JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal has been preferred by the appellant herein under Section 374(2) of the CrPC against the impugned judgment dated 10/02/2015 passed by learned 2nd Additional Sessions Judge, Janjgir in Sessions Trial No. 82/2013 whereby he has been convicted for offence punishable under Sections 302 & 201 of the IPC and sentenced to undergo imprisonment for life and also with fine of Rs.5,000/- and in default of fine, simple imprisonment for 5 months and rigorous imprisonment for 7 years with fine of Rs.5,000/- in default of fine, simple imprisonment for 5 months, respectively. 2. Case of the prosecution, in brief, is that on 25/01/2013 in between 8:30 PM to 9 PM at village Sivni within the ambit of Police Station Champa, the appellant herein committed the murder of Ku. Shreya alias Nimmi Sahu, aged about 5 years and thereafter, tried to screen himself from the offence by hiding the evidence and thereby, committed the aforesaid offence. 3. Further case of the prosecution is that on 27/01/2013, Gyanchandra (P.W.-3) lodged a report at the Police Station that her daughter Ku. Shreya alias Nimmi Sahu, aged about 5 years, has been missing from 8 PM. Upon enquiry, memorandum statement of the suspect Ramkumar @ Ramu Sahu (appellant herein) was recorded vide Ex.P/1 wherein he stated that on 25/01/2013, he was playing with the deceased in the courtyard and he bounced her towards the sky but he could not catch her and she fell on the ground and became unconscious, thereafter, he got scared and caused her death by throttling her neck and left her dead body in the field of Gangaram and hid it under a stack of hay. On the basis of memorandum statement of the appellant, recovery of dead body of the deceased girl was seized from the field of Gangaram vide Ex.P/2 in the presence of Churamani Rathore (P.W.-1) and Firangi Rathore (P.W.-2). Dehati Nalishi and dehati merg intimation were registered vide Ex.P/13 and P/11. First information report was lodged vide Ex.P/14. Inquest was conducted vide Ex.P/5 and the dead body was subjected to postmortem which was conducted by Dr. Anita Shrivastava (P.W.-14) and as per the postmortem report (Ex.P/17) cause of death is said to be asphyxia due to throttling and nature of death is said to be homicidal. The clothes and slides of the deceased were seized vide Ex.P/10. Inquest was conducted vide Ex.P/5 and the dead body was subjected to postmortem which was conducted by Dr. Anita Shrivastava (P.W.-14) and as per the postmortem report (Ex.P/17) cause of death is said to be asphyxia due to throttling and nature of death is said to be homicidal. The clothes and slides of the deceased were seized vide Ex.P/10. The seized articles were sent for forensic examination and as per the FSL report (Ex.P/22) human blood of 'A' blood group was found on the paddy hay seized from the spot. After due investigation, the appellant was charge-sheeted for offence punishable under Sections 302 and 201 of IPC which was committed to the Sessions Court for trial in accordance with law. The appellant abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 21 witnesses and brought on record 23 documents. The statement of the appellant were taken under Section 313 of CrPC wherein he denied guilt, however, they examined none in his defence and only brought 4 documents on record. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Ku. Shreya alias Nimmi Sahu to be homicidal in nature and further finding the appellant to be the author of crime in question, proceeded to convict him for offence punishable under Sections 302 & 201 of IPC and sentenced him as aforesaid. 6. Mr. Arvind Singh, learned counsel for the appellant, would submit that the trial Court has relied upon the theory of last seen together that the appellant and deceased were seen together by Gyanchandra (P.W.-3), Rajkumar Sahu (P.W.-4), Munnalal (P.W.-5), Narsingh (P.W.-8), Chameli Sahu (P.W.-10), Sweta Sahu (P.W.-11) and Pragya (P.W.-12), however, it has not been established as all these witnesses are relative witnesses and their statements cannot be relied upon particularly when missing report with regard to the deceased has been lodged by Gyanchandra (P.W.-3), father of the deceased on the same date of the incident at 11:25 PM where he has not mentioned about the last seen together that deceased had gone along with the appellant. As such, the theory of last seen together propounded by the prosecution is liable to be rejected. He would further submit that though it is the case of the prosecution that dead body of deceased Ku. As such, the theory of last seen together propounded by the prosecution is liable to be rejected. He would further submit that though it is the case of the prosecution that dead body of deceased Ku. Shreya alias Nimmi Sahu was recovered pursuant to memorandum statement (Ex.P/1) of the appellant, but while recording the memorandum statement, appellant was neither an accused of the offence nor he was in the custody of police which is established by the statement of Investigating Officer R.K. Shukla (P.W.