JUDGMENT : Sujit Narayan Prasad, J. The instant appeal, filed under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction dated 25.04.2017 and order of sentence dated 29.04.2017 passed by the learned Additional Sessions Judge 2nd F.T.C. Bermo at Tenughat in Sessions Trial No. 286 of 2011, by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life and also for payment of fine of Rs. 5000/- and in case of default of payment of fine further to undergo R.I. for six months. Further, the appellant was also directed to pay Rs.5,00,000/- (Five lakhs) to Bhoni Mahto (P.W. – 10-Father of the deceased) as compensation amount. 2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case, as per fardbeyan of informant, which reads as under: Fardbeyan of the informant-Umesh Kumar (P.W. 7), the brother of the deceased, has been recorded at the place of occurrence on 08.01.2011 at 08.00 pm at Khuta More (Surahi-Potso Road) by Sub-Inspector of Police, Anil Kumar Mishra, Nawadih Police Station, wherein it has been alleged that the deceased-Geeta Devi was married to the accused Umesh Mahto six months ago. For the first three months all was going well and deceased used to visit her parental house quite often from her matrimonial house. But after that the deceased saw that her husband (accused) often used to go with his cousin Bhabhi (widow) on motorcycle. The deceased raised objection to such action of the appellant, which resulted into estrangement in between the husband and wife. It is alleged that when it was known to father of the deceased, he along with other people went to the matrimonial house of her daughter (deceased) and settled down the matter by compromise. But it appears that the accused-Umesh Mahto did not reform himself rather continued to roam around with his Bhabhi on motorcycle, which was again objected by the deceased, upon which, the accused-Umesh Mahto threatened to kill her. It is alleged that her sister bring the matter to the notice of her neighbour, which again travelled to her father, who again settled the dispute. It is alleged that her sister bring the matter to the notice of her neighbour, which again travelled to her father, who again settled the dispute. The informant has further stated that on 06.01.2011 her brother-in-law (Jija), the accused herein, came to his house along with his sister (deceased) for filling up the Form of Intermediate Part-II and stayed there. On the next day i.e., 07.01.2011, the accused went along with the deceased on motorcycle for filling up the form but somehow on that day also the form could not be filled up, as such, the accused-Umesh Mahto stayed with the deceased in the quarter of her father at Jarangdih. On the next i.e., on 08.01.2011 at about 4.00 p.m. evening the accused-Umesh Mahto with Geeta Devi under the pretext of going to village Posto left the house of her father situated at Jarangdih and at about 7.00 pm near road side, which was going towards Surhi more to village Potso, the accused-Umesh Mahto alighted Geeta Devi from his bike and with the help of his associate accused Birendra Mahto, who was a Home-Guard under Duari P.S., Giridih and one unknown associate, who was resident of village Ambadih under Bagodar P.S. by means of knife gave 10-12 blow to Geeta Devi, due to which she succumbed to death. The commission of murder of deceased has been alleged to be witnessed by Nirmal Mahto and Surendra Mahto, who after hearing the cries of the victim rushed to the place of occurrence. It is alleged due to noise the local villagers assembled there on which the accused-Umesh Mahto and his associates fled away from the place of occurrence leaving his motorcycle under the cover of darkness. It has been alleged by the informant that the accused-Umesh Mahto, Birendra Mahto and one unknown had murdered her sister in a planned manner. 3. On the basis of fardbeyan of the informant, a formal F.I.R. was registered against the accused persons and the police arrested the accused-Umesh Mahto on 10.01.2011 who recorded his confessional statement, which led to recovery of blood stained knife and accordingly the seizure memo was prepared in presence of witnesses, Lal Mani Mahto (P.W. 1) and Mohan Mahto (P.W.3). 4. The matter was investigated by the Investigating Officer, who after investigation submitted charge-sheet against said Umesh Mahto and supplementary charge-sheet was submitted against the accused Birendra Mahto. 5. 4. The matter was investigated by the Investigating Officer, who after investigation submitted charge-sheet against said Umesh Mahto and supplementary charge-sheet was submitted against the accused Birendra Mahto. 5. Thereafter the cognizance of the offence was taken and the case was committed to the Court of Sessions wherefrom the case was received in the Court of learned Additional Sessions Judge 2nd F.T.C. Bermo at Tenughat for trial and disposal. 6. In course of trial, the prosecution has examined altogether 10 witnesses, namely, P.W. 1-Lal Mani Mahto (seizure witness) ; P.W. 2-Bukka Mahto; P.W. 3-Mohan Mahto (seizure witness); P.W. 4-Nirmal Mahto (informant); P.W.5-Murat Mahto; P.W.6-Surendra Mahto; P.W. 7-Umesh Kumar (informant); P.W. 8-Dr. Ajay Kumar Sinha (doctor); P.W. 9-Anil Kumar Mishra (I.O) and P.W. 10- Bhoni Mahto (father of the deceased). 7. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code and found the charges levelled against the appellant proved. Accordingly, the appellant had been found guilty as such convicted vide impugned judgment of conviction dated 25.04.2017 and sentenced vide order of sentence dated 29.04.2017, which is the subject matter of instant appeal. 