Harikesh Yadav vs State of U.P.

Ram Autar Singh, J.—These appeals have been preferred against the judgment and order dated 18/19.10.2004 passed by Additional Sessions Judge/Fast Track Court1, Ballia, in sessions trial No. 131 of 2003 (State v. Jai Prakash and two others) under section 302 IPC, P.S. Bheempura, District Ballia, whereby appellants Harikesh Yadav and Jai Prakash Yadav have been convicted for an offence punishable under section 302 IPC and 302 read with section 34 respectively and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/ each and in default further imprisonment for one year. Accused Smt. Phuljharia wife of Ram Chandra has been acquitted of the charge framed against her.

Both appeals are being decided together through this common judgment.

The case was registered at P.S. Bheempura, District Ballia on 14.1.2003 at about 10.30 AM under section 302 IPC against accused Harikesh Yadav, Jai Prakash Yadav and Smt. Phuljharia on the basis of written report lodged by the informant Keshav Yadav, resident of village Dugauli, P.S. Bheempura, District Ballia.

The prosecution case as disclosed in FIR is that on 12.1.2003, Yogendra Yadav, real brother of informant Keshav Yadav, left his house with Harikesh Yadav and Jai Prakash Yadav at about 4 P.M. for taking liquor but he did not come back in the night, at which informal Keshav Yadav alongwith some persons tried to trace out Yogendra through out night as well as in the morning of 13.1.2003, but to no avail. Thereafter Harihar Yadav and Bhim Yadav disclosed before the informant etc. that Yogendra was seen in the company of Hairikesh, Jai Prakash and Phuljharia w/o Ram Chandra Harijan of Govindpur on 12.1.2003 on the way leading to Lohta near the tubewell of Chandra Deo Yadav and they were having some pouches of liquor with them at that time. The informant party then went to the house of Ram Chandra in village Govindpur on 13.1.2003 but Phuljharia was found absent. Informant Keshav Yadav along with some persons tracing out Yogendra reached Govindpur Railway Station in the morning of 14.1.2003 and found Harikesh, Jai Prakash and Smt. Phuljharia present there. The informant etc. then enquired from them about Yogendra, who had left his house with them on 12.1.2003, at which Harikesh and Jai Prakash disclosed that they had killed Yogendra, in the meantime the passenger train arrived at the platform at which Harikesh and Jai Prakash boarded the same, but Phuljharia could not board. The informant and his companions then overpowered Phuljharia and on being interrogated she disclosed that she along with Harikesh, Jai Prakash and Yogendra had gone to brick kiln of Ram Jag Singh, all of them set fire and consumed liquor there and thereafter Harikesh and Jai Prakash overpowered Yogendra, and Harikesh committed his murder by cutting his neck with ''Dav'' (sharp edged weapon) and left his dead body on the spot. The informant party then took Phuljharia to the alleged spot and at her pointing out found the dead body of Yogendra nearby the said brick kiln. Accused Phuljharia was having illicit relations with accused Harikesh.

The case under section 302 IPC registered against Harikesh Yadav, Jai Prakash Yadav and Smt. Phuljharia on 14.1.2003 at 10.30 AM on the basis of written report (Ex. Ka 1) was investigated by the police and during investigation the inquest proceedings took place on 14.1.2003 vide inquest report (Ex. Ka 6) as well as papers (Ex. Ka 7 to 11) relating to inquest proceedings were prepared by the police. The weapon ''Dav'' used in commission of offence was also recovered by the police on 10.4.2003 at the instance of accused Harikesh Yadav vide recovery memo (Ex. Ka 15).

The autopsy of the dead body of Yogendra was. conducted on 15.1.2003 at 3.45 PM vide autopsy report (Ex. Ka 2), in view of which neck of the deceased was found cut through and through and his head was severed from the body. In view of autopsy report the death of the deceased took place about 23 days before due to shock and haemorrhage as a result of antemortem injuries. The reports of chemical examiner (Ex. Ka 17 and Ka 18) submitted in the Court below indicated human blood on the weapon and other articles sent to chemical examiner for analysis. The investigating officer on completion of investigation submitted chargesheet (Ex. Ka 14).

The Chief Judicial Magistrate Ballia after having supplied the copies of the police documents to the accused under section 207 Cr.P.C. committed them to the Court of Sessions for trial vide his order dated 7.6.2003. The trial of the accused persons was conducted by the Sessions Judge Ballia who framed the charge under section 302 read with 34 of IPC against Harikesh Yadav, Jaj Prakash Yadav and Smt. Phuljharia on 2.8.2003, to which they pleaded not guilty and claimed to be tried.

