Madho Singh and Others vs State of Rajasthan

Arun Madan, J.—These two criminal appeals have been preferred by appellants Nathu Singh and Madho Singh) challenging the judgment of the Additional Sessions Judge No. 1 Jaipur City who convicted each of them and sentenced as under :

Under Section 302/34 IPC - Life imprisonment: with a fine of Rs. 25,000/- (in default, 3 yrs'' RI)

Under Section 323 IPC - One year''s Simple imprisonment with a fine of Rs. 500/- (in default, 3 months SI)

Under Section 341 IPC - One month''s Simple imprisonment with a fine of Rs. 500/- (in default, 7 days SI)

All substantive sentences were ordered to run concurrently.

Facts in a narrow compass are that written report was lodged at PS Jhotwara (Jaipur) by Kishore Singh S/o Om Singh on 03-05-1999 alleging inter alia that on 01-05-99 at about 11 pm, Natthu Singh and Madho Singh (appellants) came in a bullet motorcycle to his house and asked his father to accompany them whereupon his father told him and his mother to accompany them and accordingly his father left his house by accompanying them (accused) but did not return to the house for whole of the night; that next day at about 7 A.M. Nathu Singh came to his house and informed him that his father had met with an accident and was lying wear Khirni Fatak, whereafter Nathu Singh went away. It has also been alleged in written report (Ex. P.1) that upon information of Nathu Singh, Sher Singh and his friend Vikram Singh (neighbour also) went on motorbike to Khirni Fatak where it was given out that Madho Singh had taken his father Om Singh to Deep Hospital from where it was told that since condition of Om Singh was serious, Om Singh was taken to SMS Hospital, so they along with Nathu Singh (who was there at Khirni Fatak) then had gone to SMS Hospital and found there his father in an unconscious state having injuries on the head thereby he felt disturbed and so he phoned to his grand father living in village Padihara (Churu) as also to his neighbours at Jaipur. It has further been alleged that on 2-5-99 at about 1 ''O'' clock in the night he returned back to his house after getting his father medically operated at SMS Hospital and upon checking apparels of his father then found a diary but did not find wrist watch so also Rs. 3000/- which were given by Seth (employer) of his father. It has been alleged that on 3-5-99 at about 8 O''clock, Prem Singh Bhati (his father''s friend) came and informed him that his father was thrown after being assualted, inasmuch as there had been talks in the locality of Madho Singh that his father was beaten by Madho Singh and Nathu Singh at the house of Madho Singh, besides having snatched money and wrist watch; and that even after operation, his father has been unconscious in SMS Hospital, and since he was busy in the hospital the report could not have been lodged earlier and was being lodged on 3-5-1999.

On the basis of aforesaid written report (Ex. P. 1) crime was registered at No. 169/99 at PS Jhotwara for offences Under Sections 341, 323, 379 IPC. On 22-5-99 Sher Singh submitted an application (Ex. P. 4) informing Incharge of PS Jhotwara Jaipur that amount of Rs. 3000/- and wrist watch which were alleged in his earlier report (Ex. P. 1) to have been snatched away, had been found but his father had died on 6-5-99 and they were busy in posthumous ceremonies in his village, therefore, could not inform earlier. Accordingly Section 379 IPC was deleted and since Om Singh had died therefore, Section 302 IPC was added. After usual investigation, challan was filed in the competent Court which committed the case for trial to the Court of Session. The learned trial Court charged the appellants for offences punishable under Sections 302/34 IPC, 323, 341 IPC to which they pleaded not guilty and claimed trial. The prosecution examined as many as fifteen witnesses in support of its case besides getting documents exhibited from Ex. P. 1 to Ex. P. 9. The accused appellants were examined u/s 313. Cr.P.C. Nathu Singh in his statement recorded u/s 313 Cr. P.C. admittedly stated that he had left both Om Singh and Madho Singh at the gate of the house of Madho Singh and in the next morning at 8 O''clock Madho Singh had come to him so as to inform that Om Singh was lying on the road and at that time he along with Madho Singh had gone to Sher Singh.

After hearing both the parties, the learned trial Court under the impugned judgment convicted and sentenced each of the appellants as indicated above, Hence these two criminal appeals (No. 625/2000 by Madho Singh, and No. 612/2,000 by Nathu Singh) have separately been filed.

