Babu Lal vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Shri Nagendra Mohan, learned Amicus Curiae for the appellant, and Shri Umesh Verma, learned AGA for the State were heard at length.

Under challenge in the instant jail appeal is the judgment and order dated 28.07.2007 passed by Additional Sessions Judge/Fast Track Court No. 7, Hardoi, in Sessions Trial No. 08 of 2005 arising out of Case Crime No. 340 of 2004, Police Station Kachhauna, Hardoi, whereby the present appellant Babu Lal was convicted and sentenced as under:--

"(i) 302 IPC - Imprisonment for life and fine of Rs. 25,000/- with default stipulation of one year''s additional simple imprisonment;

(ii) 377 IPC - Rigorous imprisonment for a period of ten years and also with fine of Rs. 10,000/- with default stipulation of six months'' additional simple imprisonment, and

(iii) 201 IPC - Rigorous imprisonment for a period of three years and also with fine of Rs. 5,000/- with default stipulation of two months'' additional simple imprisonment."

In brief, the case of the prosecution, as narrated in the first information report, was that the complainant Raghubir son of Darshan Singh lodged a first information report at Police Station Kachhauna, District Hardoi, on 06.08.2004 at 10.20 AM alleging therein that he runs a shop of grocery in his village Garhi. His son Pradeep Kumar used to sit on the shop. Appellant Babu Lal used to frequently come to his shop. His character was not good. He developed friendship with his son. He frequently used to scold his son to discontinue his friendship with the appellant. On 05.08.2004 at about 08.00 PM appellant Babu Lal came to his house and asked his son that Chet Ram has called him to his house in Kamalpur as mutton has been cooked there. The deceased, even at earlier occasions, was invited by Chet Ram for ''Dawat'' at his house. Since the complainant had seen the deceased with Babu Lal in objectionable situation, so he used to scold his son to leave the company of bad persons and therefore his son was avoiding to accompany him. Appellant Babu Lal insisted on him to accompany him to the house of Chet Ram. It was alleged that after taking the dinner both these persons committed unnatural offence with the deceased and during such incident when resistance was offered by the victim then he was done to death and his dead body was screened in the long grass and it was covered by some agricultural garbage. When the son of the complainant did not come back to his house then he went to inquire from Babu Lal and Chet Ram to their house but doors of their houses were locked. The complainant continued the search of his son. At about 08.45 AM in the morning, he got information of the recovery of the dead body then he went there and found the dead body of his son. There was bleeding from his anus. The complainant got the first information report of this case scribed by Ram Khelawan and lodged it at police station Kachhauna, at a distance of nine kilometers.

After registration of the first information report, investigation started, inquest proceedings were conducted and the dead body was sent for postmortem, which was conducted on 07.08.2004 at 04.00 PM in District Hospital, Hardoi. The duration of death was around 1 1/2 day. As per postmortem report, following ante-mortem injuries were reported by the doctor:--

"(i) Multiple abrasion of varying sizes present on both sides of face and forehead, ranging from 2.5 cm x 1.0 cm to 1.5 cm x 0.5 cm;

(ii) Lacerated wound 0.5 cm x 0.3 cm x muscle deep present on inner aspect of lower lip;

(iii) Abraded contusion 12 cm x 3 cm present in front of neck on opening tissues were found to be ecchymoised and right corner of hyoid bone was fractured, clotted blood was present over fractured area;

(iv) Abraded contusion 7.0 cm x 4.0 cm present on back middle of right scapula;

(v) Abraded contusion 6.0 cm x 4.0 cm present on back middle of left scapula, and

(vi) Small multiple lacerations present around the anal margin, size varying from 1.0 cm x 0.5 cm to 0.5 cm x 0.1 cm.

In the opinion of the doctor, the cause of death was asphyxia as a result of strangulation."

After completing the investigation, charge sheet was filed.

