Jashwantbhai Mervanbhai Kukana vs State of Gujarat

A.M. Kapadia, J.—Challenge in this Criminal Appeal is to the correctness of the judgment and order dated 8.9.2004, rendered in Sessions Case No. 12 of 2004, by the learned Additional Sessions Judge, Fast Track Court, Navsari, by which the sole Appellant - Jashwantbhai Mervanbhai Kukana (`accused'' for short), has been convicted for the offences punishable under Sections 302 and 364 of the Indian Penal Code (''the IPC'' for short) and sentenced to imprisonment for life and fine of Rs. 1,000/- in default, rigorous imprisonment for four months for the offence u/s 302 IPC and rigorous imprisonment for three years and fine of Rs. 500/- in default, rigorous imprisonment for two months for the offence u/s 364 IPC. It is also ordered that both the substantive sentences shall run concurrently. However, the accused is acquitted for the offence punishable u/s 201 of the IPC.

The prosecution case as disclosed from the FIR and unfolded during trial is as under:

2.1 PW-3 Paruben, Wd/o Laxubhai Navsubhai Chavghari, has lodged a complaint before PW-11 Mahendrasinh Govubhai Zala, Police Sub-Inspector of Vasanda Police Station, wherein it is, inter alia, stated that she was residing with her family members at Umarkui Patel Faliya, Taluka - Vasanda, District - Navsari and has been doing household works and labour. Her marriage was solemnized with Laxubhai as per Hindu rites before 13 years. Out of the said wedlock, she had three sons, namely, Yogesh, Piyush and Rakesh and one daughter Sitaben. Her husband Laxubhai had died on account of Tuberculosis before about five years and thereafter on completion of the after death ceremony, she has been residing with her children at her parent''s house.

2.2 It is further alleged in the complaint that she had friendly relation with Jasvantbhai Mervabhai of her village. It is further alleged that said Jaswantbhai fell in love with her and he used to tell her that, though, she is a widow, he is ready to keep her as a lawfully wedded wife. It is further alleged that said Juasvantbhai used to make sexual intercourse with her many times at the hill situated near the pond. It is further alleged in the complaint that she became pregnant and she has told the said fact to Jaswant, but he did not like it and wanted to terminate the pregnancy anyhow. It is alleged in the complaint that therefore Jaswant took her to one Dr. Modi of Jalaram Hospital, Vasanda, before about two years and after examining her, the Doctor asked whether about they have money or not. It is further alleged in the complaint that since Jasvant did not have money, they returned back to their village. It is further alleged in the complaint that thereafter Jasvant went for doing labour work at Bilimora and returned after about six months and at that time she was pregnant by eight months. It is further alleged in the complaint that her delivery was carried out by one Devliben Lahanbhai, Midwife of her village in her father''s house. She gave birth to a baby child but she did not give name to the infant but her nickname was given `Pooja'' and it is further alleged that since then Jaswant stopped talking with her, but for the sake of Pooja, twice or thrice, she told to Jaswant to keep herself and Pooja but Jaswant has refused to do so.

2.3 It is further alleged in the complaint that on 29.1.2004 when she went to sleep with her children after taking dinner, at about 9''O clock in the night, her neighbour Manjulaben Manubhai awakened her and told that Jaswant is calling you with Pooja. It is further alleged that she along with her daughter Pooja went near one Manubhai''s house where Jaswant was there. It is further alleged in the complaint that Jasvant told her to give custody of Pooja to him, but she refused. However, he snatched away her daughter by saying that "there is no relation between you and me from today" and thereafter left the place.

2.4 It is further alleged in the complaint that on 30.01.2004, at about 1''O clock in the afternoon, she met the Deputy Sarpanch Shri Laljibhai Bediyabhai and told him that Jaswant had come in the night and had taken away Pooja. It is further alleged that thereafter said Laljibhai after making inquiry at the house of Jasvant and told that he is not present in his house and she shall talk with Sarpanch and thereafter both went to see Ishwar Radkubhai Ganvit, the Sarpanch of the village. She told said Ishwarbhai that Jaswant has taken away her daughter Pooja at night and upon making inquiry at his house, Jaswant was not found there.

