JUDGMENT : Sanjay Kumar Jaiswal, J. 1. This criminal appeal filed under Section 374(2) of Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 11.07.2016 passed by the Additional Sessions Judge, Bhatapara, District Baloda Bazar, Chhattisgarh in Sessions Trial No.H-17 of 2015, whereby accused-Savitri Bai Banjare has been acquitted of the charge punishable under Section 411 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and appellant-Kulwant Singh Dhruw has been convicted and sentenced as under :- Conviction Sentence U/s 302 of IPC Imprisonment for life with fine of Rs.1000/-, in default of fine, additional imprisonment for 3 months. U/s 394 of IPC Imprisonment for life with fine of Rs.1000/-, in default of fine, additional imprisonment for 3 months. U/s 201 of IPC Rigorous imprisonment for 7 years with fine of Rs.500/-, in default of fine, additional imprisonment for 3 months. All the sentences were directed to run concurrently. 2. It is an undisputed fact that the appellant Kulwant Singh Dhruv is the son of deceased Kholbahrin Bai in this case. 3. The case of the prosecution, in a nutshell, is that, appellant Kulwant Singh Dhruw resided in village Suhela with his wife and mother and his wife had gone to her maternal house. On 24.04.2015, Santosh Nayak informed the Police Station that house of Kholbahrin Bai was locked and a foul smell was coming out from the house. When one looked through a window, a dead woman was seen inside the room. Thereafter, Police registered merg intimation vide Ex.P/17, broken two locks and prepared panchnama vide Ex.P/3 and Ex.P/4 4. The dead body of Kholbahrin Bai was in a state of decomposition. The dead body was subjected to postmortem examination, which was conducted by Dr. G.S. Som (PW-22), who proved the postmortem report vide Ex.P/24 and Dr. G.S. Som (PW-22) opined that the cause of death was excessive bleeding due to head injury and nature of death is homicidal. A blood stained stick was seized from the spot and sent for its chemical examination. Appellant Kulwant Singh Dhruw was found absconding. Memorandum statement of appellant Kulwant Singh Dhruw was recorded on 21.05.2015 vide Ex.P/9, pursuant to which, two pieces of keys were seized at his instance vide Ex.P/10. A blood stained stick was seized from the spot and sent for its chemical examination. Appellant Kulwant Singh Dhruw was found absconding. Memorandum statement of appellant Kulwant Singh Dhruw was recorded on 21.05.2015 vide Ex.P/9, pursuant to which, two pieces of keys were seized at his instance vide Ex.P/10. 3 pieces of gold leaf were seized at the instance of co-accused Savitri Bai Banjare vide Ex.P/11. Silver anklet and receipt was seized at the instance of Umakant, who was owner of Mangal Jewellers vide Ex.P/12 and one receipt was seized at the instance of appellant Kulwant Singh Dhruw vide Ex.P/13. Thereafter, statements of witnesses were recorded and after due investigation, the appellant was charge-sheeted for offence punishable under Sections 302, 394 and 201 of IPC in the Court of Judicial Magistrate First Class, Simga (C.G.) and thereafter, the case was committed to the Court of Sessions Judge for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence. 4. The prosecution in order to prove its case examined as many as 23 witnesses and exhibited 37 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant Kulwant Singh Dhruw as mentioned herein-above, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence. 6. Mr. Vijay Kumar Sahu, learned counsel for the appellant submits that no weapon has been seized from the possession of appellant and he did not give any memorandum statement to the Police. He further submits that memorandum statement and seizure have not been corroborated by the prosecution witnesses. The alleged receipt and seizure of silver and gold anklets and leaves have been falsely prepared about a month after the incident, for which, no identification has been made as to whether they were jewelery or ornaments of deceased. In respect of two keys, which have been seized at the instance of appellant Kulwant Singh Dhruw, no panchnama was prepared as to whether these were the keys of locks installed in the house of deceased. In respect of two keys, which have been seized at the instance of appellant Kulwant Singh Dhruw, no panchnama was prepared as to whether these were the keys of locks installed in the house of deceased. It is contended that there is no direct witness to the incident and prosecution has not presented any evidence of the nature that appellant Kulwant Singh Dhruw was last seen with Kholbahrin Bai just before the body of Kholbahrin Bai was found. It is further contended that in case of circumstantial evidence, every link should be interconnected and there should be solid evidence in this regard so that only conclusion can be drawn that appellant is found to be guilty. It is argued that in the instant case, due to lack of identification of jewelery seized as well as panchnama was not prepared of seized keys, links are not connected. It is lastly argued that the conduct of appellant after the incident regarding his absence from the house is only a supporting evidence, which is a weak type of evidence and in that view of the matter, appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 7. Per contra, Ms. Nand Kumari Kashyap, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature, in which, there is no reason to have any kind of doubt. She further submits that appellant has been absconding after the incident and seizure of jewelery of his mother Kholbahrin Bai at this instance shows that he has committed the incident. She lastly submits that trial Court has rightly convicted the appellant for the aforesaid offence and, as such, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first and foremost question as to whether the death of deceased Kholbahrin Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report vide Ex.P/24 proved by Dr. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first and foremost question as to whether the death of deceased Kholbahrin Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report vide Ex.P/24 proved by Dr. G.S. Som (PW-22) as well as evidence of Santosh Nayak (PW-6) and Smt. Meera Agrawal (PW-23), which in our considered opinion, is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 10. Now, the next question would be whether the appellant Kulwant Singh Dhruw intentionally caused the death of Kholbahrin Bai as also looted her jewelery and destroyed the evidence ? 