HONNIAH, J. ( 1 ) THE appellant Surchand Ramji Chavan (A1) was tried along with three others for the murder of one Motimala, in the Court of the Sessions judge at Chitradurga in SC. No. 16/69 on his file. By his judgment dated 30th November 1970, the. learned Sessions Judge acquitted the other three accused namely A2, A3 and A4, but however, convicted Al under S. 302, ipc. and sentenced him to imprisonment for life. This appeal is against the said conviction and sentence. ( 2 ) MOTIMALA was a resident of Bombay, residing at Mohideen Road, arab Kalab, Shop No. 1, Bombay-8. He was a dealer in empty tins. He was supplying tins to BT. Oil Mills at Davanagere. Surchand Ramji chavan (A1) was also a resident of Bombay and he was known to Motimala. He was also dealing in empty tins and supplying them to BT. Oil mills at Davanagere. Some time in the year 1968 Al left Bombay and came and took up a temporary residence at Davanagere. He took a land near geethanjali Talkies on lease from PW 2 Somanath. He put up a shed there and was residing there and doing his usual business. Motimala "supplied empty tins to BT. Oil Mills in the month of May 1969 and he had to receive Rs. 5675-50 being the value of the tins after some deductions. As he did not receive the money from the BT. Oil Mills for the supplies he had made, he left Bombay on June 13, 1969 to Davanagere. At the time he left Bombay, his wife PW. 28 Smt. Mulibai was in advanced stage of pregnancy and it was expected that Motimala would return to Bombay from Davanagore early. There is no evidence to show when Motimala wps murdered. But, however, there is indisputable evidence in this case to show that he approached PW. 11 Nabhiraj, the Managing Director and pw-12 Nanjundasastry, Accountant, of the BT. Oil Mills, Davanagere, on 17-6-1969 and requested them to pay the amount which was due to him for the supply of empty tins. PW. 12 handed over the cheque Ex. P9 issued by PW. 11 for Rs. 3175-50 and he paid a sum of Rs. 2500 in cash to Motimala. At the time Motimala received the cheque and the said sum of money, Al was present with him. PW. 12 handed over the cheque Ex. P9 issued by PW. 11 for Rs. 3175-50 and he paid a sum of Rs. 2500 in cash to Motimala. At the time Motimala received the cheque and the said sum of money, Al was present with him. Thereafter there is no evidence to show the whereabouts of Motimala. ( 3 ) AS Motimala did not return to Bombay as expected early by PW28, she came to Davanagere and contacted the BT. Oil Mill for information about her husband on 3-7-19gs. By that time on 26-6-1969 the BT. Oil mills had received the cheque Ex. P9 with the covering letter Ex. P10 in the envelope Ex. P11 by registered post from Bombay purporting to have been sent by Motimala requesting the company to send the money in cash to the address given in the letter as he could not encash the cheque Ex. P9 because of the strike in the Bank. In Ex. P10 the address furnished by motimala was 'uijam Devi', wife of Motimala, Usmania Hotel, 47, Stable street, Bombay-8'. Although the BT. Oil Mills received the letter Ex. PIO along with the cheque Ex. P9 requesting that the money should be sent to Ujjam Devi, who was, A4 in the trial Court, it aponrs they did not take any action immediately. When PW. 29 approached the BT. Oil Mills on 3-7-69 she was informed about the cheque and was asked to contact a1. She went to the shed of Al and found that the shad had been locked. Therefore she contacted through phone PW. 8 Hiralal Mohilal Thakkar. a lorry transporter in Bombay and ascertained from him that her husband was not to be found at the address given in Ex. P10 Therefore she gave a missing report Ex. P31 on 4-7-69. She returned to Bombay. On 6-7-1969 she learnt that the cheque Ex. P9 was with Al. She gave birth to a child on 8-7-69. Some time before or after she delivered, she complained to the elders of her community about Al possessing the cheque which had been given to her husband. It appears, there was a panchayati and in that panchavati, the father and brother of Al were present. Nothing tangible seepms to have happened. As her husband did not return till then. PW. 28 left Bombay on 13-7-69 and reached Davanagere on 15-7- 69. It appears, there was a panchayati and in that panchavati, the father and brother of Al were present. Nothing tangible seepms to have happened. As her husband did not return till then. PW. 28 left Bombay on 13-7-69 and reached Davanagere on 15-7- 69. Obviously she left Bombay hardly within five days after she gave birth to a child to ascertain the whereabouts of her husband On the following day i. e. on 16-7-69, she complained to the Police at Davanagere as contained in Ex. P33 suspecting some foul play. PW. 29 Gaffer Khan HC. at Davanagere Police Station was deputed by the Sub Inspector of Police to go to Bombay with PW. 28, to look into the complaint On 17-7-1969 the hc. arrested Al and the other accused at Bombay produced them before the Magistrate there and obtained remand till 24th of that month. PW. 29 brought the accused to Davanagere on 23-7-69 and produced them before the CPI. PW. 32 Hanumantha Rao Deshpande. ( 4 ) THE case of the prosecution was that Al gave information as contained in Ex. P44 and in pursuance of that information, Al took the CPI. to a pit containing water situated near Geethanjali Talkies and from the said pit 22 human bones MO. 9, a foiled torn shirt, MO. 11 and soiled torn pieces of dhoti, MO. 12 and some other articles were recovered. PW. 28 identified MOs,. 