Judgment 1. Both these appellants, father and son, have been convicted under Sec. 302/34 of the Indian Penal Code (hereinafter called "the Code") and Sec. 201/34 of the Code and have been sentenced to undergo life imprisonment under Sec. 302/34 of the Code and 7 years rigorous imprisonment under Sec. 201/34 of the Code. They were also charged under Sec. 27 of the Arms Act but they were acquitted under this charge. The sentences were ordered to run concurrently. 2. On 6-2-1986 at 8.30 a.m. a written report (Ext.1) was filed by the informant, Chhotan Choudhary, father of the victim girl (P.W.1) stating, inter alia, that his daughter Phul Kumari (deceased) was married to appellant No. 2, Krishna Choudhary, at village Baliari, Police Station Masaurhi, within the district of Patna about 4 to 5 years prior to the occurrence. Appellant No. 1, Bakhora Choudhary, is the father of appellant No. 2. After few years of the marriage the family of the appellants shifted to village Sarai within the Police Station of Maner. It was further said that accused persons used to ill treat Phol Kumari on domestic affairs with the result that on several occasions she had come to her fathers place. 3. On 5-2-1986 Mahendra Choudhary his son (P.W. 2) who resided at Sultanpur Dinapore came to his village Piprabandh and informed him that the appellants had committed the murder of Phul Kumari and concealed the dead body somewhere. On that information the informant (P.W.1) went to village Sarai to ascertain the truth and on reaching there he learnt that the appellants on 2-2-86 at about 9 to 10 p.m. shot his daughter dead and disposed of the dead body by taking the same somewhere on a tempo. The informant also found the appellants absent from the house. Thereafter, the informant went to Maner Police Station which is at a distance of 16 Kms. from village Sarai on 6-2-1986 and submitted the aforesaid written report (Ext. 1). 4. On the basis of the said written report a formal first information report was drawn up (Ext. 4) and investigation was started. 5. The police after completing investigation submitted chargesheet against the aforesaid two appellants and cognizance was taken and the case was committed to the court of sessions. 6. 1). 4. On the basis of the said written report a formal first information report was drawn up (Ext. 4) and investigation was started. 5. The police after completing investigation submitted chargesheet against the aforesaid two appellants and cognizance was taken and the case was committed to the court of sessions. 6. During the course of trial the charges under the aforesaid offences were framed against the appellants and the learned 2nd Additional Sessions Judge, Patna, convicted the appellants and sentenced them as indicated above. Hence, this appeal. 7. According to the defence case Phul Kumari died of cholera and while she was suffering from cholera she was taken to Kurji Hospital by the appellants but near the gate of Kurji hospital she expired and thereafter she was cremated at Kurji Ghat by the appellants. They have been falsely implicated without any rhyme or reason. 8. The prosecution in order to substantiate the charges against the appellants has examined 13 witnesses; out of whom, P.W. 1 is the informant, P.W. 2 is his son, who had informed his father about the occurrence, P.W. 3 has been tendered, P.Ws. 4 and 5 are witnesses on the point of occurrence. P.W. 6 has identified the photograph of the victim lady, P.W. 7 is the doctor who held the postmortem examination on the person of the dead body, P.W.8 is a photographer, who has testified the photo of the deceased, P.W. 9 is the investigating officer of the case, P.W.10 is another Police Officer who had investigated U. D. case No.2 of 1986 reported at G. R.P.S. Dinapore which was later on transferred to Maner Police Station as it was connected with the same occurrence, P.W. II is a constable, a formal witness, P.W. 12 is the Officer-in-charge of G.R.P.S. Dinapore and P.W.13 is a cleark of the pleader, who is also a formal witness. 9. The defence has also examined 2 witnesses as D.Ws. 1 and 2. 10. It is relevant to mention here that before institution of this case, on 2-2-86 at 10.10 hours the Station Master of Neora Railway Station sent an information to the Officer-in-charge of G.R.P.S. Dinapore that an woman aged about 25 years was run over and killed by down train in between down warner and home signal near K. M. 559/92. 10. It is relevant to mention here that before institution of this case, on 2-2-86 at 10.10 hours the Station Master of Neora Railway Station sent an information to the Officer-in-charge of G.R.P.S. Dinapore that an woman aged about 25 years was run over and killed by down train in between down warner and home signal near K. M. 559/92. On the basis of that information the aforesaid U.D. case No.2 of 1986 dated 2-2-86 was registered at G.R.P.S. Dinapore and A.S.I., R. P. Sharma (P.W. 10) was entrusted with the investigation. P.W. 10 visited the place of occurrence on the same date at 12.35 hours and found the dead body of the woman aged about 25 years. He also found some injuries on her body and the right arm was separate from the body near the elbow and that point was also crushed. P.W. 10 after preparing the inquest report sent the dead body for post-mortem examination and, at the Police station, also took the photograph of the deceased. 