The case of the defence, as emerged by the suggestions given to the witnesses, was that the complainant used to sell country made liquor on his shop and a complaint to this effect was made by appellant Babu Lal to the police due to which the complainant was on inimical terms with the present appellant and because of that enmity, he has been falsely implicated in this case. However, in the statement under Section 313 Cr.P.C., he has taken entirely different defence and has stated that the complainant used to visit his village and he had purchased a buffalo from his village about one year prior to the incident and for the said purpose, he had taken a loan of Rs. 6,000/- from the appellant. Several times appellant went to the complainant for refund of his money but he was abused and the money was not returned and he was threatened with his false implication in some case. At another place a suggestion has been given that this offence has been committed by Chet Ram and Lalta Prasad.

In order to prove its case, the prosecution has examined PW-1 Raghubir- the complainant of this case, PW-2 Head Constable Sushil Kumar, who has prepared the Chik Report and GD of this case, PW-3 Babu Lal, who had seen the appellant along with deceased at about 08.00 PM on the date of alleged incident, PW-4 Dr. A.K. Chaudhary, who has proved the postmortem report prepared by Dr. Anil Nathani because Dr. Anil Nathani had gone to Australia and his presence could not be procured without undue delay, PW-5 Mahabir - a witness of recovery of the dead body and also of Gamchha of the appellant from there, and PW-6 SI Vijai Kant Misra, who has prepared the inquest report of this case and has investigated this case.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the aforesaid criminal appeal.

Submission of learned counsel for the appellant was that in the instant case there was virtually no evidence to connect the appellant with the instant offence. The recovery of Gamchha near the place of incident cannot be connected with the present appellant. The only evidence, even if it is taken to be true, is of last seen and the same cannot be held to be sufficient to convict the appellant.

Learned AGA has vehemently argued that the deceased was last seen alive in the company of the appellant at about 08.00 PM and time since death, according to the postmortem report, comes very close to the said time and appellant has failed to explain as to when and where the deceased departed his company. Therefore, he has failed to discharge the burden which was on him under Section 106 of the Indian Evidence Act. The case of the prosecution stands fully proved by the medical evidence. Thus, on the basis of these submission, he has submitted that appeal has no force and deserves to be dismissed.

Now, in view of rival submissions, the prosecution evidence has to be considered. Since it is a case based on circumstantial evidence, therefore, before proceeding further, we would like to address ourselves on the standards which are required to be established before recording conviction in a case based on circumstantial evidence.

Law is settled on the point that all the circumstances on which prosecution places reliance must be proved beyond reasonable doubt. All the circumstances taken together must form a chain so complete in itself that it should not be capable of any other conclusion except the guilt of the accused. Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Sk Yusuf v. State of West Bengal reported in , AIR 2011 SC 2283 in para 26 has held as under:

"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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."

Hon''ble the Apex Court in the aforesaid case has followed its earlier pronouncements in the following cases:

"Sharad Birdhichand Sarda v. State of Maharashtra , AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police , (2008) 15 SCC 430 and Wakkar and another v. State of Uttar Pradesh , (2011) 3 SCC 306."

In the case of Haresh Mohandas Rajput v. State of Maharashtra , 2011 (12) SCC 56, Hon''ble Apex Court following its earlier decision in the case of Krishnan v. State represented by Inspector of Police , (2008) 15 SCC 430 observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

Thus, though a conviction can be based on circumstantial evidence, but the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence.

Hon''ble the Apex Court in the case of Manthuri Laxmi Narsaiah v. State of A.P. reported in , (2011) 14 SCC 117 has held in paragraph No. 6 as under:--

"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."

The aforementioned judgments have been followed in a recent judgment in the case of Sangili alias Sanganathan v. State of Tamilnadu reported in , (2014) 10 SCC 264.

Hon''ble the Apex Court in the case of Satni Bai v. State of M.P. , (2010) 2 SCC 646.

"11. It has been consistently laid down by this Court, that when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances (See State of U.P v Satish reported in , 2005 SCC (Crl) 462).