Shri Dalip Singh learned counsel for appellant Natho Singh while Shri K.K. Mehrish learned counsel for appellant Madho Singh have contended that in the present case, the conviction has been based by the learned trial Court merely on the evidence of "last seeing the appellants with deceased Om Singh" and apart from other circumstances including cause of death of the decaesed appearing in medical evidence and statements of accused recorded u/s 313 Cr. P.C., but concommitantly the trial Court, itself, has disbelieved various circumstances as appearing in the prosecution evidence and despite having held those circumstances not founded on record, the trial Court has committed an error of law in convicting the accused appellants under the impugned judgment. Both the learned counsel for the appellants contended that it is a case of no evidence inasmuch as the prosecution witnesses on whose testimonies the trial Court has based the impugned conviction as to the circumstance of last seen, have suppressed as to from where and when deceased Om Singh was found lying in an injured condition before admitting him in the hospital.

The learned Public Prosecutor supported the findings of the trial Court arrived at for sustaining the conviction and contended that the trial Court has rightly placed reliance upon the decision in Kuldeep Singh and Others Vs. State of Rajasthan, and DB decision of this Court in Krishanlal v. State of Rajasthan (1991) 1 R LR 532. In Krishanlal v. State (supra), this Court held that when a particular assertion is made in the examination inchief and that assertion is not challenged in cross-examination it clearly shows that the accused is not in a position to challenge this particular assertion and on that ground, such a circumstance appearing in the prosecution evidence can safely be utilised against the accused on the ground that when the circumstance has appeared against him in prosecution evidence, that has not been challenged by defence during cross examination. This Court also observed as under :-

These facts have not been put to the accused in his statement u/s 313 CrPC to obtain this explanation. We may at once observe here that that question can hardly be put to an accused in his examination u/s 313 CrPC as regards the allegations which were not directly attributable but which flow from conclusions arrived at by a Court of law after close and rational scrutiny and assessment of the probative value of the evidence given by a particular witness. That actually depends on the Court as to how it assesses that piece of evidence to come a particular conclusion.

In Kuldeep Singh and Others Vs. State of Rajasthan, the Apex Court held as under :

All the circumstances put together unerringly lead to the conclusion that appellants 1, 2 and 4, had conspired to murder and they murdered the deceased. It is not possible to accept the submission that the evidence of the witnesses could not be believed. Both the Courts below have set out detailed reasons why the evidence was trustworthy and believable. These findings are to be fully endorsed.

It must also be noted that in her statement u/s 313 CrPC appellant No. 4 denies that she had left the Ramleela function. The evidence of witnesses clearly establishes that she had left the Ramleela programme. The false answer given by appellant 4 denying that she had left the Ramleela programme provides the additional link or a missing link in completing the chain of circumstances.

Shri Dalip Singh appearing for accused Nathu Singh cited a decision in C. K. Raveendran Vs. State Of Kerala, wherein the Apex Court held that the law as to circumstantial evidence requires that the prosecution must prove each of the circumstances, having a definite tendency pointing towards the guilt of the accused and though each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally point to the guilt of the accused. It was a case where the prosecution case had not been proved beyond reasonable doubt as against the accused u/s 302 as well as Section 201 IPC and hence the Apex Court held that the conviction cannot be sustained. In C.K. Raveendran''s case (supra), the doctor issuing post-mortem certificate reserved his opinion as to the cause of death pending the result of chemical analysis and in his final report issued on getting the report of Chemical Analyser the doctor stated that it was not possible to say whether the injuries on the dead body were ante mortem or post mortem. In the cited case the deceased was allegedly last seen in the company of the accused as long as 27 days before the dead body was found, and the prosecution had led an evidence of extra judicial confession which on facts was alleged voluntary but made to the prosecution witness at arrack shop after consuming liquor, therefore, the Apex Court held that such a confession could not be said to be voluntary or truthful and hence had to be ignored.

As regards presumption u/s 114 of the Evidence Act, Shri Dalip Singh cited decisions in (1) Kishori Lal Vs. Mst. Chaltibai, and (2) Fatah Gugan and Others Vs. Sardara and Others, In Kishorilal v. State (supra) the adoption under Hindu Law was under challenge and the Apex Court held that at the most the circumstances relied upon by the appellant may be acts of acquiescene attributed to the respondent but they would be important only if they were brought to bear upon the question which depended upon preponderance of evidence; and that if the facts are once ascertained presumption arising from conduct cannot establish a right which the facts themselves disprove; and that presumptions cannot sustain an adoption even though it might have been aquiesced in by all concerned when the evidence showed that the adoption did not take place. In Fatah Gugan and Others Vs. Sardara and Others, the Division Bench of the Punjab and Haryana High Court was dealing with second appeal u/s 100 CPC against finding of fact as to occupation of tenancy land and on the question of presumption it observed as under (at PP 334-35 of AIR) :-

A presumption is a rule of law that attaches definite probative value to specific facts or directs that a particular inference as to the existence of one fact not actually known shall be drawn from a fact which is known and proved. It furnishes prima facie evidence of the matter to which it relates and relieves the party of the duty of presenting evidence until his opponent has introduced proof to rebut the presumption. It raises such a high degree of probability in its favour that it must prevail unless clearly met and explained and overturned by explanatory proof to the satisfaction of the Court. Presumptions hold the field in the absence of evidence but when facts appear presumptions recede.