8. The aforesaid judgment of conviction and order of sentence is under consideration before this Court as to whether the trial Court, while convicting the accused person, has committed any illegality or not? 9. Mr. Arwind Kumar, learned counsel for the appellant has assailed the impugned judgment of conviction and order of sentence on the following grounds: (I). That there is no conclusive piece of evidence to prove the complicity of the appellant said to have been proved beyond all shadow of doubt save and except the testimony of P.W. 7 (informant-brother of the informant) and P.W. 10 (father of the informant). That there is no conclusive piece of evidence to prove the complicity of the appellant said to have been proved beyond all shadow of doubt save and except the testimony of P.W. 7 (informant-brother of the informant) and P.W. 10 (father of the informant). According to learned counsel, the testimony of P.W. 7 even if it will be considered in support of the prosecution version that only lead to the case of last seen theory but on the basis of last seen narration as made by P.W. 7 the conviction cannot be said to be justifiable if the same is not corroborated by other cogent evidence and further even if the entire prosecution version will be taken to be true along with testimony of prosecution witness there is no corroborative piece of evidence, as has been gathered in course of trial, to substantiate the commission of crime to be conducted by the appellant and, therefore, merely on the basis of testimony of P.W. 7, as has been relied upon by the learned trial Court, the conviction cannot be said to be justified. (II). Further ground has been taken by referring to the testimony of P.W. 10, who happens to be father of victim, who although has corroborated the version of P.W. 7 but also speaks about the last seen theory, as such it is submitted that prosecution version cannot be established on their testimony alone. (III). The contention has been raised that the position of law is well settled that the last seen theory can only be said to be a basis of conviction if the chain of evidence is found to be complete because of the reason that in the last seen theory, the prosecution case is to substantiate on the basis of circumstantial evidence but after going through the testimony of prosecution in entirety it cannot be said that the chain is complete. (IV). Learned counsel for the appellant has further submitted that there are so many discrepancies in the testimony of prosecution witness. (IV). Learned counsel for the appellant has further submitted that there are so many discrepancies in the testimony of prosecution witness. So far the issue of recovery of knife is concerned, P.W. 1 in his testimony has stated that the knife was under the culvert which he handed over to police whereas the Investigating Officer (P.W 9) in his statement has deposed that the knife was recovered on the confessional statement of appellant, as such there is vital discrepancy with respect to recovery of knife, which was allegedly used in commission of crime hence, the prosecution version is not fit to be accepted. Learned counsel for the appellant on the basis of aforesaid grounds has submitted that the judgment of conviction and order of sentence is not sustainable in the eyes of law and as such the same is fit to be quashed and set aside. 10. While on the other hand, Mrs. Priya Shrestha, learned Special Public Prosecutor appearing for the respondent-State has submitted that there is no error in the impugned judgment of conviction and order of sentence since the learned trial Court after taking into consideration the testimony of witnesses to the occurrence has passed the impugned judgment of conviction and order of sentence. It has further been submitted that it is incorrect on the part of appellant to take the ground that chain of evidence is not complete rather if the testimony of P.W. 7, the informant who happens to be the brother of the deceased, will be considered along with the testimony of P.W. 10, who happens to be father of victim, both have deposed that the victim and appellant together in a motorcycle left the house of P.W. 10 on the day of occurrence and thereafter the dead body of the victim was found one kilometer away from the house of the father of the victim. The learned counsel for the State on the basis of aforesaid premise has submitted that when the informant, P.W. 7 and P.W. 10 both have corroborated the fact that the appellant to be along with the victim left the house of P.W. 10 and thereafter the victim was found dead as such it is incorrect to take the ground that chain is not complete. In that view of the matter circumstance proves the culpability of the appellant and the learned trial Court after taking into consideration the aforesaid fact coupled with the testimony of the Investigating Officer and the doctor has passed the judgment of conviction, which cannot be said to suffer from error. Learned Additional Public Prosecutor on the basis of aforesaid ground has submitted that the judgment of conviction and order of sentence requires no interference by this Court. 11. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses and the finding recorded by learned trial Court. 12. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the testimony of witnesses, as per the testimony recorded by learned trial Court. (I).P.W. 1-Lal Mani Mahto, who is a hearsay witness, has deposed that on the alleged date of occurrence at about 7.00 p.m. when he was returning from Surahi More to his village, two villagers, one Surendra Nath Mahto and name of other persons is not known to him was raising alarm that a girl has been murdered. He saw the dead body of the girl, which was of Geeta Devi upon which there was 15-16 blow of knife. He further deposed that the knife was under the culvert, which he handed over to police. He has stated that he found blood stains on the earth. He has further stated that the aforesaid people had said that Umesh and Birendra have murdered Geeta Devi. He deposed about the cause of incidence that Umesh had illicit relation with his cousin sister-in-law (Fuferi Bhabhi) because of which Umesh used to torture the deceased. In the cross-examination, his statement was almost the same what he has deposed in the examination-in-chief. (II). P.W. 2 Bukka Mahto, is also a hearsay witness, who has stated that in the evening at about 7.00 p.m he was doing nature call in farm and on hearing the alarm raised by Surendra Mahto and Nirmal Mahto, he rushed to the place of occurrence and saw the dead body of Geeta Devi lying in pool of blood and noticed that wound was caused by 10-12 knife blow on the body of deceased. He further deposed that he came to know from Surendra Mahto and Nirmal Mahto that she was murdered by her husband-Umesh Mahto. He also deposed in the same line about the cause of incidence that Umesh had illicit relation with his cousin sister-in-law (Fuferi Bhabhi). In his cross-examination, he has stated that the accused-Umesh Mahto is Damad of his village, as such he knows him. During cross-examination, nothing different to the statement what has been made in examination-in-chief has been made by him. (III). P.W. 3-Mohan Mahto is own uncle of deceased-Geeta Devi, who is also a hearsay witness. He has deposed that when he was returning from work, near Khutta More he saw crowd was assembled there. He found the dead body of Geeta Devi was lying there over which there was sign of knife blow. He further deposed that Surendra and Nirmal have seen the accused Umesh and Birendra fleeing away from the place of occurrence. So far as the cause of murder of said Geeta Devi is concerned, he has deposed the same version about illicit relation of accused-Umesh Mahto with his Bhabhi. During cross-examination, his statement made in examination-in-chief remained in-tact. (IV).P.W. 4-Nirmal Mahto, is an eye-witness to the occurrence. He has deposed that on 08.01.2011 at about 7.00 pm evening when he along with Surendra Mahto was returning from Surhi More to his home and reached near Khuta More he saw from the light of his motorcycle that Umesh Mahto and Birendra Mahto are giving knife blow on Geeta Devi, whereupon they raised alarm then both the accused fled away. After raising alarm by them, villagers reached there to whom they narrated the whole story. Thereafter, police reached there and taken the statement of Umesh Kumar, who is the brother of deceased. He has further stated that deceased-Geeta Devi is of the same village and in relation she is sister. So far as the cause of murder of said Geeta Devi is concerned, he has deposed the same version as other witnesses said about illicit relation of accused-Umesh Mahto with his Bhabhi. During cross-examination, he has stated that on the relevant evening on foot he strolled out to Surahi more and on return Surendra was with him. However, he was consistent on his statement that in the light of motor-cycle he had seen Umesh Mahto. During cross-examination, he has stated that on the relevant evening on foot he strolled out to Surahi more and on return Surendra was with him. However, he was consistent on his statement that in the light of motor-cycle he had seen Umesh Mahto. However, he has stated that he did not chase Umesh Mahto. Rest of his statement made in examination-in-chief remained in-tact. (V). P.W. 5-Murat Mahto, is also a hearsay witness, who has deposed that on hearing halla he went out from his house and reached near Khutta More and saw the dead body of Geeta Devi lying in the pool of blood. He is witness to inquest report of dead body of Geeta Devi. He proved his signature, which was marked as Exhibit 1. He has further deposed that the police seized black colour chappal of deceased, a towel and soil and prepared seizure-list, upon which he put his signature, which has been proved by him and marked as Exhibit 2. He has further proved his signature as Exhibit 3 over search-cum-seizure memo dated 10.01.2011 made by the police. However, during cross-examination he made his ignorance as to where he affixed his signature over search-cum-seizure memo. (VI). P.W. 6 Surendra Mahto, has deposed that the occurrence took place at about 7.00 p.m. on 08.01.2011. He along with Nirmal Mahto (PW 4) was returning to home on motorcycle. In the way at Khuta More they saw a crowd was assembled there, where they found the dead body of Geeta Devi. He clearly deposed that he did not see anybody murdering Geeta Devi. He was declared hostile by the prosecution. After being declared hostile, his attention was drawn towards his previous statement recorded under Section 161 Cr.P.C he denied giving such statement that on the date of occurrence, when he reached near Khuta More he had seen accused persons Umesh Mahto, Birendra Mahto and others were assaulting deceased Geeta Devi. During cross-examination, he admitted Geeta Devi to be his neighbor from her parental side. According to him, when he reached at the place of occurrence, he saw the dead body of Geeta Devi was lying there. (VII). P.W. 7-Umesh Kumar, is the informant and brother of the victim. He has narrated the whole story what has been stated in his fard beyan, basis upon which F.I.R. was instituted. According to him, when he reached at the place of occurrence, he saw the dead body of Geeta Devi was lying there. (VII). P.W. 7-Umesh Kumar, is the informant and brother of the victim. He has narrated the whole story what has been stated in his fard beyan, basis upon which F.I.R. was instituted. He has identified and proved his signature upon the fard beyan as Exhibit 4. He has deposed that in the month of June/July, 2010 marriage of her sister Geeta Devi was solemnized with Umesh Mahto. After marriage her