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OM PRAKASH V/S STATE OF RAJASTHAN, THROUGH PUBLIC PROSECUTOR, decided on Thursday, December 22, 2016.
[ In the High Court of Rajasthan Jaipur Bench, Criminal Appeal No. 508 of 2008. ] 22/12/2016
Judge(s) : DINESH CHANDRA SOMANI & AJAY RASTOGI
Advocate(s) : J.R. Bijarnia, Learned Counsel. S.K. Saini, learned PP.
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    1. This criminal appeal has been preferred under Section 374 of CrPC against the judgment of conviction dated 22.04.2008 and order of sentence dated 23.04.2008 passed by learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City Jaipur in Sessions Case No. 62/2006 whereby the appellant has been convicted under Section 302 of IPC and sentenced to life imprisonment and a fine of Rs. 2 000/- and in default of payment of fine to further undergo three months' rigorous imprisonment.2. Prosecution story in brief is that on 05.03.2006 at 10.30 PM the complainant-Mukesh(PW-1) submitted a written report (Ex.P-1) to SHO Police Station Jhotwara Jaipur stating therein that marriage of his sister Smt. Pinky Devi was solemnized with Om Prakash son of Bheruji Sain resident of Khora Bawdi before 10-12 years. His brother-in-law Om Prakash was having doubt on his sister due to which he used to harrass her. Today he was out of station and he got information that for this reason his brother-in-law Om Prakash quarrelled and committed her murder. He gave his House No. 27-B Green Park Dadi Ka Phatak to his sister for her residence because her husband and inlaws used to harrass her. He has doubts that Om Prakash knowingly murdered his sister. Upon this report endorsement was made on direction of Virendra Kumar (PW-22) SHO Police Station Jhotwara Jaipur and FIR No. 183/2006 (Ex.P-2) was registered for commission of offence under Section 302 of IPC.3. During the course of investigation Panchayatnama was prepared and autopsy of the corpse of the deceased Pinky Devi was performed by Dr. N. L. Disania (PW-23). Statements of Mukesh and other witnesses were recorded under Section 161 of CrPC. Site plan was prepared. Clothes worn by Pinky Devi (the deceased) at the time of incident were seized. Accused-appellant Om Prakash was arrested. On information given by the accused-appellant under Section 27 of the Evidence Act hair of the deceased's head hair clip and pieces of bangles of the deceased were recovered from the place of occurrence and stola (chunni) used in commission of the offence was also seized. Photography of place of occurrence got conducted. Hair clothes and viscera of the deceased were sent to Forensic Science Laboratory for chemical examination and after usual investigation offence under Section 302 of IPC found prima-facie proved against the accused-appellant Om Prakash therefore charge-sheet was filed against him in the Court of Additional Chief Judicial Magistrate No. 3 Jaipur City Jaipur who committed the case to Sessions Judge Jaipur City Jaipur and thereafter the case was transferred to the Court of Additional Sessions Judge (Fast Track) No. 1 Jaipur City Jaipur.4. In order to prove the case the prosecution examined 24 witnesses and marked 41 documents.5. Thereafter learned trial court put oral evidence of the prosecution witnesses and documentary evidence produced by the prosecution to the appellant under Section 313 of CrPC. In reply to the prosecution evidence the accused-appellant admitted that Pinky (the deceased) was his wife and sister of Mukesh (PW-1) and his dead body was handed over to her brother-Mukesh. He also admitted the fact that he brought the autorickshaw of Subhash (PW-8) and took his wife Pinky in his Autorickshaw. Accused-appellant admitted the statement of (PW-8) Subhash and (PW-20) Mukesh Photographer to be true. He also admitted that he was arrested. The appellant denied the fact of recovery of hair clip and pieces of bangles and stola (chunni) from his house. He also stated that he gave no information under Section 27 of Evidence Act. He further stated that police himself put bangles on the bed and thereafter asked him to pick the same and give to them. He does not know the cause of death of his wife-Pinky and he does not know whether injuries were there on the body of the deceased. He does not remember if he brought Dr. Prabhu Dayal to his house. He did not commit murder and he does not know who committed the same. Accused-appellant did not examined any witness in his defence.6. After completion of trial learned trial court convicted the appellant for the offence under Section 302 of IPC and sentenced him as indicated herein above.7. Being aggrieved with judgment of conviction and order of sentence awarded to the accused-appellant he preferred the present appeal before this Court against the judgment of trial court dated 22nd/23rd of April 2008.8. Learned counsel for the appellant submitted that main witness of the prosecution Mukesh (PW-1) who lodged the report has not supported the prosecution case and declared hostile. He himself admits that his signatures were got by the police on blank papers and the report was lodged at the instance of police. Further PW-2 Ramdayal PW-3 Mahaveer Prasad PW-4 Pooran PW-5 Raju PW-6 Kaluram PW-7 Prabhu Dayal PW-11 Kiran PW-14 Pradeep Kumar PW-16 Hariom Singh PW-17 Mona @ Meena PW- 18 Sunil PW-19 Vimla PW-21 Yogesh Sharma and PW-24 Kailash Chauhan have not supported the prosecution case and they were declared hostile. PW-8 Subhash was also declared hostile. Rest of the witnesses are either police personnels or not having any concerned with the present matter. Merely on