JUDGMENT : HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY 1. Both the criminal appeals have been preferred against the judgment of conviction dated 13.08.2018 and the order of sentence dated 14.08.2015 passed by the learned Additional Judicial Commissioner-X/Special Judge-II, CBI, Ranchi in Sessions Trial No.924 of 2013 (arising out of Ormanjhi P.S. Case No.77 of 2013, G.R. Case No.3782 of 2013) whereby and whereunder the appellants have been convicted for the offences under sections 302/34 and 201/34 of IPC. All the appellants have been sentenced to undergo life imprisonment for the offence under section 302/34 of IPC and Rigorous Imprisonment for three years for the offence under section 201/34 of IPC and both the sentences have been directed to run concurrently. 2. The prosecution case is based on the fardbeyan of the informant, namely, Lochan Singh (PW-4 – the father of the deceased) which was recorded on 13.07.2013 at 06:45 A.M. by the Sub-Inspector of Police, namely, Yogendra Shukla (PW-5–Investigating officer of the case) of Ormanjhi Police Station at Village- Chapabar. It was alleged in the FIR that on 13.07.2013 at about 04:00 A.M., the informant’s daughter, namely, Shilpa Kumari told the informant that his son namely, Krishna Singh @ Vishal Singh (deceased) had not returned home. She also told the informant that the deceased had gone alongwith his friends namely, Prashant Kumar, Shiwangi and Elisha to Ormanjhi for taking meal and this fact was disclosed to her by one Dharmveer. Thereafter, in the morning, the informant searched for his son Krishna Singh @ Vishal Singh (deceased) and went towards Ormanjhi where he came to know that a dead body was found lying on the road near Chapa Koya. The informant reached there and identified the dead body as his son Krishna Singh. The informant noticed that the body was naked except one underwear and there were severe injuries on the head of his son and marks of dragging were present all over the dead body. The informant came to know from Dharmveer and Prashant Kumar (P.W-2) that in the previous night after taking meal at Mehta Line Hotel, when the deceased with Prashant (P.W-2), Shiwangi (P.W-1) and Elisha were going in Maruti 800 No. WNW-5449 towards Kukrid, one green coloured 709 truck came from behind and tried to overtake. The informant came to know from Dharmveer and Prashant Kumar (P.W-2) that in the previous night after taking meal at Mehta Line Hotel, when the deceased with Prashant (P.W-2), Shiwangi (P.W-1) and Elisha were going in Maruti 800 No. WNW-5449 towards Kukrid, one green coloured 709 truck came from behind and tried to overtake. It was further alleged that the said truck stopped in front of the Maruti car and four persons came down and thereafter they started abusing and scuffling the deceased and Prashant and the persons in the truck forcibly lifted Krishna Singh into the truck and took him away. Thereafter the dead body of Krishna Singh was found lying on the road. The informant alleged that the persons sitting in the truck had beaten and had killed the deceased. On the basis of the fardbeyan, the case was registered at 10:00 hours as Ormanjhi P.S. Case No. 77/2013 dated 13.07.2013 under Sections 302, 201/34 of IPC against unknown. 3. After completion of investigation, Charge-sheet No.107/2013 dated 31.08.2013 was submitted under sections 302, 201/34 of IPC against the appellants. Thereafter, the learned Judicial Magistrate, 1st Class, Ranchi took cognizance of the offences on 21.09.2013 under the same sections against the appellants and on 19.12.2013, committed the case to the Court of Sessions. On 24.03.2014, charges under Sections 302/34, 201/34 of IPC were framed against the appellants which were read over and explained to them in Hindi, to which they pleaded not guilty and claimed to be tried. Prosecution evidences 4. In the course of trial altogether eight witnesses were examined on behalf of the prosecution. Shiwangi (P.W-1) is the eye-witness and friend of the deceased who had accompanied the deceased to Ormanjhi along with two other friends; Prashant (P.W-2) is also the eye-witness and friend of the deceased who had also accompanied the deceased to Ormanjhi alongwith P.W-1, and one more friend. PW-4 is the informant of the case and father of the deceased. PW-5 is the investigating officer of the case. PW-6 is the Judicial Magistrate, Ranchi who conducted the Test Identification Parade on 30.08.2013 in whose presence PW-1 had identified Kanhaiya Gope, Ravi Mahto and Umesh Karmali @ Chhotu and PW-2 had identified Kanhaiya Gope and Umesh Karmali @ Chhotu. PW-3 is the doctor who conducted post-mortem of the deceased. PW-5 is the investigating officer of the case. PW-6 is the Judicial Magistrate, Ranchi who conducted the Test Identification Parade on 30.08.2013 in whose presence PW-1 had identified Kanhaiya Gope, Ravi Mahto and Umesh Karmali @ Chhotu and PW-2 had identified Kanhaiya Gope and Umesh Karmali @ Chhotu. PW-3 is the doctor who conducted post-mortem of the deceased. PW-7 is the doctor who treated the accused Ravi Mahto and PW 8 is the doctor who treated the accused Ganesh Gope. 5. Apart from the oral evidence, the prosecution has exhibited the following documentary evidences: - Exhibit-1 Post Mortem Report of the deceased Exhibit-2 Signature of Informant on fardbeyan Exhibit-3 Fardbeyan of Informant Exhibit-3/1 Endorsement of registration of F.I.R. on fardbeyan Exhibit-4 Inquest report of the dead body of the deceased Exhibit-5 Formal F.I.R. Exhibit-6 Seizure list dated 27.08.2013 of Tata 709 Truck No. JH01AA-4650 Exhibit-7 & 7/1 TIP Charts Exhibit-8 Injury Report of Appellant-Ravi Mahto Exhibit-9 Injury Report of Appellant-Ganesh Gope Statement of accused under section 313 Cr.P.C. 6. After closure of prosecution evidence, the statements of the appellants were recorded under Section 313 of Cr.P.C. on 09.06.2015 wherein they denied the incriminating evidences put to them and claimed to be innocent. The appellants namely, Umesh Karmali @ Chhotu, Kanhaiya Gope and Ravi Mahto, who were identified by the witnesses during TIP and also in the Court took a plea that they were shown to the witnesses at the police station before the TIP. Ganesh Gope simply denied that the deceased had bitten him and its mark was present in his thigh. Evidence of defence 7. So far as the defence is concerned, the appellants have examined only one witness, namely, Rajendra Munda as DW-1 who has deposed that on 12.07.2013 he was loading stone chips in Truck Turbo 709 which were to be unloaded at Ranchi. The truck was loaded thrice and the appellants were with him throughout. Thus, the appellants had taken a plea of alibi through the sole defence witness. 8. The Sessions Court recorded its findings at Para-17, 18 and 19 as under: “17. The trend of cross examination of the key witnesses p.w. 1 and p.w. 2 shows that the defence has tried to establish that on the fateful night the deceased along with these witness had dined and drunk, although this is denied by the witness. 8. The Sessions Court recorded its findings at Para-17, 18 and 19 as under: “17. The trend of cross examination of the key witnesses p.w. 1 and p.w. 2 shows that the defence has tried to establish that on the fateful night the deceased along with these witness had dined and drunk, although this is denied by the witness. Further, in an inebriated condition the deceased got him involved and pick up a quarrel with truck driver and labours of a truck which had taken over and dashed the car. From critical analysis and appreciation of the above testimonies of the prosecution witnesses, following facts are established and proved- (a) That on the date and time of alleged incident, the deceased Krishna Singh alias Vishal, Shiwangi (PW-1), Prashant Kumar (PW-2) and Elisha were together and they had gone to Ormanjhi in a maruti car and took dinner at the Mehata Line Hotel. (b) That the deceased and his colleague left hotel in the same Maruti car. (c) That a quarrel took place between deceased and the truck-riding persons, who then took away the deceased with them forcibly. (d) That whole night no trace of deceased could be found and, in the morning, his dead body was located at the lonely place off the National High Way on the road near Chapabar. (e) That the accused were arrested by the police and were put to TIP in which deceased’s friends- Shiwangi and Prashant had identified them as those persons who had beaten the deceased and forcibly took him away on the truck. (f) That the body of deceased was bearing marks of violence and there were several anti-mortem injuries resulting into the death of the deceased. Thus, it was a homicidal death. 