-21) and in view of the decision rendered by the Supreme Court in the matter of Manoranjan Singh v. State of Delhi, AIR 1998 SC 2811 , memorandum is liable to be thrown out and moreover, the dead body had already been recovered prior to recording memorandum statement of the appellant, which is evident from the statements of Chudamani Rathore (P.W.-1) and Rajkumar Sahu (P.W.-4). Lastly, he would submit that prosecution has also failed to prove that death of deceased Ku. Shreya alias Nimmi Sahu was homicidal in nature and in view of the decision rendered by the Supreme Court in the matters of Madan Gopal Kakkad v. Naval Dubey, 1992 (3) SCC 204 , the trial Court has erred in convicting the appellant for offence punishable under Sections 302 & 201 of IPC on the basis of aforesaid incriminating circumstances when the prosecution has miserably failed to prove them against the appellant. As such, the instant appeal be allowed and appellant be acquitted from the charges framed against him. 7. Mr. Sameer Oraon, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt and as such, from the statements of Gyanchandra (P.W.-3), Rajkumar Sahu (P.W.-4), Munnalal (P.W.-5), Narsingh (P.W.-8), Chameli Sahu (P.W.-10), Sweta Sahu (P.W.-11) and Pragya (P.W.-12), it is clearly established that it is the appellant who had taken the deceased along with him and therefore, he was required to explain as to whether he had gone along with the deceased on the date of the incident and how did she die in suspicious circumstances. Furthermore, in view of the decision rendered by the Supreme Court in the matter of State of Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125 , once the appellant was constructively in police custody, thereafter, his memorandum statement was recorded on 27/01/2013 at 04:05 PM, as such, the memorandum statement (Ex. Furthermore, in view of the decision rendered by the Supreme Court in the matter of State of Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125 , once the appellant was constructively in police custody, thereafter, his memorandum statement was recorded on 27/01/2013 at 04:05 PM, as such, the memorandum statement (Ex. P/1) of the appellant is duly in accordance with law. He would also submit that death of deceased Ku. Shreya alias Nimmi Sahu was homicidal in nature and merely because some undigested food was found in her body, it would not mean that it is a case of strangulation/throttling and in that view of the matter, trial Court is absolutely justified in convicting the appellant for offence punishable under Sections 302 & 201 of IPC and the instant appeal is liable to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first question for consideration would be whether the death of deceased Ku. Shreya alias Nimmi Sahu was homicidal in nature? 10. Learned trial Court has answered this question in affirmative and held the death of deceased to be homicidal in nature. In order to prove the death of deceased Ku. Shreya alias Nimmi Sahu to be homicidal in nature, prosecution has examined Dr. Anita Shrivastava (P.W.-14) who has clearly stated before the Court that deceased died within 36-60 hours prior to the recovery and cause of death could be suffocation due to strangulation which is homicidal in nature. She has refuted the suggestion that cricoid cartilage can break on account of suffering sudden injury and has further stated in paragraph 20 of her statement that she has reached to the opinion that death of the deceased was caused due to strangulation/ throttling as she had found fracture in cricoid cartilage and blood present in trachea and there were a number of contusions around the neck of the deceased. As such, the finding recorded by the trial Court that death of deceased was homicidal in nature is a correct finding of fact based on evidence available on record which is neither perverse nor contrary to law. We hereby affirm the said finding recorded by the trial Court that death of deceased Ku. Shreya alias Nimmi Sahu was homicidal in nature. We hereby affirm the said finding recorded by the trial Court that death of deceased Ku. Shreya alias Nimmi Sahu was homicidal in nature. However, the judgments relied upon by the learned counsel for the appellant in the matters of Ramesh Chandra Agrawal v. Regency Hospital Limited and others, (2009) 9 SCC 709 ; Madan Gopal Kakkad (supra) and Mohd. Zahid v. State of T.N., (1999) 6 SCC 120 are clearly distinguishable to the facts of the present case. 11. The next question for consideration would be whether appellant is the author of crime in question ? 