the evidence of police agency learned trial court convicted the appellant which is bad in law and deserves to be quashed and set aside.9. Learned counsel for the accused-appellant also submitted that the case rests upon circumstantial evidence only and golden rule for the same is that there should be no missing link in the chain of circumstances and all the chain of circumstances should be completed but in the present case the prosecution has miserably established any of the circumstance. Learned counsel also submitted that in the case of circumstantial evidence conviction cannot be based only upon the theory of last seen together.10. Learned counsel for the accused-appellant also submitted that there are several infirmities and contradictions in the statements of prosecution witnesses therefore no reliance can be placed upon the testimony of such witnesses. The witnesses of prosecution have suppressed the genesis of the occurrence and have changed their statements at various places. Therefore they cannot be treated as credible and reliable witnesses. Learned counsel for the accused-appellant further submitted that the learned trial Court has failed to appreciate that there was no previous antecedents of the accused-appellant which can show that the deceased was subjected to cruelty by the accused. Prosecution failed to produce any independent witnesses before the learned trial court. If there was any cruelty neighbouring witnesses could have been examined by the prosecution. Learned counsel for the accused-appellant further submitted that the learned trial court has failed to appreciate the fact that if the petitioner would have committed the offence why he would have accompanied the deceased for hospital rather run away from the place of incidence. The conduct of the police is doubtful because the police first of all put the bangles on the bed and thereafter asked the appellant to give the same to the police with a view to implicate the appellant in false manner. In such circumstances the conviction of the appellant is bad in law and deserves to be quashed and set aside and prayed to accept the appeal setting aside the impugned judgment of conviction and order of sentence and to acquit the accused-appellant for the charge levelled against him.11. Learned counsel for the accused-appellant placed reliance on :-1. (2015) 4 Supreme Court Cases 393 Ashok v. State of Maharashtra2. (2014) 4 Supreme Court Cases 715 Kanhaiya Lal v. State of Rajasthan3. (2010) 6 Supreme Court Cases 525 Niranjan Panja v. State of West Bengal4. (2010) 15 Supreme Court Cases 588 Madho Singh v. State of Rajasthan5. (2015) 4 Supreme Court Cases 739 Nagaraj v. State represented by Inspector of Police6. (2011) 3 Supreme Court Cases 306 Wakkar & Anr. v. State of Uttar Pradesh12. Per contra Mr. S. K. Saini learned Public Prosecutor for the State has supported the impugned judgment and submitted that learned trial court has rightly convicted the accused-appellant on the basis of cogent and reliable evidence which proved his guilt beyond reasonable doubt.13. Learned Public Prosecutor also contended that the accused-appellant can be convicted only on last seen theory because the offence took place in the dwelling house where the appellant and Pinky (the deceased) resided together and the appellant has not explained as to how his wife (the deceased) received injuries which is strong circumstance and indicates that he is responsible for commission of the crime. Therefore the doctrine of last seen together shifts the burden of proof on the accused-appellant requiring him to explain as to how the incident had occurred. But the appellant has failed to furnish any explanation in this regard which give rise to a very strong presumption against him.14. Learned Public Prosecutor also submitted that the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus would have burden of proof as per Section 106 of the Evidence Act.15. Learned Public Prosecutor also submitted that in addition to the evidence of last seen together other circumstances surrounding the incident like recovery of hair hair clip pieces of bangles of the deceased and stola (chunni) from the house of exclusive possession of the appellant in consequence of informations given by him under Section 27 of the Evidence Act and non-explanation of death of the deceased may lead to a presumption of guilt of the appellant. Learned Public Prosecutor further contended that the prosecution has proved the offence against the accused-appellant beyond reasonable doubt and prayed to dismiss the appeal being devoid of merits.16. We gave our anxious consideration to the rival submissions of learned counsel for the accused-appellant and learned Public Prosecutor for the State and perused the material on record.17. PW-1 Mukesh is brother of Smt. Pinky (the deceased) and brother-in-law of the accused-appellant and the FIR (Ex.P-2) was registered on his written report (Ex.P-1).PW-1 Mukesh stated that before 10-12 years marriage of his younger sister was solemnized with Om Prakash (the accused-appellant). On 4th or 5th of March 2006 when he was returning from Kota he got information that his sister Pinky has expired and was asked to come soon. When he reached dead body of Pinky was lying in mortuary. He did not lodge the report (Ex.P-1) though it is signed by him. This witness did not support the prosecution case and turned hostile. During cross-examination by learned Additional Public Prosecutor the witness admitted his signatures on written report (Ex.P-1) FIR (Ex.P-2) site plan (Ex.P-4) and memo of handing over of dead body (Ex.P-3). The