JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard learned counsel for the parties. 2. The present criminal appeal is directed against the judgment of conviction dated 12.12.2002 and order of sentence dated 13.12.2002 passed by learned Additional Sessions Judge-XIII, Dhanbad in Sessions Trial No. 140 of 1985, whereby and whereunder, the appellants have been convicted for the offence under Section 302 read with Section 34 of the I.P.C. and sentenced to undergo rigorous imprisonment for life. 3. The prosecution story as depicted in the FIR in narrow compass is that on 31.01.1985 at about 10:00 PM, the informant Anpi Devi was sleeping in her house. Meanwhile, her son Rama Ram (deceased) along with his friends Jitan Hari and Ganga Bhuiya knocked the door and told that Jitan Hari and Ganga Bhuiya are threatening him and took play cards and tobacco ¼[kSuh½ from the house and went along with Jitan Hari and Gaga Bhuiya. The informant saw Jitan Hari and Ganga Bhuiya were standing outside the house and saying that ^^lkys jkek tYnh pyks vkt rqedks ekjsxsaA** The informant assumed that they are saying so under influence of liquor and went to sleep. It is further alleged that next day, in the morning at about 6 AM, the informant went to discharge her duty at Dhanuadih Colliery along with her another son Krishan Ram, but after some time, her younger son Mahendra Ram came to duty place and informed that Ganga Bhuiya and Jitan Hari have killed Rama Ram near Bhalgarha Project field. Then, she went to Bhalgarha Project field and saw the dead body of Rama Ram was lying in injured condition under pool of blood. Injuries were caused by stones and playing cards were also scattered there. The informant has suspected that due to dispute in playing cards and earlier threatening given by the accused persons namely, Jitan Hari and Ganga Bhuiya, they have killed her son by assaulting him with huge stones. 4. On the basis of above information, FIR was registered as Jharia P.S. Case No. 71 of 1985 dated 31.01.1985 for the offence under Sections 302 / 34 of the I.P.C. Charge of investigation was undertaken by S.I. Jagdish Prasad, who after completion of investigation, submitted charge sheet against above named accused persons under Sections 302 / 34 of the I.P.C. 5. After taking cognizance, case was committed to the court of Sessions, where S.T. Case No. 140 of 1985 was registered and trial proceeded by framing charge against the accused persons, to which, they pleaded not guilty and claimed to be tried. 6. In course of trial, altogether 10 witnesses were examined by the prosecution. Apart from oral testimony of witnesses, following documentary evidence have been exhibited:- Exhibit-1 : Post-mortem. Exhibit-2 : Formal F.I.R. Exhibit-3 : Fardbeyan of the informant Anpi Devi. 7. The case of defence is denial from occurrence and false implication. The defence has also examined two witnesses:- D.W.-1 : Satyanarayan Sahu. D.W.-2 : Sudamia Devi. 8. After conclusion of trial and hearing arguments of the parties, learned trial court has observed that this case is based upon circumstantial evidence and relied upon following circumstances:- (i) Accused persons along with deceased came to the house of the deceased at night. (ii) The deceased again went away with the playing cards and tobacco along with accused persons. (iii) The accused persons have also extended threatening to kill deceased. (iv) On the next day morning, the deceased was found murdered through brutal assault by stones. (v) The playing cards were also found scattered at the place of occurrence. (vi) The accused persons have been put upon the aforesaid circumstances in their statement under Section 313 Cr.P.C., but failed to offer any satisfactory explanation, as to what happened to the deceased when he was along with them. The accused persons have simply denied the occurrence, but no plausible explanation has been given as to when they parted with the deceased. (vii) The non-explanation of the incriminating circumstances appearing against the accused persons also furnishes an additional link in the chain of circumstantial evidence. (viii) Under such circumstances, the principle under Section 106 of the Evidence Act is to be invoked. 9. Learned trial court came to the conclusion that there is no missing circumstances and the prosecution has been able to prove the guilt of the accused persons beyond all reasonable doubt. Accordingly, convicted and sentenced them for the charges under Section302/34 of the I.P.C. 10. 9. Learned trial court came to the conclusion that there is no missing circumstances and the prosecution has been able to prove the guilt of the accused persons beyond all reasonable doubt. Accordingly, convicted and sentenced them for the charges under Section302/34 of the I.P.C. 10. Learned counsel for the appellants assailing the impugned judgment of conviction and order of sentence has vehemently argued that the learned trial court has convicted the appellants solely on the basis of circumstantial evidence, as per testimony of P.W.-3, P.W.-4 and P.W.-5, who are closely related to each other and mother and brother of the deceased. The theory of last seen is the alone circumstance in this case and apart from this, there is only suspicion and doubt raised against the appellants without any cogent and reliable evidence. 