sister went to her in-laws house, where for some days all was going well but after that there was quarrel between them because of her husband’s relationship with Bhabhi-Asha Devi as Umesh Mahto used to ride on motorcycle with her Bhabhi. However, on compromise made by the father of Geeta Devi for some days all goes well but again for the same issue quarrel started between them. Thereafter, his sister (Geeta Devi) came to her parental house and complained about it but his father made her understand and sent to her Sasural (in-laws house), whereupon she returned to her in-laws house but her husband (Umesh Mahto) used to threatening of her life. This witness has further deposed that on 06.01.2011, her sister came to his house along with her husband-Umesh Mahto on motorcycle for filling up the form of Intermediate but form could not be filled up. Again on the next date the form could not be filled up as they stayed in the house of father of informant at Jarindih. On the next day i.e., on 08.01.2011 they proceeded from Jarandih stating that they are going to Potso but in the evening it was known that near Khatta More accused/appellant-Umesh Mahto has murdered her sister by means of knife blow. On knowing this he went to the place of occurrence where he recorded his fardbeyan before the police and put his signature thereupon, which he identified and has been marked as Exhibit 4. He has further deposed that Geeta has been murdered by Umesh, Birendra Mahto and one unknown. This witness has also deposed that the cause of death is illicit relationship between Umesh Mahto and his Bhabhi, as such the appellant along with his friends has killed his sister. During cross-examination, his statement remained in-tact. He has further deposed that Geeta has been murdered by Umesh, Birendra Mahto and one unknown. This witness has also deposed that the cause of death is illicit relationship between Umesh Mahto and his Bhabhi, as such the appellant along with his friends has killed his sister. During cross-examination, his statement remained in-tact. He denied the suggestive question put forth to the effect that Geeta Devi, after wearing valuables and ornaments, used to go outside the house and as such she was made victim by unknown miscreants. (VIII). P.W. 8, Dr. Ajay Kumar Sinha, has conducted autopsy on the dead body of Geeta Devi, who found following injuries. On external examination: Average body build, rigormortis present in both limbs. Both eyes-opened. Mouth also was opened. Injuries: (i). Lacerated and cut wound on right chick in a size of 4 ½” X ¼” X 1” deep. (ii). A cut wound 1 ½” X ¼”X 1/6” bone deep on forehead right side. (iii). A cut and penetrated wound on chest left side in a size of 1 ½”X ½” X 2 ½” pericardium heart and left lung were punchered due to the wound afore. (iv). A cut and penetrated wound on left hypochondria in a size of 2 ¼” X ½” X ½” X 6” deep punctured spleen, intestine and whole abdominal cavity was full of blood and faecel material. (v). Slashed injury (cut) on left wrist joint in a size of 2”X1”X1/6” deep. (vi). A cut and penetrated wound just below right clavicles in a size of ½”X ½”X2 deep. (vii). A cut and penetrated wound on right hypochondriac of size 1 ½”X ¼”X 4” deep caused liver damage. (viii). A slashed cut injury on right thigh of size 1 ½” X 2”X1/4” deep. Nature of injuries:-All are ante mortem caused by sharp and pointed object. On dissection: Facial and Cardiac vessels were damaged. Urinary bladder-empty. Cause of death: Due to shock and hemorrhage due to the above injuries. Time elapsed since death within 18-24 hours. The doctor has proved the post mortem examination report as Exhibit 5. (IX). P.W. 9 Anil Kumar Mishra is the Investigating Officer of the case. He has proved the fardbeyan containing signature of Umesh Kumar (informant) as Exhibit 4/1 and further proved the formal F.I.R. as Exhibit 6, which he claimed to be in the signature of Officer-in-Charge, Mr. Shayam Kishore Mahto. (IX). P.W. 9 Anil Kumar Mishra is the Investigating Officer of the case. He has proved the fardbeyan containing signature of Umesh Kumar (informant) as Exhibit 4/1 and further proved the formal F.I.R. as Exhibit 6, which he claimed to be in the signature of Officer-in-Charge, Mr. Shayam Kishore Mahto. According to him, after recording re-statement of Umesh Mahto (informant), he recorded the statement of Mohan Mahto, Lal Mani Mahto, Nirmal Mahto, Janki Mahto and Surendra Mahto. He proved the inquest report to be prepared in his own handwriting with the signature as Exhibit 7. In his examination-in-chief, he has explained about the place of occurrence. Further, he made seizure of chappal of deceased, blood stained soil, one Khadi made grey coloured towel and blood stained hankie and prepared seizure-list, which has been marked as Exhibit 8. He had arrested the accused Umesh Mahto and prepared memo of arrest, which has been marked as Exhibit 9. After arrest of accused, Umesh Mahto, he recovered one Nokia Mobile, a wrist watch and cash of Rs. 150/- from the possession of accused Umesh Mahto and prepared search-cum-seizure memo as Exhibit 10. According to him, the arrested accused confessed his guilt of causing death of Geeta Devi and at the instance of appellant he recovered knife from the bushes and prepared seizure list, which has been marked as Exhibit 11. During Cross-examination, he has stated that the seized articles were sent for Forensic examination is not mentioned in case diary. He has further denied that the witness Lal Mani Mahto had given knife to him which was under culvert. At paragraph 33 of his cross-examination he has stated that witness Nirmal Mahto had not given statement before him that on the day of incidence at about 7.00 pm night he (Nirmal Mahto-P.W. 4) along with Surendra Mahto was