Both the learned counsel vociferous contended that once the trial Court itself has held that the prosecution has failed to establish in its evidence the circumstances : (1) the injured (deceased) before his death was admitted by the accused in the hospital (2) the son of deceased received blank telephone calls that the deceased was murdered (3) place of occurrence at Madho Singh''s house vide Ex. P. 3 (4) recovery of blood-stains taken from place of occurrence (Exs. P. 6 and P. 7) (5) recovery of clothes of deceased (6) theft of Rs. 3000 and wrist watch from the pocket of deceased being not pressed by submission of application (Ex. P. 4) by PW1 Sher Singh and (7) hostility of alleged two eye-witnesses Rajendra Singh (PW4) and Prem Singh (PW5), therefore, chain of circumstances relied upon by the prosecution itself remained incomplete but despite that, the trial Court has erred in convicting the accused appellants only on the evidence of last seen, which is not sustainable in law.

Shri K.K. Mehrish learned counsel appearing for appellant Madho Singh in support of his contention, had cited the decisions in (1) Sharad Birdhichand Sarda Vs. State of Maharashtra, (2) State of Gujarat and Another Vs. Acharya D. Pandey and Others, etc., (2) Yusufalli Esmail Nagree Vs. The State of Maharashtra, (4) Rajaram v. State of Raj as than 1985 RC 342 , (5) Mala Vs. State of Rajasthan, (6) Dhanna v. State of Rajasthan 1995 Cri LJ 698.

In Sharad Birdhichand Sarda Vs. State of Maharashtra, the Apex Court observed that it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It further held as under :-

Where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and to not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

Before a false explanation can be used as additional link the following essential conditions must be satisfied.

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.

(2) the said circumstances point to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

If these conditions are fulfilled only when a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise.

The Apex Court also held as under:

The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established :

(1) 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.

(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 and

(5) there must be a chain of evidence so complete as not 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.

A case can be said to.be proved only when there is certain and explicit evidence and no person can be convicted on pure moral con-victiont

The Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, found the case being depended solely on circumstantial evidence which did not lead to the only conclusion that the husband committed murder by administering poison. It was a case where the cause of death of a newly married bride who was found dead was poisoning due to a strong dose of potassium cyanide and the prosecution case was that in a short span of 4 months of married life the deceased was ill-treated by her husband and his parents and that the poison was administered by her husband whereas the defence was that while there was a strong possibility of her having been ill-treated being highly sensitive and harassed woman she might have committed suicide out of sheer depression and frustration arising from an emotional upsurge.

The facts of Sharad''s case (supra) are totally distinguishable to that of the present case therefore, and without disputing as to the dictum of law laid down by the Apex Court, in our considered view, the decision of that case does not render any help to the present appellants, because explanation or the answers given to the questions asked for during their examination u/s 313 CrPC are in fact totally admission by one of the accused appellants as to the one of link circumstance of "last seen in the company of Om Singh (deceased)".

In State of Gujarat and Another Vs. Acharya D. Pandey and Others, etc., the Apex Court held that the Court cannot split statement of accused u/s 342 CrPC (Old) into various parts and accept a portion and reject the rest and it should either accept it as a whole or not rely on it at all. It was a case of a quasi criminal offence u/s 35 of the Bombay Public Trusts Act and where the accused in his statement pleaded that he was not guilty and the Apex Court held that if his statement was taken as a whole, it did not show that he was guilty of any offence.

In Yusufalli Esmail Nagree Vs. The State of Maharashtra, the appellant challenged legality of his conviction for offence of Section 165A IPC and it was a case of trap laid during which conversation was recorded by tape recorder which was kept in inner room and its mike was kept concealed in outer room and the accused was not aware of police officer or that his conversation was being tape-recorded. Such a conversation was held not hit by Section 162 CrPC (Old) and was held to be admissible. In the cited case, it was not suggested either in cross-examination of the prosecution witnesses or in the answers u/s 342 CrPC (Old) that any tampering had taken place with the recording, rather while admitting the accuracy of material parts of the conversation reproduced by the tape-recorder, the appellant in his examination u/s 342 CrPC attempted to explain the conversation and the object of his visit and said that he had gone to Shaikh''s residence for obtaining repayment of a loan of Rs. 100 which he had advanced to Shaikh on July 19, 1960. The High Court rejected the appellant''s explanations. Then the Apex Court observed as under (Paras 7 and 9) :-

Mr. Mistry was right in saying that the High Court could not accept the inculpatory part and reject the exculpatory part of the appellant''s answers u/s 342. But there was other evidence showing that the tape-recording was not tampered with. The fact that the defence did not suggest any tampering lends assurance to the credibility of the other evidence. The Courts below rightly held that the tape-recorder faithfully recorded and reproduced the actual conversation.

