JUDGMENT : The sole accused in S.C.No.148 of 2011 on the files of the Court of the Additional Sessions Judge -III, Manjeri, is the appellant in the appeal. He stands convicted and sentenced for the offences punishable under Sections 302 and 392 of the Indian Penal Code (IPC). 2. The corpse of a young lady, aged 22 years was found on 16.05.2009 in the empty land of one Chekku by a person residing in the neighbourhood. On the basis of the information received from the person who saw the body, a case was registered by Kolathur Police. The investigation in the case revealed that the body is that of one Umaiba and that she was murdered by the accused. The final report was accordingly filed in the case alleging commission of offences punishable under Sections 302 and 392 IPC. 3. The accusation in the final report is that the accused named Sirajudheen established contact with Umaiba and promised to marry her, after making her believe that he is unmarried. Believing the promise given by the accused, Umaiba left home with her ornaments as also personal belongings, on the evening hours of 15.05.2009 to live with the accused, and the accused who met Umaiba at a place near the land where her body was later found, committed the offence of murder by strangulating her using the shawl worn by her then and further, committed robbery of her ornaments and personal belongings. 4. On the accused being committed to trial, the Court of Session framed charges against him to which he pleaded not guilty. Thereupon, the prosecution examined 36 witnesses as PW1 to 36 and proved through them 45 documents as Exts.P1 to P45. MOs 1 to 56 are the material objects in the case. Exts.D1 to D12 are portions of the statements of witnesses examined under Section 161 of the Code of Criminal Procedure (the Code), proved at the instance of the accused. When the incriminating circumstances were put to the accused in terms of the provisions contained in Section 313 of the Code, he denied the same and pleaded that he has been falsely implicated in the case. When the incriminating circumstances were put to the accused in terms of the provisions contained in Section 313 of the Code, he denied the same and pleaded that he has been falsely implicated in the case. The Court of Session, thereupon, on a consideration of the evidence on record, held that the accused is guilty of the offences for which he is charged, convicted and sentenced him to undergo imprisonment for life for the offence punishable under Section 302 IPC and to undergo 10 years of rigorous imprisonment for the offence punishable under Section 392 IPC. The accused is aggrieved by his conviction and sentence and hence, this appeal. 5. Heard the learned Senior Counsel for the accused as also the learned Public Prosecutor. 6. There is no direct evidence to prove the alleged occurrence. The prosecution, therefore, attempted to prove the occurrence through circumstantial evidence and it was on a finding that the circumstances proved would establish the guilt of the accused, that the Court of Session convicted the accused. The point that arises for consideration therefore is whether the circumstances proved in the case would establish the guilt of the accused beyond reasonable doubt. 7. In order to consider the point formulated for decision, it is necessary to refer to the relevant evidence in the case. PW1 is the person who saw the body of the deceased first and informed the matter to the police. PW1 deposed the said facts in his evidence. In addition, it was also deposed by PW1 that when he saw the body, MO3 black shawl was found around the neck of the deceased. PW30 is the doctor who conducted the autopsy of the body of the deceased. PW30 deposed that the death was due to ligature strangulation and it is possible with MO3 shawl. 8. PW2 is the father of the deceased. PW2 deposed that Umaiba left home at about 4 p.m. on 15.05.2009 informing others at home that she was going to the house of her elder sister Hajira and it was only on 17.05.2009, they realised that Umaiba did not reach the house of Hajira. PW2 deposed that when they verified the belongings of Umaiba then at the house, it was found that her ornaments were missing and it is in the enquires conducted thereafter, they found that the body found in the land of Chekku was that of Umaiba. PW2 deposed that when they verified the belongings of Umaiba then at the house, it was found that her ornaments were missing and it is in the enquires conducted thereafter, they found that the body found in the land of Chekku was that of Umaiba. PW3 is another elder sister of Umaiba. PW3 was residing in the neighbourhood of her family house, namely the house of their father, PW2. PW3 deposed that she saw Umaiba leaving the family house at about 4 p.m. on 15.05.2009 and she had with her then a yellow plastic cover. PW3 identified MO9 as the mobile phone used by Umaiba. Similarly, PW3 identified MO10 bangle, MO11 series bangles, MO12 series earrings, MO13 necklace, MO14 chain, MO15 series anklets and MO16 series rings as the ornaments held by Umaiba at the relevant time. Likewise, PW3 identified MO17 series churidars, MO18 series bottoms and tops, MO21 and MO22 purses, MO23 mirror, MO24 comb, MO25 tooth brush, MO26 tooth paste as the personal belongings of Umaiba and MO27 as the yellow plastic cover carried by Umaiba when she left home on 15.05.2009. 