going to his house from Sarhi More and in the light of vehicle he saw the accused Umesh and Birendra Mahto was giving knife blow to victim Geeta. At paragraph 35, the I.O. has further deposed that the witness Umesh Kumar (informant) had not given any statement that again after six months Geeta had quarrel with her husband-Umesh Mahto on the same issue and in course thereof Umesh Mahto had threatened to kill Geeta Devi. (X). P.W. 10–Bhoni Mahto, is the father of deceased-Geeta Devi. He has fully supported the prosecution version. (X). P.W. 10–Bhoni Mahto, is the father of deceased-Geeta Devi. He has fully supported the prosecution version. He has deposed that after about three months of marriage, her daughter Geeta complained that her husband Umesh Mahto has illicit relationship with his Bhabhi-Asha Devi. He has further deposed that he even visited her daughter-in-laws” house to settle the dispute but later on matter was more aggravated. He has deposed that on the fateful day, under the pretext of returning to his native village, his son-in-law Umesh Mahto along with his daughter Geeta Devi left the house on the motorcycle and on the very night he was informed that his daughter Geeta Devi has been murdered. He has further deposed that he came to know that villagers Nirmal Mahto and Surendra Mahto had seen the accused Umesh Mahto and his associate namely Birendra Mahto has murdered his daughter. During cross-examination, he has deposed that in the marriage he had given the ornaments which her daughter used to wear. However, reiterated that her daughter used to complain about the illicit relation of her husband with Asha Devi. He denied the suggestion put forth by the defence that his daughter Geeta and her husband-Umesh Mahto did not visit his house on 07.01.2011. He further rules out that his daughter Geeta used to wear valuables and ornament due to which she was made the victim of loot by strangers and subjected to death. The learned trial Court on the basis of oral as well as documentary evidence available on record passed the impugned judgment of conviction and order of sentence, which is the subject matter of instant appeal. 13. This Court, after having considered the testimony of witnesses is now proceeding to consider the argument advanced by learned counsel for the appellant. 14. The ground has been agitated on behalf of appellant that there is no eye witness and the judgment is based upon the last seen theory and as such the principle of circumstantial evidence has been applied. The basis of conviction is the testimony of P.W. 7 and 10, who has last seen the victim along with the appellant and thereafter the victim was found to be dead. It has been argued that the said principle will not be applicable in the facts of the case since there is no reference of particular time of commission of crime. It has been argued that the said principle will not be applicable in the facts of the case since there is no reference of particular time of commission of crime. Further, the knife which has been said to be recovered on the confession of the appellant, which is not fit to be believed in view of testimony of P.W. 1 wherein he has deposed that knife which was lying under the culvert and it was handed over by him to police. 15. While, on the other hand, the respondent-State has submitted that although the appellant has tried to make out a case of circumstantial evidence but as per submission of the State the ground has been taken that it is not a case based upon the circumstantial evidence of the last seen theory rather P.W. 4 has seen the commission of offence and as such it is a judgment based upon eye witness corroborated by the testimony of P.W. 7 and P.W. 10. 16. This Court, therefore, is now proceeding to examine the fact that as to whether the judgment of conviction can be said to be based upon “direct evidence”, i.e., based upon the testimony of eye-witness P.W. 4-Nirmal Mahto or based upon the “circumstantial evidence” coupled with on the last seen theory. It appears from the finding recorded by the learned trial Court in the impugned order that the version of prosecution so far it relates to P.W. 4 treated to be eye witness has been discarded on the two-fold grounds. The first ground is that statement made by him under Section 161 Cr.P.C does not disclose that he is an eye witness to the occurrence but during deposition he has projected himself to be eye witness. In this regard, P.W. 9, Anil Kumar Mishra, who is the investigating officer of the case, during investigation has recorded the statement of witnesses including this witness, in his evidence at paragraph 33 when confronted has stated that P.W. 4 in his previous statement under Section 161 Cr.P.C. was not the eye witness of the occurrence of killing of said Geeta Devi. 17. 17. This Court on the basis of testimony of the I.O see no reason not to accept the finding of the learned trial Court so far as status of P.W. 4 who has been discarded to be an eye witness and the learned trial Court rightly held that P.W. 4, who is claiming himself to be eye witness has exaggerated and advanced his narration against his previous statement recorded under Section 161 Cr.P.C., as has been mentioned in the case diary. 