11. On 4-2-1986 the postmortem report (Ext. 2) was received which revealed that the woman was murdered by gun shot. The officer-in-charge, G.R.P.S. Dinapore, hence, sent the relevant papers to the officer-in-charge of Maner Police Station and the instant case was registered. All the relevant papers of U.D. case No. 2 of 1986 were also sent to the concerned Officer-in-charge of Maner Police Station. After investigation chargesheet was submitted and trial ended in conviction as indicated above. 12. Mr. P. K. Verma, learned counsel appearing on behalf of the appellants has submitted that there is no direct evidence on the record which may prove the guilt of the appellants under Sec. 302/34 of the Code. Therefore, the conviction and sentence imposed on them under the aforesaid charge is illegal and fit to be set aside. It was further contended that there was delay in lodging the first information report which also creates doubt as to the complicity of the appellants in the alleged crime. 13. In support of his contention he has drawn our attention to the evidence of the witnesses who had been examined in this case. P.W. 1 is the informant. In the written report (Ext. 13. In support of his contention he has drawn our attention to the evidence of the witnesses who had been examined in this case. P.W. 1 is the informant. In the written report (Ext. 1) he has said that the marriage took place 4 to 5 years prior to the occurrence and there was no good relationship between the husband and wife and, therefore, his daughter used to often come to his place but after pursuation by him she used to go to her Sasural. It was further stated in the first information report that on 5-2-1986 in the morning his son Mahendra Choudhary (P.W. 2), who lives at Dinapore, informed him in the village that Phol Kumari was murdered by her father-in-law and husband meaning thereby appellant Nos. 1 and 2 and the, have concealed the dead body somewhere. On this information he went to village Sarai because his Samdhi and his son-in-law had shifted to that village 2 or 3 years prior to the occurrence and there he learnt that on 2-2-86 in the night at about 9 to 10 p.m. both the appellants had killed his daughter and removed the dead body to some other place on a tempo. 14. In his deposition in the Trial Court P.W. 1 has supported his version as stated in the first information report. In paragraph 4 of his deposition this witness has said that the uncle of Krishna Choudhary was murdered by these two appellants which was resented by his daughter and that is why these appellants had killed her. It was pointed out by the learned counsel that this fact has not been stated in the written report which is a vital omission and that will affect the prosecution case. 15. It was contended on behalf of the appellants that the dead body which was found at the railway track was not that of Phul Kumari and the photograph (Ext. I) was not of Phul Kumari, but the attention of P.W. 1 (father) and the two brothers namely P.Ws. 2 and 6 has not been drawn to this part of the defence in this cross-examination in the Trial Court. However, this fact will be considered later on at an appropriate place. 16. I) was not of Phul Kumari, but the attention of P.W. 1 (father) and the two brothers namely P.Ws. 2 and 6 has not been drawn to this part of the defence in this cross-examination in the Trial Court. However, this fact will be considered later on at an appropriate place. 16. P.W. 1 in his cross-examination has also said that his son (P.W.2) Mahendra Choudhary, informed him about the occurrence 4 to 5 days earlier to the report submitted at Maner Police Station. He has admitted that there is also a gram Panchayat in his village and dafadar and chaukidar are residing there but he did not inform either the Mukhiya or the dafadar or the chaukidar about this occurrence. P.W. 4, Lakbi Prasad, is the scribe of the aforesaid written report. 17. P.W. 2 is a toddi seller. He has stated in his evidence that he learnt about the death of his sister through the customers who were saying that one girl has been murdered in his village Sarai. On getting this information he went to village Sarai and inquired from appellant Krishna Choudhary about his sister who informed him that she had gone to purchase medicine. He has further said that when he inquired from appellant No. 1 about his sister, he kept mum. He had further said that in the market he learned from the passers-by that the appellants after killing his sister had thrown the dead body on Neora railway line on a tempo. This witness was shown the photograph of the victim lady who was found dead at the railway track and he identified his sister. Curiously enough this witness has also not been confronted by the defence on this point regarding the identification of the dead body. Therefore, it is difficult for us to have any doubt so far the identification of Phul Kumari is concerned. 18. P.W. 4, who is scribe of the written report (Ext.1) has also deposed on the point of occurrence. He has said that he had accompanied P.W. 2 to village Sarai and on inquiry from appellant No. 2 Krishna Choudhary, his brother-in-law (Bahnoi) told him that she had gone to bring medicine. He has further said that appellant No. 1 had told P.W. 2 that his sister had gone somewhere after quarreling in the house. He has said that he had accompanied P.W. 2 to village Sarai and on inquiry from appellant No. 2 Krishna Choudhary, his brother-in-law (Bahnoi) told him that she had gone to bring medicine. He has further said that appellant No. 1 had told P.W. 2 that his sister had gone somewhere after quarreling in the house. They got suspicious and then he inquired from the villagers and learnt that his sister has been killed and the dead body has been concealed somewhere. It has also come in evidence that he learnt from somebody in the village that Phul Kumari was seen in the evening of Saturday but they heard some sound of pistol in the night and from the next day i.e. Sunday the girl was not seen. According to this witness they returned back to the village and Mahendra Choudhary (P.W. 2) went to inform his father. 