18. There are certainly some inconsistencies of minor nature in the evidence of key witnesses-PW-1 and PW-2 regarding the minute details of the manner in which the accused had assaulted and taken away the deceased with them. But these contradictions are not of material nature as both the witnesses are very much consistent on the point that the truck-riding persons had assaulted the deceased. But these contradictions are not of material nature as both the witnesses are very much consistent on the point that the truck-riding persons had assaulted the deceased. Although it is not certain as the deceased died instantly during the incident of marpit done or died later on, but it is established fact from the prosecution evidence that the accused had taken the deceased forcibly with them on the truck in presence of PW-1 and PW-2. Thus, the evidence of last seen together has been proved by the prosecution and in case it is established that accused was last seen together with deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus, would have burden of proof as per S. 106, Evidence Act. No explanation has been offered by the accused as to what exactly happened when they took away the deceased with them. The time gap between the accused persons seen in the company of the deceased and detection of the crime is certainly a material consideration, and in the case in hand, this time period is too short about six hours to eight hours in the night time that there is no possibility of any other persons meeting and approaching the deceased at the place of occurrence or before the commission of the alleged crime of murder. In fact, the deceased's colleague had tried to trace him, but he could not be located. As I have already stated above that taking away of the deceased by the accused is proved and it is in their special knowledge as to what happened thereafter, but no explanation has been there. The argument of learned defence counsel that the prosecution case is based on the circumstantial evidence cannot be accepted because there are at least two witnesses who were accompanying the deceased from before and till the accused forcibly took away the deceased on the truck. Only because none of the prosecution witnesses has witnessed the killing and throwing the dead body at some lonely place, the case cannot be said be one categorised as based on circumstantial evidence. Only because none of the prosecution witnesses has witnessed the killing and throwing the dead body at some lonely place, the case cannot be said be one categorised as based on circumstantial evidence. A feeble attempt has been taken by the defence to dilute the strong evidence of the prosecution by examining and producing a defence witness namely, Rajender Munda (DW-1) who has stated that on 12.07.2013, he was working as labour on truck 709 and accused persons were also with him and no incident had taken place on that very night, but this defence witness not appearing very convincing as there appears no reason as to specially remember a particular date on which the witness worked as labour on the truck. He has in cross-examination admitted that who was truck owner he does not know and that for how many days they were working on the said truck he does not know. Apart from it, on the person of accused Ravi Mahato and Ganesh Gope, some old scar marks were found which were result of possible teeth bite by the deceased in order to get him fight back. No explanation is offered by the accused how those scars came on their persons, this is yet another circumstance which points towards the guilt of the accused. 19. So far as the argument of learned defence counsel that no intention to kill can been attributed to the accused even if the prosecution case is found to be proved, is concerned, I want to mention that the number of injuries and its nature which were inflicted to the deceased shows that those injuries were sufficient in ordinary course of nature for causing death. For the offence of murder, it is not always required presence of intention or motive, but even if the act of accused is done with an intention to cause such bodily injuries which are sufficient in ordinary course of nature to cause death, the act would be well covered under the offence of murder. Therefore, the act of accused in inflicting injuries to the deceased is murder in the fact and circumstances of the case, and it has been committed in further of common intention of the all the accused. Therefore, the act of accused in inflicting injuries to the deceased is murder in the fact and circumstances of the case, and it has been committed in further of common intention of the all the accused. After committing the alleged offence of murder of the accused in order to cause disappearance of the evidence of the crime and to screen them off, the criminal liability had thrown the dead body at a lonely place which is yet another offence of 'causing disappearance of evidence of offence'.” Arguments of the appellants. 9. While assailing the impugned judgment the learned counsel for the appellants has raised the following grounds: - (a) That the prosecution has miserably failed to establish the charge said to be proved beyond all reasonable doubt. (b) That the prosecution has failed to appreciate that it is not a case where any ingredient of section 302 of Indian Penal Code is available. (c) That in the present case, there is no definitive evidence of last seen as also the fact that there is a long gap between the alleged last seen and the recovery of the body and in the absence of other corroborative pieces of evidence, it cannot be said that the chain of circumstances is so complete, that the only interference that could be drawn is the guilt of the appellant. (d) That there is no eyewitness to murder of Krishna Singh @Vishal who as per the postmortem report suffered 16 injuries. (e) That as per the evidence of P.W.I and PW2, they have stated that on the alleged date of occurrence, they have informed the Police and thereafter the Police came to RK. Hotel, Omanjhi, and thereafter the entire incident was narrated by the witnesses before the Police. However, as per the First Information Report in Columns 4(ka) & (kha), the date of occurrence is mentioned as 13.07.2013 and the information received by the Police Station mentioned as 13.07.2013 at 06:15 hours and the investigating officer has also stated that during investigation none of the staff of hotels have stated that they called the police or any information of the alleged occurrence was received by the police. (f) That as per fardbeyan of the informant, the daughter of the informant had first received the information with regard to the incident from one Dharmveer, however, the prosecution has not examined him during trial. (f) That as per fardbeyan of the informant, the daughter of the informant had first received the information with regard to the incident from one Dharmveer, however, the prosecution has not examined him during trial. The informant of this case is father of the deceased who is only hearsay witness and has not seen the incident from his own eyes and, therefore, his testimony cannot be relied upon. (g) That one of the important witnesses namely Elisha who has accompanied the deceased and P.W.I and P.W.2 has also not been examined to support the case of the prosecution. (h) That P.W.1 and P.W.2 are the witnesses who have deposed in the Court that they last saw the deceased Krishna Singh @ Vishal in the company of the accused persons, but the evidence tendered by these witnesses are not conclusive. (i) That the evidence of P.W. 1 & P.W. 2 cannot be relied. As per their statement both the witnesses were present there at the time of occurrence and had seen the entire incident, however, their statements are contradictory with regard to nature of assault as PW 1 has stated that some altercation took place between the deceased and accused persons and thereafter the accused persons forcibly took the deceased with them and P.W 2 has stated that he had seen the accused persons assaulting the deceased with rod and lifter and when the deceased died they crushed his head by knocking door of the truck on his head and to hide the body they lifted him and ran away from the place of occurrence. (j) That I.O. (PW-5) namely Yogendra Shukla during investigation has also not recorded the statement of the Hostel warder or parents of the P.W.1 and Elisha that whether on the alleged date of occurrence they had gone with the deceased or not. (k) That I.O. during investigation has not produced any material to show as to how he came to know about the alleged vehicle and the accused persons. During investigation I.O. has not collected any material to the fact that on the alleged date of occurrence the accused were present at the place of occurrence. (l) That I.O. (P.W.5) who is the Investigating Officer of this case has stated that there is no eyewitness who might have been seen the throwing of the dead body on the road. During investigation I.O. has not collected any material to the fact that on the alleged date of occurrence the accused were present at the place of occurrence. (l) That I.O. (P.W.5) who is the Investigating Officer of this case has stated that there is no eyewitness who might have been seen the throwing of the dead body on the road. He has also submitted that during Investigation, it was revealed that the deceased friends have not asked for any help from the hotel or any other person, they have also not lodged any case regarding the abduction of the deceased by the accused persons. (m) That the Investigating Officer could not find the weapon of assault during the course of investigation and he has also not found any blood mark on the seized truck. (n) That during investigation, the Investigating Officer has also revealed that on being asked from the hotel staff, it transpired that some altercation took place between the deceased and the accused person, but, they have not stated that the accused person had taken away the deceased. (o) Test Identification Parade was done after delay of Two months and the accused persons were shown to the witnesses before the TIP. (p) Judgments relied upon: a. (2023) 1 SCC 180 (Gireesan Nair & Ors. Vs. State of Kerala) b. 2023 SCC OnLine SC 1132 (R. Sreenivasa Vs. State of Karnatka) c. 2023 SCC OnLine SC 1261 (Balvir Singh Vs. State of Uttrakhand) d. 2023 SCC OnLine SC 933 (Kamal Vs. State (NCT of Delhi) 10. It has been submitted that the judgment of conviction and order of sentence dated 14.08.2015 be set aside and the appellant be acquitted of the charge under Section 302, 201/34 of Indian Penal Code. Arguments of the Opposite Party-State 11. The learned counsel for the State has referred to the evidences on record and submitted that it has been well established that the incident took place on 12.07.2013 near Nilgiri Hotel at about 11:40 p.m. where the deceased Krishna Singh @ Vishal Singh and his friend Prashant Kumar was assaulted by the persons in the truck. During the assault Krishna Singh (deceased) was forcefully pulled inside the truck and was taken away. Dead body was recovered at about 6:15 a.m. on 13.07.2013. During the assault Krishna Singh (deceased) was forcefully pulled inside the truck and was taken away. Dead body was recovered at about 6:15 a.m. on 13.07.2013. On the basis of spy, the involvement of the driver of the truck bearing Registration No. JH01AA4650 Umesh Karmali along with other accused came to surface. On 09.08.2013, Umesh Karmali was arrested and he made his confessional statement narrating the manner of occurrence along with co accused persons namely Ravi Mahto, Ganesh Gope and Kanhaiya Gope. On 10.08.2013, Ganesh Gope was arrested and his confessional statement was recorded in which he has also narrated the manner of occurrence along with other three accused. On 27.08.2013, both Ravi Mahto and Kanhaiya Gope were taken on police remand with the order of the learned Court and their confessional statement was recorded who have also narrated the same sequence of events as narrated by other co-accused persons earlier. On 30.08.2013, in Test Identification Parade, PW-1 identified three accused persons, namely, Umesh Karmali, Ravi Mahto and Kanhaiya Gope and PW-2 identified Kanhaiya Gope and Umesh Karmali. There is no substantial time gap between the last seen of the appellants taking away the deceased assaulting i.e., on 12.07.2013 and at about 11:40 p.m. and the recovery of dead body i.e. on 13.07.2013 at about 6:15 a.m. which satisfy the proximity test. PW-1 has stated that accused were not shown by police before the TIP and P.W.