11 and 12 as the clothes belonging to her husband Motimala. They were seizrd under Ex. P26. Al took the CPI to his house and produced a bag MO. 23, which contained MOs. 1 and 16 to 22. Of them, it is necessary to refer to MOs 1 and 18 (shirts), MOs. 16 and 17 (dhoties ). MOs. 19 to 21 (towels) and MO. 22 (a bed sheet ). These cltohes were identified by PW. 28 as belonging to her husband. Then Al took the CPI and the panchas to a place near the BT Oil Mills where he produced a bundle, which contained soiled clothes and cloth pieces and some of them contained blocd stains Then A1 took the CPI. to Bombay on 28-7-1969 to his father's house, where Al produced a rm of Rs. 1400 of ten rupee denomination from a trunk. On that day, he pointed out PW. 24 Rajaram, a job typist, who identified Exs. P9, P10 and P11. to Bombay on 28-7-1969 to his father's house, where Al produced a rm of Rs. 1400 of ten rupee denomination from a trunk. On that day, he pointed out PW. 24 Rajaram, a job typist, who identified Exs. P9, P10 and P11. The CPI was able to ret information that it was Al who got the letter Ex. P10 typed from PW. 24 and at that time he showed the cheque Ex. P9 to PW. 24 and sent Exs. P9 and P10 in the envelope Ex. Pll. the address on which was written by pw. 24. The CPI also got information that the LT. Mark below Ex. P10, winch is marked as Ex. P10a was the LT. mark put by Al representing himself that he was Motimala Chavan. On 29-7-1969 Al look the CPI to the office of PW8. Hiralal Momlal Thakka, transport operator from whom he got information that Al on 23-6-69 attempted to cash the cheque ex. F9 issued by the BT. Oil Mills, Davanagere, through him, but for one or the other reason, he did not oblige A1. The CPI rent Ex. P10 and the exemplar thumb impressions Ex. P18 to the Finger Print Expert PW 13, kulkami. He opined as per his report Ex. P20 that the thumb impression found in Ex. P10 was that of Al On these facts the prosecution alleged that Al committed the murder of Motimala on or about 17-6-1969 and robbed him of the cheque Ex. P9 and a cash of Ps 2500 and having done so, he attempted to cash the cheque in the manner stated above and thereby committed an offence punishable under Ss. 302, 304 and 201 of the IPC. ( 5 ) IN this case, there is not an atom of direct evidence against Al; the case depends entirely upon circumstantial or presumptive evidence. But it behoves one, however, to be verv careful before one accepts such evidence and condemns a man. Presumptive evidence is evidence founded on facts from which other facts necessarily follow. ( 6 ) THE main evidence against the accused namely Al that which gives point to the evidence against him, is in his own conduct from the beginning to the end, his own conduct in endeavouring to give an impression to others that he was Motimala and that he was therefore entitled to the monies under the cheque Ex. P9. ( 6 ) THE main evidence against the accused namely Al that which gives point to the evidence against him, is in his own conduct from the beginning to the end, his own conduct in endeavouring to give an impression to others that he was Motimala and that he was therefore entitled to the monies under the cheque Ex. P9. He has lied. Throughout the history of the case he has lied and been untruthful. With what object ? with only the object to screen himself. His conduct has made the case against him doubly strong. ( 7 ) IT was urged by Mr. Rajabalan, the learned Counsel appearing on behalf of the appellant, that the prosecution have not placed any evidence worth the name to show that Motimala has been murdered and at any rate that he is dead Of course there is no such direct evidence on behalf of the prosecution to probabilise its case that Motimala is done to death. However, the prosecution have relied upon rerlain circumstances to probabilise their case that Motimala must have been done to death on r about 17-6-1969. ( 8 ) THERE is indisputable evidence in this case to shew that Motimala had supplied empty tins to BT. Oil Mill at Davanagcre as far back as April and May 1969 valued at more than 5000 and that the Mill had not paid him any money. The evidence of PW. 28 makes it very clear that motimala left Bombay on 13-6-1969 to Davanagere for the purpose of collecting money from the BT. Mill. The evdence of PWs. 11 and 12, which cannot be disputed, proves satisfactorily that on 17-6-1969 Motimala came to Davanagere, approached them in their office where a cash of Rs 2500 and for the balance amount a cheque for Rs. 3175 (Ex. P9) were given to motimala. The evidence of PW. 12 shows that at the time he handed over the cheque and the cash to Motimala Al had accompanied him. Mr. Rajabalan contended that PW. 12 has stated before the Police during the course of investigation that Motimala alone had come to his office, while PW. 11 has stated that Al had accompanied Motimala. Therefore, it is contended by him that the statement of PW. 12 is an improvement in support of the prosecution, and it is unsare to act upon such evidence. 