2.5 It is further alleged in the complaint that Ishwarbhai contacted Jasvantbhai over phone and he told that "Pooja" has been placed in the orphanage at Dharampur. Therefore, Ishwarbhai told Laljibhai, Deputy Sarpanch to go to Valsad with two-three boys and to make inquiry as to where Pooja is kept and accordingly they all departed to Dharampur. It is further alleged in the complaint that while they were after taking dinner and yet to go to bed, Laljibhai, Kishanbhai along with Jasvant came to her house and told that Pooja was not found.

2.6 It is further alleged in the complaint that thereafter she along with others went to Sarpanch''s house and Ishwarbhai asked Jaswant as to where Pooja was. It is further alleged that first Jaswant refused to tell anything, however, thereafter, he told that he had killed Pooja by pressing her nose and mouth and thrown her dead body in the well of one Jayantibhai Panchal at Limzer Village by tying her in a shirt with two bricks.

2.7 It is further alleged in the complaint that thereafter the complainant along with her father Mangubhai Sotiyabhai and brother Sureshbhai Mangubhai went to the well and took out the dead body of Pooja and placed it near the well. Therefore, the complainant along with Sarpanch Ishwarbhai, her brother Sureshbhai went to police station and lodged the complaint, inter alia, stating that Jaswant Mervan was knowing that she is widow of Laxubhai and he has done sexual intercourse many times with her by saying that he would keep her as a lawfully wedded wife. It is also alleged in the complaint that she gave birth to a daughter and when Pooja was aged1 1/2 years, he took away her by saying that he would keep her with him, however, he murdered her by pressing her nose and mouth and thrown her dead body tying it in a bundle with bricks and requested to take action against him.

2.8 The aforesaid complaint was recorded by PW-11 Mahendrasinh Govubhai Zala on 31.1.2004 as per the narration given by the complainant - Paruben, PW-3, which came to be registered at CR No. I-10 of 2004 at Vasanda Police Station for the offences punishable under Sections 302, 201 and 364 of the I.P. Code against the accused. He has also obtained the signature of the complainant beneath of the said complaint which is on record at Exhibit-15. After registering the offence, he has started investigation of the said complaint. During the course of investigation, he had visited the farm of one Jayantibhai Harkishanbhai where the dead body of the female child Pooja was lying. Inquest was held on the dead body of the female child Pooja in the presence of panchas and Doctor. Thereafter, the dead body was sent for autopsy at Cottage Hospital, Vasanda. Thereafter he has also drawn the panchnama of scene of offence. Thereafter he recorded the statements of the witnesses. He has arrested the accused after drawing the panchnama of his person and also recovered the clothes from the dead body in the presence of panchas by drawing the panchnama, which was thereafter sent to Forensic Science Laboratory.

2.9 On receipt of the report from FSL as well as the postmortem report and on the basis of the statements of the witnesses, he has filed charge-sheet against the accused in the Court of learned Judicial Magistrate, First Class, Vasanda, as incriminating evidence was found against the accused.

2.10 As the offence u/s 302 of the IPC is exclusively triable by the Court of Sessions, the learned JMFC, Vasanda, committed the case to the Court of Sessions, Navsari, where it was numbered as Sessions Case No. 12 of 2004.

2.11 The learned Additional Sessions Judge, Navsari ( the "Trial Court" for short) to whom the case was made over for trial, framed charge against the accused for the commission of the offence punishable under Sections 302, 364 and 201 of the IPC.

2.12 The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, he was put to trial by the learned Trial Court in Sessions Case No. 12 of 2004.

2.13 In order to bring home the charge levelled against the accused, the prosecution has examined in all 12 witnesses and relied upon their oral testimonies. The prosecution has also produced number of documents like complaint, autopsy report, FSL report, etc and relied upon the contents of the same.

2.14 After recording of the evidence of the prosecution witnesses was over, the Trial Court explained to the accused the circumstances appearing against him and recorded his further statement u/s 313 of the Criminal Procedure Code, 1973 ( the "Code" for short). In his further statement, the accused denied the case of the prosecution in its entirety and reiterated his innocence. He has stated that a false case has been field against him. However, he has neither led any evidence nor examined any witness in support of his defence.