In order to prove the charge, prosecution examined P.W. 1 Keshav Yadav, P.W, 2 Bhola Yadav, P.W. 3 Harihar Yadav, P.W. 4 Sri Ram Yadav, P.W. 5 Dr. J.P. Mall, P.W. 6 Maha Maya Prasad Singh, S.I., P.W. 7 A.P. Maurya, S.I., P.W. 8 Head constable Ram Surat and P.W. 9 J.P. Tiwari S.O. in all. The statements of accused persons were recorded by the Trial Court under section 313 Cr.P.C. in which they denied the prosecution evidence and claimed to have been falsely implicated. No evidence was produced on behalf of the accused persons in their defence.

P.W. 5 Dr. J.P. Mall conducted postmortem examination of dead body of Yogendra on 15.1.2003 at 3.45 PM in mortuary and found neck cut through and through and head severed from body. In view of bis opinion the deceased died due to shock and haemorrhage on account of antemortem injuries inflicted to him. The death of the deceased was likely caused during night of 12/13.1.2003 by a heavy cutting weapon. He proved post mortem examination report (Ex. Ka 2).

P.W. 7 A.P. Maurya, S.I. conducted inquest proceedings of dead body of deceased Yogendra on 14.1.2003, prepared inquest report and connected papers (Ex. Ka 6 to 11) and then he sealed the dead body and sent the same for postmortem examination. P.W. 8 Head Constable Ram Surat posted at P.S. Bheempura on 14.1.2003, prepared chick FIR (Ex. Ka 12) on the basis of report lodged by informant Keshav Yadav and made an entry in general diary vide its carbon copy (Ex. Ka 13). P.W. 6 Maha Maya Prasad Singh S.O. of P.S. Bheempura investigated this case on 14.1.2003, recorded the statements of witnesses inspected the place of occurrence and prepared site plan (Ex. Ka 3), seized simple and blood stained earth from the spot and prepared memo (Ex. Ka 4), seized six empty bottles of liquor and other articles from the spot and prepared memo (Ex. Ka 5) and after his transfer, investigation was handed over to PW 9 S.I. J.P. Tiwari, who conducted further investigation of the case, arrested the accused persons and recovered ''Dav'' weapon at the instance of accused Harikesh on 10.4.2003, sealed the same and prepared the recovery memo (Ex. Ka 15). He also prepared the site plan of said place of recovery and sent the weapon in sealed condition to chemical examiner for examination.

P.W. 1 Keshav Yadav informant narrating the entire sequence of events stated that on the day of occurrence his brother Yogendra left his house with Harikesh and Jai Prakash at 4 P.M. for Chatti Udharan and he did not come back in the night, at which he along with some persons tried to trace out his brother, but could not find him. Harihar Yadav and Bheem Yadav had disclosed before him that they had seen his brother Yogendra going with Harikesh, Jni Prakash and Smt. Phuljharia on kharanja road leading from Uddharan to Lohta on 12.1.2003 at about 6 P.M. and they were having liquor with them. He further stated that on 14.1.2003 he along with some persons reached railway station Govindpur, where Bhatni Banaras Passenger train was standing and Harikesh, Jai Prakash and Smt. Phuljharia were also present there and on enquiry they disclosed that on 12.1.2003 they killed Yogendra. In the meantime the train left the railway station and both of them also left the place by this train, but Smt. Phuljharia could not board and thus they caught her hold and enquired about Yogendra at which she disclosed that on 12,1.2003 she along with Harikesh, Jai Prakash and Yogendra had gone to brick kiln of Ram Jag Singh where they set fire and consumed the liquor and thereafter Harikesh and Jai Prakash overpowered Yogendra, and Harikesh assaulted Yogendra with sharp edged weapon namely ''Dav'' by cutting his neck. He then along with above persons and Smt. Phuljharia went to brick kiln of Sri Ram Jag Singh and found the dead body of his brother on the said place and his neck separated from the body and then he prepared report (Ex. Ka 1) and lodged at police station.