12 has stated before the Police during the course of investigation that Motimala alone had come to his office, while PW. 11 has stated that Al had accompanied Motimala. Therefore, it is contended by him that the statement of PW. 12 is an improvement in support of the prosecution, and it is unsare to act upon such evidence. He pointed out that the learned Sessions Judge has not acted upon the evidence of PW. 12 and that being so, the version of the prosecution that Al had accompanied motimala when he took money from PW12 is a make-believe story. We are unable to agree with his contention and the view expressd by the learned Sessions Judge it is not shown that PW. 12 is telling false-hood. A few days after when the wife of Motimala namely, PW. 28, came to Davanagere and contacted the BT. Oil Mill authorities, she was asked to contact a1 for information about the whereabouts of her husband. Although pw. 12 has not stated before the police the presence of Al at the time motimala took the money and the cheque from him, it is clear from the other circumstances that Al must have been in the company of Motimala at that time. What happened to Motimala after he received the cash of rs. 2500 and the cheque Ex. P9 from PW. 12, one has to gather from the circumstances proved in this case. ( 9 ) WHEN Motimala left Bombay, it is an admitted fact, his wife PW. 28 was in advanced stage of pregnancy and at any moment there was the possibility of her delivering a child. Till 3-7-1969 Motimala did not return to Bombay. Therefore, naturally, PW. 28 became anxious as to the whereabout of her husband and on that day she came to Davanagere when she was in very much advanced stage of pregnancy. When she was told at the BT. Oil Mill office to contact A1, she went to the hut of Al and found the door locked She never suspected at that moment any foul play. She gave merely a missing complaint to the Police at Davanagere and returned back to Bombay. Shortly thereafter, namely on 8-7-1969 she delivered a child. Finding that even by that time her husband had not returned and he was not available at the Usmania hotel, as gathered from her enquiries with reference to Ex. She gave merely a missing complaint to the Police at Davanagere and returned back to Bombay. Shortly thereafter, namely on 8-7-1969 she delivered a child. Finding that even by that time her husband had not returned and he was not available at the Usmania hotel, as gathered from her enquiries with reference to Ex. P10, she became very anxious and within five days after delivery, she came to Davanagere with the sole anxiety to find out what had happened to her husband. After she came to Davanagere. she suspected some foul-play and therefore she lodged the complaint, ex. P33 on 16-7-1969. PW. 29 was deputed to investigate into the allegations made in Ex. P33 and for that purpose he went along with pw. 28 to Bombay and there he arrested Al, A4 and somes others on 17-9- 1969. The evidence of PW. 29 shows that he produced Al before the Magistrate at Bombay and thereafter brought him to Davanagere on 23-7-1969 and produced him before the CP1 PW. 32. The evidence of PW. 32 shows that he interrogated Al and recorded his statement as per Ex. P44 on the basis of which he recovered 22 human bones and three clothes belonging to the deceaseed from a pit full of water near Geethaniali Talkies. Later he recovered from the house of Al MOs. l, 16 to 22 kept in the bag MO. 23. The clothes and other articles seized from the house of Al were identified by PW. 28 as those of her husband. That is her sworn testimony in Court. ( 10 ) IT was contended by Mr. Rajabalan that mere recovery of 22 human bones from a pit in a town like Davanagere will not lead to an inference that those bones are the bones of Motimala. The fact that MOs. 11 and 12 were found in the pit, which was full of water and which was exposed, cannot be disputed in view of the evidence of PW. 32, the CPI, the panch witness PW. 21 N. B. Basanur, and PW. 28 the wife of the deceased, it was contended by Mr. Rajabalan that human body consists of more that 200 bones and on this basis he contended that the recovery of only 22 bones would not lead to an inference that trie bones recovered were tnose of Motimala. 