JUDGMENT 1. - The Additional Session Judge No.5, Jaipur City Jaipur has convicted the appellant by his judgment dated 25th April, 1988 for the offence under Sections 302 and 364 IPC and sentenced him as under : U/s. 364 1PC, 10 years rigorous imprisonment and a fine of Rs.100/- U/s. 302 1PC Life Imprisonment and a fine of Rs.100/-. Against this conviction and sentence the appellant has preferred this appeal. 2. Suresh Kumar, aged 10 years was student of standard IV in Jan.1987. He had two sisters who were also school going. His father PW.1 Keshav Das carried on the business of manufacturing card-board boxes used for packing sweets and he had a small shop in Maniharo ka Rasta, in Jaipur. The family lived at the relevant time in Brahampuri, Jaipur. They had a small house of three rooms. They lived in one room. Another room was used for making boxes and the third one was with the tenant. For purposes of making card-board boxes keshav Das had engaged three persons, out of whom one was the appellant. 3. On 29th Jan.,1987 PW.1 Keshav Das left for Sikar in order to procure orders for the card-board-boxes. His wife PW.3 Maya devi left for the shop in Maniharo Ka Rasta at about 2.00 P.M. She had locked the room in which they used to live and had left Suresh playing on the terrace, where the appellant and two other labourers were also sitting, PW.9 Rajkumari is the elder daughter of Keshav Das and she returned home from school along with her younger sister at about 4.15 p.m. on 29.1.1987 the fateful day and saw that some papers were burning in the gutter. Suresh was not there. One servant Jagdish was sleeping and after a while appellant Prabhudayal came there and she questioned him about the burning papers and also about Suresh and the appellant showed ignorance about both. After some time PW.1 Keshav Das returned from Sikar and his wife PW.3 Maya Devi also returned from the shop and it was obvious that Suresh was not with any of them and was missing. They made a search for him and visited the house of some of the relatives, but he could not be found. After some time PW.1 Keshav Das returned from Sikar and his wife PW.3 Maya Devi also returned from the shop and it was obvious that Suresh was not with any of them and was missing. They made a search for him and visited the house of some of the relatives, but he could not be found. Prabhudayal was also questioned but he only said that Suresh would come and he stated that where ever Suresh has gone he would come back on his own. 4. Keshavdas went and lodged a report about the missing of Suresh at the Police Control Room on the night of 29.1.1987. Next morning he again made enquiries in the neighbourhood and one boy named Ramesh, PW.5, who was working at a hotel named Shiv Shanker Hotel told him that he had seen Suresh with Prabhu Dayal, appellant, going outside the city wall. One Harish Kumar PW.4, a relative of Keshav Das also informed that he had seen Suresh alongwith Prabhu Dayal. Then Keshav Das lodged a report at Police Station Brahmpuri, which is Ex.P/1. 5. In Ex. P/1 Keshav Das has mentioned that Prabhu, Jagdish and Ramesh had been engaged by him for making boxes. Out of whom Jagdish used to stay at his house while the other two came at 10.00 0' Clock in the morning and returned back at 7.00 p.m. on 29th Jan.,1987 on his return from Sikar at about 7.30 p.m. he found that Suresh was not at home and that some account-papers were lying burnt in the gutter. On questioning about Suresh, appellant Prabhu Dayal said that in the afternoon at 2.30 p.m. Suresh had gone with him towards the city wall, but he directed Suresh to go back. At night when he (Keshav Das), Jagdish and Ramesh knew learnt nothing about Suresh, then Keshav Das went in search of Suresh in Jay Kaylon Hospital and when he could not find him there he made a report about it at the Police Control Room. Then on the morning on 30.1.1987 he learnt from a boy working at Shiv Shankar Restaurant that he had seen Suresh with the accused on the previous evening. Again Prabhu Dayal was questioned but he gave no information, but his face was pale. Then on the morning on 30.1.1987 he learnt from a boy working at Shiv Shankar Restaurant that he had seen Suresh with the accused on the previous evening. Again Prabhu Dayal was questioned but he gave no information, but his face was pale. Keshav Das further reported that he had advanced some money to prabhu Dayal and that he was sure that Prabhu Dayal had kidnapped his son.Description of Suresh was mentioned and it was also mentioned that he was wearing a khaki half pant and striped shirt. A last line was added that Suresh was seen along with Prabhu by Harish. On his written F.I.R. Ex.P/2 