11. It is further submitted that the suspicion raised by the informant never culminated into legal proof. Hence, the conviction of the appellants only on the basis of suspicion cannot be sustained. In this regard, learned counsel for the appellants has placed reliance upon reported judgment of the Hon’ble Apex Court passed in the case of Narendrasinh Keshubhai Zala Vs. State of Gujarat, 2023 SCC OnLine SC 284 and Sharad Birdhichand Sarda Vs. State of Maharastra , (1984) 4 SCC 116 . 12. Learned counsel for the appellants has laid much emphasis upon unnatural conduct of the informant and other witnesses, who happens to be mother and brothers of the deceased, that in spite of knowing that threating was being given by the accused to deceased to kill him, they kept mum in allowing the appellants to proceed with the deceased and did not search him in the night. 13. It is further submitted that in the instance case, only P.W.-5, Anpi Devi, who happens to be mother of the deceased, has deposed regarding last seen of the deceased with the appellants at about 10:00 PM on 30.01.1985 and she has seen the dead body of the deceased at about 09-10 AM in the next day morning of 31.01.1985. No concrete evidence about any prior dispute between the deceased and the accused persons have been brought on record. No concrete evidence about any prior dispute between the deceased and the accused persons have been brought on record. The conduct of P.W.-5 for remaining silent in whole of the night when she was allegedly aware of the threatening by the appellants that her son shall be killed, she did not forbid her son or protested with the accused persons rather allowed the deceased to go with the accused persons, cannot be believed by any stretch of imagination. Admittedly, the deceased was drunker and involved in gambling, he might have been killed by any of his associates, but the appellants have been falsely implicated in this case only on the basis of suspicion. 14. It is settled law that suspicion howsoever strong, it cannot take place of legal proof. Therefore, conviction and sentence of the appellants solely on the basis of evidence of P.W.-5 is absolutely illegal and liable to be set aside by allowing this appeal. 15. Per contra: learned Special P.P. has opposed the aforesaid contentions raised on behalf of appellants and submitted that there are sufficient incriminating circumstances proved by the prosecution, for which no reasonable and valid explanation has been offered by the defence. The theory of last seen and murder of deceased has close proximity of time, under such circumstances, there is legal obligation on the part of accused persons in view of provision of Section 106 of Evidence Act to explain reasonably as to what happened with the deceased when he was all along with them in the night. The appellants have taken the deceased for playing cards, which were also found scattered near the dead body. It is not a case of mere suspicion, but the foundational fact for raising presumption under Section 106 of the Evidence Act have been conclusively proved by the prosecution. The defence has kept mum and failed to offer any reasonable explanation regarding part with the deceased at any point of time from the time they went from the house of deceased and proceeded together for playing cards. The learned trial court has very wisely and aptly considered the incriminating circumstances available on record against the appellants. There is no infirmity in the impugned judgment of conviction and order of sentence of the appellants. This appeal has no merit and fit to be dismissed. 16. The learned trial court has very wisely and aptly considered the incriminating circumstances available on record against the appellants. There is no infirmity in the impugned judgment of conviction and order of sentence of the appellants. This appeal has no merit and fit to be dismissed. 16. For better appreciation of the points of argument raised on behalf of the parties, we have to take brief resume of the testimony of witnesses examined in this case. The most important witness in this case is the informant, who happens to be fateful mother of the deceased and examined as P.W.-5 (Anpi Devi). She has categorically deposed that on 30.01.1985 in the night at about 10:00 PM, she along with her two other sons namely, Krishna Ram and Mahendra Ram after taking dinner were sleeping in the house. Meanwhile, someone knocked the door, then she opened the door and saw that Jitan Hari and Ganga Bhuiya (present appellants) along with her son Rama Ram were present. Ganga Bhuiya and Jitan Hari told to Rama Ram to bring playing cards and tobacco, otherwise he will be killed. Thereafter, Rama Ram came into the house, took tobacco and playing cards and told to this witness that Ganga Bhuiya and Jitan Hari will kill him today. Inspite of that, he went out from the house by taking tobacco and playing cards along with appellants. This witness thought that Jitan and Ganga used to live together with her son and not so much serious that his son might be killed by the appellants. She has further deposed that in the next date morning at 6:00 AM, she went to discharge her duty at Dhanuadih Colliery along with her another son Krishna Ram and at about 9:00 AM her another son Mahendra Ram rushed to her and told that