The burden of proof in a criminal trial is on the prosecution, and Section 106 of the Indian Evidence Act applies only to facts especially within the accused's knowledge. The prosecution must establish crucial facts within its knowledge to prove guilt beyond reasonable doubt.

BADAR DURREZ AHMED, J.

1. The present appeal has been preferred by the convict, Wasim Ahmed, who has been convicted under Section 302 RPC for having committed the murder of Mohd Hamid on 15.11.2008. The conviction order was passed by the Principal Sessions Judge, Samba, in File No. 11/Sessions on 28.02.2012. The appeal is also directed against the order on sentence of the same date, that is, 28.02.2012, whereby the appellant was sentenced to life imprisonment and fine of Rs. 20,000/- for the offence under Section 302 RPC. In default of payment of fine, he was required to undergo six months imprisonment. The sentence of life imprisonment is, of course, subject to confirmation of this Court and, consequently, the accompanying confirmation reference has been made by the learned Principal Sessions Judge, Samba, to this Court.

2. The case arose out of FIR No. 140/2008 registered at Police Station Bari Brahmana under Section 302 RPC dated 15.11.2008.

3. The prosecution case is that on 15.11.2008, the complainant, Girdhari Lal, filed a written compliant in Police Station, Bari Brahmana, to the effect that he had taken a shop on rent near SIDCO office where he does the work of Motor Winding and that, he has kept a servant, namely, Mohd Hamid. It is further the case of the prosecution that on 14.11.2008, the said Girdhari Lal, as usual, gave money to Mohd Hamid on closure of the shop. The room on the top of this shop had been taken on rent by the appellant, Wasim Ahmed where he resided. It is further the case of the prosecution that Wasim Ahmed works as a labourer in a factory. As per the prosecution, Girdhari Lal in his compliant stated that in the morning, that is, on 15.11.2008, the appellant Wasim Ahmed came to him and informed him that he was working at night in the factory and that he had gone to the factory after closing his room. However, when he returned at 7.30 a.m., he saw that the door of his room was closed but the lock had been broken. On opening the door, he saw Mohd Hamid lying dead in the room and his body was drenched in blood. On receiving such information, the said complainant, Girdhari Lal, is said to have gone to the spot and noted that Mohd Hamid had been murdered by some unknown person. On receipt of the said written complaint of Girdhari Lal, the said FIR No. 140/2008 for the offence under Section 302 RPC was registered at the above Police Station, that is, Bari Brahmana.

4. On completion of investigation, the Investigating officer came to the conclusion that Mohd Hamid had been murdered by the appellant, Wasim Ahmed, by hitting him on the head with an iron “tawa”, which was allegedly recovered at the instance of the appellant, after he had made an alleged disclosure statement in this regard. Consequently, the challan was presented against him for the offence under Section 302 RPC. The appellant was charged for the said offence. He pleaded innocence and claimed trial.

5. The prosecution examined as many as 15 witnesses. The statement of the appellant was recorded under Section 342 Cr.P.C. The defence did not lead any evidence. After considering the evidence on record and the arguments advanced on the part of the prosecution and the defence, the trial Court, which is evident from paragraph 29 of the impugned judgment, observed that the entire case hinges entirely on circumstantial evidence, namely:-

(1) recovery of the dead body of Mohd Hamid from the room in which Wasim Ahmed (the appellant herein) was residing; and

(2) the disclosure statement of the appellant regarding the alleged weapon of offence and subsequent alleged recovery of the alleged weapon of offence at the instance of the appellant.

6. In this case the alleged weapon of offence is a “tawa”. It is important to note at this juncture itself that these were the only two circumstances which were considered by the trial Court and on which the prosecution case rested.

7. Insofar as the first circumstance is concerned, the trial Court came to the conclu