a case was registered and the police started questioning. The Investigating Officer, PW. 15 Niranjan Lai questioned Keshav Das and his wife and soon after Prabhu Dayal was called and interrogated and he was arrested. At 5.55 p.m. he gave information that the had concealed the dead-body of Suresh in a Gumbaj of the tunnel in Govind Deoji Temple and that he could get it recovered. This information was recorded in writing and in accordance with this along with witnesses they proceeded towards this tunnel. As it was dark in the tunnel they took petromax with them. The body of Suresh which was covered by sand was recovered from the place as given out by the accused. Necessary memos were prepared. Photographs were also taken. A small book lying by the side of the dead-body was recovered and a button on which some thread was attached was also recovered. They were seized and sealed. Postmortem on the body of Suresh was conducted by PW.14 Dr. B.C.Temani. In the left hand of the deceased some hairs were found and they were also seized for purposes of use of the Forensic Science Laboratory. The accused was also medically examined and the report about the same is Ex.P/31. 6. Doctor, who conducted the postmortem, namely Dr. B.C.Temani, found the following injuries on the deceased: 1. Abrasion 1 cms. 1/2 cm. over left and sternomastoid upper part dry. 2. Bruise 1 cm x ⅓ cm. on Rt. sternomastoid upper ⅓ part. 3. On dissection of Neck: There is haematoma in an area of 3 cms. x 2 cms. on Rt. Ant triangle below mandible and chin and on further dissection of Rt. Abrasion 1 cms. 1/2 cm. over left and sternomastoid upper part dry. 2. Bruise 1 cm x ⅓ cm. on Rt. sternomastoid upper ⅓ part. 3. On dissection of Neck: There is haematoma in an area of 3 cms. x 2 cms. on Rt. Ant triangle below mandible and chin and on further dissection of Rt. side hyoidbone cornu seen on further Exploration trachea seen containing froth and sand particles on cleaning mucosa found deeply congested. 4. Abrasion 4 x 2 cms. left Angle of mandible dry and dark. 5. Abrasion 5 x 2 cms. left tempero mandible area dry and dark coloured. 6. Abrasion 3 x 2 cms. which 2 cms. left to right eye dark in colour covered with sand. 7. Abrasion 2 x 1 cms. just below right mastoid process. 8. Abrasion 4 x 2 cms. posterior laterally right elbow. 9. Abrasion 2 x 1 1/2 cms. Right ( Lt. lumber region) 10. Abrasion 1 x 1/2 cms. on lower part back of chest left side and three abtasions on right lumber region of chest size 1 x 1 cm. each. 7. In his opinion the mode of death was asphyxia brought about the cumulative effect of pressure applied on part of nack and impaction of external respiratory orifices with sand particles. The injuries on the body were antimortem and were of fresh duration. The postmortem was conducted at 2.25 p.m. on 31.1.1987 and in the opinion of the doctor death occurred 36 to 72 hours prior to postmortem. 8. The accused was challaned and tried by the Additional Session Judge No.5 Jaipur City Jaipur and convicted as stated above. 9. In this case the main evidence was that the deceased was last seen with the accused and the body was also recovered at his instance. The learned Additional Sessions Judge accepted the evidence of the witnesses that they had seen the deceased with the accused and also believed the recovery of the dead body at the instance of the accused. He further held that there was a motive on account of which the accused caused the death of Suresh and it makes no difference whether the motive was minor one or big one. He further held that there was a motive on account of which the accused caused the death of Suresh and it makes no difference whether the motive was minor one or big one. On the basis of the hair in the hand of the deceased, it was inferred that prior to his death, the deceased made efforts to defend himself and had struggled on account of which he had received injuries. The circumstances that the accused knew that Keshavdas, father of the boy was out of town was also considered to be relevant. On the basis of this circumstantial evidence the learned Additional Sessions Judge held that the only inference which could be drawn was that the accused had committed the crime and there,fore he was found guilty. 