...But we cannot say that in this case

the appellant was compelled to be witness against himself. He was free to talk or not to talk. His conversation with Shaikh was voluntary. There was no element of duress, coercion or compulsion. His statements were not extracted from him in an oppressive manner or by force or against his wishes. He cannot claim the protection of Article 20(3). The fact that the tape-recording was done without his knowledge is not of itself an objection to its admissibility in evidence.

In the ultimate analysis, the Apex Court held that the High Court rightly convicted the appellant of offence u/s 165A IPC. In this view of the matter, we do not find that the decision in Uusufalli (supra) cited by Shri Mehrlshi will render any aid in advancing his arguments in favour of his client.

Next case cited by Shri Mehrish is Rajaram v. State of Rajasthan 1985 RCC 342 (supra), wherein this Court held that since the evidence was only of last seeing which too was not of a conclusive character to establish that the murder was committed by the accused, and further that though the prosecution recovered the umbrella on the basis of information u/s 27 of the Evidence Act from the possession of the accused but it failed to prove that the seal remained intact from the date it was sealed till the date and time it was brought for identification, therefore, the conviction was not sustainable. It was a case though of last seen but not of a conclusive character to establish that the murder was committed by the accused. Here in the present case as concluded by the trial Court the conviction has been based on the evidence of last seen which is of a conclusive character. Hence the cited decision of Rajaram''s case (supra) does not help in any manner and is not applicable.

In Dhan Singh v. State 1995 Cri LR 640; the witness, though had seen the accused in the company of the deceased and saw the police in the village and he himself came to the place of incident when the police came there but did not disclose his seeing the accused in the company of the deceased nor it was said by him to any person of the village and for the first time he stated so in the trial Court. In these circumstances, this Court found that the evidence of prosecution witnesses on the question of last seen did not inspire confidence and that being so, held that the prosecution has failed to prove the circumstance of last seen and this circumstance has been rightly rejected by the trial Court.

In Mala Vs. State of Rajasthan, one of the witnesses was unable to disclose the identity of the accused and also expressed inability to say whether those two persons (accused) were having the beard or mustaches. Therefore, the trial Court did not rely upon such witness. Further in that case, the dead body as well as the packet containing the clothes of the deceased were recovered by the police much before the arrest of the accused. Therefore, this Court held that from the evidence of prosecution witnesses it cannot be said that the accused was last seen in the company of the deceased and that the recoveries of the dead body as well as the packet containing the clothes of the deceased were made on the information and at the instance of the accused appellant. This Court further held that the evidence which did not link the accused with the crime cannot be read against the accused.

Last decision cited by Shri Mehrish is of this Court in Dhanna v. State 1995 Cri LR 698 (supra) wherein, this Court held that the ''last seen'' evidence is a link but it is a weak type of evidence, unless corroborated by other evidence. In that case, the prosecution failed to produce evidence about the duration of three days when in the last the deceased was found alive but injured in a jungle and therefore, it cannot be said positively as to how the deceased sustained the fatal injuries and hence the conviction was set aside. It was a case of admitted fact appearing in the prosecution evidence that the deceased did not die in the company of the accused persons but was found in an injured condition in the jungle inasmuch as the prosecution failed to explain as to what happened to the deceased for three days from the time he was taken forcibly in a truck to some unknown destination.

The facts of the cases cited by Mr. Mehrish and Mr. Dalip Singh since having different sets of evidence and being distinguishable to the present case, are not at all applicable. However, we do not dispute the dictum of law laid down on the circumstantial evidence based on the circumstance of "last seen". In our considered view as well, the evidence of last seen together though is a relevant factor to be reckoned with but its probative value has to be assessed with reference to the facts and circumstances of an individual case. No doubt it is a weak type evidence unless corroborated by other evidence.

Though the prosecution rested on circumstantial evidence but it cannot be forgotten that such evidence consists of various circumstances and the prosecution might have led many circumstances in order to prove that the circumstantial evidence led was conclusive. In that process, some of the circumstances may overlap, some are irrelevant and some cannot be taken into consideration because they were not put to the accused in his statement u/s 313 CrPC. It is trite law that the witness may lie but circumstance will not. Though there are catena of decisions on the law as to the nature and character of proof of circumstantial evidence, but the locus classicus of the decision of the Apex Court is the one rendered in Hanumant Vs. The State of Madhya Pradesh, where the Court has clearly expounded various concomitants of the proof of a case based purely on circumstantial evidence; and laid down that the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved and it must be such as to show that within all human probability the act must have been done by the accused. Much emphasis has always been laid in a case of circumstantial evidence that such evidence must continuously be analysed 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.