witness also admitted the suggestion that the deceased Pinky was residing in the house of the witness with her husband (the appellant) which was given by him. The witness also admitted that Ex.P-1 is written by him but adding himself that it was written at the instance of police.18. PW-22 Virendra Kumar the then SHO of Police Station Jhotwara stated that on 05.03.2006 Mukesh son of Ram Babu submitted a written report (Ex.P-1) whereupon endorsement was made under his direction and thereafter Mukesh signed it and case No. 183/2006 under Section 302 of IPC was registered whose FIR is Ex.P-2. Initially he was named as Investigation Officer but later on the investigation was handed over to Rameshwar Singh Sub Inspector who conducted the investigation.19. PW-2 Ram Dayal is maternal uncle of the deceased Pinky and maternal uncle-in-law of the appellant. According to this witness before death Pinky lived for some time in the house of Mukesh with her husband Om Prakash. He does not know how Pinky died and who killed her. This witness did not support the prosecution case and was declared hostile. During cross-examination by the Additional Public Prosecutor the witness stated that relevant parts of police statement (Ex.P-6) are wrong and he did not give this statement.20. PW-3 Mahaveer Prasad is maternal uncle of the appellant did not support the prosecution case and was turned hostile. During cross-examination by learned Additional Public Prosecutor the witness admits his signatures on Panchayatnama of dead body (Ex.P-8). The witness also stated that relevant parts of police statement (Ex.P-7) are wrong and he did not give this statement.21. PW-4 Pooran is elder brother of the appellant did not support the prosecution case and was declared hostile. However he admitted his signatures on Panchayatnama of dead body (Ex.P-8). He also stated that relevant part of police statement (Ex.P-9) is wrong and stated that he did not give this statement.22. PW-5 Raju is cousin of the deceased who stated that he does not know as to how Pinky died. This witness did not support the prosecution case and was declared hostile. This witness also stated that relevant portions of police statement (Ex.P-10) are wrongly written and he did not give this statement.23. PW-6 Kalu Ram is grand uncle of the deceased and maternal uncle of the appellant has not supported the prosecution case. However he admitted his signatures on Panchayatnama of dead body (Ex.P-8). The witness was declared hostile. During cross-examination by learned Additional Public Prosecutor the witness stated that relevant portion of police statement (Ex.P-11) is wrongly written and he did not give this statement.24. PW-7 Prabhu Dayal runs a clinic as doctor in Green Park Jhotwara Jaipur. According to this witness on 05.03.2005 at about 10-11 AM he was examining the patients in his clinic. At that time one boy came to him on bike and requested for come to see a serious patient. He sat on bike and went with him in a house in Green Park area. On being asked he was told that the lady has consumed something and is lying unconscious. He advised to took her to SMS Hospital. He did not see the lady and came out from there. He did not see husband of the lady there. He did not go to the room. This witness did not support the prosecution case and was declared hostile.25. PW-8 Subhash is autorickshaw driver. According to this witness on dated 05.03.2006 at about 10-10.30 AM he was standing with his taxi (autorickshaw) at taxi stand of Dadi Ka Phatak. A person came to him on a bike and told that condition of a lady is bad and she has to be taken to hospital. Thereafter he went to the house of that lady with his taxi and got her seated in. She was yearning. Accused present in court one more male and a female also boarded in his taxi with that lady. On their instructions he took them to Police Station to lodge a report. Then police told them to go to Kanwatia Hospital first where available police personnels will do this work. Instead of going to Kanwatia Hospital from Police Station they went to Vishvakarma first for flick burnt (Jhaad Phoonk) to the lady on the directions of the accused. Flick to Burnt (Jhaad Phoonk Karne Wali) advised to took the lady to hospital. Thereafter they went to Pink City Hospital on Road No. 1 of Vishvakarma where doctor made inquiries from the accused and then advised him to took the patient to Government Hospital. Then they took her to Kanwatia Hospital. On advice of persons of Kanwatia Hospital they took the lady to SMS Hospital. This witness was also declared hostile as he did not support the prosecution case fully. During the cross-examination by the learned Additional Public Prosecutor the witness stated that when he went to Green Park to took the lady patient he saw there the accused one more lady and a male. He does not know if doctor was there or not. The witness stated that A to B portion of police statement (Ex.P-13) is right. According to A to B portion of Ex. P-13 Dr. P. D. Rajoria (PW-7) was also standing there and he said to took the patient to hospital immediately. During cross-examination by counsel for the accused-appellant the witness stated that A to B portion of statement Ex.P-13 was not given by him to police voluntarily.26. PW-16 Hariom Singh turned hostile and did not support the prosecution case. He also denied having given police statement Ex. P-27.27. PW-17 Mona @ Meena is niece of the appellant who turned hostile and did not support the prosecution case. During cross-examination by learned Additional Public Prosecutor the witness stated that A to B portion of