10. The learned counsel for the appellant has contended that the conviction of the appellant is improper as it is a case of no evidence against him. According to him the appellant has been falsely implicated in the case and whatever evidence is there on the record does not make out a complete chain of circumstantial evidence on the basis of which the only inference which could be drawn is the guilt of the accused. It is submitted that in this case the presumption of motive on account of which the accused would murder Suresh is unfounded and this could not be taken to be a circumstance to form a link in the chain of circumstantial evidence. The evidence of the witnesses who had last seen the deceased with the accused is also attacked and we shall come to the same later on. One contention of the learned counsel for the appellant is that the FIR was lodged with the delay as it shows that it was presented at the Police Station at 4.15 p.m. on 30.1.1987, when the informant PW.1 Keshavdas knew in the morning at about 8.00 a.m. that the deceased was seen by Ramesh going with the appellant. It is contended that the Police investigated the case and recovered the body of Suresh even before the accused was arrested. It is contended that the Police investigated the case and recovered the body of Suresh even before the accused was arrested. It is pointed out that the case was registered under Section 363 IPC, but in the statements of the witnesses which were recorded under Section 161 Cr.P.C. the offence of Section 302 IPC has been added, which shows that the police at that time knew that Suresh had not merely disappeared or was kidnapped, but he had been murdered and subsequent efforts have been made to connect the accused with the case. The evidence of the witnesses PW.13 Om Prakash, PW.15 Niranjan Lal, Investigating Officer, PW.7 jagdish Prasad and PW.6 Shobhraj, who were the witnesses to the recovery of the dead-body have also been attacked as un-reliable and untruthful evidence. 11. In this case, it may be said that the main evidence against the accused is about the deceased being seen last with him and the recovery of the dead-body at his instance. We shall look into this evidence. It may be said here that evidence of motive may be relevant in a murder case, but it cannot be said that absence of motive would mean that the accused is not guilty. 12. Three witnesses, who saw the deceased Suresh with the accused on the afternoon of 29.1.1987 are, PW.2 Kamlesh, PW.4 Harish and PW.5 Ramesh. PW.2 Kamlesh has stated that on 29.1.1987 at about 3 or 4 in the evening she was sitting outside her house and making paper envelopes and at that time she saw the accused and Suresh going together. She knew that Prabhudayal was an employee of Keshavdas and later she heard that Suresh had disappeared. This she told Keshavdas. In her cross examination she stated that her house is about 4 or 5 houses away from the house of Keshav das. She does not remember the description of the clothes which Suresh or accused were wearing, but Suresh was wearing a half pant. The deceased and the accused were going in the direction of Temple of Govind Deoji. This witness is a teacher and on the day of the incident the school was from 9 a.m. to 4.00 p.m. but the school was off early on account of bad weather. On the next morning she told that she had seen Suresh with the accused. 13. This witness is a teacher and on the day of the incident the school was from 9 a.m. to 4.00 p.m. but the school was off early on account of bad weather. On the next morning she told that she had seen Suresh with the accused. 13. It has been contended by the learned counsel for the appellant that person would not sit outside the house to make envelopes in bad weather. It is argued that it is improbable that a person would sit out side and that she has been introduced only for the purposes of proving that the deceased and the accused were seen together. It is also contended that this witness has stated that she had told Keshavdas, but then in the FIR there is no mention that Kamlesh had seen the accused with the deceased on the previous afternoon. On this basis it is said that this is an after thought witness who did not actually see the accused with the deceased. We have carefully gone through the statement of PW.2 Kamlesh and it can be said that she is a witness, who was busy doing her own work at the relevant time and she gave only a glance at the accused and the deceased without attaching any importance to it at that time. Had she been an interested witness she would have given the description of the cloths which the deceased was wearing. She did not take undue interest at that time. Had it been necessary for her to make a story she could have said that she saw the deceased and the accused when she was returning from the school. It is only natural that when some person i5 found missing or some incident has happened then people start recollecting as to what had happened. Something which was:of casual interest earlier assumes some relevance. Why her name does not find place in the FIR is something which Keshavdas alone could have said but it can be said that merely because her name is not mentioned in the FIR she cannot be treated as a false witness. Her testimony is very natural and deserves to be accepted. 