12. Before proceeding further, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same reads as under : “153. …. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 13. (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.” 13. Now, we shall consider the submissions raised on behalf of the appellants one by one. Memorandum statement (Ex. P/1) :- 14. In the instant case, memorandum of the appellant has been recorded vide Ex.P-1 on 27-1-2013 at 16:05 hours in presence of Chudamani Rathore (PW-1) & Firangi Rathore (PW-2) and he was arrested on the same day at later point of time vide arrest memo Ex.P-9 at 7.15 p.m. and in that light, it has been contended on behalf of the appellant that such a memorandum statement is inadmissible in evidence in view of the fact that neither the appellant was an accused in the offence nor he was in the custody of the police while his memorandum statement was recorded under Ex.P-1. 15. In order to consider the plea, it would be appropriate to notice the provision contained in 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.” 16. A careful reading of the aforesaid provision would show that a “person must be accused of any offence” and that he must be “in the custody of a police officer” and it is not essential that such an accused must be under formal arrest so as to attract Section 27 of the Evidence Act and to make the memorandum statement admissible in evidence. 17. The expression “accused of any offence” is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by Section 27 of the Evidence Act. 17. The expression “accused of any offence” is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by Section 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability. {See Deoman Upadhyaya’s case (supra).} 18. The principle of law laid down in the Constitution Bench decision of the Supreme Court in Deoman Upadhyaya’s case (supra) has been followed in the matter of Vikram Singh and others v. State of Punjab, (2010) 3 SCC 56 . 19. The word ‘custody’ does not only mean custody after formal arrest but also includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction. 20. The meaning of word “custody” employed in Section 27 of the Evidence Act came to be considered by their Lordships of the Supreme Court in the matter of Shiv Charan v. State of Madhya Pradesh, 1968 Cri. App. R (SC) 268 in which while considering the meaning of word “custody” which is one of the conditions of the applicability of Section 27, their Lordships have held that the person making the statement must be in the custody of the police officer, and observed as under: - “7. It is one of the conditions of the applicability of section 27 of the Evidence Act, that the person making the statement must be in the custody of the police officer. But sub Inspector Mahadeo Prasad Dubey stated at the time when Shivcharan made the statement he was not in custody and was a free man and that Shivcharan was arrested on the next day. Custody contemplated by section 27 is not formal arrest of a person charged with the commission of an offence. As soon as a person is suspected of the commission of an offence, and the police officer in charge of the investigation exercises some control over his movements, for the purpose of the investigation, in the absence of clear evidence to the contrary, he is no longer a liberty, and may be taken to be in custody within the meaning of section 27. The expression “custody” connotes some restraint on the freedom of movement of a person whether by word or action and does not necessarily mean custody after formal arrest. …” 21. The principle of law relating to the word “custody” recorded by their Lordships of the Supreme Court in Shiv Charan (supra) has been followed by the Madhya Pradesh High Court in the matter of Onkar Ganesh v. State of Madhya Pradesh, 1974 M.P.L.J. 429 holding that when a person is called to the police station and is interrogated as an accused in connection with the investigation of a crime, he must be deemed to be in the custody of the police while he is so interrogated and no formal arrest is necessary. 22. Similarly, a Division Bench of the M.P. High Court in the matter of Umed Shobhit v. State of Madhya Pradesh, 1978 M.P.L.J. 742 considering the earlier decisions on the point and following the principles of law laid down in Shiv Charan (supra) and Onkar Ganesh (supra) has held that the word ‘custody’ cannot be said to mean only when the accused is actually taken into custody by the police officer. 