We may add that it is not necessary that each and every circumstance led or relied upon in the prosecution evidence must be proved. The Court has to see and look as to which of those incriminating circumstances are proved inculpating the accused so as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. That being so, there is no hard and fast rule as to the appreciation of evidence in a case. The whole effort and endeavour in a 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. It is trite law that a criminal case is built on the edifice of evidence, that is admissible in law, for which, witnesses are required whether it is direct or circumstantial evidence. It has become more or less a fashion nowadays that the witnesses are harassed a lot. It is the game of unscrupulous lawyers to get the witness tired and given up, till a witness is won over. He is not only threatened, abducted, maimed, but also he is done away with or even bribed.

The contention of the appellants that because some of the circumstances led in the prosecution evidence were not. founded by the trial Court therefore, their evidence as to other incriminating proved circumstances was suspect, is a non-sequitur. Merely because one portion of the evidence or prosecution witnesses is disbelieved for having not found some of the circumstances proved, does not mean that the Courts are bound to reject all of the evidence including the incriminating circumstances connecting the accused with the crime.

It is settled law that courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires a rule of prudence, and corroboration should only be insisted upon, for example in the case of a child witness or of a witness whose evidence is that of an accomplice or of an analogous character, inasmuch as whether corroboration of the testimony of a witness is necessary or not, depends upon facts and circumstances of each case. Hence, as is evident from the legislative intent appearing from provisions of Section 134 of the Evidence Act, which lays down that: "no particular number of witnesses shall, in any case, be required for the proof of any fact", in our considered view, irrespective of the quality of the oral evidence of a witness, if the Courts are to insist on plurality of witnesses so as to search for corroboration in proof of any fact, they will be indirectly encouraging subordination of witnesses. If a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused on such proof because the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.

Similarly, a witness is normally to be considered independent unless he or she springs from sources which has cause, such as an enmity against the accused; to wish to implicate him falsely. In the matter of appreciation of evidence, it is an expounded proposition that it is not that every discrepancy or contradiction matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version and further that unless the discrepancies and contradictions are so material and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightaway condemned nor their evidence can be discarded in its entirety.

Though the learned trial Court has categorically arrived at a finding that the site plan has no significant bearing in the facts and circumstances of the case because till the family members of the deceased could have been brought about the incident, the deceased had already been sent to the hospital, but in our considered view, if we re-look at and analyse the contents of site plan (Ex. P. 3) we find that this site plan (Ex.P3) was prepared in the presence of two rnotbirs viz. Sher Singh and Vikaram Singh by Bajrang Singh (PW14) (I.O.) on 3-5-1999. Though this site plan bears signature of Rajendra Singh (PW4) and as per its details, at mark (B) in site plan house of alleged eye witness Rajendra Singh plot No. B-18 is shown, but during trial in his statement this alleged eye-witness Rajendra Singh (PW4)'' turned hostile by denying to have given either any statement (Ex.P9) to the police or to have seen the police to prepare site plan in his presence. In examination-in-Chief, Rajendra Singh (PW4) stated that since the police personnel told him to sign on site plan prepared by them, so he signed thereon whereas he had not seen the site. Though he admitted to have put his signature on seizure, memos of blood-stained earth (Ex.P6) and sample of control soil (Ex.P7) but in examination in-chief he added that he put signatures while being at the police station. Though he was examined as eye-witness but during examination-in-chief he denied to have seen the beating alleged to have been given to the deceased or anybody else in his presence and he further denied to any incident having taken place in his presence on the fateful night. Hence he (PW4) was declared hostile. During cross-examination by the Public Prosecutor he admitted that he was interrogated by the police but denied that his statement was written by the police in his presence and he further stated that he had never given out the version marked A to B and C to D in his alleged statement recorded (Ex. P. 9) by the police. He stated that he was B.Sc passed and that he put his signatures on blank paper.

Be that as it may, site plan along with description of site (Ex.P3) it carefully looked into, clearly establishes that Rajendra Singh (PW4) was not motbir witness to it and he has merely put signature thereon as a neighbour to Madho Singh (accused) and whose house No. B-18 is shown to have situated just near to house No. B-17 i.e. the place of incident, and mark (B) was shown in site plan as house of alleged eye-witness Rajendra Singh, in whose opposite side, vacant plots with boundary wall are shown, naturally Rajendra Singh (PW4) could have been in a position to have seen ocular view of the beating places marked (A) and (X) as shown in site plan (Ex. P.3) but despite the fact that he was very much there in his own house B-18, he detracted from his earlier version given out in police statement recorded by the police u/s 161 CrPC. During trial he merely deposed that he did not see the beating because he used to sleep at 10 O'' Clock in the night.