21 N. B. Basanur, and PW. 28 the wife of the deceased, it was contended by Mr. Rajabalan that human body consists of more that 200 bones and on this basis he contended that the recovery of only 22 bones would not lead to an inference that trie bones recovered were tnose of Motimala. Taking into consideration the state of affairs and the condition of the pit in which the clothes and the bones were found, the possibility of some bones having been dragged away by dogs or vultures cannot be ruled out. The 22 bones recovered were undoubtedly human bones and that is the evidence of PW. 31 Dr. Ramu, Associate Professor of forensic Medicines. Then what should have happened to the remaining bones? The only irresistible conclusion is that the other bones must have been dragged away by dogs, vultures etc. There is indisputable evidence which establishes that the 22 bones that were found in the pit must be some of the bones of the dead body of Motimala. The two clothes namely mos. 11 and 12 have been identified as belonging to Motimala. Al has not given any rational explanation how and under what circumstances he had the knowledge that the clothes belonging to Motimala and the bones were in the pit. With regard to the seizure of MOs. 11 and 12 and the bones mo. 9 there cannot be any dispute because the property form under which these articles were seized shows that they were produced before the Magistrate on the following day, and orders were obtained for retention. ( 11 ) CORPUS dedti means first that a crime has been committed, that is to say that the man is dead and that his death has been caused by a crime. But it is understood that the dead body itself is not the corpus delicti. It the crime has been committed and if the dead body is not found or traced, the person who committed the crime cannot be permitted to contend that because the dead body is not available, he is not liable to be punished. What is necessary in cases of this nature is that it must be positively established that the man was murdered, and whether or not the dead body is available, if the other evidence supports the commission of the crime, the accused could be convicted. What is necessary in cases of this nature is that it must be positively established that the man was murdered, and whether or not the dead body is available, if the other evidence supports the commission of the crime, the accused could be convicted. One does not begin to enquire whether the accused is guilty of a crime until one has established that a crime has been committed. Regard must be had not only to what is intended to be done but how it is attempted. If the crime is established, whether or not the dead body is found the accused could be convicted. The circumstances mentioned above conclusively establish that Motimala was alive on 17-6-69, who, in the ordinary course, would have returned to Bombay but in fact did not return as exr pected, but on the other hand, what is established in this case is that two of his clothes identified by PW. 28 were found in the pit along with 22 human bones. This fact conclusively establishes that Motimala must have been the victim of a foul-play on or about 17-6-1969. ( 12 ) IN support of the above fact, there are number of other circumstances to probabilise the case of the prosecution. The same day on which information was given by Al, the remaining clothes of Motimala were recovered from thr hut of A1 at Davanagere. If Motimala, as contended by Mr. Rajabalan, was alive, he would not in the ordinary course have left his clothes in the house of Al and gone away. All the clothes that were brought by Motimala from Bombay to Davanagere were either found along with the human bones or in the hut of A1. The facts stated above, therefore, clearly point out to the only conclusion that Motimala was done to death on or about 17-6-1969. ( 13 ) THE question which is of considerable importance in this case is whether it is Al that has committed the murder of Motimala. Again here, the prosecution have relied upon some circumstances in support of their case. On 17-6-1969 Al was at Davanagere and he was in the company of the deceased. Thereafter, Al left Davanagere and reached Bombay and he was there by 23-6-1969 as stated by PW. 8. PW. 8 has deposed on oath that he knew Al as a dealer in empty tins. On 17-6-1969 Al was at Davanagere and he was in the company of the deceased. Thereafter, Al left Davanagere and reached Bombay and he was there by 23-6-1969 as stated by PW. 8. PW. 8 has deposed on oath that he knew Al as a dealer in empty tins. According to him, on 23-6-1969 Al approached him and requested him to encash a cheque issued by the BT. Oil Mills, Davanagere, for a sum of Rs. 3000 and odd on the ground that he had no account in any Bank. Although PW. 8 does not say that Ex. P9 was shown to him, the mere fact that Al approached him and asked him to encash a cheque issued by the BT. Oil Mill of davanagere shows that he wanted to encash the said cheque which had been issued to the deceased Motimala, obviously referring to Ex. P9. Ex. P9 was a cheque made payable to order. A cursory glance at Ex. P9 shows that the cheque which had been issued in favour of Motimala had not been endorsed by him in favour of Al or any one else. In the normal course, al could not have encashed the cheque and therefore the evidence of pw. 8 is rendered reliable. Added to this, it is at the instance of Al, pw. 8 was traced. ( 14 ) HAVING failed to encash the cheque with the help of PW. 8 the very next day Al has thought of an ingenious