Ganga and Jitan had killed Rama Ram by giving crush injury by stones, then she along with her son went to the place of occurrence at Bhalgarha Project field and saw the dead body of her son Rama Ram. His mouth was crushed by stone and playing cards were scattered near the dead body. His mouth was crushed by stone and playing cards were scattered near the dead body. She has further deposed that Officer-in-Charge of Jharia Police Station arrived at the place of occurrence, then she disclosed about all the events, which was reduced into writing by him and read over and explained to her, to which, she has put her thumb impression. She has also disclosed that about one month prior to the occurrence, a scuffle had taken place between deceased and accused persons while gambling with playing cards and Ganga and Jitan warned the deceased to teach a lesson. Jitan and Ganga alone have killed her son in the night of incident and identified them behind the dock. This witness has been cross-examined at length wherein she admits that she has not seen the accused persons while assaulting to her son. She also admits that the deceased was not doing any job, but indulged in gambling with the accused persons and his other friends also. There is nothing in her cross- examination to disbelieve her testimony as to the facts as deposed by her in her examination-in-chief. Even by way of suggestion, the defence has not elicited that the appellants had not gone to the house of this witness in the fateful night and there was no previous dispute of any kind. 17. P.W.-10 : Dr. D.K. Dhiraj has conducted autopsy on the dead body of the deceased on 31.01.1985 at about1:30 PM and found following ante-mortem injuries:- (i) Abrasion 6” x 2½” on both sides of forehead2”x2” over right cheek. (ii) Abrasion 2”x1” over right side of chin and 1” x ¼”on right under surface of chin. (iii) Lacerated wound 1½” x ½” x cavity deep on left eyebrow and forehead. (iv) Lacerated wound 1/6” x 1/6” x 1/6” bone skin deep on the middle of forehead. (v) Lacerated wound ½” x ½” x cavity deep over forehead ½” above middle of right eyebrow. (vi) Lacerated wound 1/6” x 1/6” x bone deep over right cheek near nose. (vii) Lacerated wound ¼” x 1/6” x bone deep on right side of lower jaw. (viii) Brain was seen coming out through left ear. On dissection, hematoma was found under scalp all over. All the clavical bones were found fractured. Meninges were torn and brain lacerated. Intracerebral hemorrhage was found in both hemispheres. Viscera were found pale. (vii) Lacerated wound ¼” x 1/6” x bone deep on right side of lower jaw. (viii) Brain was seen coming out through left ear. On dissection, hematoma was found under scalp all over. All the clavical bones were found fractured. Meninges were torn and brain lacerated. Intracerebral hemorrhage was found in both hemispheres. Viscera were found pale. Both sides of the heart and stomach were empty. The urinary bladder was partially full. In the opinion of the doctor, death resulted from shock due to hard and blunt force causing cerebral injuries. Time of the death 12±6 hours. The doctor has proved the post-mortem report (Exhibit-1). In the opinion of the doctor the above injuries can be caused, if repeated blow of heavy stone is given. In the cross-examination, this witness has stated that multiple injuries cannot be possible by fall on the ground. 18. P.W.-7 Ramdeo Tanti, P.W.-8 Munshi Bhuia and P.W.-9 Janki Das have been turned hostile and not supported the prosecution story. P.W.-2 Doma Bhuia is a tendered witness. 19. P.W.-1 Rajkumar Ravidas is a chance witness, who was proceeding towards Bhalgarha field at about 6:00 AM then he saw the dead body of Rama Ram was lying in the field. His cheeks and mouth were crushed, then he informed to the brother of Rama Ram namely, Mahendra Ram, who came to the spot along with his mother Anpi Devi, where police also arrived and statement of mother of the deceased was recorded. He was also interrogated by the police. Inquest report was prepared in his presence, which was witnessed by him and put his thumb impression. He has also disclosed the facts, which was come to his knowledge through the informant. 20. P.W.-3 Mahendra Ram is the brother of the deceased. According to his evidence in the night on 30.01.1985, he along with his brother Suresh Ram and Krishna Ram and mother was sleeping. Meanwhile, door was knocked then he saw his brother Rama Ram along with Ganga Bhuiya and Jitan Hari. He has reiterated the statement of informant that accused persons were threatening to the deceased to come with playing cards and tobacco. Thereafter, his brother proceeded with them and in the next day morning, his mother and brother Krishna Ram went to discharge their duty at Dhanuadih Colliery. He has reiterated the statement of informant that accused persons were threatening to the deceased to come with playing cards and tobacco. Thereafter, his brother proceeded with them and in the next day morning, his mother and brother Krishna Ram went to discharge their duty at Dhanuadih Colliery. He heard hulla about murder of his brother and went to Bhalgarha Project field where he saw the dead body of his brother Rama Ram. He informed to his mother and again proceeded to place of occurrence. He has further deposed that prior to 10 days of the occurrence, a scuffle took place between deceased and the accused persons. He has stated that Jitan had taken Rs. 350/- from his deceased brother and not was returning the same and was giving threatening to him. He clearly admits that the incident of threatening 10 days prior to occurrence was not communicated before the police or any other authority. There is nothing else in his cross-examination to disbelieve his above testimony. 