In Joseph v State of Kerala reported in , 2000 SCC (Crl) 926, the Court has explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed that:

"It is often said that though witnesses may lie, circumstances will not, but at the same time, it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain, unerringly pointing to the guilt of the accused."

This Court in Padala Veera Reddy v State of A.P. , 1991 SCC (Crl) 407 has observed that when a case rests on circumstantial evidence, the following tests must be satisfied:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In C. Chenga Reddy v State of A.P , 1996 SCC (Crl.) 1205 this Court has held that:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn, should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In State of U.P v Ashok Kumar Srivastava, , 1992 SCC (Crl) 241, it was pointed out that:

"9....... Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted."

"9....The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of {the guilt}."

The principle that would emerge from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court."

In the instant case, the prosecution has come forward with the following circumstances to prove the guilt of the appellant:--

"(a) Bad character of the appellant;

(b) Evidence of last seen by the complainant with the present appellant and taking away the deceased with him on the pretext of dinner at the house of Chet Ram;

(c) Evidence of last seen by PW-3 Babu Lal of the deceased with the appellant at about 08.00 PM;

(d) Medical evidence;

(e) Recovery of Gamchha of the appellant from a place where the dead body was found;

(f) Recovery of underwear of the deceased from a place which was close to the place where the dead body was found;

(g) Recovery of the dead body;

(h) Absconding of the appellant from his house on the next day and thereafter for several consecutive dates, and

(i) False defence of the appellant."

Now, we will deal with each circumstance separately to find out whether all the circumstances stands proved and also that each circumstance if taken together leads to the only inference that the present appellant was the author of the instant offence.

"(a) Bad character of the appellant:-- The complainant of this case, who happens to be the father of the deceased, has stated that the appellant was a man of bad character. He had seen him in objectionable position with his son and therefore he used to ask his son to discontinue his relationship with the appellant. He has given this statement in his examination in chief and has stated in his cross examination that appellant used to tease his son by holding his cheeks and chest. When he saw this behavior of the appellant then he asked the appellant not to behave in such a manner with his son and also scolded him. These facts have emerged in the cross examination done on behalf of the appellant himself and no suggestion to this effect has been given on behalf of the appellant that he was not a man of bad habits and the allegation made by the complainant is false. Since the details of bad behavior have emerged in his cross examination, therefore, the same attains more value against the appellant. A suggestion was given that the friendship of his son (deceased) was with Chet Ram and Lalta. Chet Ram and Lalta had committed unnatural offence with the deceased and he was done to death by them and the complainant after taking money from them has not taken any action against them. Thus, by means of this suggestion the appellant has admitted that unnatural offence has been committed with the deceased and thereafter he was done to death. His defence was that such an offence was committed by Lalta and Chet Ram. We are of the considered view that it is unbelievable that the complainant who happens to be the father of the deceased would falsely implicate the appellant sparing the real murderers of his son by taking money from them.