18. Since this Court has held that it is not a case of direct evidence as such is now proceeding to examine as to whether it is a case of circumstantial evidence or not i.e., sustainable on the last seen theory or not? 19. The Hon’ble Apex Court in the year 1952, in the judgment rendered in Hanumant Son of Govind Nargundkar vs. State of Madhya Pradesh [ AIR 1952 SC 343 ] has laid down the parameters under which, the case of circumstantial evidence is to be evaluated, which suggests that: “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 must have been done by the accused.......” The judgment referred in Hanumant (supra) has been consistently followed by Hon’ble Apex Court in the judgment rendered in Tufail (Alias) Simmi Vs. State of Uttar Pradesh [ (1969) 3 SCC 198 ]; Ram Gopal Vs. State of Maharashtra [ (1972) 4 SCC 625 ] and Sharad Birdhichand Sarda Vs. State of Maharashtra [ (1984) 4 SCC 116 and also in Musheer Khan alias Badshah Khan & Anr. Vs. State of Madhya Pradesh [ (2010) 2 SCC 748 . State of Uttar Pradesh [ (1969) 3 SCC 198 ]; Ram Gopal Vs. State of Maharashtra [ (1972) 4 SCC 625 ] and Sharad Birdhichand Sarda Vs. State of Maharashtra [ (1984) 4 SCC 116 and also in Musheer Khan alias Badshah Khan & Anr. Vs. State of Madhya Pradesh [ (2010) 2 SCC 748 . The Hon’ble Apex Court in Musheer Khan (Supra) while discussing the nature of circumstantial evidence and the burden of proof of prosecution has held as under paragraph nos. 39 to 46 as under: 39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is “inferential evidence” and proof in such a case is derivable by inference from circumstances. 40. Chief Justice Fletcher Moulton once observed that “proof does not mean rigid mathematical formula” since “that is impossible”. However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge “like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches”. The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence. 41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (See Raghav Prapanna Tripathi v. State of U.P. [ AIR 1963 SC 74 : (1963) 1 Cri LJ 70]) 42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. (See Raghav Prapanna Tripathi v. State of U.P. [ AIR 1963 SC 74 : (1963) 1 Cri LJ 70]) 42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. (See State of U.P. v. Dr. Ravindra Prakash Mittal [ (1992) 3 SCC 300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693], SCC p. 309, para 20.) 43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail. 44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt. 45. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor [11 CWN 1085] it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence. 46. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence. 46. The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy v. State of Mysore [ AIR 1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio in Govind [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR para 5, p. 30 of the Report in Govinda Reddy [ AIR 1960 SC 29 : 1960 Cri LJ 137] are: “5. … “10. … in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] 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 [shown] that within all human probability the act must have been [committed] by the accused.” [As observed in Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 at pp. 345-46, para 10.] ” The same principle has also been followed by this Court in Mohan Lal Pangasa v. State of U.P. [ (1974) 4 SCC 607 : 1974 SCC (Cri) 643 : AIR 1974 SC 1144 ] 20. 345-46, para 10.] ” The same principle has also been followed by this Court in Mohan Lal Pangasa v. State of U.P. [ (1974) 4 SCC 607 : 1974 SCC (Cri) 643 : AIR 1974 SC 1144 ] 20. Thus, it is evident that for proving the charge on the basis of circumstantial evidence, it would be necessary that evidence so available must induce a reasonable man to come to a definite conclusion of proving of guilt; meaning thereby there must be a chain of evidence so far it is complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 21. The learned Court below has discarded the testimony of P.W.4 as eyewitness, which this Court finds a correct finding after considering the material available on record; as such we are of the view that this case will not come under the purview of “direct evidence. 22. Therefore, this Court has to examine as to whether this case is coming under the purview of circumstantial evidences coupled with the “last seen theory” of not. 23. It is settled position of law that the last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. However, in such a case the Court should look for some corroboration and further the accused owes an explanation under Section 106 of the Evidence Act about the circumstances under which death of deceased may have taken place. Reference in this regard may be taken from the judgment rendered in Manivel v. State of T.N., reported in (2008) 12 SCC 748 wherein at paragraph 14, 15, 16 and 17 the Hon’ble Apex Court held as under: “14. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish [ (2005) 3 SCC 114 : 2005 SCC (Cri) 642] it was noted as follows : (SCC p. 123, para 22) “22. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish [ (2005) 3 SCC 114 : 2005 SCC (Cri) 642] it was noted as follows : (SCC p. 123, para 22) “22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.” 15. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [ (2006) 10 SCC 172 : (2006) 3 SCC (Cri) 512] it was noted as follows : (SCC p. 181, para 27) “27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.” (See also Bodhraj v. State of J&K [ (2002) 8 SCC 45 : 2003 SCC (Cri) 201].) 16. Similar view was also taken in Jaswant Gir v. State of Punjab [ (2005) 12 SCC 438 : (2006) 1 SCC (Cri) 579] and Kusuma Ankama Rao case [ (2008) 13 SCC 257 ]. 17. When the background facts are considered in the light of evidence on record, it is clear that the trial court and the High Court were justified in holding the appellants guilty. 17. When the background facts are considered in the light of evidence on record, it is clear that the trial court and the High Court were justified in holding the appellants guilty. The appeal is therefore without any merit, deserves dismissal, which we direct.” Further reference in this regard be made to the judgment rendered in Satpal v. State of Haryana, reported in (2018) 6 SCC 610 wherein at paragraph 6 the Hon’ble Supreme Court held as under: “6. We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.” 