2.15 On appreciation, evaluation and analysis and scrutiny of the evidence on record, the Trial Court came to the conclusion that the prosecution has established that the deceased Pooja had died a homicidal death. It is also held by the Trial Court that the prosecution has on the basis of the circumstantial evidence, successfully established the complicity of the accused for commission of the offence with which he was charged. The Trial Court has also held that there was a motive on the part of the accused to kill Pooja as Pooja was born out of the illicit relations between the accused and Paruben and, therefore, the accused was mindful to kill Pooja.

2.16 It was also held by the Trial Court that the Pooja was taken by the accused from the custody of Paruben with a view to kill her and, ultimately, he has killed Pooja by throwing her on a well from where the dead body of Pooja was found on drowning condition.

2.17 On the aforesaid findings, the Trial Court has convicted the accused for the commission of the offence punishable u/s 302 and Section 364 of the IPC and recorded the order of conviction and sentence, to which the reference is made in earlier paragraph of this judgment, which has given rise to the instant criminal appeal at the instance of the accused.

Ms. Trusha H. Mehta, learned Advocate appointed by Free Legal Aid committee, to assist the accused, has assailed the judgment and order of conviction and sentence strenuously and has submitted that there is no eye witness to the incident and the entire prosecution case is based on the circumstantial evidence. According to her, the circumstances relied upon by the prosecution are not sufficient to record the order of conviction against the accused. She has further submitted that there was no motive on the part of the accused to kill Pooja. She has further submitted that the accused was in affairs with the mother of Pooja - Paruben, with whom, he has got the illicit relations after the death of her husband. The prosecution has also pitted the circumstances of extra judicial confession made by the accused before Ishwarbhai Radkubhai, Sarpanch, who has turned hostile and not supported the prosecution case. Therefore, according to her, the circumstantial evidence, on which the prosecution has placed reliance, did not complete the chain of the circumstances to connect the accused with the crime. She, therefore, submitted that the impugned judgment and order of conviction and sentence is recorded against the evidence on record, the same deserves to be quashed and set aside by allowing this Appeal and the accused may be acquitted of the offences with which he was charged. She, therefore, urged to allow the Appeal.

Per contra, Mr. Divyesh Sejpal, learned APP, has fully supported the impugned judgment and order passed by the Trial Court, and according to him, the Trial Court has recorded the correct finding, which does not require any interference by this Court. According to him, the evidence of PW-3 Paruben Laxubhai, who is a star witness, is alone sufficient to convict the accused. According to him, Paruben has, in unequivocal terms, stated before the Trial Court and in her complaint that she has got illicit relations with the accused and out of the said illicit relations, a female child `Pooja'' was born, which was disliked by the accused and, therefore, the accused was mindful to get rid of the said female child Pooja and, therefore, to achieve that goal, prior to the date of killing Pooja, the accused came to the house of Paruben and has taken the custody of Pooja by saying that now he will look after Pooja and the complainant should forget about Pooja as well as the accused and their relation comes to an end. After saying so, the accused left the house of the complainant Paruben and thereafter the dead body of Pooja was found from the well of one Jayantibhai Panchal at Limzer village. These circumstances are alone sufficient to convict the accused. Therefore, on the aforesaid premises, he submitted that, the impugned judgment and order of conviction and sentence recorded against the accused does not call for any interference of this Court and the Appeal lacks merit and the same deserves to be dismissed. He, therefore, urged to dismiss the Appeal and confirm the judgment and order of conviction and sentence recorded by the Trial Court against the accused.

We have considered the submissions advanced by the learned advocate Ms. Trusha H. Mehta, learned Advocate for accused and Mr. Divyesh Sejpal, learned APP for Respondent - State of Gujarat. We have also perused the impugned judgment and order and the set of evidence. We have undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned Advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with the cases in which sentence of imprisonment for life is imposed on the accused on the basis of circumstantial evidence, we have examined the entire evidence on record for itself independently of the Trial Court and examined arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether it was the accused and none else who has committed the offences as alleged against him. We have also gone through the documents which are on record that forming part of the paper book.

At the outset, be it noted that, so far as the homicidal death of the female child Pooja is concerned, no dispute is raised by the learned Advocate for the accused before this Court. It is submitted by the learned Advocate for the accused that Pooja had died a homicidal death. However, we have perused the evidence of PW-1 Dr. Shantoshkumar Adhikari, examined at Exhibit-6, who has performed the postmortem examination on the dead body of the Pooja. He has performed the postmortem with the panel Dr. Pragneshbhai Patel. He has produced the autopsy report, which is at Exhibit-8.