P.W. 2 Bhola Yadav stated that on 12.1.2003 at about 4 PM. accused Harikesh and Jai Prakash took Yogendra with them for taking liquor and during that night Yogendra did not come back to his house, at which he along with some persons tried to trace out Yogendra on 13.1.2003, but to no avail. He further stated that on 14.1.2003 at railway station Govindpur he found Harikesh, Jai Prakash and Smt. Phuljharia present and on enquiry accused Jai Prakash made his extrajudicial confession that they had committed murder of Yogendra and in the meantime the train standing thereon moved from the platform and Harikesh and Jai Prakash also left by said train, but Smt, Phuljharia could not board the same at which they overpowered Phuljharia and found dead body of Yogendra near the brick kiln of Ram Jag Singh at her pointing out.

P.W. 3 Harihar Yadav supported the prosecution story to this effect that on 12.1.2003 at about 6 PM he saw Yogendra going with Harikesh, Jai Prakash and Smt. Phuljharia from Udharan Chatti to "Lohta near tubewell of Chandra Deo Yadav and they were having pouches of liquor with them at that time and during that night Yogendra did not come back. He again stated that he also reached Govindpur Railway, Station on 14.1.2003 at about 66.30 AM where he saw Kaiikesh, Jai Prakash and Smt. Phuljharia present and on being asked, Harikesh and Jai Prakash disclosed that they killed Yogendra. He further stated that Harikesh and Jai Prakash then left the place by train but Phuljharia could not board the same and then they caught hold of Phuljharia who disclosed the entire sequence of events, at which all of them along with Smt. Phuljharia went to the said spot and found the dead body of Yogendra there at her instance and his head separated from the rest of the body.

P.W. 4 Sri Ram Yadav stated that on the date of occurrence at about 6 PM he saw Yogendra in the company of accused Jai Prakash, Harikesh and Smt. Phuljharia going towards a brick kiln and at that time they were having liquor in small polythene bags with them.

The learned Trial Court on the basis of evidence on record and circumstances attending to the case found accused Jai Prakash and Harikesh guilty of murder of Yogendra punishable under section 302 read with 34 IPC and convicted them accordingly. But Smt. Phuljharia was acquitted of the charge under section 302 read with section 34 IPC. The learned Trial Court held that her complicity for commission of offence was not found. The appellants Harikesh and Jai Prakash Yadav preferred separate appeals against the said judgment and order of conviction.

We have heard Sri Mahesh Prasad Yadav, learned advocate for appellants and Sri M.P. Singh learned Additional Government Advocate for respondent on these appeals at length and perused the record.

Learned Counsel for the appellants has contended that there is delay of about two days in lodging the FIR which has not been explained, because Yogendra Yadav is alleged to have disappeared on 12.1.2003 at 4 P.M. and FIR has been lodged on 14.1.2003 at 10.30 A.M. Learned Counsel has further contended that prosecution case is not probable and reliable as well as the chain of circumstances, is not complete. It is further submitted that the dead body of the deceased Yogendra is alleged to 3"�ave been recovered at the instance of accused Smt, Phuljharia, but she was not arrested by the police. The original general diary has not been produced by the prosecution as the same has been weeded out due to lapse of time prescribed by rules. Learned Counsel has further contended that the entire proceedings of the case are antedated.

18i The learned Counsel for the appellant has further contended that the prosecution has failed to adduce any evidence relating to the fact as to where the dead body was kept during the period from 14.L2003 to 15.1.2003 because the dead body is alleged to have been found by the informant and other witnesses at the pointing out of coaccused Phuljharia on 14.1.2003 in the morning hours and the postmortem examination is alleged to have taken place on 15.1.2003 at 3.45 PM in mortuary.

A perusal of evidence on record would go to show that the dead body was recovered from the brick kiln on 14.1.2003 in the morning at the pointing out of coaccused Phuljharia and then informant lodged an FIR on 14.1.2003 at 10.30 AM at P.S. Bheempura, Distt. Ballia as the distance of P.S. From place of occurrence was 7 Kms. It was natural for informant to take this time in lodging FIR. The inquest proceedings were conducted on 14.1.2003 during the period from 11 A.M. to 12 A.M. and the police took one hour period from 10.30 A.M. to 11 A.M. in reaching the spot from police station. The dead body was sent in sealed cover to police lines and hospital for postmortem examination which took place on 15.1.2003 at 3.45 P.M. Thus the contention raised by learned Counsel for appellants in this regard is of no consequence and on the basis of the same no conclusion in their favour can be drawn.