9. PW4 is the younger brother of the deceased. PW4 deposed that MO9 mobile phone was being used by Umaida and one day, when he verified that mobile phone, he noted that Umaiba was making calls to the number 9846496429 and the said number was saved as that of one Jamshi. PW5 is Hajira, referred to by PW2 in his evidence. PW5 deposed that the deceased had told her once that she is in a relationship with one Jamsheer and that the said Jamsheer intends to marry the deceased. PW5 also deposed that she saw Jamsheer once as shown to her by Umaiba at Valanchery Bus Stand, while they were proceeding to Moorkkanadu. PW5 identified the accused as the person who was shown to her by Umaiba as Jamsheer. 10. PW7 is a distant relative of the deceased. PW7 deposed that on 15.05.2009, while he was coming back from Kaippuram, he had to go to Pottachola to drop one Muhammedali who was accompanying him and while he was proceeding to Pottachola, he saw at about 8.30 p.m., the motor bike bearing Registration No. KL55-A-9906 which was parked on the right side of the road near the land of Chekku. PW7 also deposed that he saw then somebody wearing a saffron colour dhoti and a half sleeves shirt entering the property of Chekku. Although PW7 did not identify the person, he deposed that MO28 was the shirt and MO29 was the saffron dhoti worn by that person then. PW7 identified MO30 as the bike which was parked near the property of Chekku. 11. PW15 is an electrician. PW15 deposed that he saw the accused on 15.05.2009 at Kaliyarkulam Valiyaparambu Market at about 8.15 p.m. and the accused was then sitting on a Hero Honda Passion Plus Bike talking over the phone. PW15 also deposed that later he saw the accused riding towards Pottachola direction. PW21 is an autorickshaw driver. PW21 deposed that on 15.05.2009 at about 10 p.m., he saw the accused in Kaliyarkulam-Pottachola road, while PW21 was proceeding towards Pottachola direction. It was also deposed by PW21 that the accused was then coming from Pottachola to Valiyaparambu direction in a bike and there was an yellow cover in the handle of that bike. 12. PW36 is the investigating officer in the case. PW36 deposed that the accused was arrested on 19.05.2009 and during interrogation on his arrest, the accused informed PW36 that he has kept a plastic cover containing gold ornaments and other articles in his house at Kolathur, and when he was taken to that house by PW36, the accused took out a plastic cover from the top of the bathroom near the work area of the kitchen and handed over the said plastic cover to PW36, who seized the same and the movables inside it as per Ext.P7 mahazar. PW36 deposed that MOs 10, 11 series, 12 series, 13, 14, 15 series and 16 series gold ornaments, MO9 mobile phone, MO17 series churidars, MO18 series bottoms and tops, MO21 and MO22 purses, MO23 mirror, MO24 comb, MO25 tooth brush, MO26 tooth paste were among the articles seized by PW36 from the plastic cover concealed by the accused in his house. PW36 deposed that later MO28 shirt and MO29 dhoti as also the motorbike bearing No.KL-55A-9906 were also seized by PW36 from the house of the wife of the accused as per Ext.P12 mahazar. PW36 further deposed that MO30 motorbike belongs to the accused and the accused received the same from the Court on kaicheet. PW36 deposed that later MO28 shirt and MO29 dhoti as also the motorbike bearing No.KL-55A-9906 were also seized by PW36 from the house of the wife of the accused as per Ext.P12 mahazar. PW36 further deposed that MO30 motorbike belongs to the accused and the accused received the same from the Court on kaicheet. The evidence tendered by PW36 as regards the seizure of the movables referred to above was corroborated by PW10 and PW22 who are respectively the witnesses to the said seizure mahazars. 13. PW27 is a person who is running a quarry. PW27 deposed that he knows the accused and that the accused asked him once whether he intends to sell his vehicle. PW27 also deposed that when he answered in the negative and that he could help the accused purchase a vehicle, if he would like, the accused informed PW27 that he will contact him after arranging money for the same. 14. This is all the evidence that has been let in by the prosecution to prove the circumstances, on the basis of which, the guilt of the accused was attempted to be established. Let us now consider the point in the light of the aforesaid evidence. In the light of the unchallenged and categoric evidence tendered by PW30, the doctor who conducted the autopsy, there cannot be any doubt to the fact that the death of Umaiba was a homicide. But, the question here is as to who caused her death and committed robbery of her ornaments as also personal belongings. From the evidence aforesaid, the Court of Session found that the following circumstances could be inferred: (i) That the accused desired to purchase a vehicle and he was therefore in need of money. (ii) That the accused had developed a relationship with Umaiba and promised to marry her without disclosing his real identity. (iii) That Umaiba left home at about 4 p.m. on 15.05.2009 with her ornaments and personal belongings in MO27 plastic cover. (iv) That the accused was seen on his motorbike by PW15 at Kaliyarkulam Valiyaparambu Market, a place near the land where the body of Umaiba was found, at about 8.15 p.m. on 15.05.2009. (v) That the motorbike of the accused was found by PW7 near