police statement (Ex.P-28) is wrongly written and she did not give this statement.28. PW-18 Sunil is brother of the appellant who turned hostile and did not support the prosecution case. During cross-examination by Additional Public Prosecutor the witness stated that police statement Ex.P-29 is wrongly written and he did not give any statement to the police.29. PW-19 Vimla turned hostile and did not support the prosecution case. The witness stated that she never took any lady to hospital or for flick burnt and she does not know any person named Om Prakash. She also denied having given any statement to the police and also stated that Ex.P-30 is wrongly written.30. PW-21 Yogesh Sharma is priest of Veshno Devi Temple Murlipura Jaipur. According to his statement many persons come daily to temple for darshan and flick burnt. He does not remember if the accused-appellant present in court came to him with any lady on 05.03.2006 for flick burnt and he would have told him to took her to hospital. He did not see any marks on the neck of the lady. This witness did not support the prosecution case and was declared hostile. During cross-examination by learned Additional Public Prosecutor the witness stated that A to B portion of police statement (Ex.P-38) is wrongly written and he did not give this statement.31. PW-9 Manglaram Constable gave evidence regarding deposit of four sealed packets along with forwarding letter of Superintendent of Police in FSL on 03.05.2006 and obtained receipt Ex. P-14.32. PW-10 Hardwari Lal proved the arrest memo of the accused-appellant which is Ex.P-15.33. PW-11 Kiran is uncle-in-law of the appellant and uncle of the deceased. This witness did not support the prosecution case and he was declared hostile. However he admitted his signatures on seizure memo of hair hair clip and glass bangles Ex.P-16 and seizure memo of clothes of the deceased-Pinky Ex.P-17 and site plan Ex.P-4.34. According to PW-12 Ajay Sharma police seized a stola (chunni) from a house situated in Dadi Ka Phatak sealed the same and prepared seizure memo Ex. P-18. The witness proved his signatures on seizure memo Ex.P-18 and site plan of recovery Ex.P-19. In cross-examination the witness stated that he signed on blank papers of seizure memo and site plan.35. PW-13 Fateh Mohammed Khan Constable gave evidence that on 28.03.2006 he took two sealed jars and one sealed bottle from Maalkhana Incharge with a letter of Superintendent of Police and deposited the same in FSL on the same day against receipt Ex.P-20. The witness also proved carbon copy of letter of Superintendent of Police as Ex.P-21.36. PW-14 Pradeep Kumar is friend of brother of the deceased Pinky. This witness did not support the prosecution case and was declared hostile. However he admitted his signatures on seizure memo of clothes of the deceased Ex. P-17.37. PW-15 Rameshwar Singh Sub Inspector of Police gave a detailed account of investigation conducted by him. According to the witness he recorded the statement of witnesses as stated by them. Panchayatnama of dead body (Ex.P-8) was prepared in presence of witnesses. Site plan of place of occurrence was prepared on the information given by the accused after his arrest on 06.03.2006. Clothes of deceased Smt. Pinky were seized vide Ex.P-17. Dead body was handed over to Mukesh brother of the deceased vide Ex.P-3. Report was obtained after autopsy of the corpse. The accused-Om Prakash verified the place of occurrence. Hair hair clip pieces of bangles of the deceased and stola (chunni) used in commission of the offence were recovered in consequence of informations given by the accused under Section 27 of the Evidence Act. Viscera of the deceased received from Medical Jurist was sent to FSL with Constable and obtained receipt Ex.P-20. The witness also exhibited stola (chunni) as Article-1 and clothes worn by the deceased as Article 2 and 5. The witness also marked Article 3 and 4 marked FSL report as Ex.P-4 and police statements of witnesses who turned hostile. During cross-examination the witness stated that on inquiry from the neighbours regarding the behaviour they said that Pinky and Om Prakash used to quarrel but they refused to record their statement. The shop of the accused-Om Prakash was one-fourth furlong away from the house. The witness also stated that the accused has two children he left both children to his parents and he was alone with his wife in this house.38. PW-20 Mukesh gave evidence that on 07.03.2006 he went with police personnels near Dadi Ka Phatak for photography and he took photographs by digital camera which are available on record and were marked as Ex.P-31 to Ex.P-37. The witness also stated that the accused was with the police and he opened the door.39. According to PW-23 Dr. N. L. Disania on 06.03.2006 he was posted in SMS Hospital. On that day at about 2.00 PM he and Dr. Summant Dutta performed autopsy on corpse of deceased Smt. Pinky wife of Om Prakash Sain as members of Medical Board. According to hospital record the deceased died on 05.03.2006 at about 1.45 PM. On examination he found three external injuries;1. Bruise of size 2x2 cm on left leg with reddish colour 2. Multiple abrasions of various sizes on right forearm and3. Ligature mark like bruise with abrasion on neck in area of size 21 cm long and 1.5 cm to 4.5 cm wide. Ligature marks were present on front and both sides on the neck which was transversely and was reddish brown in colour. Air ways rings were locked.40. The witness also stated that all the injuries were ante-mortem. In opinion of the Medical Board the cause of death was asphyxia due to ante-mortem