14. The next witness is PW.4 Harish. He is the Son-in-law of the brother of Keshavdas. Her testimony is very natural and deserves to be accepted. 14. The next witness is PW.4 Harish. He is the Son-in-law of the brother of Keshavdas. He has stated that on 29.1.1987 at about 4.00 p.m. he was going to the house of Keshavdas then he saw the accused and the deceased near the back wall of the Temple of Govind Deoji. He even questioned them and they stated that they were going to the garden behind the temple. Suresh also said that Keshavdas had gone to Sikar hence this witness returned back to his house. The next day in the afternoon he learnt that Suresh had not reached home and he informed Keshavdas that he had seen the accused and the deceased near the City wall behind the Temple on the previous afternoon. If we look into the statement of this witness it may be said that he is not a natural witness as PW.2 Kamlesh. First of all he is a relative, who had no reason to be in the vicinity of the house of the deceased at a time when he was suppossed to be working in the Bank, where he is employed. The reason given by him is that he came to return Rs.600/- which he had borrowed from Keshavdas. However, the pay day in the Bank was 30.1.1987 and not 29th Jan.1987. According to him he informed Keshavdas at about 4.30 p.m. that he had seen the deceased and the accused together, but then his.name and the information given by him find place in the report Ex.P/2 which had already been lodged by Keshavdas. We shall see later that actually the report was lodged much earlier and a last line has been added where in it is mentioned that Harish saw the accused .and the deceased together. This subsequent addition makes his persence doubtful and it appears that being a relative he has been made to become a witness against the accused. he does not appear to be a trustworthy witness. 15. The third witness about last seen is PW.5 Ramesh. He is a child witness being 12 years old. As he was found to be of good understanding he was ad,ministered oath. He has stated that he used to serve tea at the place of Keshavdas where card board boxes were manufactured. 15. The third witness about last seen is PW.5 Ramesh. He is a child witness being 12 years old. As he was found to be of good understanding he was ad,ministered oath. He has stated that he used to serve tea at the place of Keshavdas where card board boxes were manufactured. He knew Suresh and the accused and he has stated that he saw both of them together going near the city wall at about 3.30 or 4.00 p.m. He gave out the date as 29.1.1986 because he had marked it on the calender. He is an illiterate person, but then he knows the date and when he was examined on 30.6.1987 he stated that the next month would start on the next day and it would be 7th month. The main ground for attacking his evidence is that he gave the year 1986 when it was 1987 and that he named the Restaurant as Jai Shankar Restaurant, while Keshavdas named the Restaurant as Sheo Shankar Restaurant. Thirdly the description of clothes given by him do not match. It is also contended that this witness should not be believed. We have carefully considered the testimony of this witness. Though illiterate, he appears to be a witness of sound intelligence. He knew about the neighbourhood houses. He has no reason to falsely implicate the accused. Actually it was on his information that Keshavdas mentioned this fact in his report Ex.P/1. He has made a mistake in giving the colour of the bushirt but then it may be because of not observing carefully. The fact that he saw the deceased with the accused is more important and when casually noticed it is not necessary that he should also remember several details which were not relevant at that time. 16. We are satisfied from the evidence of PW.2 Kamlesh and PW.5 Ramesh that in the afternoon of 29.1.1987 the deceased was seen near the city wall going along with the accused appellant and that after this he was not seen alive by any one. 17. Now we come to the evidence about the recovery of the dead body at the instance of the accused. PW.6 Shobhraj is a witness to the panchayatnama Ex.P/3 and according to him this was prepared near Talkatora at the Chhatri of Ishwar Singhji. He has stated that the body was found in a Nala near the Chhatri. 