(b) & (c) Evidence of last seen by the complainant with the present appellant and taking away the deceased with him on the pretext of dinner at the house of Chet Ram & Evidence of last seen by PW-3 Babu Lal of the deceased with the appellant at about 08.00 PM:-- This evidence is very important. The prosecution has come with a definite case that the deceased was taken by the appellant on the pretext that a dinner is hosted by Chet Ram. The complainant has stated that he used to scold his son to discontinue his relationship with the present appellant. But it transpires from his evidence that since on earlier occasions the deceased had gone to the house of Chet Ram for dinner and nothing abnormal had happened, therefore, it appears that simply the appellant was going to the house of Chet Ram for dinner, the complainant had permitted him to go to the house of Chet Ram. But it has come in evidence that when the complainant went to the house of Chet Ram then he was informed by Chet Ram that no one had come to his house. It is true that in the first information report it was mentioned that the complainant also went to the house of Chet Ram and he found his house locked. This contradictory statement was put in cross examination and in reply of the same the complainant has stated that he had not told the scribe to write it. Since Chet Ram has not been charge sheeted and was not found involved in this incident and at that moment even if it was assumed by the complainant that Chet Ram was involved in the incident and it was mentioned in the first information report even then it will not affect the case of the prosecution because appellant Babu Lal had taken the deceased with him on the pretext that they will go to the house of Chet Ram who has cooked mutton and shall have dinner there. Thus, this fact by itself would be of no consequence because in that state of shock it was not very unnatural for the complainant to have expressed any suspicion against Chet Ram also. PW-3 Babu Lal son of Raghubar, who is the resident of village Kamalpur which is situated at a distance of 1 1/2 Kilometers away from village Garhi where the complainant resides, had seen the deceased in the company of the present appellant Babu Lal at 08.00 PM in the lane going towards Kamalpur. This witness has stated that accused appellant is resident of village Poora Majra Lonhara, Police Station Kachhauna. A suggestion was given to this witness that complainant Raghubir is a man of bad character and unknown persons used to come to his house. He has stated that he recognizes Babu Lal very well and at that time when he had seen the deceased in the company of the appellant Babu Lal, he was going from Balamau to his village Kamalpur and village Garhi is situated on the same way. A suggestion was given to this witness that he does not recognizes Babu Lal properly and he is giving false evidence because of his relationship and closeness with the complainant. But there is nothing on record showing any close relationship of this witness with the complainant. No evidence could be furnished on this point nor any of the witness has stated that this witness has any close relationship with the complainant or any enmity with the present appellant. So, the evidence of this witness on the point of last seen was wholly reliable. He had seen him at about 08.00 PM which is the time stated by the complainant when the deceased came along with the appellant from the house of the complainant because the complainant has stated that at that time it was dark and he had recognized the appellant in the light of lantern. Learned counsel for the appellant has challenged the evidence of PW-1 complainant on the ground that when he had seen the appellant doing vulgar activities with the deceased then there was no occasion for him to permit the deceased to accompany the appellant. But perusal of the first information report shows that even at some earlier occasions the deceased and the appellant had gone to the house of Chet Ram to have dinner. Apart from it this question was put to the complainant in cross examination and the complainant has given a very natural reply to this question that he never apprehended that the appellant would commit such an act with his son and also murder him. This reply of the complainant was very natural because he had seen the appellant only touching the cheeks and chest of the deceased. So he never apprehended that the appellant would go to such an extent and commit unnatural offence with his son and also murder him. Therefore, there is reliable evidence to the effect that the appellant had taken the deceased with him. After sunset, he was seen by the complainant at his house and thereafter by PW-3 Babu Lal also. So, the evidence of last seen stands proved. Once the evidence of last seen stands established then section 106 of the Indian Evidence Act shall come into play because it became the duty of the appellant to explain as to where the deceased left his company because this fact was exclusively within the knowledge of the appellant himself. On this point reliance may be made to the pronouncement of Hon''ble the Apex Court in the case of Sathya Narayanan v. State reported in , (2012) 12 SCC 627. We would like to quote paragraphs 32 and 33 of the said judgment, which read as under:--

"32. Section 106 of the Evidence Act, 1872 reads 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.

The applicability of above provision has been explained by this Court in State of Rajasthan v. Kashi Ram , (2006) 12 SCC 254, which held as under:--

"23..... The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed (, AIR 1960 Mad. 218)."

(underlined by us)

Hon''ble the Apex Court in the case of Madhu v. State of Karnataka reported in , (2014) 12 SCC 419, wherein Hon''ble the Apex Court has held in paragraph 24 as under:--

"24. A number of witnesses have deposed of seeing the deceased in the company of the appellants before the incident. In cases where the accused was last seen with the deceased victim (last seen together theory) just before the incident, it becomes the duty of the accused to explain the circumstances under which the death of the victim occurred. [Vide Nika Ram v. State of H.P. , (1972) 2 SCC 80 and Ganeshlal v. State of Maharashtra , (1992) 3 SCC 106]"

In the aforementioned judgment, Hon''ble the Apex Court has also observed that it is the duty of the accused to explain the circumstances put to him under Section 313 Cr.P.C.