24. This Court is now proceeding to deal with the finding recorded by learned trial Court by taking together the testimony of witnesses in particular testimony of P.W. 7 and P.W. 10, who have last seen the accused together with the victim and the conduct of the accused person vis-à-vis the argument advanced by learned counsel for the parties. 25. This Court is now proceeding to deal with the finding recorded by learned trial Court by taking together the testimony of witnesses in particular testimony of P.W. 7 and P.W. 10, who have last seen the accused together with the victim and the conduct of the accused person vis-à-vis the argument advanced by learned counsel for the parties. 25. The learned counsel for the appellant has assailed the judgment of conviction and order of sentence on the ground of contradiction in the testimony of the witnesses and further argued that the death might have been caused due to loot of the jewellery of the victim. 26. The learned trial Court, in order to reach the conclusion of proving of charge against the appellants, has mainly considered the testimony of P.W. 7-Umesh Kumar (Informant) along with testimony of P.W. 10- Bhoni Mahto (father of informant). 27. This Court in order to reach the conclusive finding is reverting back to the testimony of P.W. 7 and P.W. 10. P.W. 7-Umesh Kumar, who happens to be brother of the victim and informant of the case, has stated in specific term that the deceased had come to his residence along with the appellant for the purpose of filling up of the form of Intermediate but form could not be filled up. Again on the next day the form could not be filled up and they stayed in the house of father of informant. On the next day i.e., on 08.01.2011 they proceeded from Jarandih stating that they are going to Posto but in the evening it was known that near Khatta More Umesh Mahto (appellant) has murdered her sister by means of knife blow. On knowing this he went to the place of occurrence where he recorded his fardbeyan before the police. P.W. 10-Bhoni Mahto, who is father of deceased, has deposed that on 08.01.2011 his son-in-law Umesh Mahto along with his daughter Geeta Devi left the house on the motorcycle and on the very night he was informed that his daughter Geeta Devi has been murdered. 28. P.W. 10-Bhoni Mahto, who is father of deceased, has deposed that on 08.01.2011 his son-in-law Umesh Mahto along with his daughter Geeta Devi left the house on the motorcycle and on the very night he was informed that his daughter Geeta Devi has been murdered. 28. This Court, after going through the statement of P.W. 7 and P.W. 10, is of the view that the deceased was last seen along with the appellant and in the evening the dead body of the deceased was found, which was witnessed by the witnesses and on the place of occurrence the informant came and inquest report was prepared. Furthermore, as per fard beyan, the appellant and deceased has left the house of P.W. 10 on the fateful day i.e., on 08.01.2011 at 4.00 p.m. and the dead body of deceased was found on the same day by 7.00 p.m. evening as such the time gap between the point of time when the accused and the deceased was seen last alive and when the deceased is found dead is so small that possibility of any person other than accused-appellant being the author of the crime become impossible. 29. In such circumstances, there will be reverse onus upon the appellant to disbelieve the allegation as has been leveled against the appellant, since, Section 106 of the Indian Evidence Act, 1972 speaks that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. For ready reference, Section 106 of the Evidence Act is reproduced 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. In this context, the Hon’ble Apex Court in the judgment rendered in Joshinder Yadav Vs. State of Bihar reported in (2014) 4 SCC 42 has held at paragraphs 16, 17, 18 considering the implication of the provision of Section 106 of the Evidence Act, as under: “16. In our opinion, the prosecution having established that the accused treated the deceased with cruelty and that they subjected her to harassment for dowry, the accused ought to have disclosed the facts which were in their personal and special knowledge to disprove the prosecution case that they murdered Bindula Devi. Section 106 of the Evidence Act covers such a situation. In our opinion, the prosecution having established that the accused treated the deceased with cruelty and that they subjected her to harassment for dowry, the accused ought to have disclosed the facts which were in their personal and special knowledge to disprove the prosecution case that they murdered Bindula Devi. Section 106 of the Evidence Act covers such a situation. The burden which had shifted to the accused was not discharged by them. In this connection, we may usefully refer to the judgment of this Court in Shambhu Nath Mehra v. State of Ajmer [Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 : 1956 Cri LJ 794] wherein this Court explained how Section 101 and Section 106 of the Evidence Act operate. Relevant portion of the said judgment reads thus : (AIR p. 406, paras 10-11) “10. Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. “101.Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.” Illustration (a) says— “A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.” 11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.” 