21. P.W.-4 Suresh Ram is also the brother of deceased. He has also deposed in the same line of P.W.-3 and P.W.-5. According to him, prior to one month of the occurrence, there was scuffle between the deceased and the accused persons wherein accused persons have given threatening to kill the deceased. In his cross-examination, he has stated that when the accused persons were going with the deceased and also threatening him to kill, then his mother, brother and he himself asked the accused persons that why you people are saying to kill him, then they said that we are mocking and cannot commit such scene. 22. P.W.-6 Krishna Ram is also brother of the deceased. According to his evidence also on 30.01.1985, they were sleeping in the night, then his deceased brother Rama Ram along with the appellants Jitan and Ganga came to his house and knock the door. They were threatening to kill the deceased and saying him to bring tobacco and playing cards. Thereafter, all the three went together. According to his evidence also on 30.01.1985, they were sleeping in the night, then his deceased brother Rama Ram along with the appellants Jitan and Ganga came to his house and knock the door. They were threatening to kill the deceased and saying him to bring tobacco and playing cards. Thereafter, all the three went together. He also stated that his mother asked the accused persons that why they will kill him, then they replied that they are making fun and will not commit such scene, but next day morning at about 09:00 AM, while he was working in the Dhanuadih Colliery along with his mother, then his brother Mahendra came and informed that Rama Ram has been murdered by the accused persons. He along with mother and brother came to the place of occurrence and saw the dead body of his brother and his mouth was crushed by stones and near him stones and playing cards were also scattered. Police arrived and recorded the statement of his mother. In his cross-examination, he admits that accused persons belong to his own village. He also admits that they were not so much serious that the accused persons will commit murder of his brother. Hence, they allowed to go him with the accused persons. There is nothing else in his cross-examination to disbelieve the aforesaid destiny. 23. The Investigating Officer of the case has not been examined by the prosecution. 24. From the aforesaid discussion of prosecution evidence, it is apparent from the post-mortem report (Ext-1) that the death of the deceased is homicidal and caused by crush injuries on vital part of the body by use of stone. It is also apparent that the deceased proceeded from his house, along with the appellants at 10:00 to 10:30 PM on 30.01.1985 and the post- mortem report of the deceased reveals that time elapsed since death 12±6 hours, that is to say there may be margin of 6 hours since the time of death. This finding in the factual aspects of the case clearly indicates that the deceased was murdered just after proceeding from the house of the deceased in the night at about 10:30 PM and within a gap of 6 hours. Therefore, there is close proximity of time between the last seen theory of this case and the alleged murder of deceased. 25. Therefore, there is close proximity of time between the last seen theory of this case and the alleged murder of deceased. 25. Now we have to proceed marshalling the chain of circumstances conclusively proved by the prosecution. (i) Deceased came to his house in the night at about10:00 to 10:30 along with the appellants. (ii) Deceased was threatened by the appellants to be killed in connection with gambling and money dispute. (iii) The deceased and appellants proceeded together from the house of the deceased. (iv) The deceased died homicidal death by giving brutal assault and crush injury through stones. (v) The appellants were all along present with the deceased. (vi) Dead body of the deceased was recovered on the next day from open place of Bhalgardha Project field. (vii) The post-mortem report of the deceased also shows time gap between death and post-mortem report within 12 ±6 hours. In this view of matter also just 15 hours prior to the time of conducting post-mortem of the dead body,the appellants and deceased were proceeded together and seen live. 26. The defence witness D.W.-1 and D.W.-2 have simply stated that they have not seen committing of murder by the accused persons and the deceased was indulged in gambling with several persons including the appellants. The facts deposed by defence witnesses do not affect the prosecution case. 27. In the aforementioned proved foundational facts, the principle of Section 106 of the Evidence Act deserves to be quoted here: 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. 