So far as this argument relating to delay in lodging FIR is concerned, there is no delay on the part of the informant. No doubt the informant did not inform the police about disappearance of Yogendra Yadav during the period from 4 P.M. of 12.1.2003 to the morning hours of 14.1.2003 because he along with his well wishers was busy in searching out his brother during said period ard he did not know about his brother being murdered till his dead body was recovered at the instance of Phuljharia. Thus there was no delay on the part of informant in lodging FIR and as soon as he found dead body of his brother he immediately lodged FIR at P.S. Bheempura. In view of above observations in the present case the delay in lodging FIR has been found to be completely explained and on this count the prosecution case cannot be said to be suspicious at all. No benefit can be given to the appellants on the basis of alleged delay in lodging FIR.

The learned AGA has relied on State of Punjab v. Kamail Singh, AIR 2003 SC 3609 = 2003 (10) AIC 612 (SC) = 2003 (47) ACC 654 (SC) wherein the Hon''ble Apex Court has observed in Para7 as below:

"7 On the contrary, evidence on record clearly shows that the information was lodged at 8 a.m. at the police chowk, and the FIR was registered at the police station at 9.35 a.m. and it reached the Magistrate at 3 p.m. It is baffling as to how and on what material High Court came to the conclusion that the FIR came into existence at 2 p.m. Additionally considering the distance between the place of occurrence, police chowk, police station and the Court of the Magistrate, it cannot be said that there was any unexplained delay so far as registration of FIR and dispatch to the Magistrate are concerned. Merely because the information was not lodged at the police chowk or the police station in the night, that cannot be a suspicious circumstance in view of the factual position noted by the Trial Court."

The learned Counsel for appellants also contended that there was no motive alleged in FIR or in the evidence on record as to why appellants committed murder of Yogendra Yadav. The learned Trial Court recorded findings to this effect that it was proved by prosecution on the basis of evidence on record that above mentioned witnesses saw accused Harikesh, Jai Prakash and Phuljharia going towards brick kiln and at that time, they were having liquor pouches with them. It was also proved that Phuljharia was having illicit relations with Harikesh and Phuljharia disclosed before the above witness, that all of them set fire near the brick kiln and consumed liquor. The learned Trial Court further observed that after having taken liquor deceased Yogendra might have insisted of having sexual intercourse with Phuljharia, which might have enraged her lover Harikesh Yadav, who then might have committed murder of deceased Yogendra by cutting his neck with ''Dav'' with the help of his coaccused Jai Prakash and his beloved Phuljharia.

The Hon''ble Apex Court in lal Diwan v. State of U.P., 1995 (32) ACC 716 (SQ = 1995 (4) Crimes 301 (SC) has categorically observed that often the motive is locked up in the heart of the offender and then prosecution is not bound to prove the motive of any offence in a criminal case, in as much as the motive is known only to the perpetrator of crimes and may not be known to others. This Court in Barkanoo v. State, 1995 All. LJ1795 has also expressed the similar view.

The learned Trial Court did not find any material contradiction or discrepancy in prosecution evidence and found the same to be completely reliable. No role, involvement or complicity of Phuljharia in commission of murder of Yogendra Yadav was found by the learned Trial Court as she had accompanied her paramour Harikesh and his friend Jai Prakash for enjoyment and she neither intended to commit murder nor she played any role in commission of murder of Yogendra and thus she was rightly acquitted of the charge by learned Trial Court. The learned Court below recorded his categorical findings that accused Harikesh Yadav with the help of Jai Prakash Yadav, committed murder of Yogendra Yadav.

The learned Counsel for appellants had relied on Kanhai Mishra @ Kanhaiya Misar v. State of Bihar, 2001 (1) JIC 863 (SC) = 2001 (42) ACC 696 (SC) in which the only circumstance which the prosecution has proved against the appellant is circumstance No. 1 i.e. that on the date of occurrence the appellant came to the house of the informant in the morning and gave a proposal to his daughter, for going to the orchard for plucking flower which cannot be said to be inconsistent with innocence of the appellant. The above solitary circumstance has been described in Para 4 and 5 of the judgment passed in above case, which is reproduced as below:

"4. The circumstances which weighed with the two Courts below in convicting the appellant may be enumerated hereunder: (I) The appellant came to the house of the informant on the date of the occurrence at 5 O'' clock in the morning on the pretext of taking tobacco from him, met him and his daughter Rita Kumari, enticed her to go to the orchard of Shobha Kant Mishra for plucking flowers on Madhu Srawani day for being used by elder daughter of the informant, who was newly married, for performing Puja.

(II) The appellant left the house of the informant along with Rita Kumari for the orchard.

(III) The appellant and the deceased Rita Kumari were seen going towards the orchard.