strangulation which was sufficient to cause death in ordinary course of nature. In his opinion asphyxia was due to strangulation and not due to throttling. The witness further stated that viscera of the deceased was sent for chemical examination. The witness proved signatures of himself and Dr. Summant Dutta on post-mortem report Ex.P-39. FSL report of viscera is Ex.P-25 according to which no poison was found. The witness was thoroughly cross-examined but no such fact came in his cross-examination which may create any doubt on his testimony.41. PW-24 Kailash Chouhan is uncle-in-law of the accused-appellant. This witness was turned hostile and he did not support the prosecution case. However he admitted his signatures on seizure memo of hair hair clip pieces of bangles Ex.P-16 and site plan Ex.P-4.42. After the death of Smt. Pinky Investigation Officer Rameshwar Singh prepared Panchayatnama of the corpse in presence of Mahaveer Prasad (PW-3) Pooran (PW-4) Kaluram (PW-6) and some other persons after appointing them panch. PW-3 PW-4 and PW-6 turned hostile and did not support the prosecution case however they admitted their signatures on Panchayatnama (Ex.P-8). PW-15 Rameshwar Singh Investigation Officer proved the Panchayatnama (Ex.P-8). According to Panchayatnama on inspection of the body of the deceased external injuries on left leg right hand and ligature mark on the neck were found and in opinion of Panchan (witnesses) the cause of death of Smt. Pinky is strangulation.43. The autopsy on the body of Smt. Pinky was conducted by two doctors one of them namely Dr. N. L. Disania has been examined as PW-23. According to him three external injuries were found i.e.1. Bruise of size 2x2 cm on left leg with reddish colour 2. Multiple abrasions of various sizes on right forearm 3. Ligature mark like bruise with abrasion on neck in area of size 21 cm long and 1.5 cm to 4.5 cm wide. Ligature marks were present on front and both sides on the neck which was transversely and was reddish brown in colour. Air ways rings were locked.44. All the injuries were ante-mortem. It is opined that the cause of death of Smt. Pinky is asphyxia due to antemortem strangulation which is sufficient to cause death in ordinary course of nature. Ex.P-39 is post-mortem report. Accepting the medical evidence it is clear that Smt. Pinky (the deceased) suffered a homicidal death.45. According to the prosecution appellant is the husband of the deceased Smt. Pinky and the offence took place in the dwelling house where the appellant and the deceased were residing together and the appellant has not explained as to how the deceased received injuries. According to PW-1 Mukesh the deceased was residing in the house of the witness with her husband-the appellant which was given by him. PW-2 Ram Dayal (maternal uncle of the deceased) has also stated that before death the deceased lived for some time with her husband-Om prakash in the house of Mukesh. According to PW-8 Subhash he took the patient (the deceased-Smt. Pinky) and the accused from house No. 27-B Green Park in his autorickshaw. Neither any cross-examination was done by the accused from the witnesses on the above evidence nor any suggestion was given to them that the deceased and the appellant were not residing together. It is also pertinent to note that the appellant nowhere denied the contention of the prosecution that the deceased and the appellant were residing together. Therefore from the evidence available on record it is established that the deceased (Smt. Pinky) and the accused-appellant were residing together as husband and wife in House No. 27-B Green Park Dadi Ka Phatak Jaipur which was given to the deceased by her brother Mukesh (PW-1).46. Case of the prosecution is that relations between the deceased and the appellant were not coordial. PW-15 Rameshwar Singh in his cross-examination has stated that he made inquiries from the neighbours regarding the behaviour of Pinky (the deceased) and Om Prakash (the appellant) and the neighbours told him that both (the deceased and the appellant) used to quarrel but they refused to record their statement because no one was prepared to involve himself in the dispute. It is pertinent to note that the accused-appellant did not produce any evidence to prove the relations to be coordial between the deceased and the appellant. Therefore there is no proof on the record of coordial relations between the deceased and the appellant.47. Case of the prosecution rests on the theory of last seen together. PW-7 Prabhu Dayal runs a clinic as doctor in Green Park area on plot No. 66. The place of occurrence is also there in Green Park area on plot No. 27-B. According to prosecution PW-7 Prabhu Dayal went to the house of the deceased and the appellant to see the lady patient- Smt. Pinky. The witness stated that on being asked he was told that the lady has consumed something and she was lying unconscious then he advised to took her to SMS Hospital and he returned back. PW-8 Subhash who took the deceased with the appellant in his autorickshaw has not fully supported the prosecution case and was declared hostile but whatever evidence he gave also supports the prosecution case. In statement under Section 313 of CrPC the appellant admitted the evidence given by PW-8 Subhash to be true. Therefore the evidence of this witness is very much important for the decision of this case. According to this witness a person came to him on bike and on his request he went with his autorickshaw to the house situated in Green Park wherefrom he got the lady patient seated in his autorickshaw. The witness also