Reliance may also be placed on the pronouncement of Hon''ble the Apex Court in the case of Ashok v. State of Maharashtra reported in , (2015) 4 SCC 393, wherein Hon''ble the Apex Court in paragraph 8 has observed as under:

"8. The "last seen together" theory has been elucidated by this Court in Trimukh Marotiu Kirkan v. State of Maharashtra , (2006) 10 SCC 681, in the following words: (SCC p.694 para 22)

"22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him."

(underlined by us)

In the facts of the instant case, the accused has not furnished any explanation as to when the deceased parted with his company. When this question was put to him in the statement under Section 313 Cr.P.C., he has simply denied this circumstance.

"(d) Medical evidence:-- According to the evidence of the prosecution witnesses, the deceased was last seen alive in the company of the appellant Babu Lal at about 08.00 PM on 05.08.2004. The postmortem on the body of the deceased was conducted on 07.08.2004 at 04.00 PM. The duration, according to the postmortem report, was 1 1/2 day. The doctor A.K. Chaudhary (PW-4) has simply proved the postmortem report as secondary evidence because Dr. Nathani, who had conducted the postmortem on the body of the deceased, had gone to Australia. The first information report of this case was lodged on 06.08.2004 and the postmortem was conducted on 07.08.2004. So, the time of death of the deceased comes very close to the time when the deceased was last seen alive in the company of the appellant. The perusal of the postmortem report also establishes the homicidal death of the deceased and also establishes that unnatural offence was committed with him. So the medical evidence fully corroborates the case of the prosecution and no questions were put to this witness regarding the death which Dr. A.K. Chaudhary could have answered being the medical expert. So the medical evidence also supports the prosecution story.

(e) Recovery of Gamchha of the appellant from a place where the dead body was found:-- Recovery of Gamchha has been challenged on the ground that similar type of Gamchhas are freely available in the open market but the witnesses of recovery of Gamchha PW-5 and Investigating Officer have proved the recovery of Gamchha and PW-5 Mahabir has given specific statement that the Gamchha of appellant Babu Lal was also lying near the place of occurrence, which was taken into custody by the police. He, in his cross examination, has stated that the same Gamchha was seen by him prior to this incident with appellant and therefore he has recognized that the said Gamchha was of appellant Babu Lal. No such suggestion was given to this witness that the Gamchha does not belong to appellant Babu Lal. The only suggestion given to him was that because of his good relations with complainant Raghubir, he is giving false evidence. So, by the evidence, it was established that the Gamchha belonged to the appellant because this fact has not been controverted by the appellant in his cross examination and it has come in the cross examination done on behalf of the appellant that PW-5 Mahabir had seen the Gamchha prior to the incident with the appellant and therefore he recognized it. We are aware of the fact that this fact by itself would not be very incriminating circumstance but keeping in view the other circumstances which have been proved against the appellant this recovery also assumes great importance and the Investigating Officer has also proved the fact of recovery of Gamchha and no suggestion to the Investigating Officer was given that the Gamchha was not of the appellant. PW-6 SI Vijay Kant Misra, in his examination in chief, has stated that he had taken the Gamchha of appellant Babu Lal in custody and prepared its memo. Cross examination of this witness was done only regarding the distance from different points from the place where the blood was recovered or the dead body was recovered. So, the prosecution has been successful in proving this circumstance by reliable evidence.

(f) Recovery of underwear of the deceased from a place which was close to the place where the dead body was found:-- The underwear of the deceased was recovered from a place where the offence was committed and thereafter, according to the case of the prosecution, the dead body was dragged to the place where ultimately it was recovered. A memo of recovery of underwear was prepared and the underwear was sent for chemical examination. As per report of the chemical examination (Ext. Ka-15) dated 14.01.2005, the underwear of the deceased was found blood stained. However, the blood stains were found disintegrated for classification. However, human sperm was found present on the underwear, which confirms the commission of unnatural offence with the deceased. The appellant could not furnish any explanation on this point and has come forward with a bald denial.