(IV) The appellant and the deceased were seen in the field of Shobha Kant Mishra plucking flowers.

(V) The appellant was seen fleeing away in the vicinity of the jute field immediately after the alleged occurrence.

(VI) Immediately, after the alleged occurrence, the appellant absconded from his house and surrendered in Court only after about a month of the alleged occurrence."

The Hon''ble Apex Court in Para 5 has observed that:

It is well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person''s conviction if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence the whole endeavour and effort of the Court 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. If the circumstances proved against the accused in a case are consistent either with the innocence of the accused or with his guilt, he is entitled to the benefit of doubt. Reference in this connection may be made to a Constitution Bench Judgment of this Court in the case of M.G. Aganval v. State of Maharashtra, AIR 1963 SC 200 and recent decisions of this Court in the cases of Ronny alias Ronald James Mwaris and others v. State of Maharashtra, 1997 (Suppl) ACC 312 (SC) = JT 1998 (2) SC 375 = 1998 (3) SCC 625 and Joseph S/o Kooveli Poulo v. State of Kerala., JT 2000 (6) SC 195 = 2000 (2) JIC 990 (SC) = 2000 (5) SCC 197"

The facts of above case are liable to be distinguishable from the case in hand, in which number of circumstances have been proved by prosecution, which form complete chain, while in above case only one circumstance is alleged to have been shown. P.W. 1 Keshav Prasad stated that his brother Yogendra had left his house with appellants Harikesh and Jai Prakash on 12.1.2003 at 4 P.M. and he did not come back in the night. He further stated that he along with some persons including above witnesses tried to trace out his brother in the night and on 13.1,2003 but they could not find him. He continued to state that they went to the house of appellants who were also found missing from their houses. He in his crossexamination disclosed that in the past his brother Yogendra also used to take liquor in the company of appellants and he tried to make him understood that he should keep distance from them but to no avail. P.W. 2 Bhola Vadav stated that on 12.1.2003 at about 4 P.M. he had seen deceased Yogendra in the company of appellants who had taken him from his house for taking liquor. He also supported the version of P.W 1 Keshav Yadav on other material points, P.W. 3 Harihar Yadav claimed that he had seen the deceased Yogendra with appellants and Phuljharia going from Udharan Chatti to Lohta near tube well of Chandra Dev Yadav on 12.1.2003 at about 6 P.M. Both these witnesses corroborated the testimony of each other on all material points. P.W. 4 Shri Ram Yadav who supported the above version that deceased Yogendra and appellants as well as Phuljharia were seen going towards brick kiln on 12.1.2003 at about 6 P.M. On 14.1.2003 in the morning hours at Govindpur Railway Station appellants made extra judicial confession before above witnesses to this effect that they committed murder of Yogendra. Thereafter appellants boarded a passenger train and left the place, but the witnesses present there overpowered Phuljharia who took them to the place of occurrence where the dead body of Yogendra was found and his head was found severe from rest of his body. In view of above complete chain of circumstances, the Trial Court rightly found the appellants guilty of murder.

The reliance has also been placed on Mani Ram v. State of Lf.P., 2004 (18) AIC 144 (Alld. HCLB) = 2004 (48) ACC 767 = 2004 (1) JIC 519 wherein this Court has observed that conviction of accused can be based on circumstantial evidence if circumstances are firmly established; they unerringly lead to inference of guilt; they are wholly in consistent with inference of innocence of accused; they are incapable of being explained on any reasonable hypothesis excepting guilt of accused. On the basis of last seen evidence conviction cannot be sustained in absence of any other link pointing to guilt of accused. The learned Counsel for appellants has further placed reliance on Inderjit Singh v. State of Punjab, AIR 1991 SC 1674 wherein similar view has been expressed by Hon''ble Apex Court. The learned AGA repelling above contentions has relied on Subramani v. State, 2004 SCC (Crl.) 1064 in which accused was last seen with deceased, who was alleged to have been raped and murdered thereafter, and her body was found where she and the accused were last seen together. Accused was not seen in his house after the incident and he had no acceptable explanation for his absence. The lungi of the accused was bloodstained and accused had no explanation as to when and how he parted company with deceased. The Full Bench of Hon''ble Apex Court held in above case that the burden would shift on the accused to explain the circumstances as to when and how he parted company with the deceased. Accused''s only response being of denial, the only inference that could be drawn was one of the accused''s guilt.