28. Section 106 of the Evidence Act states that the burden of proof of fact is on the person who has specific knowledge of that fact. This is an exception to the general rule that the burden of proving a fact is on the person, who claims the existence of a particular fact. 29. In the instant case, both the deceased and appellants were seen together at the house of the deceased from where they proceeded with playing cards to play with each other. They were involved in gambling. 30. 29. In the instant case, both the deceased and appellants were seen together at the house of the deceased from where they proceeded with playing cards to play with each other. They were involved in gambling. 30. As per post-mortem report of the deceased, which was conducted at about 01:30 PM i.e. within 15 hours from the last seen, which clearly stated that time since death elapsed 12±6 hours, clearly suggests that just within 6 hours from proceeding from the house of the deceased, he was given brutal assault and killed. The appellants have not offered any explanation as to what happened with the deceased while he was with them. They have also not put forward any circumstances, at any point of time between the last seen with the deceased and murder, they parted with him and went anywhere else or any other person has killed the deceased. None offering of any explanation by the defence provides and additional link to chain of circumstances of this case. 31. So far the submission made on behalf of the learned counsel for the appellants about the unnatural conduct of the informant and other witnesses, who happens to be mother and brother of the deceased that in spite of knowing that threating was being given by the accused to deceased to kill him, they kept mum in allowing the appellants to proceed with the deceased and did not search him in the night is concerned, this aspect of the matter is not so much relevant in this case, as the same has been explained by the witnesses that they were not so much serious that the accused persons who frequently used to accompany with the deceased might have killed him. This fact is also not sufficient to absolve the appellants from their own burden to reasonably explain the incriminating circumstances appearing against them particularly, where there was close proximity of time in murder of the deceased when he proceeded with these appellants from his house. 32. The citation relied upon by the learned counsel for the appellants in Narendrasinh Keshubhai Zala (Supra) it was held by Hon’ble Apex Court as under: 8. It is a settled principle of law that doubt cannot replace proof. Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence. Only such evidence is admissible and acceptable as is permissible in accordance with law. It is a settled principle of law that doubt cannot replace proof. Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence. Only such evidence is admissible and acceptable as is permissible in accordance with law. In the case of a sole eye witness, the witness has to be reliable, trustworthy, his testimony worthy of credence and the case proven beyond reasonable doubt. Unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness. 33. In the case of Sharad Birdhichand Sarda (Supra) relied upon by learned counsel for the appellants, following principles were propounded by the Hon’ble Apex Court upon proof of which conviction can be sustained on the basis of circumstantial evidence: “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 & Anr. v. State of Maharashtra 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, (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.” 34. (4) they should exclude every possible hypothesis except the one to be proved, (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.” 34. We have gone through entire evidence available on record and the circumstances conclusively proved by the prosecution in this case in the light of the principles propounded by Honb’le Apex Court in the aforesaid cases, as relied by the learned counsel for the appellants and find that the prosecution has succinctly proved the foundational facts and circumstances, unerringly leading to the conclusion of guilt of the appellants. The defence has not even offered any valid explanation against the incriminating circumstances proved against them, which also fortifies their guilt adding additional link in the chain of circumstantial evidence. 35. We further find that the testimony of P.W.-5 (Anpi Devi) who happens to be mother of the deceased has remained intact in her cross-examination and there is nothing to embellish her testimony or otherwise cast doubt to her evidence. It is not a case merely based on suspicion rather there are clinching circumstances as discussed above, which conclusively proves the guilt of the appellants. 36. It further transpires that the learned trial court has very wisely and aptly considered all the circumstances in true perspective of the case, while arriving at guilt of the appellants. We do not find any valid reasons to interfere with the impugned judgment of conviction and order of sentence of the appellants. Therefore, this appeal stands dismissed. 37. The appellants are on bail, as such, their bail bonds are hereby cancelled. The appellants are directed to surrender before the concerned trial court and serve their remaining sentence. 38. Pending I.A., if any, stand disposed of. 39. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful. I agree - Ananda Sen, J.