attempt was made to contradict the presence of said witnesses together at the point of time, the same was indicated by them and/or the child was not with the accused. As such, it is apparent that child Guddi was last seen hale and hearty with her mother i.e. accused appellant and they together went inside the room. Even otherwise, looking to the age of child i.e. five months, it is but natural that child was with the mother and in her lap only and it was the accused herself, who approached PW.5-Bhanwar Kanwar, who lived in the same compound, indicating her child’s condition, which was essentially after the child was already dead. 24. In view of above fact situation, the provisions of Section 106 of the Evidence Act would be clearly attracted, which requires that when any fact which is especially within the knowledge of any person, the burden to prove that fact is upon him. 25. The submissions made on the strength of judgment in the case of Boby ( supra ) that besides the plea of last seen, there is no other evidence available on record and, therefore, no conviction only on the basis of last seen theory could be sustained, the said principle in a given case, may be applied, wherein the accused and the deceased are not naturally likely to be together. However, in a case of present nature where the accused is the mother and deceased, her five months’ old child, heavy burden lies on her to explain the circumstances leading to the death of the child.