The reliance has also been placed on Amit (c) Ammu v. State of Maharashtra, 2003 (10) AIC 623 (SC) = 2003 (47) ACC 629 (SC) = (2003) 8 SCC 93 in which rape was committed and thereafter victim was murdered the circumstantial evidence of last seen was produced by prosecution as two witness had last seen the accused and victim and their testimony was found trustworthy. The Hon''ble Apex Court observed that the burden was on accused to explain how and in what circumstances the victim suffered the death, but accused did not offer any explanation in his statement under section 313 Cr.P.C, the evidence of last seen was sufficient to hold the accused guilty of offences punishable under section 376 and 302IPC.

The learned AGA has further relied on Trimukh Maroti Kirkan v. State of Maharashtra, 2006 (47) AIC 47 (SC) = (2006) 10 SCC 681 wherein the Hon''ble Apex Court has observed that: Where prosecution succeeds in leading evidence to show that (i) either the husband and wife were last seen together, or (ii) the offence was committed in the dwelling house, where the husband also resided, and if the accused husband offers no explanation as to the injuries received by his wife or if the explanation is false. These circumstances would be strong to indicate that the husband committed murder of his wife.

The reliance has been placed on Joseph v. State of Kerala, (2000) 5 SCC 197 = 2000 (41) ACC 105 (SC) wherein the Hon''ble Apex Court has observed that conviction can be based on circumstantial evidence. The Hon''ble Apex Court in para 10 of judgment has laid down following propositions of law, which is reproduced as below:

"It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized 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 bar 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."

In the present case the testimony of prosecution witnesses, who proved the chain of circumstances by their evidence, has not been found1 shaky in any manner. The appellants have failed to prove this fact as to why the witnesses have adduced their evidence against them. No ground has been found to disbelieve or discredit testimony of witnesses made against appellants. No ground has been found on record for false implication appellants. There is no material contradiction, inconsistency or discrepancy in their evidence.

Moreover, it has been continuously observed by Hon''ble Apex Court in various judgments that prosecution witnesses should not be disbelieved on their being interested in any manner. In Himmat Sukhadeo Wahurwagh v. State of Maharashtra, (2009) 3 SCC 1 the Hon''ble Apex Court has observed that it is true, as contended, that a transformation has indeed taken place within the last three or four decades and from the query "why should an interested witness be believed" to "wny should such a witness be disbelieved as he is not likely to leave out the real culprits" reflects the anxiety and other helplessness of criminal courts as independent witnesses tend to turn hostile."

In State of Rajasthan v. Kanshi Ram, AIR 2007 SC 144 = 2007 (Suppl.) ACC 485 (SC) the Hon''ble Apex Court has observed the definite proposition of law which is reproduced as below:

"Since the respondent was not traceable the mother of the deceased became anxious to know about their whereabouts and requested prosecution witnesses to search for them. In the course of investigation the respondent never appeared at any stage, and for the first time he appeared on the scene when he was arrested on February 17, 1998. Even after his arrest he did nor offer any explanation as to when he parted company with his wife nor did he offer any exculpatory ex. planation to discharge the burden under section 106 of the Evidence Act. These above said incriminating circumstances form a complete chain and are consistent with no other hypothesis, except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and/or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence. The High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore the order of acquittal of accused passed by the High Court be liable to be set aside."

In the present case the incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of appellantsand nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence of the appellants. They in their statements recorded under section 313 Cr.P.C. instead of making an attempt to explain or clarify the incriminating circumstances connecting them with the crime by their adamant attitude of total denial of every thing when these circumstances were brought to their notice by the Court not only lost the opportunity but stood self condemned. Such incriminating links of facts could have been only explained by the appellants and nobody else, they being personally and exclusively within their knowledge. The Trial Court found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect them with the crime committed.

We have found in this case that the appellants provided the missing link to connect them with the crime by the blunt and outright denial of every question and incriminating circumstance put to them under section 313 Cr.P.C. Thus the prosecution succeeded in providing the facts with sufficient and reasonable certainty in order to connect the appellants with the death and cause of death of Yogendra. We have no hesitation to agree with the findings of the Trial Court holding the appellants guilty of offence punishable under section 302 for committing murder of Yogendra. We see no reason to interfere with the judgment of the trial Court. Appeal is thus dismissed as well as judgment and order passed the Trial Court is confirmed.

The record of Trial Court along with copy of the judgment passed by this Court is directed to be sent back to the Court concerned for immediate compliance and endorsement in the concerned register. The Court below is directed to send compliance report within three months.