19. P.W. 5, who is Mausera Bhai of the informant, has also stated before the Trial Court that Phul Kumari was killed by firing. He had gone to inquire about the occurrence in village Sarai and there from the villagers he also learnt that the appellants had killed Phul Kumari and concealed her dead body. He also inquired from Krishna Choudhary (appellant No. 2) about his sister and he was told that she had gone for treatment to Dinapore. Appellant No. 1 according to this witness, reported that she had gone to her Naihar after querreling in the house. 20. P. W. 6 is own brother of the deceased. He has also identified the photograph of his sister Phulo Devil He has denied the suggestion given to him that it was not the photograph of Phulo Devi. 21. The doctor (P.W. 7) who conducted postmortem examination of an unknown female brought by constable No. 56, Gauri Shankar Rai, of Railway Police Station, Dinapore on 3-2-86, found the following injuries on her person : "External Examinations :- Taping mark on left hand present. Rigor morties present. Eyes open. Mouth closed. Injuries: 1. One oval punctured wound with charring of tissues around on the nape of left side of neck above shoulder with inverted margin. This is the wound of entrance. 2. One sharp cutting wound on the right side of head 2 1/2" ?1/2" cutting bone and milanges. 3. Rigor morties present. Eyes open. Mouth closed. Injuries: 1. One oval punctured wound with charring of tissues around on the nape of left side of neck above shoulder with inverted margin. This is the wound of entrance. 2. One sharp cutting wound on the right side of head 2 1/2" ?1/2" cutting bone and milanges. 3. Small multiple about 1 to 2 m.m. in diameter present on left side of face and nape of neck with charred mark. 4. Abrasion 1/2" ?1/4" on the left knee. 5. Abrasion on left leg 11/2" ?1". 6. Crushed injury of right arm, the arm was separated from forearm above the elbow. 7. Abrasion both thighs at level of pubis and lagis majora. Internal Exam. Thorax-Full of dark coloured blood and clots. The left apex of lung had an oval punctured wound which passed from through the lung. This injury most probably was caused by bullet which entered the spinal canel and it became difficult to isolate. Heart-Empty both sides. Abdomen 1. Stomach empty. Spleen N.A.D. Liver - Pale. Kidney - Pale - Bladder-empty. Uteras-normal. Smell gut-gass-large gut-Gas and focus. Brain N.A.D. except fracture of the temporal bone (cut). Brain tissue normal. 2. All injuries except No.6 were ante-mortem in nature. Injury No.6 was postmortem. Injury No. 1was caused by bullet, injury No.2 was caused by sharp cutting weapon. Injury No. 3 was caused by gun powder. Injury Nos. 4, 5 and 6 were caused by hard blunt substance and injury no. 7 was caused by hard blunt substance. 3. Time elapsed since death was within 24 hours. 4. Cause of death Haemorrhage and shock due to injuries except injury No. 6." According to the doctor the body was not decomposed and he had also opined that the cut injury No. 2 was not possible by fall from train. He has further stated that all the above injuries simultaneously are not possible by train accident. He proved the postmortem report (Ext. 2). 22. From the analysis of the aforesaid evidence it is apparent that the dead body which was found at the railway track was of Phulo Devi and Phulo Devi was murdered and placed there but the question for consideration is as to whether these two appellants jointly murdered her or not as alleged by the prosecution. 23. 2). 22. From the analysis of the aforesaid evidence it is apparent that the dead body which was found at the railway track was of Phulo Devi and Phulo Devi was murdered and placed there but the question for consideration is as to whether these two appellants jointly murdered her or not as alleged by the prosecution. 23. It is an admitted position that there is no direct evidence of murder in this case. It was submitted on behalf of the State that the chain of circumstances establish that the aforesaid appellants have killed her. It is well settled that in case of circumstantial evidence Court should be watchful to see that suspicion and conjecture do not take place of proof. The chain should be complete to exclude all reasonable hypothesis consistent with innocence of accused. The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests; (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) these circumstances should be of a definite tendency unerringly pointing towards guilt of the accused, and (iii) the circumstances, taken cummulative, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete incapable of explanation of any other hypothesis than that of the guilt of the accused persons. The circumstantial evidence should not only be consistent to the guilt of the accused but should be inconsistent with his innocence. 