17. Now we come to the evidence about the recovery of the dead body at the instance of the accused. PW.6 Shobhraj is a witness to the panchayatnama Ex.P/3 and according to him this was prepared near Talkatora at the Chhatri of Ishwar Singhji. He has stated that the body was found in a Nala near the Chhatri. It was taken out and then the panchayatnama was prepared. PW.7 Jagdish Prasad has stated that the panchayatname of the body was prepared in his presence and the body was in a Gumati in a tunnel near the Chhatri of Ishvarsinghji. The accused was with the police at that time and he was hand cuffed. The panchayatnama was prepared outside the tunnel. He stated that during rainy season water flows in this tunnel hence it is also known as Nala. PW.13 Om Prakash has stated that on 30.1.1987 the accused who was under arrest took the police and other persons behind the temple of Govind Deoji and entered the tunnel in which there was a Gumbaj. The dead-body was lying under rubbish. At that time Ex.P/8 recovery memo of the body was prepared and one book was also recovered from there. The evidence of these persons has been attacked by the learned counsel for the appellant on the ground that one witness has s:ated that the body was recovered from a Nala and he is not supported by others and that the witnesses have not correctly mentioned the number of turns in the tunnel and after how many turns they reached the Gumbaj. Referring to the statement of PW.10 Tirathdas who is brother of Keshavdas it has been contended that according to him whole proceedings of the police were over by 6.00 p.m. When the clothes of the deceased were sealed hence the theory that on the information of the accused the dead body was recovered in the evening after 6.00 p.m. becomes false. 18. We have carefully considered the evidence in this respect of the recovery of the body and for this purpose we shall look into the evidence of Investigating Officer PW.15 Niranjan lal also. The accused had given information to this wit,ness and the information was recorded in Ex.P/12. As it was already dark, the SHO arranged for patromax and lantern and then proceeded.The body was found under the Gumbaj in the Tunnel. The accused had given information to this wit,ness and the information was recorded in Ex.P/12. As it was already dark, the SHO arranged for patromax and lantern and then proceeded.The body was found under the Gumbaj in the Tunnel. It was covered with sand and this has be corroborated by medical evidence. The confusion whether is was recovered from the Nalha or from the tunnel cannot be attached much importance because PW.7 Jagdish Prasad has explained that 'Surang' is known as Nalha beacuse in the rainy season water enters into it. The witnesses cannot be dis-believed merely because they did not depose in similar words. Had they deposed in a parrot like fashion they would have been branded as tutored witnesses. Here they are describing the place in their own words and according to their own perceptions. The witnesses were present as it would be apparent from the photographs taken at the site at the time of recovery of the body. The police or the witnesses had no knowledge that a body was lying in the Gumbaj and it was only on the basis of the information given by the accused appellant that this body was recovered. There may be some discrepancy in the time of the evening but then this cannot be attached much importance because neither the police nor the witnesses are exact about the same. 19. The learned Additional Sessions Judge has not attached much importance to the injuries found on the body of the accused, but as this is also a piece of evidence against him, the learned counsel for the appellant has made an attempt to show that this should not be believed. Ex. P/31 is the injury report of accused who was examined by PW.17 Dr. Vivekanand on 31.1.1987 at 12 noon. He found the following injuries: 1. Four abrasions of Pin head size with dry brown and hard scab on left antero lateral aspect of neck on upper part. 2. Four abrasions of Pin head size with dry brown and hard scab on left anterio lateral aspect of neck on lower part upto left supra clavicular. 3. Four abrasions of Pin head size with dry brown and hard scab on right sterno clavicular junction. The duration of injuries was about two days. The doctor observed that the abrasions could be by nail scratches. 3. Four abrasions of Pin head size with dry brown and hard scab on right sterno clavicular junction. The duration of injuries was about two days. The doctor observed that the abrasions could be by nail scratches. It is contended by the learned counsel for the appellant that in the arrest memo Ex.P/4 it has been mentioned that there is an old injury on the body of the accused on fore head and there has been no mention of any fresh injuries. Hence it should not be believed that he had the injuries as mentioned in Ex.P/31 at the time of his arrest. 