-5 also deposed that when the accused were arrested no witness was present in the police station. There is no substantial delay in holding the TIP as Umesh Karmali and Ganesh Gope were arrested on 09.08.2013 and 10.08.2013, other co-accused Ravi Mahto and Kanhaiya Gope were taken on police remand on 27.08.2013 and then all the four accused were put on TIP on 30.08.2013. The prosecution has proved its case to the hilt against the appellants thus the present criminal appeal is liable to be dismissed. The prosecution has proved its case to the hilt against the appellants thus the present criminal appeal is liable to be dismissed. The learned counsel has submitted that the sequence of events till the taking away of Krishna Singh @ Vishal Singh by the appellants who were in the truck model No. 709 has been fully established coupled with their identification both by PW-1 and PW-2 who were the eye-witnesses to the occurrence and the body having been recovered on the next day early morning, the provision of section 106 of the Indian Evidence Act comes into play and it was for the accused to explain as to what happened after Krishna Singh @ Vishal Singh was taken away by them in the truck. The accused having not given any explanation, much less any cogent explanation, have been rightly convicted by the learned Trial Court. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Ram Gopal vs. State of M.P. reported in 2023 Live Law (SC) 120. Findings of this Court. The informant of the case. 12. PW-4 is Lochan Singh. He is the Informant and father of the deceased. He deposed that the deceased was his son. On 13.07.2013, the deceased accompanied with Shiwangi, Elisha and Prashant had gone to take meal at Line Hotel, Ormanjhi and he did not return which was told to him by her daughter. Thereafter, he went in search for his son to Ormanjhi where Prashant (PW-2) narrated the entire occurrence to him. He reiterated the occurrence. He exhibited his signature on the fardbeyan as Exhibit-2. He further deposed that several injuries were present on the dead body and the head was ruptured. Only underwear was present in the body. During cross-examination he admitted that police had not accompanied him to the place of occurrence and he had alone gone there. Police had come there subsequently. Except the dead body, no other material was recovered from the place of occurrence. During further cross-examination he admitted that had not seen the occurrence himself. The Informant (PW-4) is although a hearsay witness, but his entire knowledge of the occurrence and the fardbeyan (Exhibit-3) is based on the revelation of the facts made to him by the eye witness namely, Prashant Kumar who has been examined as PW-2. During further cross-examination he admitted that had not seen the occurrence himself. The Informant (PW-4) is although a hearsay witness, but his entire knowledge of the occurrence and the fardbeyan (Exhibit-3) is based on the revelation of the facts made to him by the eye witness namely, Prashant Kumar who has been examined as PW-2. Post mortem report and evidence of the doctor who conducted the post mortem read with the inquest report 13. PW-3 is Dr. Manoj Kumar Korha. He deposed that on 13.07.2013, he was posted at Tutor Department of FMT, RIMS, Ranchi and he had conducted post-mortem over the dead body of the deceased at 11:40. He had recorded the following findings and injuries on the Post-Mortem Report of the dead body of the deceased: (A) Average build, rigor-mortis present, abdomen not distended, dry blood-stain on face and dry mud on body surface and cloth. (B) Abrasion: (i) 5 cm x 4 cm on left cheek middle part (ii) 9 cm x 4 cm laft arm lateral side upper part (iii) 15 cm x 8 cm front of left fore-arm (iv) 15 cm x 6 cm front of left chest upper part (v) 10 cm x 4 cm front of left abdomen middle part (vi) 5 cm x 3 cm front of left knee (vii) 9 cm x 4 cm right cheek (viii) 20 cm x 10 cm fronto-lateral right thigh (ix) 25 cm x 16 cm front of right chest (x) 20 cm x 10 cm fronto-lateral right leg (xi) 9 cm x 4 cm, 8 cm x 4 cm back of right chest middle part (xii) 10 cm x 4 cm right glutal region (xiii) 15 cm x 4 cm back of left cheek lower part (C) Lacerated wounds: (i) 15 cm x 2 cm x soft tissue left pancto-temporal and left cheek upper part with flapping of skin (ii) 3 cm x ½ cm x soft tissue right temporal region (iii) 5 cm x 1 cm x soft tissue right ear (D) Internal injuries: Diffused contusion of whole scalp and both tempsaligh muscle and presence of thin subdural blood and blood clot both side of brain. Bilateral fracture of 2nd to 10th rib. Laceration of both lungs, liver and spleen. Presence of blood and blood clot both thoraxo-abdominal cavity. Bilateral fracture of 2nd to 10th rib. Laceration of both lungs, liver and spleen. Presence of blood and blood clot both thoraxo-abdominal cavity. (E) Opinion: (i) The above noted injuries are ante-mortem in nature (ii) Caused by hard and blunt substance (iii) Death due to injuries above noted (iv) Time since death 06:00 hours to 24:00 hours from the time of P.M. Examination. P.W-3 has exhibited the Post-Mortem Report as Exhibit-1. During cross-examination, he stated that abrasions (i) to (xiii) were found on the body. Injuries (i), (iii), (vi), (viii), (x), (xii) and (xiii) are on non-vital part, rest are on vital part. All injuries are of simple nature, spherical abrasions and are not sufficient to cause death. The abrasions are possible by dragging of a person by moving vehicle like truck. Hard, blunt weapon like rod, axes, farsa like object, but he could not say what exactly weapon was used. No post-mortem injuries were found and all injuries were anti-mortem. He had found corresponding injuries at skull as referred in the inquest report. The inquest report is Exhibit-4 exhibited by the investigating officer PW-5 who has stated that only underwear was found on the dead body; there were several scratch marks on the back and grievous cut mark on the head. Two persons claiming to be Eye witnesses of last seen - P.W-1 and P.W-2 14. PW-1 is Shiwangi. She was accompanying the deceased on the date and time of the occurrence. P.W-1 is an eye witness to the marpit and abduction of the deceased. She is a last seen witness of the deceased who was taken away by persons in 709 truck. PW-1 has deposed that on 12.07.2013 at about 02.30 P.M, P.W-1 , the deceased ,Prashant (PW-2) and Elisha had proceeded to Dhanbad from Ranchi on the Maruti-800 car of the deceased and at 08.30 P.M., they had stopped at Mehta Line Hotel, Ormanjhi. After taking meal, they had proceeded to Dhanbad and the car was being driven by the deceased. On the way, one truck came from behind, signaled for pass and while trying to overtake dashed the car and stopped. Thereafter, a hot talk took place between the driver of the truck and the deceased. Four persons were present in the truck and they assaulted the deceased. On the way, one truck came from behind, signaled for pass and while trying to overtake dashed the car and stopped. Thereafter, a hot talk took place between the driver of the truck and the deceased. Four persons were present in the truck and they assaulted the deceased. She and other persons tried to save and raised alarm, but the persons in the truck forcibly took away the deceased with them. They followed the truck for some time, but the truck speeded away and the deceased did not return. On the next day, she came to know that Vishal was murdered. She deposed that the murder was committed by the driver and other persons present in the truck. She further deposed that during test identification parade in the jail, she had identified the persons who had committed marpit with the deceased. She identified all the accused persons who were physically present in court. During cross-examination on behalf of the appellants-Ganesh Gope and Kanhaiya Gope, P.W-1 admitted that she knew the deceased since two months and she had love affair with him; on the day of occurrence, she alongwith the deceased had proceeded to station, but she missed her train which was at 02.50 P.M; thereafter, she took meal in the restaurant with the deceased , Prashant and Elisha and they proceeded to Dhanbad at 06.30 P.M. and reached Ormanjhi at 08.30 P.M. and took meal in the hotel from 08.30 to 11.30 P.M. The deceased and Prashant had not consumed liquor and the deceased had made payment of the bill and thereafter, they had proceeded to Dhanbad. On the way after 10-15 kilometers, one truck sought pass and dashed while overtaking the car and the truck stopped at some distance. She denied that deceased started marpit with the persons in the truck. P.W-1 further stated in the cross examination that when the persons sitting in the truck were taking away the deceased, they had followed the truck. The truck had gone in a turning near Nilgiri Hotel. They stopped at R.K. Hotel and Prashant went in search of the deceased. On their request, the police had come at the R.K. Hotel and they had reported the matter to the police. She denied that there was any altercation between the deceased and the owner of the hotel. The truck had gone in a turning near Nilgiri Hotel. They stopped at R.K. Hotel and Prashant went in search of the deceased. On their request, the police had come at the R.K. Hotel and they had reported the matter to the police. She denied that there was any altercation between the deceased and the owner of the hotel. During cross-examination on behalf of the rest of the appellants, P.W-1 admitted that the night of the occurrence was a dark night. The police had come when she and Elisha were in the hotel and Prashant had gone in search for the deceased. She had not given any written information to the police and they had orally informed. Thereafter, she met Prashant on 13/14.07.2013. She further admitted that she could not say as to how many persons were present in the truck. She did not know the names of the persons sitting in the truck, but she could say the physical appearance of those persons and she had stated the physical appearance of three persons. She has stated that she had seen the appellants in the street light. Except the driver, other persons had got down from the truck. She had identified the truck at the police station. After 2-3 months, the police had taken her for test identification parade of the appellants and the police had not shown the appellants before the test identification parade and she had identified the concerned appellants amongst 30-35 persons. 