24. In this connection reference may also be made to a decision in the case of Sharad Birdhichand Sarda V/s. State of Maharashtra, AIR 1984 SC 1622 : (1984 Cri LJ 1738) wherein the Supreme Court held that it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. Where various links in a chain are in themselves complete then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. Where various links in a chain are in themselves complete then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. In the instant case we have to see as to whether the link is complete to come to a conclusion that it is the appellants and the appellants only who have killed the victim lady. 25. As we have referred to above, from the evidence of the material witnesses namely he evidence of P.Ws. 1 and 2, we find that P.W. 1 has stated that when he had visited village Sarai he learnt from somebody that his daughter has been killed by these appellants. P. W. 2 has also said that he learnt from the villagers that his sister had been murdered and her dead body had been concealed somewhere. He could not name the persons from whom he got the news. There are no other witnesses on this point. P.W. 4 has also stated that when he accompanied P.W. 2, P.W. 2 leant from the villagers about the occurrence. 26. Taking these facts into consideration we feel difficulty in holding that all links of the chain are such which will lead to the conclusion that these appellants have jointly killed the victim lady. It was pointed out on behalf of the State that during the course of investigation these two appellants were not found in the house but merely absconding or being absent from the house will not lead to a conclusion that they are guilty of the offence. In that view of the matter, it is difficult to agree with the finding of the Trial Court so far as conviction and sentence of the appellants under Sec. 302/34 of the Code are concerned. As such their conviction and sentence under this Court are hereby set aside. 27. Now coming to the point as to whether these two appellants are guilty under Sec. 201/34 of the Code or not. From the evidence discussed above now the position is clear that the dead body was found near the railway track and information was received by the Police Officer (P.W. 10) that some dead body is lying there. 27. Now coming to the point as to whether these two appellants are guilty under Sec. 201/34 of the Code or not. From the evidence discussed above now the position is clear that the dead body was found near the railway track and information was received by the Police Officer (P.W. 10) that some dead body is lying there. On that information P.W. 10 visited the place, took photograph of the victim lady and sent the dead body for postmortem. 28. A plea was taken on behalf of the defence that the photograph produced in the Court was not of Phulo Devi but of some other lady. On that point the defence also adduced certain evidence. D.W. 1 has said in his statement before the Trial Court that this photograph is not of Phulo Devi and according to this witness Phulo Devi died of cholera near the Kurji Hospital gate while going for her treatment. He further said that she was cremated at Kurji Ghat and cremation was done by the appellants in the company of D.W. 1. He has also stated that he got it entered in the register of the burning ghat. He has categorically stated that before cremation they did not inform anybody in the village. It is better to quote his statement : "Mirtyu hone ki soochna gram panchayat men ya Maner thana men ya chaukidar dafadar ko nahin diya. Jalane ke pahle hamlog marne ke bare men gaon men khabar nahn kiye." 29. D.W. 2 has simply said that Bilchand Ram was the incharge of the burning Ghat and he issued a certificate to this effect, but the register from which the certificate was copied, was not produced in the court. He failed to say at what time and under what circumstances that certificate had been issued. From their evidence it appears that she was cremated in suspicious circumstances. Of course, D.W. 1 has said that Krishna Choudhary (appellant No. 2) had informed about the death to his Sasural people but this is not corroborated by any other evidence whatsoever. 30. Thus, from the discussions made above we find that the prosecution has been able to prove that no reasonable explanation has been given by the appellants about the death of Phul Kumari and her dead body was disposed of in suspicious circumstances. 30. Thus, from the discussions made above we find that the prosecution has been able to prove that no reasonable explanation has been given by the appellants about the death of Phul Kumari and her dead body was disposed of in suspicious circumstances. These circumstances taken together, in our opinion, prove the guilt of the appellants so far as the offence under Sec. 201/34 of the Code is concerned. For the reasons, therefore, we find ourselves in agreement with the Additional Sessions Judge that the prosecution has proved its case against the appellants under Sec. 201/34 of the Code. 31. Now coming to the sentence, it was submitted on behalf of the appellants that appellant No. 1 is an old man of 65 years and he is in jail for about 3 years. Now, further he cannot bear the rigors of the jail and a lenient view may be taken in respect of the sentence of appellant No. 1 on account of his old age and ill health. 32. Taking into consideration the totality of the offence we are of the opinion that ends of justice will be served if the sentence imposed on appellant No. 1 is reduced to the imprisonment already undergone. So far as the sentence imposed on appellant No. 2 under Sec. 201/34 of the Code is concerned we do not find any cognent ground to interfere with the sentence awarded against him. 33. In the result the appeal is dismissed with modification in the conviction and sentences of the appellants indicated above. Order accordingly.