20. It appears that the accused was sent for medical examination for seeking opinion about anal intercourse. When he was examined, pin head sized injuries, which were too minute for the Arresting Officer to detect, were found by the doctor. These injuries have been proved by PW.17 Dr. Vivekanand, who opined that the injuries could have been caused in a struggle with some one. Hence these injuries could be caused at the time when the incident can be said to have taken place. 21. The learned counsel for the appellant has tried to bring out some circumstances in order to argue that the accused has been implicated in this case when actually the police knew about the death of Suresh. It is contended that the FIR was lodged with delay and the FIR was registered for a case under section 366 only and when and how the case was registered under section 302 IPC is not known. By pointing that in the statements under section 161 Cr.P.C. offence under section 302 IPC has been mentioned, it is contended that even prior to the arrest of the accused, the matter had been investigated and it was known that Suresh had died in such circumstances hence the recovery of the body cannot be said to be at the instance of the accused. 22. Our attention has also been invited to the statement of PW.3 Mayadevi, who is mother of the deceased. She has stated that on the day of the incident Jagdish, Prabhu, and one new boy, were working and when she went to the shop all the three were sitting on the terrace. Attention has been invited to this stranger, whose name has not been given out and effort has been made to point suspicion towards him. She has stated that on the day of the incident Jagdish, Prabhu, and one new boy, were working and when she went to the shop all the three were sitting on the terrace. Attention has been invited to this stranger, whose name has not been given out and effort has been made to point suspicion towards him. Another thing which has been pointed out is that PW.3 Mayadevi has stated that She had given the key of the room to Suresh. But PW.9 Rajkumari stated that she took out the key of the room from the drawer of a safe. The learned counsel for the appellant wants to know as to how the key was found in the drawer, when it was with Suresh. According to him this is a missing link and the case against the appellant cannot be said to be proved. 23. We have taken into consideration all these contentions, which have been urged by the learned counsel for the appellant and have also looked into the alleged discrepancies in the case. It may be said that if there is any missing link and this missing link could be connected by the deceased, then it cannot be expected that the deceased would come back to supply the missing link. If the key was handed over to the deceased by his mother and he was going some,where before the arrival of his sisters and then it is normal for him to keep the key at a place where it would be found by the persons who would like to open the door. Taking of the key from the drawer by Rajkumari does not in any manner make the case against the appellant of suspicious. 24. Then we come to the FIR. We find that it was registered at 4.15 p.m. and the offence made out at that time was under Section 363 IPC only. Soon after at 6.00 p.m. the accused was arrested. Statements under section 161 Cr.P.C. have not been exhibited by bringing out any contradictions. But even then we have examined that in the statement of Keshavdas offence has been described as section 363 IPC only. From the statement of Mayadevi onwards the offence under section 302 IPC has been added. Soon after at 6.00 p.m. the accused was arrested. Statements under section 161 Cr.P.C. have not been exhibited by bringing out any contradictions. But even then we have examined that in the statement of Keshavdas offence has been described as section 363 IPC only. From the statement of Mayadevi onwards the offence under section 302 IPC has been added. Merely because the police have added the offence under Section 302 IPC, it would mean that knowledge about this offence can be attributed from some other source. In the first information report it was specifically mentioned that the deceased was last seen with the appellant and he was the first person to be interrogated in this respect. He had been questioned and he gave information as to how the incident occurred so the offence under section 302 IPC was also added. The Investigating Officer has not been questioned on this aspect of the matter, but it is common knowledge that when a report is taken to the Police Station