the land where the body of Umaiba was found at about 8.30 p.m. on 15.05.2009. (iv) That the accused was seen on his motorbike by PW15 at Kaliyarkulam Valiyaparambu Market, a place near the land where the body of Umaiba was found, at about 8.15 p.m. on 15.05.2009. (v) That the motorbike of the accused was found by PW7 near the land where the body of Umaiba was found at about 8.30 p.m. on 15.05.2009. (vi) That a person was seen by PW7 proceeding at about 8.30 p.m. on 15.05.2009 to the land where the body of Umaiba was found and he was wearing then MO28 shirt and MO29 dhoti seized from the house of the accused. (vii) That the accused was seen riding his motorbike near the land of Chekku at about 10.00 p.m. on 15.05.2009 by PW21, and MO27 plastic bag was hung in the handle of his motorbike then. (viii) That body of Umaiba was seen in the early morning hours of 16.05.2009. (ix) That the place where the bag containing the ornaments and personal belongings of Umaiba was concealed, was discovered based on information furnished by the accused. It is seen that it is on the basis of the above circumstances that the Court of Session came to the conclusion that it was the accused who caused the death of the victim and committed robbery of her ornaments and belongings. 15. It is trite that the following requirements must be fulfilled in order to hold that an accused in a case on circumstantial evidence is guilty of the offence for which he is charged: (1) that the circumstances from which the conclusion of guilt is drawn are fully established, (2) that the facts so established are 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) that the circumstances are of a conclusive nature and tendency, (4) that they should exclude every possible hypothesis except that the accused is guilty, and (5) that 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. In the light of the said principles, it is necessary first to consider whether the circumstances referred to above have been fully established. In the light of the said principles, it is necessary first to consider whether the circumstances referred to above have been fully established. Even though the evidence tendered by PW15 that he saw the accused at Kaliyarkulam Valiyaparambu Market at about 8.15 p.m. on 15.09.2009 can be accepted as a circumstance against the accused, we find it extremely difficult to accept the evidence tendered by PW7 that he had sufficient opportunity to observe the registration number of the motorbike parked on the side of a public road near the land of Chekku while he was riding through the said road in a motorbike, that too, at night. Similarly, we also find it practically impossible to accept the evidence tendered by PW7 that he observed details such as the colour, pattern etc. of the clothes worn by a stranger standing on the side of a road, whom he had no reason to observe at that point of time. According to us, the evidence tendered by PW7 is not one that inspires confidence of the court, for we believe that no one could closely observe the registration numbers of vehicles parked on the side of roads, unless it is a fancy number and there is some reason to pay attention to that vehicle at the relevant point of time. There is no difficulty in accepting the evidence tendered by PW21 that he saw the accused while he was riding his auto rickshaw through Kaliyarkulam-Pottachola road on 15.09.2009. But, the evidence of PW21 that MO27 plastic bag was hung in the handle of the motorbike ridden by the accused then cannot be believed, for, according to us, it is impossible for anyone to give such particulars, especially since both of them were commuting by different vehicles at the relevant point of time. In other words, according to us, only the following circumstances can be said to be established in the case: (i) That the accused desired to purchase a vehicle and was therefore in need of money. (ii) That the accused had established a relationship with Umaiba and promised to marry her without disclosing his real identity. (iii) That Umaiba left home at about 4 p.m. on 15.05.2009 with her ornaments and personal belongings in MO27 yellow plastic cover. (ii) That the accused had established a relationship with Umaiba and promised to marry her without disclosing his real identity. (iii) That Umaiba left home at about 4 p.m. on 15.05.2009 with her ornaments and personal belongings in MO27 yellow plastic cover. (iv) That the accused was seen on his motorbike by PW15 at Kaliyarkulam Valiyaparambu Market, a place near the land where the body of Umaiba was found, at about 8.15 p.m. on 15-05-2009. (v) That the accused was seen riding his motorbike by PW21 near the land of Chekku at about 10.00 p.m. on 15.05.2009. (vi) That the body of Umaiba was seen in the early morning hours of 16.05.2009. (vii) That the place where the yellow plastic cover containing the ornaments and personal belongings of Umaiba was concealed, was discovered by PW36 based on the information furnished by the accused. 16. The evidence as regards circumstances (i), (ii) and (iii) let in by the prosecution are not disputed. The evidence let in by the prosecution would also show that the accused was in the vicinity of the property, in the evening hours of 15.05.2009, where the dead body of Umaiba was found the next day, namely 16.05.2009. The pointed question is whether the said circumstances are sufficient to conclude that it was the accused who caused the death of the victim and committed robbery of her belongings. 