independent witnesses who have fully corroborated the prosecution version before the trial court that appellant made disclosure statement and at his instance the dead body of deceased and weapon of offence were recovered and seized. The 3rd circumstance therefore stands established/proved by the prosecution against the appellant. 13. Medical Evidence:- The 4th & last Circumstance relied by the prosecution to prove the guilt of appellant/convict is, the medical evidence of PW-7 Dr. Jaleel (M.O. SDH Kargil) who on 29.09.2010 conducted the postmortem of minor deceased Anu Pawan (age 3 years) identified by her mother (PW-1 Kamla Devi) and gave his opinion regarding the cause of death of deceased as under:- “As per my opinion the probable cause of death was due to C1 and C2 fracture and dislocation of C1 & C2 leading to cardio respiratory arrest. The duration of death was less then 72 hours. The death caused due to fracture and dislocation of C1 & C2 leading to cardio respiratory arrest. The duration of death was less then 72 hours. The death caused due to fracture and dislocation of C1 & C2 might have been due to strangulation by both hands and the mark of sharp object could be nail of the accused which was found in postmortem examination. Following compression by a heavy object on throat which could lead to cardio respiratory arrest. I have also given the opinion regarding object stone which was hit by accused on deceased is most probably by the same stone which I have identified in the open court and signed as EXPW Dr. J II. The opinion is also under my hand and bears my signature. The same is exhibited as EXPW Dr J II”. I have also given the opinion regarding object stone which was hit by accused on deceased is most probably by the same stone which I have identified in the open court and signed as EXPW Dr. J II. The opinion is also under my hand and bears my signature. The same is exhibited as EXPW Dr J II”. Be it noted, that there is no direct evidence to connect the appellant with commission of crime. On the touchstone of the tests laid down in the above referred judgments of Hon’ble Supreme Court rendered in Sharad Birdhichand Sarda v. State of Maharashtra (1984)4 SCC 116 & Hanumant, son of Govind Nargundkar V. State of Madhya Pradesh rendered by Hon’ble Supreme Court in 1952 SCR 1091 in regard to circumstantial evidence, it is apt to evaluate the facts of the case in hand afresh. Appellant is the 2nd husband of complainant PW-1 Kamla Devi who has two children from her 1st husband. The evidence putforth by the prosecution before the trial court and also discussed above, leads to the conclusion that appellant always rebuked, maltreated, use to thrash, threaten to kill the minor deceased being the children from 1st husband on the pretext that appellant took them as burden upon him and felt himself unable to feed them, therefore, always used to quarrel with the complainant on the issue of her children from 1st husband. On the fateful night, minor deceased Anu Pawan alongwith rest of the minor children were left by complainant in the company of appellant/accused as the complainant had a quarrel with her 2nd husband the appellant and went to the house of one Nepali neighbourer at 8/9 pm. When the complainant returned back during the night time at 9 pm she found the deceased missing. In view of the finding rendered above, we hold that the “last seen theory” has been fully proved by the prosecution and goes against the appellant as he has failed to tender any explanation as what happened to deceased Anu Pawan when she was alive in his company and was later on was found dead. In view of the finding rendered above, we hold that the “last seen theory” has been fully proved by the prosecution and goes against the appellant as he has failed to tender any explanation as what happened to deceased Anu Pawan when she was alive in his company and was later on was found dead. Appellant has failed to offer an explanation on the basis of the facts within his special knowledge in regard to the death of deceased when she was alive in his company and therefore has failed to discharge the burden cast upon him by Section 106 of the Evidence Act, and that itself provides an additional link in the chain of circumstances already proved against him. The medical evidence of PW-7 Dr. Jaleel has categorically proved that the cause of death of deceased as homicide as a result of fracture of C1 & C2 of the deceased leading to her cardio respiratory arrest. The 4th circumstance therefore, is fully established/proved by the prosecution against the appellant. 14. Apart from that, we find that in the statements of the appellant recorded under section 342 (313) Cr.pc though all the incriminating circumstances have been put to the appellant, he has not offered any explanation except saying that it was wrong and false. Non-explanation of the circumstances would fortify the finding based on the chain of circumstances that leads to no other conclusion then guilt of the appellant [vide Sharad Birdhichand Sarda Vs State of Maharashtra (1984) 4 SCC 116 ]. 15. After churning the entire prosecution evidence by us being the first court of appeal, we are of the firm view that the prosecution has been able to prove the charges against appellant punishable under section 302 RPC beyond reasonable doubt, therefore, the conviction of appellant for the said charge deserves to be upheld. Resultantly, the instant appeal directed by appellant stands dismissed, while the conviction and sentence rendered by the trial court against the appellant for commission of offence under section 302 RPC stands confirmed and upheld. Criminal reference No. 09/2013 is answered accordingly. Registry to send back the original record of the trial court alongwith the copy of the judgment for information. The jail authorities where the appellant is presently lodged and serving the term of imprisonment be also informed accordingly.