method of getting the money under the cheque Ex. P9. He approached PW. 24, a job typist, showed him Ex. P9 and requested him to type the letter Ex. P10. PW. 24 has sworn that at the request or Al he typed the letter Ex. P10 on seeing ex. P9 and has in unequivocal terms stated that Al affixed his LT. mark ex. P10a representing himself that he was Motimala. The purport ot ex. Plo is that the BT. Oil Mill was requested to send cash as against the cheque Ex. P9 issued by them as there was a strike in the State Bank of mysore, Bombay Branch, to the address of Ujjam Devi. In that letter Al put forward himself as Motimala and also gave an impression that Ujjam devi was his wife and the money might be sent to her address. P9 issued by them as there was a strike in the State Bank of mysore, Bombay Branch, to the address of Ujjam Devi. In that letter Al put forward himself as Motimala and also gave an impression that Ujjam devi was his wife and the money might be sent to her address. That address is different from the address given by Motimala to BT. Oil Mills while receiving the cheque and the cash. If the evidence of PW. 24 is accepted, there is no reason why we should not accept the same, the only inevitable inference that could be drawn is that the cheque Ex. P9 which was given to the deceased Motimala, was found in the possession of Al and he attempted to cash the cheque by various methods, particularly putting forward that he himself was deceased Motimala. The evidence of pw. 24 cannot be disputed for more than one reason. The LT. mark Ex. P10a has been compared with the exemplar thumb impression of A1 by the Finger Print Expert, PW. 13, and his opinion is that the two are identical. ( 15 ) PW. 24's evidence further shows that he himself typed the address on the cover Exp11, which was addressed to the BT. Oil Mill, Davanagere and he put Exs. P9 and P10 into that envelope. There is undisputed circumstance in this case to show that this letter was registered and sent to the BT. Oil Mill in the post office at Bombay and the receipt Ex. P8 issued by the post office was found in the house of Ujjam Devi (A-4 ). Ex. P4 is a bill issued by the BT. Oil Mill to the deceasel Motimala in respect of the tins that he supplied and the amount paid thereunder. Even that bill was found in the house of Ujjama Devi. The address of ujjam Devi had been given by Al as spoken to by PW. 24 and as found in ex. P10. Ex. P6 is the receipt for having received the letter Ex. P11 containing exs. P9 and P10. A perusal of the letter and the receipt goes to show that the postal authorities have given the same number on both, while registering the letter. It is clear from the facts stated above that a1 was in possession of Exs. P4 and P9. P6 is the receipt for having received the letter Ex. P11 containing exs. P9 and P10. A perusal of the letter and the receipt goes to show that the postal authorities have given the same number on both, while registering the letter. It is clear from the facts stated above that a1 was in possession of Exs. P4 and P9. No explanation has been offered by him how he came by these two documents within such a short time after they were given to Motimala. His case is one of denial. The only irresistible inference from these proved facts is that Al must have committed the murder of Motimala and must have removed Exs. P4 and P9 from his person and thereafter knowing that Motimala would not be available for ever to contradict, put his own LT. mark to Ex. P10 posing himself as Motimala, while in fact it was not so. ( 16 ) THERE is another circumstances which also supports the case of the prosecution. Ex. P9 was stained with mammalian blood. That fact also has not been explained by Al. Every incriminating circumstance, which has been proved and established against Al has not been explained by him; on the other hand, his defence is one of total denial. Al has no adequate explanation of being in possession of the cheque and the receipt which belonged to the deceased and he has also no explanation to offer why he wrote the letter Ex. P10 to the BT. Oil Mills posing himself as motimala. Further he has no explanation why he has put forward Ujjam devi as the wife of the deceased Motimala giving an address different from the real address of the deceased. The effect of the evidence is so conclusive, so much against the accused, there cannot be any doubt in any one's mind that it is A1 who committed the murder of Motimala and robbed him of the cash, the cheque Ex. P9 and the receipt Ex. P4. Although ex. P4 is of no value or assistance to Al, he has evidently removed it from the person of the deceased, in order to leave no trace of the identity of the deceased. That is the only inference that could be arrived at for the possession of Ex. P4 by A1. ( 17 ) WE see no reason to interfere with the conclusion of the trial court. That is the only inference that could be arrived at for the possession of Ex. P4 by A1. ( 17 ) WE see no reason to interfere with the conclusion of the trial court. This appeal fails and is accordingly dismissed. --- *** --- .