stated that the accused-appellant one more lady and a man also boarded in his autorickshaw. Thereafter on their instructions he took them to police station to lodge a report and thereafter took them to Veshno Devi Temple for flick burnt thereafter to a private hospital thereafter to Kanwatia Hospital and in last to SMS Hospital. It is not disputed that the deceased died on the same day in SMS Hospital Jaipur. According to PW-15 Rameshwar Singh shop of the appellant Om Prakash was one-fourth furlong away from the house. Neither there is any cross-examination from these witnesses nor any suggestion was given to them to establish that the appellant was not last seen together with the deceased rather he admitted the statement of PW-8 Subhash in his statement under Section 313 of CrPC. Therefore the prosecution has successfully proved that the deceased Pinky and the appellant Om Prakash were last seen together.48. In a case of circumstantial evidence the conduct of the accused is also an important factor. According to PW-7 Prabhu Dayal (doctor) on being asked by him he was told that the lady has consumed something. According to PW-8 Subhash the appellant took the patient (the deceased) to Pink City Hospital he stayed outside of the hospital. He does not know as to what was told by the appellant to the doctor. Doctor told that the lady has consumed something and advised to took her to Government Hospital as it is a police case. There is nothing on record to disbelieve on this evidence given by these witnesses.49. From the evidence of PW-8 Subhash which is admitted by the appellant in his statement under Section 313 of CrPC it is proved that on 05.03.2006 at about 10 to 10.30 AM a person came to him on a bike on taxi stand and told that condition of a lady is bad and she has to be taken to hospital. Therefore he went to the house of that lady and got her seated in his taxi. The appellant one more male and a female also boarded in his taxi with the lady and on their instructions he took them to the police station to lodge a report. The police told them to first go to Kanwatia Hospital where available police personnels will do this work. But instead of going to Kanwatia Hospital from police station they went to Vishwakarma for flick burnt to the lady. Flick to burnt also advised to took the lady to hospital. Thereafter they went to Pink City Hospital where doctor made inquires from the accused and then advised to took the patient to Government Hospital then they took her to Kanwatia Hospital. On advice of persons of Kanwatia Hospital they took the lady to SMS Hospital. It appears that when the appellant took the deceased in autorickshaw from his house she was yearning even then instead of taking her to the hospital the appellant first went to the police station to lodge a report where police personnels advised him to first reach to Kanwatia Hospital. But the appellant took his wife (the deceased) for flick burnt in Viswakarma and then to a private hospital in spite of police advice and thereafter to Kanwatia Hospital and thereby wasted 2-3 hours in going here and there. This circumstance also creates doubt on the conduct of the appellant.50. From the statement of PW-7 and PW-8 it transpires that the appellant has taken a stand that the deceased has consumed something poisonous resultantly her condition turned bad. After the death of Smt. Pinky PW-23 Dr. N. L. Disania performed the autopsy of the corpse preserved the viscera of the deceased in a sealed bottle and gave the same to police. Police sent the sample of viscera with forwarding letter of Superintendent of Police (Ex.P-21) with Constable Fateh Mohammed Khan (PW-13) to Forensic Science Laboratory on 28.03.2006 who deposited the sample on the same day and obtained receipt Ex.P-20. This fact is also proved by the statement of PW-15 Rameshwar Singh Investigation Officer. According to report of Forensic Science Laboratory Ex.P-25 on chemical examination portions of viscera and blood sample gave negative tests for metallic poisons ethyl and methyl alcohol cynide alkaloids barbiturates tranquillizers and insecticides. Therefore the theory of consuming something (poison) put forth by the accused-appellant has been negated by FSL report Ex.P-25.51. It is also pertinent to note that Dr. N. L. Disania (PW- 23) found external injuries on left leg right forearm and ligature mark on neck of the deceased which fact is also proved by Panchayatnama (Ex.P-8). The accused-appellant is last seen together with the deceased. He himself took the deceased in injured condition to the hospital in autorickshaw but he gave no explanation of injuries found on the body of the deceased.52. After post-mortem the Medical Jurist handed over the clothes i.e. one Saree and one Peticot worn by the deceased to the police which were seized by the Investigation Officer vide memo Ex.P-17 in presence of Pradeep (PW-14) and Kiran (PW-11). Though both the witnesses turned hostile. However they admitted their signatures on Ex.P-17. From memo Ex.P-17 it transpires that the Saree of the deceased was blood stained. But the appellant gave no explanation about the injuries found on the body of the deceased and blood found on her Saree.53. According to prosecution the other incriminating evidence against the appellant is seizure of stola (chunni) which was used in commission of the crime from the house of the appellant in consequence of information given by him under Section 27 of the Evidence Act. From arrest memo Ex.P-15 statement of PW-10 Hardwari Lal and PW- 15 Rameshwar Singh it is proved that the accused-appellant was arrested on 