and specially when it is not known what offence has been committed or whether any offence has been committed at all then before registering the case, the police first start interrogation. The questioning by the Police and the recording of statement is not a simultaneous act. The statements of witnesses are not recorded by the police as they are recorded in the court question by question. The witnesses give out the story and the same is reduced in writing in the words of the police. PW.1 Keshavdas must have gone to the Police Station at noon time, but then the case was registered at the convenience of the police and the discrepancy in time in the statements of the witnesses would not make the case a false one. 25. It is true that Jagdish and Ramesh, who were employees of Keshavdas have not been examined and they could have said something about how the time after Mayadevi left the house, was spent, but then merely because they have not been examined or because a stranger was also at the house, the case against the appellant would not become false. 26. On the very first day Keshavdas PW.1 had given information at the Control Room that his son was missing and this report was registered by PW.11 Budhiram. 26. On the very first day Keshavdas PW.1 had given information at the Control Room that his son was missing and this report was registered by PW.11 Budhiram. He was collecting information from the neighbours and as soon as he got some news, he lodged a report and the accused being the first suspect was questioned and the whole story came out in this case. The evidence about deceased and the accused being last seen together and the recovery of the dead-body at the instance of the accused are by itself sufficient to prove the case against the appellant. 27. It may be stated that the testimony of the doctor who conducted the postmortem on the body of the deceased also corroborates the fact that the body was covered with sand. The learned counsel for the appellant has tried to attack the testimony of PW.14 Dr. Temani on the ground that he has described the injuries as fresh, therefore, the death could not have been caused 36 to 72 hours prior to the postmortem examination. It is also argued that according to Dr. B. C. Temani, the death occurred on the night of 30th Jan., 1987. We have not been able to understand as to how this calculation has been made. Dr. B.C. Temani has stated that death of Suresh occurred 36 to 72 hours prior to the time of postmortem examination and this comes approximately before 2.00 0 clock in the night of 30.1.1987 and after the afternoon of 28.1.1987. Thus the time when Suresh died the evening of 29.1.1987 is within this period. It may also be stated that fresh injuries do not mean that the death had occurred recently, but it means that the injuries were inflicted just before death and this appears to be correct it the manner in which the incident took place is to be reconstructed.. The appellant took the deceased to the Gumbaj under what pretext we do not know and after resistance and some struggle. Suresh was strangulated. His body was then covereed with sand and left there. The postmortem report cannot be said to be against the prosecution story in any manner. 28. As far as the motive for causing the death of Suresh is concerned we have no hesitation in saying that we have not been able to understand as to what was the motive. His body was then covereed with sand and left there. The postmortem report cannot be said to be against the prosecution story in any manner. 28. As far as the motive for causing the death of Suresh is concerned we have no hesitation in saying that we have not been able to understand as to what was the motive. The appellant had taken something by way of advance from Keshavdas. Some account- books were lying burnt in the gutter at the house of Keshavdas. How does the elimination of Suresh help the appellant in any manner. There is no one to say as to who burnt the account-books. It appears that the same were not seized by the police. What do the burnt account books point at, has not been explained. It is difficult to infer any motive from this. We are of the opinion that it is difficult to say that the appellant had motive to kill Suresh. However, it may be said that when there is evidence pointing towards the accused then the absence of motive would not make the case against him unbelievable. 29. The learned counsel for the appellant has placed reliance on a number of decisions in order to contend as to what type of evidence can be sufficient in a case, wherein the case is to be proved by circumstantial evidence. 