15. PW-2 is Prashant Kumar and he was also accompanying the deceased on the day of the occurrence and he is also an eye witness to the marpit and abduction of the deceased. He is also a last seen witness of the deceased who was taken away by appellants in 709 truck. PW-2 deposed that on 12.07.2013, he was going to Dhanbad alongwith the deceased, Shiwangi and Elisha on a Maruti-800 car of the deceased. They left Ranchi at 06.30 P.M. and took meal at Mehta Hotel, Ormanjhi and thereafter, they had proceeded to Dhanbad. After 10 minutes, when they passed Nilgiri Hotel, one 407-truck came from behind and dashed and overtook the car and then stopped. They left Ranchi at 06.30 P.M. and took meal at Mehta Hotel, Ormanjhi and thereafter, they had proceeded to Dhanbad. After 10 minutes, when they passed Nilgiri Hotel, one 407-truck came from behind and dashed and overtook the car and then stopped. When they came down from the car and went to the truck to enquire as to why their car was dashed, marpit took place and thereafter, four persons present in the truck forcibly took away the deceased with them. He tried to rescue the deceased, but he failed. Thereafter, he had followed the truck in the Maruti car, but the miscreants succeeded to flee away and the deceased could not be traced out. After 1- 1½ hours, when he found the patrolling party on the highway, he informed the occurrence. Thereafter, they returned to Ranchi at 03.30 A.M. and he informed the occurrence to the father of the deceased (Informant). In the morning, he came to know that the dead body of the deceased has been found and he went to see the dead body. He further deposed that he had identified two persons during the test identification parade in the jail. He identified all the appellants in court who were physically present in court. During cross-examination, PW-2 stated that he was a friend of deceased for about three years and used to reside in the hostel in his house. He denied that earlier on 11.07.2013, he had gone to Ormanjhi and had no idea that there was any fight between PW-1 and deceased. He has stated that he had gone to Ormanjhi for the first time and did not consume liquor. He has stated that he reached hotel at 08.30 P.M. and had taken meal till 11.30 P.M. and the deceased had made payment of the bill and there was no fight between the deceased and the owner of hotel. PW-1 and Elisha had danced in the hotel and thereafter they had proceeded to Dhanbad. He further deposed that the truck had dashed the car which caused scratch marks on the car and when the truck stopped, he had gone to the truck along with the deceased and he had also sustained injury at his back during the scuffle. He has stated that he was treated in private but did not possess any document in support thereof. He has stated that he was treated in private but did not possess any document in support thereof. He had also denied that the deceased was intoxicated and that in a state of intoxication he was driving the car on the right-hand side. The witness has denied any love affair with Shivangi or Elisha. In cross-examination the witness has stated that Vishal was beaten with a rod and it was noticed by him and Vishal died because of that head injury. The persons from nearby place did not come there to rescue. This witness has also stated he knows about one Dharmveer, and that both the girls had returned with the said Dharamvir. According to this witness the place where incident of marpit took place is just ahead of Neelgiri hotel. This witness has further stated that he knew that during the alleged incident Vishal (deceased) had bitten when they were tried to snatch the keys. The witness has further stated that he only could identify the accused who had beaten with lifter (Belcha) and he had then told he could not identify others because they had shaved their heads. he admitted that the driver had not come down from the truck. He further admitted that he was driving the car and he had stopped the car. He deposed that he had met the police patrolling party in front of the Mehta Hotel in between 11.30 to 12 P.M. in the night and at that time, he was alone in the Maruti car of the deceased. He had narrated the entire occurrence to the police and the police after making one round patrolling had asked him to go to his home. Thereafter, the dead body of the deceased was recovered in the morning. He further stated that he had left Shiwangi at R.K. Motel at about 11.30 P.M. and he had gone alone in search of the deceased. After one hour, the police had brought Shiwangi and Elisha to him and they had reached Ranchi at 03 to 03.30 A.M. He had informed the father and family members of the deceased in the night at 03.00 A.M. The dead body was brought to the police station at 07.00 A.M. and the father of the deceased was present with the dead body. He further admitted that he did not know as to wherefrom the dead body was brought to the police station and the place of recovery of the dead body was never shown to him. He also deposed that he had seen while the deceased was assaulted by a rod which caused his death and the deceased died while being assaulted at a distance of ten steps from Nilgiri Hotel. He admitted that he had neither told the police, nor the family members of the deceased, nor to anyone else that he had seen the occurrence. He further deposed that the accused persons had assaulted the deceased 5-6 times with force on his head by the sharp portion of a lifter i.e. sharp belcha and he was present at a distance of one step and the deceased sustained cut marks at 4-5 places. The person assaulting the deceased were of shortest height; except the driver. The place of occurrence of marpit is situated at distance of ten steps from Nilgiri Hotel. No blood had come out at the place of occurrence and the accused persons had immediately lifted the deceased inside the truck in dead condition for concealing the dead body. He stated that the deceased had bitten the assailants when they were trying to snatch away the key the deceased. He further deposed that after death of the deceased, the assailants had assaulted the deceased on his head by opening and closing the door. He further deposed that he had identified the person during test identification parade who had assaulted the deceased by means of the belcha and the magistrate had written the same in the chart and had also taken his signature. He had not identified the person during TIP who had assaulted by means of rod, but identified him in court. He explained that he could not identify the other persons as they had shaved their heads. The car was not seized by the police. 16. From perusal of the evidence of PW-1 whose details has been recorded as aforesaid, this Court finds that she has fully supported the prosecution case and has also been cross-examined. She has given the details of the description and the manner in which the occurrence had taken place. The car was not seized by the police. 16. From perusal of the evidence of PW-1 whose details has been recorded as aforesaid, this Court finds that she has fully supported the prosecution case and has also been cross-examined. She has given the details of the description and the manner in which the occurrence had taken place. She has supported the case of the prosecution also to the extent that the persons in the truck had taken away Krishna Singh in the truck and other person who was with the Krishna Singh, namely, Prashant had made all efforts to search Krishna Singh @ Vishal Singh but could not find him. She has also fully supported the case that all of them had gone to the Mehta Line Hotel had their food at night and thereafter they have moved towards Dhanbad and while on the way the Truck 407 green in colour had hit the Maruti Car from behind which stopped immediate after the incident and thereafter on account of certain hot talks/scuffle the persons in the truck had taken away Krishna Singh @ Vishal Singh who could not be found. She has also fully supported the case that she had identified the persons in the truck during TIP except Ganesh Gope. During her cross-examination, no material contradiction could be elicited rather she has stated in her cross-examination also that she identified the offending truck. She has also stated in her cross-examination that she had stated to the police that she could identify the persons who were involved in the offence and she had seen them under the street light. She has also given the details regarding the place of occurrence which was slightly away from the hotel Nilgiri. This witness has identified all the accused persons in the Court.This Court