23. As such, the submission made on behalf of the accused that when his memorandum statement was recorded vide Ex.P-1 on 27-1-2013 at 16:05 hours, he was neither accused in the offence nor he was in police custody, deserves to be rejected, as he was called for interrogation and he was in the custody of the police and after recording of his memorandum statement in later part of the same day, he was arrested vide Ex.P-9 at 7.15 p.m.. Therefore, the submission made on behalf of the appellant deserves to be and is hereby rejected. 24. The next submission that has been raised on behalf of the appellant is that dead body of the deceased had already been recovered and therefore memorandum statement of the appellant is of no use. 25. In the matter of Nand Kumar and others v. State of Rajasthan, 1963 (2) Cr. L.J. 702, their Lordships of the Supreme Court have held that statements by accused while in police custody as to where the dead bodies were and where valuables robbed from murdered persons were hidden, discovery of dead bodies and valuables by accused themselves after the statements, statements are admissible under Section 27 of the Evidence Act. 26. L.J. 702, their Lordships of the Supreme Court have held that statements by accused while in police custody as to where the dead bodies were and where valuables robbed from murdered persons were hidden, discovery of dead bodies and valuables by accused themselves after the statements, statements are admissible under Section 27 of the Evidence Act. 26. Similarly, in the matter of State of Maharashtra v. Suresh, (2000) 1 SCC 471 , where the dead-body was recovered pursuant to the memorandum statement of the accused, it has been held to be incriminating circumstance in absence of his explanation and observed in paragraph 26 as under : “26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities me criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can Offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court mat the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.” 27. The aforesaid principle of law laid down in Suresh (supra) was followed with approval in the matter of Ningappa Yallappa Hosamani and others v. State of Karnataka and others, 2009 (14) SCC 582 . 28. Thereafter, in the matter of Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1 , their Lordships of Supreme Court have observed as under : “88. 28. Thereafter, in the matter of Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1 , their Lordships of Supreme Court have observed as under : “88. … In the present case, the dead body was lying in a concealed place and that there was no possible explanation on behalf of the accused as to how the body came to be concealed at that particular place, when the prosecution evidence proves that the accused were near the place of recovery of dead body almost at the probable time of death.” 29. In the instant case, Chudamani Rathore (PW-1) & Firangi Rathore (PW-2), have proved the memorandum statement of the appellant recorded vide Ex.P-1 and pursuant recovery of dead body vide Ex.P-2. It is quite vivid that dead body was recovered pursuant to the memorandum statement of the appellant and there is no evidence on record to hold that dead body was already recovered prior to recording of memorandum statement of the appellant on 27-1-2013 at 16:05 hours. As such, the argument raised in this behalf by the appellant is hereby rejected. Theory of last seen together :- 30. The next piece of incriminating circumstance that the trial Court has relied upon to convict the appellant is that the appellant was last seen together with deceased Ku. Shreya alias Nimmi Sahu by Gyanchandra (P.W.-3), Rajkumar Sahu (P.W.-4), Munnalal (P.W.-5), Smt. Pushpa Bai (P.W.-6), Sweta Sahu (P.W.-11) and Pragya (P.W.-12). 31. At this stage, it would be appropriate to quote Section 106 of the Indian Evidence Act, 1872, which 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.” 32. 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. 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. 33. In the matter of Shambhu Nath Mehra v. The 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. 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 pre-eminently 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 v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B).” 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. 34. 34. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. 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 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.” 35. Similarly, the Supreme Court in the matter of Gurcharan Singh v. 