(g) Recovery of the dead body:-- The dead body of the deceased was recovered prior to registration of the case. It appears that the dead body was hidden in a hurried manner because some parts of the body were visible and after recognizing the dead body the complainant went to lodge the first information report and subsequently the police came and prepared its inquest report. It was mentioned in the first information report that blood was coming from anal area and this fact stands confirmed by the postmortem report. So the recovery of the dead body is also an incriminating circumstance because the appellant was seen near the place with the deceased by PW-3 Babu Lal and he could not furnish any explanation on this point except his bald denial.

(h) Absconding of the appellant from his house on the next day and thereafter for several consecutive dates:-- It has come in the evidence of the complainant that after the incident when he went to the house of the appellant, he found his house locked. As per evidence of the Investigating Officer, the appellant was arrested on 13.08.2004. So, he absconded from his house for a period of about eight days and made no effort to come forward before the police or the complainant to explain that the offence was not committed by him. He was ultimately arrested by the police on 13.08.2004.

(i) False defence of the appellant:-- The appellant in his suggestions given to PW-1 the complainant has taken a defence that the complainant used to sell country made liquor at his shop. He had made a complaint to this effect to the police due to which the complainant was on inimical terms with him. In cross examination, another suggestion was given to the witness that this incident has been committed by Chet Ram and Lalta. They have committed unnatural offence with the deceased and have also caused his death. A suggestion was given to the Investigating Officer that Chet Ram was mainly involved in this incident and some criminals were also involved in this incident and he has been falsely implicated simply to save the persons of his own village. Thus, from all the aforesaid different suggestions what transpired is that the appellant was on inimical terms with the complainant; and the offence was committed by Chet Ram and Lalta, and simply in order to save them, he has been falsely implicated. But this suggestion does not appeal to reason because no father sparing the real assailant of his own son who has caused brutal murder of his son would falsely implicate some other person. Apart from it, in his statement under Section 313 Cr.P.C., the appellant has come forward with an entirely different defence. He has stated that the complainant had purchased a buffalo from his village prior to this incident and had taken a loan of few thousands from him for the said purchase. He several times went to the complainant and demanded the said money but the complainant declined and threatened him to falsely implicate him in some matter. So, this suggestion of the appellant on one hand admits the frequent visit of the appellant to the house/shop of the complainant and also that he was on good terms with the complainant because in case there would have been any enmity between them then there was absolutely no occasion for the complainant to take a loan from the appellant or for the appellant to advance few thousand rupees to the complainant for the purchase of buffalo. So, both these defences are so contradictory that they lead to the only conclusion that the appellant has come forward with absolutely false defence. In such cases where an accused comes with a false defence, it becomes an additional circumstance against him and it completes the missing link. Hon''ble the Apex Court in the case of Ravirala Laxmaiah v. State of Andhra Pradesh reported in , (2013) 9 SCC 283, in paragraphs 20, 21, 22 and 23 has observed as under:--

"20. It is a settled legal proposition that in a case based on circumstantial evidence, where no eyewitness''s account is available, the principle is that:

"6...... when an incriminating circumstance is put to the accused and the said accused either offers no explanation [for the same], or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. (Vide: State of U.P. v. Dr. Ravindra Prakash Mittal , AIR 1992 SC 2045; Gulab Chand v. State of M.P. , AIR 1995 SC 1598; State of Tamil Nadu v. Rajendran , AIR 1999 SC 3535; State of Maharashtra v. Suresh , (2000) 1 SCC 471; and Ganesh Lal v. State of Rajasthan , (2002) 1 SCC 731)."