6.1 On a conjoint reading of the evidence of PW-1 Dr. Shantoshkumar Adhikari and autopsy report at Exhibit-8, there is no manner of doubt that the deceased Pooja died a homicidal death. As per the postmortem report, Pooja died due to `asphyxia'' caused by drowning. Therefore, according to us, the Trial Court has rightly held that the deceased Pooja died a homicidal death and we confirm the said finding of the Trial Court.

Now the next question, which is required to be answered by us is as to whether the accused has committed the offence of kidnapping Pooja with a view to murder her and thereafter committed her murder punishable under Sections 302 and 364 of the IPC.

So far as the instant case is concerned, there is no eye witness to the incident of killing the deceased Pooja. The whole case of the prosecution has rested on the circumstantial evidence.

It is settled principle of law that in order to sustain conviction on the basis of circumstantial evidence, prosecution must fulfill three conditions:

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

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

(c) 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 it should also be incapable of explanation of any other hypothesis than that of the guilt of the accused. Further, in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.

The above principles are laid down by the Supreme Court in the case of Jaharlal Das Vs. State of Orissa,

It is also one of the settled principles of law that witnesses may tell lies but not circumstances. The Court must adopt cautious approach for basing conviction on circumstantial evidence. The Supreme Court has reiterated it in the case of State of Haryana Vs. Ved Prakash,

The Supreme Court in the case of Ram Kumar Madhusudan Pathak Vs. State of Gujarat, has aptly and elaborately laid down the principles as to which are the circumstances establishing guilt of the accused.

The Supreme Court in the very well known case of Sharad Birdhichand Sarda Vs. State of Maharashtra, has laid down following five principles to base conviction on the circumstantial evidence:

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must or should'' and not ''may be'' established;

(ii) 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;

(iii) the circumstances should be of a conclusive nature and tendency;

(iv) they should exclude every possible hypothesis except the one to be proved, and (v) 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.

In the case of Jaipal Vs. State of Haryana, the Supreme Court has held that merely because the accused could have had a motive for causing death of the deceased, it would not by itself be enough to sustain the finding of guilt against him.

In the case of Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka AIR2007 SCW 4513, the Supreme Court has said that law in this behalf is no more res-integra and also reiterated the five principles enunciated by the Supreme Court in its previous decision in the case of Sharad Birdhichand Sarda (supra) to base conviction on circumstantial evidence.

Keeping in forefront the aforesaid principles elucidated by the Supreme Court, we may now advert to the evidence adduced by the prosecution to find out whether the prosecution has successfully established the chain of circumstances to connect the accused with the crime and to base the conviction on the basis of the circumstantial evidence adduced by the prosecution.

To prove the case against the accused on the basis of circumstantial evidence, the prosecution has pitted the following circumstances against the accused:

(i) the complainant Paruben was widow as her husband had died. Therefore, she developed intimacy and illicit relations with the accused;

(ii) out of the illicit relations between the accused and the complainant, one female child, named, Pooja was born;

(iii) prior to the birth of Pooja, accused tried to abort the pregnancy of Paruben, but he could not succeed because of paucity of funds. Therefore, female child Pooja was born, which was disliked by the accused and he was mindful to get rid of Pooja;

(iv) as the complainant was constantly insisting upon the accused to maintain herself and her daughter Pooja, on account of which, quarrel took place frequently between the accused and the complainant. Therefore, accused was mindful to get rid of Pooja, prior to the date of the incident, accused came to the house of Paruben and asked her to hand over the custody of Pooja as the accused can look after her; and

(v) after the custody of Pooja was forcibly obtained by the accused, her dead body was found from the well of one Jayantibhai Panchal at Limzer Village. For this, no plausible explanation is coming on record from the mouth of the accused as to what happened in between this period. Therefore, deceased Pooja was lastly in the company of the accused. The accused has also made extra judicial confession before the Sarpanch Ishwarbhai that he has killed pooja.