17. As noted, it was established by the prosecution that the ornaments and personal belongings of Umaiba were recovered from the house of the accused on the basis of the information furnished by the accused himself. Section 114 of the Indian Evidence Act enables the court to presume that a man, who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. In this case, the accused has not offered any explanation as to how the ornaments and personal belongings of Umaiba were in his possession when questioned under Section 313 of the Code. In other words, the accused has not accounted for his possession of the belongings of the deceased. In this case, the accused has not offered any explanation as to how the ornaments and personal belongings of Umaiba were in his possession when questioned under Section 313 of the Code. In other words, the accused has not accounted for his possession of the belongings of the deceased. Inasmuch as the ornaments and personal belongings of Umaiba were recovered from the possession of the accused and inasmuch as he has not offered any explanation as to how the said articles came to his possession, in the light of the provision contained in Section 114 of the Indian Evidence Act, on the facts of this case, it can be safely concluded that the ornaments and the personal belongings of the deceased were dishonestly removed by the accused. 18. But, the larger question is whether it can be concluded that it was the accused who caused the death of the victim, for the reason that her ornaments and personal belongings were recovered from the accused. In Raj Kumar v. State (NCT of Delhi), (2017) 11 SCC 160 , the Apex Court held that even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home, unless there is some evidence to show that the robbery and the murder occurred at the same time, i.e., in the course of the same transaction. Even while we hold, applying the presumption under Section 114 of the Indian Evidence Act, that it was the accused who removed dishonestly, the ornaments and personal belongings of the deceased, we are unable to hold that Umaiba was murdered by the accused, while he was dishonestly removing her belongings, for want of convincing evidence. In order to show that the murder cannot be part of the same transaction in which the ornaments and belongings of Umaiba were obtained, the learned Senior Counsel for the accused pointed out that inasmuch as the specific case of the prosecution is that the accused and the deceased were in a relationship, the possibility of the deceased entrusting her ornaments and personal belongings to the accused cannot be ruled out. Similarly, it was argued by the learned Senior Counsel that having regard to the relationship the accused stated to have maintained with the deceased, the possibility of the accused obtaining the gold ornaments and personal belongings of the deceased by misrepresentation, fraud etc. Similarly, it was argued by the learned Senior Counsel that having regard to the relationship the accused stated to have maintained with the deceased, the possibility of the accused obtaining the gold ornaments and personal belongings of the deceased by misrepresentation, fraud etc. also cannot be ruled out. According to the learned Senior Counsel, if the said possibilities cannot be ruled out, it cannot be held conclusively that the murder and robbery were part of the same transaction. We are unable to find reasons to rule out the said possibilities. In other words, with the available materials, it cannot be concluded, conclusively, that the murder took place in the same transaction in which the accused managed to obtain the gold ornaments and personal belongings of the deceased. If that be so, in the light of the decision of the Apex Court in Raj Kumar, the accused cannot be convicted for the offences punishable under Sections 302 and 392 of IPC. Needless to say, he can be convicted only for the offence punishable under Section 379 IPC with the aid of the presumption under Section 114 of the Indian Evidence Act. 19. If the accused cannot be convicted for offences punishable under Sections 302 and 392 of IPC with the aid of the presumption under Section 114 of the Indian Evidence Act, the question that arises, at once, is whether the accused can be convicted for the said offences based on the circumstances established in the case. As already noticed, the circumstances established in the case are that the accused was in need of money; that he had developed a relationship with Umaiba and promised to marry her without disclosing his real identity and that Umaiba left home at about 4 p.m. on 15.05.2009 with her ornaments and personal belongings. It was also established that the accused was in the vicinity of the land of Chekku in the evening hours of 15.05.2009 and that the gold ornaments and personal belongings of Umaiba were found to be in possession of the accused. The said circumstances, according to us, do not satisfy the requirements of law as enumerated in paragraph 15 above, as regards the hypothesis of the guilt of the accused. 20. The said circumstances, according to us, do not satisfy the requirements of law as enumerated in paragraph 15 above, as regards the hypothesis of the guilt of the accused. 