finds that the evidence of PW-1 is the eye-witness of the occurrence regarding the incident till the stage of taking away of Krishna Singh @ Vishal Singh by the accused persons in the truck and also the fact that Prashant PW-2 had followed the truck in order to search Krishna Singh @ Vishal Singh but failed to find him . So far as the PW-2 is concerned, he is also the eye-witness of the occurrence. So far as the PW-2 is concerned, he is also the eye-witness of the occurrence. He has also fully supported the prosecution case and his description of evidence so far as the fact that persons in the truck had taken away Krishna Singh @ Vishal Singh and the fact that he had tried to follow the truck but ultimately could not find the truck and consequently Krishna Singh @ Vishal and had to come back. This witness has stated that at the time of taking away Krishna Singh @ Vishal Singh there was some assault in the head by the door of the truck and by rod is slightly different from the version of PW-1, inasmuch as, PW-1 has not disclosed the manner and the extent of assault although she has stated that the persons in the truck had assaulted Krishna Singh @ Vishal Singh before they took him away in the truck. This Court also finds that PW-2 has identified two accused persons, namely, Kanhaiya Gope and Umesh Karmali in TIP and identified all of them in the Court. This witness has also stated that he had informed the father of Krishna Singh @ Vishal Singh when he could not find the deceased in spite of best of his efforts. He has also stated that he has disclosed the facts to the informant of the case. This witness has also been thoroughly cross-examined and so far as the identification of the accused as concerned, there is no much cross-examination on this point and the witness is consistent and a reliable witness. The defence had tried to cross-examine PW-1 as well as PW-2 by asking them questions as to whether the deceased and PW-2 had taken alcohol and liquor in the line hotel and as to whether there was any fight between Krishna Singh @ Vishal Singh and the owner of the line hotel while making payment of the bill. PW-2 has stated in his evidence that the persons in the truck had taken away Krishna Singh @ Vishal Singh and at that point of time, he was dead but the fact that the persons in the truck had taken away Krishna Singh @ Vishal Singh after assault has remained intact. The investigating officer of the case. 17. PW-5 is S.I. Yogendra Shukla. He is the Investigating Officer of the case. The investigating officer of the case. 17. PW-5 is S.I. Yogendra Shukla. He is the Investigating Officer of the case. He deposed that on 13.07.2013, he was posted as A.S.I. at Ormanjhi police station and on that day, at 06.30 A.M., he received information that a dead body of an unknown person is lying on the road near Chapabar. When he reached at the place of occurrence, the father of the deceased (Informant) was already present there and he had identified the dead body as his son. He had recorded the fardbeyan at the place of occurrence. He exhibited the fardbeyan as Exhibit-3, registration of the fardbeyan as Exhibit-3/1, Inquest Report as Exhibit-4 and the formal F.I.R. as Exhibit-5. He gave description of the place of occurrence which was situated on the road going towards Kunda Hali Partoli at Partoli of Morabandh, Chaparkocha, Piyanka, Dundatoli at a distance of about 7 kilometers north from Ormanjhi police station. He found underwear only with the dead body, several scratch marks on its back and grievous cut mark on the head. He had not found any blood stain at the place of occurrence. He also found wheel marks of 7-9 truck at the place of occurrence which had faded away due to rain. Thereafter, he had recorded statements of the witnesses namely, Lochan Singh, Prashant, Shiwangi, Elisha and others. He further deposed that in course of investigation, he came to know that the driver namely, Umesh Karmali and the helpers namely, Ganesh Gope and Ravi Mahto of Tata 909 Truck No. JH01AA-4650 has committed the occurrence and thereafter, Tata 909 Truck No. JH01AA-4650 was seized on 27.08.2013 and a seizure list was prepared. He exhibited the seizure list as Exhibit-6. He further deposed that TIP of the arrested accused persons was held by D.R. Tirkey, Judicial Magistrate at Central Jail in which witnesses namely, Shiwangi and Prashant Kumar had taken part. After completion of investigation, he submitted Charge-sheet under Sections 302/201/34 of IPC against the appellants. During cross-examination he admitted that Shiwangi and Elisha were the eye witnesses to the occurrence of marpit near the hotel with the deceased. He had not seized the Maruti in which the deceased and his friends were travelling. Two girls and one boy had stated that they can identify the accused persons on seeing them. During cross-examination he admitted that Shiwangi and Elisha were the eye witnesses to the occurrence of marpit near the hotel with the deceased. He had not seized the Maruti in which the deceased and his friends were travelling. Two girls and one boy had stated that they can identify the accused persons on seeing them. He denied the suggestion that the investigation was perfunctory and he had shown the accused persons before the TIP. 18. PW-6 is Deelip Rajeshwar Tirkey. He is the Judicial Magistrate who had conducted the Test Identification Parade (TIP) of the appellants. He deposed that on 30.08.2013 he had conducted TIP at Central Jail, Ranchi and he had prepared two TIP charts. He exhibited the TIP charts as Exhibits-7 and 7/1. 19. PW-7 is Dr. Shruti Richa who had medically examined the Appellant-Ravi Mahto. He deposed that during examination, he had found a scar on the lateral side of right knee which was semicircular one inch wide and the time since injury was more than one month. He exhibited the injury report of Ravi Mahto as Exhibit-8. 20. PW-8 is Dr. Ashok Kumar who had medically examined the Appellant-Ganesh Gope. He deposed that he had found old scar mark of bite at right thigh which is possible by human bite and he had prepared the injury report. He exhibited the injury report of Ganesh Gope as Exhibit-9. 21. Thereafter, the appellants examined one witness namely, Rajendra Munda as DW-1. He deposed that on 12.07.2013, he was loading stone chips in Truck Turbo 709 which was to be unloaded at Ranchi. The stone chips were loaded thrice and all the three times, the stone chips were unloaded at Ranchi and the appellants were with him. He further deposed that no incident of any kind had taken place in the night. Due to no entry in the day, the stone chips were used to be unloaded in the night. During cross-examination, he admitted he does know the owner of the truck. The appellants were working since 12.07.2013. He had not worked before and after one week of work, he left the work. He does know the place where the stone chips were unloaded. The appellants did not adduce any documentary evidence in their defence. 22. During cross-examination, he admitted he does know the owner of the truck. The appellants were working since 12.07.2013. He had not worked before and after one week of work, he left the work. He does know the place where the stone chips were unloaded. The appellants did not adduce any documentary evidence in their defence. 22. Considering the evidence of the doctor who conducted post mortem of the deceased where injuries were found resulting in death of the deceased and all the injuries being anti-mortem, there is no doubt that the death of the deceased was a homicidal caused by injuries. On the point of identification of the appellants by the P.W-1 and P.W-2- the two eye witnesses of the incident of assaulting and taking away of the deceased by persons in the truck 23. In their statements recorded under Section 313 of Cr.P.C., Kanhaiya Gope, Ravi Mahto and Umesh Karmali @ Chhotu, who were identified by the witnesses during TIP, have taken a specific plea in their defence that they were shown to the witnesses at the police station before the TIP. Ganesh Gope was not identified in the TIP but was identified by the P.W-1 and P.W-2 in the court. 24. The occurrence took place in the night of 12/13.07.2013 and Umesh Karmali @ Chhotu was arrested on 09.08.2013, Ganesh Gope was arrested on 10.08.2013, Kanhaiya Gope had surrendered in court on 13.08.2013 and Ravi Mahto had surrendered in court on 14.08.2013 and their test identification parade was held on 30.08.2013 in which PW-1 and PW-2 had participated and the Judicial Magistrate namely, Deelip Rajeshwar Tirkey (PW-6) had prepared two TIP Charts. 25. The result of the test identification parade of the appellants as per the TIP Charts is summarized as under: Sl. No. Name of Appellants Identification by Shiwangi (PW-1) in TIP On 30.08.2013 Identification by Prashant Kumar (PW-2) in TIP On 30.08.2013 Identification by Shiwangi (PW-1) in Court Identification by Prashant Kumar (PW-2) in Court 1. Ganesh Gope Not Identified Not Identified Identified Identified 2. Kanhaiya Gope Identified Identified Identified Identified 3. Ravi Mahto Identified Not Identified Identified Identified 4. Umesh Karmali @ Chhotu Identified Identified Identified Identified 26. Ganesh Gope Not Identified Not Identified Identified Identified 2. Kanhaiya Gope Identified Identified Identified Identified 3. Ravi Mahto Identified Not Identified Identified Identified 4. Umesh Karmali @ Chhotu Identified Identified Identified Identified 26. As per 1st TIP Chart (Exhibit-7), PW-2 (Prashant Kumar) identified Kanhaiya Gope as the person who had come down from the truck and had assaulted the deceased and he identified Umesh Karmali @ Chhotu as the driver sitting in the truck. As per 2nd TIP Chart (Exhibit-7/1), PW-1 (Shiwangi) identified Umesh Karmali @ Chhotu as the person closing the door of the truck, identified Ravi Mahto as the person assaulting and identified Kanhaiya Gope as the person holding an iron rod and outraging modesty. 