06.03.2006. In this respect PW- 15 Rameshwar Singh Investigation Officer has stated that on 10.03.2006 the accused-Om Prakash gave him voluntary information vide Ex.P-23 for recovery of stola (chunni) which was used to strangulate his wife to commit her murder but later on he refused. Thereafter on 11.03.2006 the accused-Om Prakash again gave voluntary information for recovery of stola (chunni) vide Ex.P-24 and in consequence thereof the accused was brought to the place of occurrence the accused took out the stola (chunni) which was buried near water tank. Thereafter the recovered stola (chunni) was seized and sealed in presence of witness Ajay Sharma (PW-12) vide Ex.P-18. Site plan of place of recovery Ex.P-19 was also prepared. PW-12 Ajay Sharma corroborated the statement of PW-15 and proved his signatures on Ex.P-18 and Ex.P19. PW-15 Rameshwar Singh was thoroughly cross-examined but no such fact came out which create any doubt on the recovery of stola (chunni) at the instance of accused-appellant from his house in consequence of information (Ex.P-24) given by him under Section 27 of the Evidence Act. This circumstance also goes against the accused-appellant.54. According to the statement of PW-15 Rameshwar Singh on 07.03.2006 the accused-Om Prakash gave him voluntary information Ex.P-22 under Section 27 of the Evidence Act about the place of occurrence where he killed his wife-Pinky by strangulation. In consequence thereof he went to the house of the appellant with him and seized hair of the deceased's head hair clip hair pin and some pieces of glass and lac bangles lying on bed in the room vide memo Ex.P-16 in presence of Kailash Chouhan (PW- 24) Kiran (PW-11) and also prepared site plan Ex.P-4 of place of occurrence. The witness has also proved information Ex.P-22 given by the appellant regarding verification of place of occurrence site plan Ex.P-4 and seizure memo Ex. P-16.55. PW-11 Kiran and PW-24 Kailash Chouhan are relatives of the appellant were turned hostile and did not support the prosecution case. However they admitted their signatures on recovery memo Ex.P-16 and site plan Ex.P-4. During the cross-examination of PW-15 Rameshwar Singh no such fact came on record which may create any doubt on the recovery of hair of head hair clip hair pin and broken pieces of bangles lying on the bed in appellant's room.56. As discussed above the appellant was last seen together with the deceased and no explanation was given by him about the pieces of bangles found on the bed. This circumstance also goes against the appellant and it can be very well inferred that the deceased received injuries in the quarrel took place between her and the appellant she also resisted the act of strangulation and the bangles worn by her broke in this quarrel.57. In Ashok v. State of Maharashtra (supra) the appellant allegedly killed his wife and two daughters. Their bodies recovered after three days from a river. The cause of death was throttling. There was no direct evidence of the crime and the case of prosecution based on circumstantial evidence alone. The FIR was lodged after one month and the delay in lodging FIR was not explained. There was no evidence of previous incident of any physical cruelty committed by the appellant and the motive given was completely irrelevant for explaining deaths. Hon'ble Apex Court held that prosecution has not adduced any clinching evidence in support of last seen together theory so as to shift burden of proof onto appellant. The appellant had put a very consistent defence story at all stages of the case without any inconsistency. Therefore Hon'ble Apex Court set aside the judgment of High Court upholding conviction. Whereas in this case the deceased received fatal injuries in the dwelling house where she was residing with the appellant and as discussed above the appellant has not explained the injuries received by the deceased. Therefore the law laid down by Hon'ble Apex Court in this case is not of much help to the appellant.58. In Kanhaiya Lal v. State of Rajasthan (supra) nobody witnessed the occurrence and case was based on circumstantial evidence. Appellant having gone with deceased was the singular piece of circumstantial evidence available against him. Motive was not proved and it was proved that there was coordial relationship between accused and deceased for a long time. Hon'ble Apex Court held that conviction of appellant cannot be maintained merely on suspicion however strong it may be or on his conduct. Whereas in this case there is no proof of coordial relationship between the appellant and the deceased. The deceased received fatal injuries in the dwelling house where she was residing with her husbandthe appellant and conduct of the appellant is doubtful which is evident from the statement of PW-8 Subhash and PW-7 Prabhu Dayal as discussed above. Due to difference in facts and circumstances of the case the law laid down by the Apex Court in this case is not of much help to the appellant.59. In Niranjan Panja v. State of West Bengal (supra) murder weapon was not produced before the court and necessary witnesses were not examined. According to prosecution the motive to cause murder was that the deceased stopped looking after litigation of appellant hence he committed murder of the deceased. Hon'ble Apex Court held that motive is an important circumstance in cases wherein prosecution is based on circumstantial evidence. It is also held that where prosecution depends on theory of last seen together it is always necessary that prosecution should establish the time of death and herein prosecution failed to do