20. The learned Public Prosecutor persuasively argued that inasmuch as the gold ornaments and personal belongings of Umaiba were found to be in the possession of the accused, it was obligatory for the accused to explain as to how the death of Umaiba occurred. The learned Public Prosecutor relied on the provision contained in Section 106 of the Indian Evidence Act in support of the said contention. Reliance was also placed on the decision of the Apex Court in Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 and the decision of this Court in Manikandan v. State of Kerala, 2018 KHC 40 to reinforce the said contention. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Shambu Nath Mehra v. State of Ajmer, 1956 SCC OnLine SC 27, the Apex Court held that Section 106 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 the accused could prove without difficulty or inconvenience. It was also held by the Apex Court in the said case that if the section were to be interpreted otherwise, it would lead to a very startling conclusion that in a murder case, the burden lies on the accused to prove that he did not commit the murder. The relevant paragraphs of the said judgment read thus: “9. 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 preeminently or exceptionally within his knowledge. The word “especially” stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor [ AIR 1936 PC 169 ] and Seneviratne v. R. [(1936) 3 All ER 36, 49] x x x x x x x x x 11. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be “especially” within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.” As evident from the extracted passages, it was also held by the Apex Court in the said case that the question whether the accused has any obligation to prove any fact is one to be decided by examining the issue as to who would be in a position to prove the disputed fact at ease. It was also clarified by the Apex Court in the said case that the provision cannot be used, at any rate, to undermine the well established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts. 21. In this context, it is also profitable to refer to the observations made by the Apex Court as regards the scope of Section 106 in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 . The relevant passages read thus: “14. x x x x 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. x x x x 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.” In Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine SC 1261, after referring to the decisions aforesaid, the Apex Court explained the scope of Section 106 thus: “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. 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. 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. 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. 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. 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).” On a consideration of the provision and the decisions of the Apex Court referred to above, we are of the view that it is only when it is impossible or at any rate, disproportionately difficult, for the prosecution to give wholly convincing evidence on certain crucial facts, in terms of Section 106 of the Indian Evidence Act, the accused is obliged to give evidence on those facts, if it is established that those facts are within his knowledge, if he wishes to get rid of his conviction. In other words, it is only when it is shown that all that is possible to prove the facts in issue have been proved by the prosecution and what remains is only the facts which are exclusively within the knowledge of the accused, the burden shifts to the accused. The circumstances established in this case as referred to in the preceding paragraphs, according to us, are not sufficient to hold that only the accused has knowledge as to who caused the death of Umaiba. If the said evidence is not sufficient to attract Section 106 of the Indian Evidence Act, according to us, the accused has no burden to prove any fact, in the facts and circumstances of this case. Had this been a case where, at least, there was some evidence to show that Umaiba was seen in the company of the accused after she left the house, the situation would have been different. Had this been a case where, at least, there was some evidence to show that Umaiba was seen in the company of the accused after she left the house, the situation would have been different. Even in such case, the decision of the court would depend on what explanation is offered by the accused. Needless to say, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and the accused is, therefore, entitled to the benefit of doubt, inasmuch as the charge against him for the offence punishable under Section 302 IPC is concerned. 22. The decisions in Ganesh Lal and Manikandan cited by the learned Public Prosecutor do not lay down any general principle. Those are cases where the accused were fastened with liability to disclose facts in terms of Section 106 of the Indian Evidence Act on the peculiar facts of the cases. In the result, the appeal is allowed in part and the conviction of the appellant under Sections 302 and 392 of IPC is set aside. We find, however, the appellant guilty of the offence punishable under Section 379 IPC and sentence him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/-and in default to undergo further imprisonment for a period of 3 months.