27. Accordingly, this Court finds that Kanhaiya Gope and Umesh Karmali @ Chhotu have been identified PW-1 and PW-2 during TIP as well as in Court. Ravi Mahto has been identified by PW-1 during TIP as well as in court and he has not been identified by PW-2 during TIP, but he has been identified PW-2 in Court. Ganesh Gope was not identified by PW-1 and PW-2 during TIP, but he has been identified in court by both PW-1 and PW-2. 28. PW-1 during her cross-examination at Para-38 stated that she had identified the truck at Ormanjhi police station when she was asked to identify the truck. 29. PW-8 (Dr. Ashok Kumar) had medically examined Ganesh Gope and he had found old scar mark of bite at his right thigh which is possible by human bite. He exhibited the injury report of Ganesh Gope as Exhibit-9. Ganesh Gope in his statements recorded under Section 313 of Cr.P.C. has not offered any explanation with regard to the scar mark of teeth bite at his right thigh, rather he has simply denied that the deceased had bitten him and its mark was present in his thigh. PW-7 (Dr. Shruti Richa) had medically examined Ravi Mahto and he had found a scar on the lateral side of his right knee. He exhibited the injury report of Ravi Mahto as Exhibit-8. P.W-2 in his evidence has stated that the deceased had bitten the accused when the accused tried to snatch the key from him. 30. The periods during which the accused persons were under the custody of the police at the police station are as under: Sl. No. Name of Appellants Period of custody/remand under police 1. P.W-2 in his evidence has stated that the deceased had bitten the accused when the accused tried to snatch the key from him. 30. The periods during which the accused persons were under the custody of the police at the police station are as under: Sl. No. Name of Appellants Period of custody/remand under police 1. Ganesh Gope Arrested by police on 10.08.2013 at 06.45 A.M. From 10.08.2013, 06.45 A.M. to 10.08.2013 About 04 hours 2. Kanhaiya Gope Surrendered in court on 13.08.2013 From 27.08.2013 to 28.08.2013 24 hours 3. Ravi Mahto Surrendered in court on 14.08.2013 From 27.08.2013 to 28.08.2013 24 hours 4. Umesh Karmali @ Chhotu Arrested by police on 09.08.2013 at 16:00 Hours From 09.08.2013, 16:00 Hours to 10.08.2013 About 18 hours Date of holding TIP of accused persons at Birsa Munda Central Jail, Hotwar, Ranchi 31. The aforesaid periods of police custody / police remand of the appellants suggest that they were under the custody of police at the police station for short durations; two of them during 09.08.2013/ 10.08.2013 and other two during 27.08.2013 to 28.08.2013. 32. The test identification parade of all the appellants was conducted on 30.08.2013 [about 20 days after arrest of Ganesh Gope and Umesh Karmali @ Chhotu and after 2 days from police remand of Kanhaiya Gope and Ravi Mahto] while the appellants were under in judicial custody in central jail at Ranchi. 33. So far as Ganesh Gope is concerned, he was not identified in the test identification parade but all the four appellants were identified in the court. The three appellants namely, Umesh Karmali @ Chhotu, Ravi Mahto, Kanhaiya Gope have stated in their statement recorded under section 313 of Cr.P.C. that they were shown to the witnesses while they were in police station but have not stated anything about the date, time and the manner in which they were shown to P.W-1 and P.W-2 in police station. The P.W-2 in his cross examination has stated that he could not identify the two out of four appellants in test identification parade as the appellants at the relevant time had shaved their heads and the P.W-2 identified all the appellants in the Court. The P.W-1 had identified three out of four appellants (except Ganesh Gope) but identified all of the appellants in the court. The P.W-1 had identified three out of four appellants (except Ganesh Gope) but identified all of the appellants in the court. The P.W-1 and P.W-2 have been duly cross examined but nothing material could be gathered from them during cross examination also and their testimony with regards to time, place and manner of occurrence including identification of the appellants as mentioned in the chart above remained intact and the reason for failure to identify Ganesh Gope in test identification parade has also been explained during cross-examination of P.W-2 as mentioned above. The P.W-6 (Judicial Magistrate) in whose presence the test identification parade was conducted in the Central Jail at Ranchi has also supported the factum of identification of the concerned appellants and has exhibited the TIP Chart as exhibit 7 and 7/1 and there is no material cross examination of the P.W-6. On the point of test identification parade evidence of the investigating officer of the case P.W- 5 has stated he had recorded the statement of the witnesses, the P.W-1, P.W-2 and Elisha were eye witness to the occurrence and that TIP of the appellants was conducted in presence of the judicial magistrate in which P.W-1 and P.W-2 had participated. This witness has been fully cross examined and his testimony remained intact and he has denied that the appellants were shown to the P.W-1 and 2 in police station before conducting test identification parade. 34. This Court further finds that during cross-examination of PW-1 and PW-2 on behalf of Ganesh Gope and Kanhaiya Gope, no question or suggestion was put to them that the accused persons were shown to them at the police station before the TIP. During cross-examination of PW-1 on behalf of Ravi Mahto and Umesh Karmali @ Chhotu, P.W-1 stated that the police had not shown them before the test identification parade and she had identified them amongst 30-35 persons. During cross-examination of PW-2 on behalf of Ravi Mahto and Umesh Karmali @ Chhotu, he stated that he had identified the person who had assaulted the deceased by means of the belcha and he had not identified the person who had assaulted by means of rod, but he identified him in court and he had not identified the other persons as they had shaved their heads. During cross-examination of the Investigating Officer (PW-5), he denied the suggestion that he had shown the appellants to the witnesses before the test identification parade. 35. Considering the totality of the evidences on record this court finds that the plea of Kanhaiya Gope, Ravi Mahto and Umesh Karmali @ Chhotu taken in their defence that they were shown to the witnesses at the police station before holding their test identification parade is not acceptable. This court finds that appellants have been duly identified as the persons who were in the 709 truck at the time and place of occurrence of assaulting the deceased and taking him away in the truck by lifting him and the incident was witnessed by P.W-1 and P.W-2 as last seen the deceased with the appellants. 36. Over and above the aforesaid findings and also rejection of the plea that the appellants were shown to the witnesses at the police station before holding their test identification parade, this court also finds that one defence witness has been examined in this case who has deposed that on 12.07.2013 the appellants were with him in the Truck Turbo 709 where he was loading stone chips in the Truck for unloading at Ranchi; the stone chips were loaded thrice and all the three times, the stone chips were unloaded at Ranchi and the appellants were with him; due to no entry in the day, the stone chips used to be unloaded in the night and he further deposed that no incident of any kind had taken place in the night. During cross-examination, he stated that he did not know the owner of the truck; the appellants were working since 12.07.2013; he had not worked before and after one week of work and he left the work. He did not know the place where the stone chips were unloaded. Thus, as per the stand of the defence through the sole defence witness all the appellants were in Truck Turbo 709 working with this defence witness in the night of 12.07.2013 for loading and unloading stone chips which happens to be the same date of incident involved in this case and the time of incident in this case is at 11.00 p.m. However, this defence witness failed to give the details of the owner of the truck or the place where he was unloading the stone chips. 37. 37. PW-2 has given description regarding the assaults and this has to be seen as compared with the post-mortem report. The findings of the doctor of the post-mortem report has been quoted above and the nature of finding of injury is corroborative with the nature of assault as described by PW-2. The doctor who has conducted the post mortem has been thoroughly cross-examined and has also stated that the abrasions are possible by dragging of a person by moving vehicle like truck. The post-mortem had clearly indicated that there were severe injuries in the skull. 38. This Court finds that the case of the prosecution that the accused were there in the truck which had hit the Maruti Car in which all four persons, namely, Krishna Singh @ Vishal Singh, Prashant Kumar, Shiwangi and Elisha were moving has been fully established. It has also been established that there was some fight/scuffle between the accused and the deceased and the deceased was taken away by the appellants in the truck. 