30. In Noor Khan v. The State of Rajasthan, 1985 Cri.L.R. (Raj.) 736 , it was held that there are three conditions, which are necessary to be satisfied before the circumstantial evidence can be made the basis for conviction. There may be suspicion against the accused but the suspicion cannot take the place of the evidence. The evidence should not fall short of proving the guilt of the accused. In this case there was no evidence of last seen. The body recovered at the instance of the accused was not identifiable. The accused was acquitted. 31. In Jagtar Singh v. The State of Rajasthan, 1987 RCC 158 , the evidence of last seen was not believed in absence of identification parade. Another case cited is Ram Chandra and anr. v. State of Rajasthan 1989 RCC 519 , which was a bride burning case. In this case, it was held that when it was possible that the nature of death could be homicide or suicide, the benefit of doubt was given to the accused. Another case cited is Ram Chandra and anr. v. State of Rajasthan 1989 RCC 519 , which was a bride burning case. In this case, it was held that when it was possible that the nature of death could be homicide or suicide, the benefit of doubt was given to the accused. 32. In Anwar v. The State of Rajasthan, 1985 RCC 348 , it was held that the conviction under section 302 1PC cannot be sustained merely on the basis of recovery. 33. We need not cite any authorities for the well established principles that in order to sustain a conviction for murder on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused that is, they should not be explainable on any other hypothesis except that the accused is guilty and the circumstances should be of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human probability the act must have been done by the accused. 34. In Suraj v. State of Rajasthan, 1986 RCC 315 , the recovery of the dead-body at the instance of accused was not held to be sufficient to give rise to an inference that murder was committed by him. It may be said that it was a case wherein boy had been kidnapped by several persons and some letters were also written, the recovery of the dead-body at the instance of one of the accused was not held to be sufficient to hold that the accused had caused his death. 35. In Om Prakash v. State of Rajasthan, 1985 R.L.R. 1018 , in a case of circumstantial evidence, the witnesses of the circumstances were relatives or interested witnesses and hence the accused was acquitted. 36. In the light of these decisions we have again looked into the evidence, but are unable to find any circumstances which may be inconsistent with the hypothesis of the quilt of the accused. The minor contradictions in time may be said to be natural. 36. In the light of these decisions we have again looked into the evidence, but are unable to find any circumstances which may be inconsistent with the hypothesis of the quilt of the accused. The minor contradictions in time may be said to be natural. The medical evidence makes it very plain that there was scuffle before Suresh died and in this scuffle he received injuries and the accused also received some injuries. There is one more circumstance pointing towards the guilt of the accused and it is a button which was recovered from the place where the dead body was found. This was recovered and the bushirt which the accused was wearing at the time of his arrest was also seized. The report Ex.P/14 given by the State Forensic Science Laboratory shows that the button is similar to the buttons found on the bushirt of the accused and further the fibres and thread found in the perforations of button are similar to the fibres of bushirt and the sewing thread of the other buttons in respect of Microscopic characteristics. On the basis of this evidence it can be said that the button got removed from the bushirt of the accused in the scuffle at the scene of the incident and this piece of silent evidence can be said to speak volumes in order to point towards the guilt of the accused. 37. On the basis of the evidence in the case which we have thoroughly analysed, we are of the view that even if PW.4 Harish is dis-believed, there is trustworthy evidence to show that the accused and the deceased were last seen together and that the recovery of the body of the deceased was made at the instance of the accused. Further, there is medical evidence to connect the accused and the manner in which the occurrence took place is also proved by the medical evidence. Besides this the recovery of the appellant's button from the site also proves his guilt. 38. In the circumstances, we find no force in this appeal and the same is dismissed. The conviction and sentence of the appellant are maintained.Appeal Dismissed. *******