Motbir witnesses to the site plan (Ex.P3) were Sher Singh and Vikram Singh both of whom have proved the site plan having been prepared in their presence by Bajrang Singh (PW14). Similarly seizure memo of sample of controlled soil (Ex. P6) and that of blood-stained soil (Ex.P7) were prepared in the presence of Vikram Singh PW3). Merely because one of motbir witnesses (PW4) turned hostile, these two seizure memos (Ex.P6 and P7) cannot be thrown out of consideration nor can be discarded. These memoes (Ex.PG & P7) have been duly proved by investigating officer Bajrang Singh (PW14) and Vikram Singh (PW3). Hence, in our considered view the accused cannot claim acquittal simply on the ground of motbirs having not supported the investigating officer because once the evidence of the invesigating officer is on sterling worth and suffers from no infirmity nor his evidence is shaken by the defence during cross-examination on the aspect of recovery or seizure memos by asking questions as to the motbir witnesses having turned hostile, there is no illegality in basing conviction on such testimony because the cases are also noticed where the motbirs for some reason or other, oblige the accused. The memos prepared by the investigating officer must not necessarily be treated as tainted or doubtful because the Court cannot presume that the police records are untrustworthy inasmuch as it is a wise principle of presumption and duly recognised even by the legislature. Once a police officer gives an evidence in Court that a certain article was seized or recovered by him on the strength of interrogation during investigation it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. In the instant case, in the presence of evidence of one of motbir witnesses and the investigating officer whose versions could not have been shaken by the defence in cross-examination, rather their evidence stands proved as to the site plan (Ex. P3) and seizure memos of blood-stained earth and control soil (Exs.P7 and P6). Similarly as regards seizure memo of blood-stained clothes of the deceased vide Ex. P. 8 though Pappu Singh (brother of deceased) who has given those clothes to Bajrang Singh IO (PW14) in the presence of two motbir witnesses Vikram Singh (PW3) and Pramod Kumar (PW10) has not been produced by the prosecution but one of motbir witnesses Pramod Kumar (PW10) has turned hostile, because of which the learned trial Court has disbelieved the circumstance as to the recovery of blood stained clothes of deceased, holding it to be not proved in prosecution evidence beyond doubt. On the same principle and analogy as adopted while appreciating of evidence as to the seizure memo of blood-stained soil and sample of control soil vide Ex. P. 7 and P. 6, we may reiterate that merely because one of motbir witnesses has turned hostile, seizure memo cannot be discarded from consideration for one of link circumstance to connect the accused with crime, because once the investigating officer (PW14) and one of motbir witnesses Vikram Singh (Pw3) in their evidence proved seizure memo (ExP8) of clothes of the deceased (blood-stained) nor their evidence on this aspect could have been shaken, rather in cross-examination they stressed by saying that those clothes were seized and sealed vide Ex. P. 8 in their presence upon Pappu Singh brother of deceased having produced before the IO. Therefore, in our considered view, the trial Court ought not to have disbelieved site plan and aforesaid seizure memos, as one of the incriminating circumstances inculpating the appellants, appearing in the circumstantial evidence on record.

Dr. N.N. Disania (PW15) has proved post-mortem report (Ex.PI7) conducted the autopsy on the body of deceased Om Singh. According to the report (Ex. PI7) 12 ante-mortem injuries including skull fractures were found at the time of post-mortem examination and in the opinion of the doctor, the cause of death is coma as a result of injury to skull and brain and it is sufficient to cause death. Out of twelve injuries following two injuries were found on the skull and brain -

Stitched wound 24 cm lengthy on right side of skull and stitched wound 29 cm on left side of skull. Both are scarlunar in shape done surgical for operation. On dissection of skull - sub scalp haematoma both side of skull darken black colour. Skull (sic) of right occipital bone reaching upto right temporal bone with ante mortem haematoma.

Skull fracture of right occipital reaching upto right temporal bone with a natemortem haematoma - framation, flap of bone of size 9 x 6 cm left fronto parietal region and another 7 x 6 cm bone flap right fronto parietal area.