In Neel Kumar @ Anil Kumar v. State of Haryana , (2012) 5 SCC 766, this Court observed:

It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement Under Section 313 Code of Criminal Procedure. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal , AIR 2010 SC 773).

In cases where the accused has been seen with the deceased victim (last seen theory), it becomes the duty of the accused to explain the circumstances under which the death of the victim has occurred. (Vide: Nika Ram v. The State of Himachal Pradesh , AIR 1972 SC 2077; Ganeshlal v. State of Maharashtra , (1992) 3 SCC 106; and Ponnusamy (supra).

In Trimukh Maroti Kirkan v. State of Maharashtra , (2006) 10 SCC 681, this Court held as under:

"22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

Hon''ble the Apex Court in the case of Rameshbhai Mohanbhai Koli v. State of Gujarat reported in , (2011) 11 SCC 111, in paragraph 30 has observed as under:--

"30. The appellants herein have denied the factum of recoveries at their instance is a false plea inasmuch as the recoveries have been duly proved by the prosecution by leading cogent and reliable evidence which has not been shaken by the defence. A false plea taken by an accused in a case of circumstantial evidence is an additional link in the chain of circumstances. [Vide Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116 and Mehbub Samsuddin Malek and Ors. v. State of Gujarat , (1996) 10 SCC 480]."

Hon''ble the Apex Court in the case of Joshinder Yadav v. State of Bihar reported in , (2014) 4 SCC 42, in paragraph 19 has observed as under:--

"19. Pertinently, the post-mortem notes do not indicate presence of huge amount of water in the dead body. According to PW-12 Dr. Mandal, in a case of drowning, if immediate death is caused, then, there will be negligible quantum of water in the stomach. From the evidence of PW-12 Dr. Mandal, it appears that the death of Bindula Devi occurred immediately after she was drowned in the water because there was not much water in her stomach. It is also pertinent to note that Bindula Devi was pregnant. Her uterus contained full term dead male baby. She could not have, therefore, offered any resistance. It appears that, therefore, there were no injuries on the dead body. The whole operation appears to have been done swiftly and skillfully. But in any case, as stated hereinabove, it is not for the prosecution to explain in what manner Bindula Devi was done to death by the accused because Bindula Devi was staying in the house of the accused prior to the occurrence and she disappeared from that house. All the circumstances leading to her unnatural death were within the special and personal knowledge of the accused which they chose not to disclose. Instead, they gave a totally false explanation that when Bindula Devi had gone for bath, she slipped, got drowned in the water and died. This story is palpably false. The false explanation offered by the accused further strengthens the prosecution case as it becomes an additional link in the chain of circumstances."

Hon''ble the Apex Court in the case of Kuldeep Singh v. State of Rajasthan reported in , (2000) 5 SCC 7, in paragraphs 18 and 19 has observed as under:--

"18. In the case of Swapan Patra v. State of West Bengal : it has been held that it is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. The same principle is reiterated in the case of State of Maharashtra , (2000)1 SCC 471. In this case it has been held that a false answer offered by the accused when his attention was drawn to a circumstances renders that circumstance capable of inculpating him. It is held that in such a situation like this a false answer can also be counted as providing "a missing link" for completing the chain.

The false answer given by Appellant No. 4 denying that she had left the Ramleela programme provides the additional link or a missing link in completing the chain of circumstances."

Keeping in view the aforementioned legal position, the false defence of the appellant also completes the missing link (if any) and completes the chain. Thus, in view of the discussions made above, we are of the considered view that the prosecution was successful in proving all the circumstances against the appellant and all the circumstance, taken together, lead to the only conclusion that is guilt of the accused and is not capable of any other inference. So the standard prescribed under law for convicting the appellant on the basis of circumstantial evidence stands fulfilled and therefore learned trial court has not committed any illegality in convicting the appellant. The judgment of the trial court is well reasoned and has no legal or factual infirmity. The appeal sans merits, deserves to be dismissed and is hereby dismissed. The appellant is in custody. He shall serve out the sentence imposed by the learned trial court.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.