11. After analyzing the entire evidence on record, it is clear that there is no direct witness to the incident. The first basis for conviction of appellant is that at the time of alleged incident, he was living in the house with his mother Kholbahrin Bai and wife of appellant herself had gone to her maternal house; after the incident, appellant has remained absconding and house of deceased remained locked. Therefore, prima facie, it has been found from the conduct of appellant after the incident that he was guilty. 12. Before proceeding further, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under :- “153. …. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 13. Section 106 of the Indian Evidence Act, 1872, 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.” 14. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 15. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 15. In the matter of Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 , their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under :- “11. …. The word "especially" stresses that it means facts that are 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. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49(B).” Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 16. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar, (2021) 10 SCC 725 in which, it has been held by their Lordships of the Supreme Court as under :- “22. 16. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar, (2021) 10 SCC 725 in which, it has been held by their Lordships of the Supreme Court as under :- “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 17. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab, AIR 1956 SC 460 , while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him. 18. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him. 18. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 19. Now, the question is, whether the prosecution has discharged its primary burden that the appellant and deceased were seen together on the date of offence, but in the present case, absolutely there is no evidence on record that the appellant Kulwant Singh Dhruw and deceased Kholbahrin Bai both were seen together in the house prior to the date and time of offence. Only on the basis that dead body of the deceased was found inside the house, the appellant has been convicted; whereas, the prosecution ought to have brought on record the evidence that the appellant was also in the house on the date and time of offence and the burden could have been placed upon the accused by invoking Section 106 of the Evidence Act, which has not been done. Therefore, the accused cannot be expected to prove the reason for his absence under Section 106 of the Evidence Act. 20. Insofar as the question of accused remaining absconding after the incident is concerned, it is noteworthy that the incident is said to have taken place between 21st to 24th April, 2015, whereas memorandum statement of appellant Kulwant Singh Dhruw was recorded on 21.05.2015 i.e. about 1 month later and he was said to be absconding. The fact of absconding of accused is relevant fact under Section 8 of the Evidence Act for convicting the appellant for offence under Section 302 of I.P.C., but very recently in the matter of Subramanya v. State of Karnataka, the Supreme Court has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the Evidence Act, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under :- “95. In the aforesaid context, we would like to sound a note of caution. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.” In that view of the matter, the appellant Kulwant Singh Dhruw cannot be convicted on the basis of his subsequent conduct. 21. The second important circumstance is that on the basis of memorandum statement of appellant, keys of lock of the house and jewelery of deceased were seized. Memorandum and seizure have been prepared by Inspector Smt. Meera Agarwal (PW-23). The witnesses of memorandum statement vide Ex.P/9 and seizure vide Exs.P/10, P/11, P/12 & P/13 are Krishna Kumar Verma (PW-6) and Khuman alias Guman Pal (PW-14) and there are some contradictions in their evidence. An important fact in the case at hand is that two keys, which are said to have been seized from the field at the instance of appellant Kulwant Singh Dhruw, are the keys of lock installed in the house of deceased, no such panchnama has been prepared. Therefore, in absence of evidence, link does not connect that keys of lock in the house of deceased were seized at the instance of appellant Kulwant Singh Dhruw. 22. Similarly, no action has been taken to identify the gold leaves and silver anklet, which are said to have been seized at the instances of Savitri Bai Banjare, Umakant and Kulwant Singh Dhruw and It could not be clearly seen that those ornaments were used by deceased Kholbahrin Bai only. In absence of above evidence, it could not be definitely concluded that jewelery seized at the instance of appellant Kulwant Singh Dhruw was meant to be used by deceased Kholbahrin Bai. Therefore, on the basis of above seizure, appellant Kulwant Singh Dhruw could not be found guilty of murder of Kholbahrin Bai. 23. In absence of above evidence, it could not be definitely concluded that jewelery seized at the instance of appellant Kulwant Singh Dhruw was meant to be used by deceased Kholbahrin Bai. Therefore, on the basis of above seizure, appellant Kulwant Singh Dhruw could not be found guilty of murder of Kholbahrin Bai. 23. In view of the aforesaid discussion, the prosecution has only been able to prove the death to be homicidal in nature and the last seen together of appellant Kulwant Singh Dhruw and deceased Kholbahrin Bai has not been proved beyond reasonable doubt. We are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the appellant is entitled for acquittal on the ground of benefit of doubt. The conviction of appellant Kulwant Singh Dhruw for the offence under Sections 302, 394 and 201 of IPC is hereby set aside. The appellant is acquitted of the charge under Sections 302, 394 and 201 of IPC. He shall be forthwith set at liberty, unless he is required in connection with any other offence. 24. In the result, the appeal is allowed. 25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.