On cross-examination by defence counsel, the doctor (PW15) stated that abrasion and bruises are often caused in an accident on road, including head injury. The doctor has stated so in general sense but no question was put by defence counsel as to the head injuries caused and found on the person of present deceased, whether it could have been as a result of road accident or otherwise. In the absence of any specific question in this regard, it cannot be said that the head injuries on the person of deceased Om Singh were caused in road accident. In examination-in-chief since the doctor (PW15) has made assertion proving the cause of death of the present deceased Om Singh as a result of coma due to head injuries, but since this assertion has not been challenged by the accused or defence counsel in cross-examination and hence it clearly shows that the accused was not in a position to challenge the same. In these circumstances, on that ground as well such a circumstance appearing in the evidence of doctor can sefely be utilised against the accused. Having regard to the categorical and positive medical opinion as to the cause of death and nature of the injuries it stands established beyond doubt that the deceased had died a homicidal death. Thus considering the nature, number and extent of inju-ries inflicted on Om Singh (deceased) and further that there is nothing in cross-examination of the doctor, it is amply proved that Om Singh had suffered number of wounds on various parts of his body including head and brain and that he had died of the injuries suffered by him and his death was homicidal. Similarly there is nothing on record to suggest or even surmise a plausi-. ble reason for the deceased to have died in a road accident. Consequently the theory of death in road accident suggested with a view to save the appellants seems to be more a matter of invention based on imagination than even a remote possibility warranted or could reasonably be justified on the proved facts.

As regards other circumstantial evidence as to the facts namely; (1) the accused admitted the injured (deceased) to the hospital, (2) the son of deceased received blank telephone calls that the deceased was murdered, and (3) the hostility on the part of eyewitnesses Rajendra Singh (PW4) and Prem Singh (PW5), we do not think it proper to reanalyse either the prosecution evidence or the findings recorded by the trial Court. Another circumstance alleged by the defence counsel is that in FIR motive was alleged to be theft of Rs. 3000/- and the watch of the deceased but this circumstance was held to be not proved in view of application given by Sher Singh (PW1). In our considered view, first of all as per contents of FIR the prosecution has not alleged the motive as suggested by the defence and if we carefully look at the FIR we find that Sher Singh (PW 1) has merely alleged that when he checked the clothes of his father he found diary denoting that on 1-5-99 his father had brought Rs. 3000/- from his employer (Seth), but that amount alongwith wrist watch worn by his father was also not found. As per these assertions it could have been the case of theft but since Sher Singh (PW1) presented a letter (ExP4) on 22-5-99 stating that Rs. 3000/- and wrist watch were found before the death of his father on 6-5-99, thereby the police deleted offence of Section 379 IPC.

Be that as it may, motive of the death of deceased Om Singh was not alleged to be theft nor the prosecution rested its case on such assertions, but firstly on direct evidence consisting of eye-witnesses Rajendra Singh (PW4) and Prem Singh (PW5) who turned hostile as to beating to the deceased, and then on circumstantial evidence which was of conclusive nature consisting of "last seen" as founded by the trial Court while convicting appellants for the impugned offences.

Let us have a resume of conclusions drawn by the trial Court for sustaining the conviction of the appellants. The learned trial Court after marshalling the evidence and due appreciation thereof concluded that the prosecution has proved beyond reasonable doubt that both the appellants after getting deceased accompanied from his residence had taken Om Singh to the house of Madho Singh (one of appellants) on bullet motor bike and on next morning appellent Nathu Singh informed that Om Singh had been met with an accident and thereafter Vikram Singh (PW3) Sher Singh (PW1) and Geeta Kanwar (PW17) had firstly seen Om Singh in the hospital and therefore the circumstance of the deceased in the last company and last seeing with the appellants being conclusive and definite stands proved in the prosecution evidence. The trial Court further concluded that the death of deceased had taken place by sustaining injuries on his body and since the chances of his death in an accident were not proved, hence the possibility thereof as suggested by the defence is altogether ruled out. Moreover the appellants themselves in their statements u/s 313 CrPC admitted that Om Singh had come in their company but the explanation offered by them could not have been proved and accordingly the trial Court concluded the chain of circumstances as complete so as to connect the appellants with the offences charged.

First question was asked to Nathu Singh during his examination u/s 313 CrPC as to the prosecution evidence of Sher Singh (PW1), Vikram Singh (PW3) and Geeta Kumar (PW17) to the effect that on 1-5-99 at 10 or 10.30 PM Madho Singh and Nathu Singh came to the residence of Om Singh and after staying there for about 10-15 minutes, they all went riding on bullet motor bike saying that they were going to leave Madho Singh to his house, but did not return till next morning. In answer to this question, Nathu Singh (appellant) categorically stated that he returned back to his house after leaving both Om Singh and Madho Singh at the gate of his house. Next question wrung out of prosecution evidence was that on 2-5-99 at about 7 AM, Nathu Singh intimated Sher Singh that accident of Om Singh had taken place at Khirni Fatak but Sher Singh and Vikram Singh did not find Om Singh there while it was given out that Om Singh was taken to Deep Hospital to which Lakhanlal (PW11) corroborated but at Deep Hospital it was given out that Om Singh was taken to SMS Hospital where he was found in an injured and unconscious state. To this question, Nathu Singh (appellant) answered that Madho Singh (appellant) had come to him at 8 AM saying that Om Singh was lying at the road whereupon he along with Madho Singh had gone to Sher Singh.