To establish the aforesaid circumstances, the prosecution has mainly relied upon the oral testimony of PW-3 Paruben, who is examined at Exhibit-14. She has reiterated in her oral testimony almost similar to the statements made by her in her complaint at Exhibit-15. She has stated before the Trial Court that she got married with one Laxubhai prior to 13 years of the incident as per the Hindu rites, and out of the said wedlock, she had four children and thereafter before 5 years of the incident, her husband-Laxubhai died on account of Tuberculosis. Thereafter, she started residing at her parental house. She further stated that prior to two years of the incident, she developed relations with Jaswantbhai (accused), who was frequently visited her house and he has promised to keep her as a legally wedded wife. Therefore, he used to come to her house during day time as well as night time and, therefore, illicit relations between them developed. Out of that illicit relations, a female child Pooja was born. However, prior to the birth of Pooja, accused has taken her to Dr. Modi, Jalaram Hospital, Vasanda for abortion. Since the pregnancy is of eight months, it was not possible to terminate the pregnancy. Therefore, she delivered a female child. Her delivery was performed by Midwife of her village in her parental house. She further stated that the name of female child was `Pooja''. She has repeatedly asked the accused to maintain Pooja and herself but the accused refused to do so. Therefore, Pooja was with her on the day of the incident and Pooja was sleeping in her house. At that time, her neighbour Manjulaben came to her house and told that Jaswant is calling you to come there with Pooja. Therefore, she along with Pooja and Manujulaben came near Manubhai''s house, where Jaswant was standing. Jaswant asked her to hand over the custody of Pooja. She refused to hand over the custody of Pooja to Jaswant, however, Jaswant insisted that he will bring her up and thereafter he has taken Pooja from her. Thereafter, she went to her house. Thereafter on the next day morning i.e. on 30.1.2004, she met Sarpanch Ishwarbhai and informed him that Jaswant has taken Pooja from her custody and she is not found out. Thereafter, Sarpanch Ishwarbhai, inquired with the accused Jaswantbhai as to where Pooja was. The accused first refused to tell the truth, but, thereafter told that he had killed Pooja by pressing her nose and mouth and thereafter thrown her dead body in the well of Jayantibhai panchal at Limzer Village by tying her in a shirt with two bricks. Thereafter the dead body of Pooja was found from the well of one Jayantibhai Panchal. Thereafter she lodged the complaint in this connection before Vasanda Police Station.

18.1 It may be noted that this witness was cross-examined at length by the learned Advocate for the accused. She withstood the test of cross-examination and during the course of cross-examination nothing fruitful could be brought out which would impeach the credibility of her evidence. According to us, her evidence is unimpeachable, inspired confidence and trustworthy and there is no reason to disbelieve the evidence of this witness.

The prosecution has thereafter examined and relied upon the oral testimony of PW-4 Manjulaben Manubhai, examined at Exhibit-16. She has stated in her evidence before the Trial Court that after the death of the husband of Paruben, she came to reside at her parental house. She has deposed that after coming to parental house, Paruben developed intimacy and affairs with Jaswantbhai. Both were used to meet in the market at Vasanda. Out of the said illicit relations, one female child was born and her name was given Pooja. She has further stated before the Trial Court that prior to the date of the incident, after taking their dinner at about 7.00 p.m. they were about to go to bed, at that time, Jaswant came there and asked her to go to Paruben and call Paruben and Pooja. She further stated that she went to the house of Paruben and told her that Jaswant was calling you to come along with Pooja. She further stated that Paruben along with Pooja came near her house where Jaswant was standing. She further stated that Jaswant asked Paru to hand over the custody of Pooja to him. Paruben refused to hand over the custody of Pooja to Jaswant, however, Jaswant snatched away Pooja from her lap. At that time, her father and mother were also present and they asked Jaswant as to why he was taking Pooja with him. He told that Pooja is his daughter and he will maintain her and thereafter he told Paru that now onwards she is free and thereafter Jaswant left the house.

20.1 It may be noted that after the aforesaid evidence is recorded, this witness turned hostile and did not support the prosecution case in its entirety. Therefore, she was cross-examined by the learned APP at length and she was confronted with her previous statement recorded by the police.

20.2 It may be appreciated that it is the settled principle of law that so far as the evidence of the hostile witnesses are concerned, the same cannot be totally ignored. If relevant part of the evidence is acceptable, it can be used in favour of the prosecution and against the accused. So far as the evidence discussed here-in-above would clearly suggest that prior to the date of incident, Jaswant has come to the house of Paruben and snatched away the female child Pooja from her lap and thereafter Pooja was not found alive.