so. Whereas in this case Dr. N. L. Disania (PW-3) has stated that the deceased died on 05.03.2006 at about 1.45 PM according to hospital record. The Investigation Officer has recovered the stola (chunni) used in commission of the crime and it was produced in court and is marked as Article-1. Therefore the cited case is distinguishable from the present case and the law laid down by Hon'ble Apex Court in this case is not of much help to the appellant.60. In (2015) 12 Supreme Court Cases 644 Vijay Shankar v. State of Haryana Hon'ble the Apex Court has held that in each and every case it is not incumbent on the prosecution to prove the motive for the crime. Often motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove it's case on motive it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove it's case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of the prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case absence of convincing evidence as to motive makes the court to be circumspect in the matter of assessment of evidence and this aspect was not kept in view by the High Court and the trial court.61. In Madho Singh v. State of Rajasthan (supra) the deceased had friendly relations with accused. The case was based on circumstantial evidence of last seen together. Homicidal death was not established. Prosecution failed to prove place of occurrence. One of the doctors opining that injuries received by the deceased could have been sustained in an accident. Reason given for delay in lodging FIR was unbelievable. No motive was established which fact assumed importance. It was proved that accused and deceased were good friends for over a decade. It was held that in such circumstances accused cannot be convicted merely on theory of last seen together and he is entitled to benefit of doubt. Whereas in present case it is not proved that relations between the deceased and the appellant were coordial. As discussed above homicidal death is established the place of occurrence is proved and the FIR is not delayed. Due to difference in facts and circumstances of the case the law laid down by the Apex Court in this case is not of much help to the appellant.62. In Nagaraj v. State represented by Inspector of Police (supra) there were number of inconsistencies in the case of prosecution. Various witnesses gave contradictory statements. The investigation conducted by police was less than satisfactory. Murder weapon was not recovered and any credible motive was absent. It was held that motive assumes great significance where a conviction is sought to be predicated on circumstantial evidence alone. It's absence can tilt scales in favour of accused where all links are not avowedly present. No attempt was made to arrest the accused or issuance of notice to accused to participate in investigation for long period of 18 months after incident concerned. In such circumstances Hon'ble Apex Court extending the benefit of doubt to the accused and acquitted him. The cited case is distinguishable from present case on facts and circumstances therefore it is not of much help to the appellant.63. In Wakkar & Anr. v. State of Uttar Pradesh (supra) it was held that for basing conviction on circumstantial evidence each and every incriminating circumstance must be clearly established by reliable and clinching evidence and circumstances so proved must form a chain of events from which the only irresistible conclusion about guilt of accused can be safely drawn and no other hypothesis against the guilt is possible. Courts have to be watchful and avoid danger of lying suspicion to take place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof.64. In (2013) Supreme Court Cases 177 Sunil Mahadev Jadhav v. State of Maharashtra Hon'ble Apex Court dealing with a case of circumstantial evidence has held that Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. Since it was Accused 1 who had arrested the deceased at 00.45 A.M. on 17.12.1985 and kept the deceased in police lockup after his arrest was complete it was for accused 1 to explain the injuries on the body of the deceased other than those which were noticed in Ext.76. Accused 1 has not stated anything in this regard in his statement under Section 313 of the Code of Criminal Procedure 1973 (for short Cr.P.C.) nor adduced any evidence in defence to explain these injuries. In the absence of any explanation by Accused 1 or any evidence adduced on behalf of Accused 1 to explain these injuries on the body of the deceased there can be no escape from the conclusion that these injuries have been caused on the body of the deceased by Accused 1 and no one else. The present case is also governed by the law laid down by Hon'ble Apex Court in this case.65. In view of the discussions made above each of the circumstances when joined together firmly and fully rule out the possibility of any such hypothesis which may be compatible with the innocence of the accused-appellant. All the circumstances unerringly points towards the guilt of the accused-appellant. The evidence produced by the prosecution is cogent and reliable and the prosecution has successfully proved the charge of Section 302 of IPC against the accused-appellant beyond reasonable doubt. The learned trial court has looked into every material aspect of the matter and was fully justified in convicting the appellant. There is no scope to interfere in the impugned judgment of conviction and order of sentence passed by the learned trial court.66. For the above reasons we see no infirmity in the impugned judgment to call for our interference.Resultantly the appeal is dismissed.