In answer to aforesaid two questions, Madho Singh (accused) in his statement u/s 313 CrPC has only stated, ''it is wrong'' and ''did not know''. However Madho Singh in last question as to what would he like to say, answered that Nathu Singh and Om Singh had left him at his house on 1-5-99 in the night and thereafter what happened he did not know.

In answer to question 4 to the effect that it has come in prosecution evidence that on the day of incident Madho Singh was residing at B-17 Karni Nagar Khirni Fatak Jaipur and from the ramp at the door gate the blood stains were seen so got seized by the police, both of the appellants stated that place of residence was right and rest was not known.

Thus, in our considered view, the evidence of, prosecution witnesses clearly establishes that the appellants along with deceased Om Singh had left his house on ''bullet'' motor bike on 1-5-1999 in the night and they reached residence of Madho Singh. The false answer given by appellants (supra) provided the additional link or a missing link in completing the chain of circumstances. That apart, once the circumstance of last seen and company of the appellants with deceased Om Singh stands conclusively proved on record inculpating the accused appellants, in our considered opinion during the time of questioning u/s 313 CrPC the accused appellants ought to have explained or clarified incriminating circumstances connecting them with the, crime and ought not to have shown their adamant attitude of total denial of everything particularly when those Circumstances were directly brought to their notice by the Court. The incriminating circumstance of having left the house of Om Singh by the appellants alongwith him since stands proved then such incriminating link in the chain of events could, if at all be explained only by the persons like the accused appellants themselves and by nobody else, since the said circumstance was exclusively within their knowledge. Having failed to do so on the part of the accused appellants at the time of questioning u/s 313 CrPC, in the instant case, which the appellants not only lost the opportunity but stood seif-condemned, the trial Court has, from the falsity of the defence plea and false answers given to Court, found the missing links to be furnished by such answers for completing the chain of incriminating circumstances necessary to connect them with the crime so committed. That being so, the missing link to connect the appellants was provided by the blunt and outright denial of every question put to the accused and the incriminating circumstances in their totality as pointed out which, with sufficient and reasonable certainty on the facts proved lead to no other conclusion except the hypothesis of the guilt of the accused.

The incriminating circumstances such as (1) having the deceased left his house in the company of the accused appellants who were so last seen with Om Singh, (2) place of beating at Madho Singh''s house vide site plan (Ex P3), (3) sustaining injuries found on the person of deceased Om Singh resulting into his death, (4) recovery of blood stains from the ramp at the exit gate of house of Madho Singh vide seizure rnemos (Exs, P6 and P7), and (5) recovery of blood-stained clothes of deceased vide seizure memo (Ex P8), which have been enumerated and analysed with reference to the rival contentions of the defence counsel, and which are of conclusive nature and tendency rather fully established in prosecution evidence, are unmistakably and inevitably pointers to the guilt of the appellants and further the facts so established are consistent only with the hypothesis of the guilt of the accused because they exclude every possible hypothesis except the one to be proved and leave no reasonable doubt for the conclusion consistent with the innocence of the accused. Nothing has been highlighted by the defence or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellants. We have lent support from the dictum of law laid down by the Apex Court in State of Maharashtra v. Suresh 2000) 1 SCC 471 followed in Joseph Poulo Vs. State of Kerala,

For all the reasons stated supra, we have no hesitation to agree with the findings of the trial Court except with some modification and slight disagreement on some of the incriminating circumstances discussed above, for holding the appellants guilty of offences charged. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference at our end.

Before parting with this judgment we felt necessary after having been inspired by the observations made by the Apex Court in Swaran Singh Vs. State of Punjab, to reiterate the state of witness appearing in criminal cases and thereby direct the Registrar General of this Court to bring to the notice of each of the presiding officers of the subordinate Courts trying with criminal cases to observe strictness while noting demeanour of the witnesses and act as observed by the Apex Court in following terms (at P. 2786 of Cri LJ.) :

If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each trial should be properly monitored. Time has come that all the Courts, district Courts, subordinate Courts are linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence.

Prejury has also become a way of life in the law Courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the Court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure.

As a result of the above discussion, both these appeals against the convictions of appellants Nathu Singh and Madho Singh stand dismissed. Their impugned sentences under the judgment, dated 23-9-2000 are upheld. The appellants are in jail and be retained to serve out the impugned sentences duly upheld by this Court. The record be sent back and the accused be informed in jail accordingly.