The prosecution thereafter examined and relied upon the oral testimony of Witness No. 5 Ishvarbhai Radkubhai, Sarpanch of the village, examined at Exhibit-17. He has stated that before him the accused made an extra judicial confession that he has thrown the dead body of Pooja in the dam. This witness did not support the prosecution case with regard to the extra judicial confession made by the accused before him. He, therefore, declared hostile.

22.1 After declaring him as hostile, he was cross-examined by the learned APP at length. We have noticed that, in his cross-examination, he has admitted that, Paruben has informed him that, Jaswant has taken Pooja and Pooja is still not found out. He has also admitted that he came to know about the dead body of Pooja was found from a well only from the talk of Jaswantbhai and this evidence is also sufficient to establish that the accused has made extra judicial confession that the dead body of Pooja is in the well.

On reappraisal of the oral testimony of the above mentioned three witnesses, there is no manner of doubt that the prosecution has established that accused-Jaswantbhai Mervanbhai Kukana was in affairs with the complainant- Paruben, with whom, he has got illicit relations. Out of the said illicit relations, a female child was born, which was disliked by the accused and accused was mindful to get rid of Pooja as Paruben was constantly nagging about the maintenance of Pooja and herself. Therefore, prior to the date of the incident, accused came to the house of Paruben and snatched away the female child Pooja from her lap. Thereafter, Pooja was not found alive and her dead body was found from the well in drowning condition. He has also made an extra judicial confession before the Sarpanch Ishwarbhai in this regard.

In the case of Raghunandan Vs. State of Madhya Pradesh, the Supreme Court has held that the circumstantial evidence relating to "last seen together", existence of motived, etc., are relevant factors for convicting the accused.

In the case of Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka AIR2007 SCW 4513, the Supreme Court has held that the venue of the unnatural death of the wife was shared by the deceased and her husband and, therefore, the husband has to offer explanation and absence of any explanation would lead to a circumstance against the accused.

Applying the aforesaid principles enunciated by the Supreme Court in the above referred to two judgments to the facts of the instant case, the accused has not given any explanation as to what happened after taking Pooja from the custody of Paruben. How he has dealt with Pooja and how the dead body was found from the well. It is for the accused to explain all these circumstances and in absence of any explanation coming from the mouth of the accused, the only conclusion that it is the accused and none else who has committed the murder of Pooja and therefore the complicity of accused committing murder of Pooja is established by the prosecution on the basis of the circumstantial evidence adduced by the prosecution.

Seen in the above context, according to us, the prosecution has established all the links of the circumstantial evidence which would lead to the conclusion of the guilt of accused and the chain is so complete that there is no escape from the conclusion that within all human probability the crime was committed by accused and none else and the prosecution has also established that the circumstances pointed out by the prosecution are incapable of explanation of any other hypothesis than that of the guilt of accused. According to us, the judgment and order of conviction and sentence passed by the trial court against accused is based on circumstantial evidence which are cogent, reliable and trustworthy, and they rule out the reasonable possibility of innocence of accused and, therefore, according to us, no interference of this Court in the impugned judgment and order of conviction and sentence passed against accused is called for.

In view of this, we find ourselves in complete agreement with the findings, ultimate conclusion and the resultant order of conviction and sentence passed by the Trial Court against the accused as according to us no other finding, conclusion or order except the one reached by the Trial Court is possible on the evidence adduced by the prosecution on the facts and in the circumstances emerging from the record of the case.

On overall view of the matter, we do not find any merit in the Appeal filed by the accused and therefore the Appeal lacks merit and deserves to be dismissed by confirming the judgment and order of conviction and sentence passed by the Trial Court against the accused.

For the foregoing reason, the Appeal fails and accordingly it is dismissed. Resultantly, the impugned judgment and order dated 08.9.2004, rendered in Sessions Case No. 12 of 2004, by the Trial Court, convicting the accused of the offences punishable under Sections 302 and 364 of the IPC and sentencing him to suffer RI for life and fine of Rs. 1,000/- and in default RI for four months for the offence u/s 302 IPC and RI for three years and fine of Rs. 500/- and in default, RI for two months for the offence u/s 364 IPC is hereby confirmed and maintained.

Muddamal articles to be disposed of in terms of the directions contained in the impugned judgment and order of the Trial Court.