17. In Balram Prasad Agrawal v. State of Bihar [ (1997) 9 SCC 338 : 1997 SCC (Cri) 612] the prosecution had established the cruel conduct of the accused i.e. her husband and members of his family and the sufferings undergone by the deceased at their hands. The unbearable conduct of the accused ultimately resulted in her death by drowning in the well in the courtyard of the accused's house. The unbearable conduct of the accused ultimately resulted in her death by drowning in the well in the courtyard of the accused's house. This Court observed that what happened on the fateful night and what led to the deceased's falling in the well was wholly within the personal and special knowledge of the accused. But they kept mum on this aspect. This Court observed that it is true that the burden is on the prosecution to prove the case beyond reasonable doubt. But once the prosecution is found to have shown that the accused were guilty of persistent conduct of cruelty qua the deceased spread over years as was well established from the unshaken testimony of father of the deceased, the facts which were in the personal knowledge of the accused who were present in the house on that fateful night could have been revealed by them to disprove the prosecution case. This Court observed that the accused had not discharged the burden which had shifted to them under Section 106 of the Evidence Act. While coming to this conclusion, this Court relied on Shambhu Nath Mehra [Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 : 1956 Cri LJ 794]. 18. In the present case, the deceased was admittedly in the custody of the accused. She disappeared from their house. As to how her dead body was found in the river was within their special and personal knowledge. They could have revealed the facts to disprove the prosecution case that they had killed Bindula Devi. They failed to discharge the burden which had shifted to them under Section 106 of the Evidence Act. The prosecution is not expected to give the exact manner in which the deceased was killed. Adverse inference needs to be drawn against the accused as they failed to explain how the deceased was found dead in the river in one foot deep water. Further, reference, in this regard be made to the judgment rendered in Tulshiram Sahadu Suryawanshi & Anr Vs. State of Maharashtra (supra) reported in (2012) 10 SCC 373 at paragraph 22 held as under: “22. The evidence led in by the prosecution also shows that at the relevant point of time, the deceased was living with all the three accused. Further, reference, in this regard be made to the judgment rendered in Tulshiram Sahadu Suryawanshi & Anr Vs. State of Maharashtra (supra) reported in (2012) 10 SCC 373 at paragraph 22 held as under: “22. The evidence led in by the prosecution also shows that at the relevant point of time, the deceased was living with all the three accused. In other words, the appellants, their son A-3 and the deceased were the only occupants of the house and it was, therefore, incumbent on the appellants to have tendered some explanation in order to avoid any suspicion as to their guilt. All the factors referred above are undoubtedly circumstances which constitute a chain even stronger than the account of an eyewitness and, therefore, we are of the opinion that conviction of the appellants is fully justified.” The proposition of law as laid down in the cases referred hereinabove is regarding implication of the provision of Section 106 which clarifies that the burden which has shifted to the accused if not discharged by him he will be liable to be punished by drawing inference against the accused that he failed to explain that how the deceased was found dead. 30. In the case at hand though defence has taken the plea that deceased used to wear her ornaments and valuables due to which she was made to victim of loot but when this Court has gone across the testimony of P.W. 7 and P.W. 10, wherein when specific question was put forth by defence during cross examination that as deceased-Geeta used to wear valuables and ornament due to which she was made the victim of loot by strangers and subject to death, it was denied by them. 31. 31. This Court, taking into consideration the facts in entirety as also the statement made by P.W. 7 and P.W. 10 that the deceased was last seen with the appellant while returning from the house of P.W. 10 and there was no rebuttal to such statement by the defence and even no suggestion was put before P.W. 7 or P.W. 10 to falsify such statement, is of the view that the last seen theory remain un-rebutted and therefore the onus was shifted upon the appellant, as per Section 106 of the Evidence Act to disprove the prosecution case, but the appellant has failed to give any explanation to that effect as to how the death of his wife has taken place. Furthermore, all the witnesses have also deposed the cause of death that there was illicit relationship between Umesh Mahto and his Bhabhi, due to which there was quarrel in between the husband and wife (deceased) and as such there is reason for committing murder of the wife by the husband, the appellant. 32. This Court has also perused the statement of appellant recorded under Section 313 Cr.P.C. Although in the statement recorded under Section 313 Cr.P.C. the appellant has denied that he had illicit relation with his Bhabhi and made statement that his wife often used to wear valuable ornaments and probably for the said reason she was murdered but that statement has been discarded, which cannot be said to suffer from infirmity, taking into consideration the testimony of prosecution witnesses in entirety. 33. Therefore, it is a fit case where inference is to be drawn against the appellant as he failed to explain how the deceased was found dead. 34. This Court on the basis of discussion made hereinabove, is of the view that the judgment passed by learned trial Court requires no interference. 35. Accordingly, the instant appeal fails and is dismissed. 36. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. I Agree