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. 36. 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. 36. 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 in the matter of Sawal Das v. 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. 37. The Supreme Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 held in Para-22 as under : “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh, (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. In State of U.P. v. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time.” 38. The Supreme Court in the matter of Ram Gopal v. State of Madhya Pradesh, (2023) 5 SCC 534 has held that if the evidence of theory of last seen together is supported by other corroborating piece of evidence it can be relied upon to base the conviction and has observed as under : “9. In view of the aforestated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon, etc. forming a chain of circumstances is established, the conviction could be based on such evidence.” 39. Recently, in the matters of Ravasaheb alias Ravasahebgouda and others v. State of Karnataka, (2023) 5 SCC 391 and Jabir and others v. State of Uttarakhand, AIR 2023 SC 488 , similar proposition has been laid down by their Lordships of the Supreme Court. 40. Returning back to the facts of the present case in light of the aforesaid proposition of law laid down by their Lordships of the Supreme Court, it is quite vivid that Sweta Sahu (P.W.-11) is the sister of the deceased. 40. Returning back to the facts of the present case in light of the aforesaid proposition of law laid down by their Lordships of the Supreme Court, it is quite vivid that Sweta Sahu (P.W.-11) is the sister of the deceased. She has clearly stated in her statement before the Court that on the night of the offence, at about 8 PM, while she and her mother were eating, appellant came into their room and gave her chocolate and thereafter, took her sister deceased Shreya alias Nimmi Sahu with him and when she went into appellant's room to take her sister, she found that neither the appellant nor the deceased was in his room and thereafter, the entire family started searching for them but after sometime, appellant returned to the house, however, he gave no information with regard to the whereabouts of the deceased. A similar statement has also been made by another sister of the deceased namely Pragya Sahu (P.W.-12). Both of them have been subjected to cross-examination but nothing has been extracted to hold that appellant had not taken the deceased with him and they have made false statements before the Court. Gyanchandra (P.W.-3) and Smt. Pushpa Bai (P.W.-6) – father and mother of the deceased, have also supported the theory of last seen together in line with Sweta Sahu (P.W.-11) and Pragya Sahu (P.W.-12). 41. Since the prosecution witnesses have remained consistent in their version of last seen together, the appellant was required to explain as to how deceased Shreya alias Nimmi Sahu died in suspicious circumstances on the date of the offence while she was in his custody which the appellant has failed to explain in his statement under Section 313 of the CrPC. In that view of the matter, we are of the considered opinion that the theory of last seen together has duly been established by the prosecution. Conclusion :- 42. In view of the aforesaid legal discussion, we are of the considered opinion that the death of deceased Shreya alias Nimmi Sahu has been proved to be homicidal in nature and further the prosecution has been able to prove the theory of last seen together duly established and pursuant to the memorandum statement of the appellant (Ex. Conclusion :- 42. In view of the aforesaid legal discussion, we are of the considered opinion that the death of deceased Shreya alias Nimmi Sahu has been proved to be homicidal in nature and further the prosecution has been able to prove the theory of last seen together duly established and pursuant to the memorandum statement of the appellant (Ex. P/1), dead body of the deceased has been recovered and in absence of any explanation given by the appellant in his statement under Section 313 of CrPC as to how deceased Shreya alias Nimmi Sahu when she was last seen together with him, the trial Court has rightly held the appellant to be author of the crime in question and has rightly convicted him for offence punishable under Sections 302 and 201 of IPC and sentenced him as aforesaid, which is neither perverse nor contrary to law. We do not find any merit in this appeal. 43. Accordingly, this criminal appeal stands dismissed. 44. Let a copy of this judgment be sent to the concerned trial Court and the jail authorities for necessary information and compliance.