39. In the judgment passed by the Hon’ble Supreme Court reported in (2023) 1 SCC 180 (supra), it has been held that in cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It has also been held that it is the duty of the prosecution to establish before the Court that right from the date of arrest, the accused was kept “baparda” to rule out the possibility of their face being seen while in police custody and if the witnesses had the opportunity to see the accused before TIP, be it in any form, i.e., physically, through photographs or via media (newspapers or television etc.) the evidence of the TIP is not admissible as a valid piece of evidence. It has been further held that the statement of witnesses in the Court identifying the accused in the Court loses all its value and cannot be made the basis for recording conviction against the accused in the facts of the said case. The Hon’ble Supreme court had recorded as follows: - “48. Having considered the evidence of crucial eyewitnesses and the material indicating the conduct of the TIP, we are of the opinion that the witnesses had the opportunity of seeing the accused before the conduct of the TIP. The Hon’ble Supreme court had recorded as follows: - “48. Having considered the evidence of crucial eyewitnesses and the material indicating the conduct of the TIP, we are of the opinion that the witnesses had the opportunity of seeing the accused before the conduct of the TIP. Not only have the witnesses deposed that they had seen the suspects before the TIP, even Accused No. 2, at the end of the 1st TIP, had raised a grievance that the suspects were all photographed, video-graphed and were shown to the witnesses from the cabin of the IO (PW 84). At the end of the 2nd TIP, he had also stated that when Accused Nos. 1-19 were taken to court for the purpose of remand, and the presence of all the witnesses was arranged in the court by the police. In fact, all the Accused collectively stated that they were wearing the very same dress, straight from their arrest, till the date of the TIP to indicate that the TIP did not serve its purpose. We find no reason to disbelieve the truthfulness of the statement of the Accused because they had raised this contention right from the beginning and have maintained it all along.” 40. It has been further held that there existed no useful purpose behind conducting the TIP; the TIP was a mere formality and no value could be attached to it. The Hon’ble Supreme Court also recorded that the only witness for convicting the appellants was the evidence of eye-witnesses in TIP and when the TIP is vitiated the conviction cannot be upheld. In the said case the evidences indicated that the accused were shown to the witnesses during their police custody and the delay in holding the TIP coupled with other circumstances was held to cast a serious doubt of the TIP witnesses. 41. This Court finds that the said judgment does not help the appellants. In the present case, as discussed above there is no material error shown by the appellants in conducting the TIP and their main plea regarding TIP that they were shown to the witnesses before TIP is also devoid of any merits in view of the findings recorded above. This Court finds that the said judgment does not help the appellants. In the present case, as discussed above there is no material error shown by the appellants in conducting the TIP and their main plea regarding TIP that they were shown to the witnesses before TIP is also devoid of any merits in view of the findings recorded above. Moreover, in the present case the identification through TIP and also in the court and involvement of the appellants in the alleged offence is well established by other evidences on record as discussed above. The appellants have taken a vague plea that they were shown to the witnesses in the police station before TIP is not supported by any further details and the accused were under police custody in different point of time. Moreover, the TIP was conducted within a short span of time when the last appellant had surrendered as fully discussed above. This court find no lacunae in the conduct of TIP and identification of the appellants by the P.W-1 and 2 , the eye witnesses to the incident of assault and taking away of the victim in the truck by the appellants. 42. Now the point of applicability of the theory of last seen is required to be considered. 43. In the judgment passed by the Hon’ble Supreme court reported in 2023 SCC OnLine SC 1132 (supra), the Hon’ble Supreme court has considered the judgment passed in the case of Kashi Ram reported in (2006) 12 SCC 254 paragraph 19 to 23, wherein it has been held in paragraph 24 that the respondent of the case having been seen last with the deceased the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. The Hon’ble Supreme Court held that in case of failure to discharge the burden cast upon the accused by Section 106 of the Evidence Act such circumstance provides the missing link in the chain of circumstances which prove the guilt of the accused beyond reasonable doubt. While considering this judgment, the Hon’ble Supreme Court observed that the burden on the accused would, therefore, kick in, only when the last seen theory is established. The Hon’ble Supreme Court also considered the judgment reported in (2014) 4 SCC 715 (Kanhaiya lal vs. State of Rajasthan) wherein it has been held in paragraph as under: - ‘12. While considering this judgment, the Hon’ble Supreme Court observed that the burden on the accused would, therefore, kick in, only when the last seen theory is established. The Hon’ble Supreme Court also considered the judgment reported in (2014) 4 SCC 715 (Kanhaiya lal vs. State of Rajasthan) wherein it has been held in paragraph as under: - ‘12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.’ (emphasis supplied).” Thus, it has been held that the circumstances of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. It has been held that there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the accused by itself cannot lead to proof of guilt. The Hon’ble Supreme Court has also referred to the another judgment passed in the case of Nizam vs. State of Rajasthan reported in (2016) 1 SCC 550 , wherein the Hon’ble Supreme Court held that be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act. The factum of time gap which was three days in the said case from the date when the accused was seen last with the victim was considered to be long and it was held that it was unsafe to convict the accused on the basis of “last seen theory” and it was safer to look for corroboration from other circumstances and evidence adduced by the prosecution and the Hon’ble Supreme Court found that there was no corroborate piece of evidence corroborating the last seen theory. 44. 44. In the judgment passed by the Hon’ble Supreme Court reported in 2023 SCC OnLine SC 933 [Kamal vs. State (NCT of Delhi], the Hon’ble Supreme Court has held that the circumstances concerned "must or should" and not "may be" established and it is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. In the said case, it was the case of the accused that the accused had refused for Test Identification Parade as it was their case that they were shown to the witnesses. In the said case, Cdrs could show the mobile location of the accused at the place of the incident though the mobile number was not in the name of the accused and no evidence was placed o record to show as to how the SIM came in his possession. It was also observed that at the time of incident when both the accused were at the same place then according to the prosecution they were in the same house and they were talking to each other on telephone which itself created a doubt in the prosecution version. Paragraph Nos. 17 to 19 of the aforesaid judgment are quoted as under: - “17. We may gainfully refer to the following observations of this Court in the case of Sharad Birdhichand Sarda (supra): "151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. …….. 153. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. …….. 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 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 v. State of Maharashtra [ (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "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." 18. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned "must or should" and not "may be" established. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned "must or should" and not "may be" established. It has been held that there is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved". It has been held that 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. It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so 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. 19. It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. In the light of these guiding principles, we will have to consider the present case. The Hon’ble Supreme court also considered the case of Sharad Birdhichand Sarda, wherein it has been held that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. 45. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. 45. The principles of law governing the applicability of section 106 of the Evidence Act has been crystalised and summarised by the Hon’ble Supreme Court in the judgement passed in the case of Balbir Singh versus State of Uttarakhand reported in 2023 LiveLaw (SC) 861 in paragraphs 33 to 46. In the same judgment the law regarding what would be prima-facie case in the context of section 106 of the Evidence Act has also been laid down in paragraphs 47 to 51. The said paragraphs of the judgement are quoted as under:- “PRINCIPLES OF LAW GOVERNING THE APPLICABILITY OF SECTION 106 OF THE EVIDENCE ACT 33. Section 106 of the Evidence Act, 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. Illustration (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.” 34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word “especially” means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) 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. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) 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 the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience”. 35. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 , this 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 & 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, AIR 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R, [1936] 3 All ER 36 at p. 49 (B).” 36. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725 , wherein this Court observed as under: “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” (Emphasis supplied) 37. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra, (2012) 10 SCC 373 , this Court observed as under: “23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar [ (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] : (SCC p. 393, para 38) “38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra v. State of Ajmer [ AIR 1956 SC 404 : 1956 Cri LJ 794] the learned Judge has stated the legal principle thus : (AIR p. 406, para 11) ‘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. The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.’”” (Emphasis supplied) 38. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case: “14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [[1944] A.C. 315 : [1944] 2 All ER 13 (HL)] — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [ (2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. xxxxxxxxx 22. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. xxxxxxxxx 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 place 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. …” (Emphasis supplied) 39. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by this Court in the case of State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 . In this case, the assailants forcibly dragged the deceased from the house where he was taking shelter on account of the fear of the accused, and took him away at about 2 : 30 in the night. The next day in the morning, his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364, read with Section 34 of the IPC, and sentenced them to ten years rigorous imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder. The accused had not given any explanation as to what happened to the deceased after he was abducted by them. The Sessions Judge, after referring to the law on circumstantial evidence, had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons, and the discovery of the dead body in the hospital, and concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act, and laid down the following principles in paras 31 to 34 of the report: “31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody.” (Emphasis supplied) 40. Applying the aforesaid principles, this Court while maintaining the conviction under Section 364 read with Section 34 of the IPC, reversed the order of acquittal under Section 302 read with Section 34 of the IPC, and convicted the accused under the said provision and sentenced them to imprisonment for life. 41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act. 42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused. 43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. 43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams: “All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.” 44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528—“require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958. 45. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528—“require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958. 45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveller himself : see Section 106 of the Indian Evidence Act, illustrations (a) and (b). 46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State, 343 US 790 (1952) : 96 L.Ed. 1302, Raffel v. U.S., 271 US 494 (1926) : 70 L.Ed. 1054. WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT? 47. The Latin expression prima facie means “at first sight”, “at first view”, or “based on first impression”. According, to Webster's Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties. 48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death. 49. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 50. 49. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 50. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in Mir Mohammad (supra), wherein this Court has observed in paras 36 and 37 respectively as under: “36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” (Emphasis supplied) 51. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary v. State of Bihar, (2001) 8 SCC 311 , wherein this Court made the following observations in para 24 as under: “24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra. (Emphasis supplied)” 46. The present case when seen in the light of the aforesaid judgment of Balbir Singh versus State of Uttarakhand (supra) is a case where the prosecution has not only established a prima facie case but has also fully established a case of last seen beyond all reasonable doubts. The present case is a fit case where section 106 of the Evidence Act is attracted. In the present case it has been proved that the deceased was taken away by the appellants in the truck after assaulting him in such circumstances the appellants alone knew what happened to him thereafter .The present case is clearly a case of last seen when the appellants had scuffle with the deceased and had taken away the victim in the truck and ultimately the body of the victim was found with the description of the injuries matching with the manner of occurrence as deposed by the PW-2 who is the eye-witness of the occurrence and was right at the spot of the occurrence as he had accompanied the deceased till the stage of scuffle with the appellants in the truck all the injuries have been found to be anti-mortem. The P.W-1 has not given much description of the manner of assault but has also fully supported the prosecution with minor contradictions which does not have much bearing in the matter. The P.W-1 has not given much description of the manner of assault but has also fully supported the prosecution with minor contradictions which does not have much bearing in the matter. P.W-1 and 2 have identified the appellants as the persons in the truck who were involved in the commission of the offence and the P.W-1 has also identified the truck. The point regarding identification of accused including TIP has been decided against the appellants vide para 23 to 41 of this judgment. 47. This Court is of the considered view that the last seen theory is fit to be applied to the facts of the present case. There is a definite evidence of last seen and there is no time gap between the last seen and the recovery of the body and there are corroborative evidences on record completing the chain of the circumstances that the appellants were in the truck on 12.07.2013 when they had assaulted the victim and took him away in the truck at night and then the dead body was recovered in the early morning having anti mortem injuries corroborating the manner of assault to the victim as described by the P.W-2 the eye witness to the occurrence of taking away the victim by the appellants who were duly identified as discussed above. This court is also of the considered view that non examination of Elisha who had accompanied the accused to Ormanjhi and non-examination of Dharambir who had also informed the daughter of the informant is not fatal to the prosecution case. Elisha had not participated in the TIP and the information regarding the incident was also given to the informant -the father of the deceased by P.W-1. This Court is of the considered view that the chain of circumstances is complete and the appellants have completely failed to discharge their onus with regard to the provision of Section 106 of the Evidence Act. The chain of circumstances being complete in all respect so as to indicate the guilt of the appellants and also excludes any other theory of the crime. The post-mortem report matches with the date and time of occurrence as described by PW-1 and PW-2 and also the manner of occurrences as described by PW-2. The chain of circumstances being complete in all respect so as to indicate the guilt of the appellants and also excludes any other theory of the crime. The post-mortem report matches with the date and time of occurrence as described by PW-1 and PW-2 and also the manner of occurrences as described by PW-2. This Court also finds that PW-1 and PW-2 are the eye witnesses to the occurrence of abduction of the deceased by the appellants and they have fully supported the prosecution case. The defence has failed to elicit any material facts from PW-1 and PW-2 during their cross-examination to discredit their evidences. PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and the documentary evidences have corroborated the prosecution case and complicity of the appellants in the occurrence. This Court is of the considered view that the prosecution has successfully proved the case against the appellants for the offences under Sections 302/34 and 201/34 of IPC. 48. This Court is of the considered view that based on the prosecution evidence the entire chain of circumstances is complete leading to conclusion that it was the appellants who had committed the offence of taking away the deceased in the 709 truck by assaulting him in the manner described by PW-2 which became the cause of death of the deceased and had thrown the dead body on a different place. 49. As a cumulative effect of the aforesaid findings, this Court is of the considered view that the learned trial court has passed a well-reasoned judgment considering every aspect of the matter including the points raised by the appellants during the course of hearing of this appeal. This court finds that the learned trial court has rightly held that the chain of circumstances of last seen was proved and has rightly applied the provisions of section 106 of the Evidence Act to convict the appellants. The findings of the learned trial court is quoted above. This court upon scrutiny of the materials on record as aforesaid has come to the similar findings as arrived by the learned trial court. This court finds no illegality or perversity in the impugned judgment and accordingly, the impugned judgment does not call for any interference. Consequently, both the criminal appeals are dismissed. 50. Bail bonds furnished by the appellant Ganesh Gope and Umesh Karmali @ Chhotu are cancelled. 51. This court finds no illegality or perversity in the impugned judgment and accordingly, the impugned judgment does not call for any interference. Consequently, both the criminal appeals are dismissed. 50. Bail bonds furnished by the appellant Ganesh Gope and Umesh Karmali @ Chhotu are cancelled. 51. Let the records received for the learned trial court be sent back to the concerned court. 52. Let this judgment be communicated to the concerned court through e-mail. Shree Chandrashekhar, A.C.J.-I agree.