PALOK BASU, J. ( 1 ) SHIBBOO appellant has preferred this appeal from jail against his conviction under section 302/201, I. P. C. and the aconcurrent sentences of imprisonment for life and of 7 years R. 1 under section 302/20 1. District and Sessions Judge, Saharanpur, on 25-1-1985 in S. T. No. 65 of 1984. ( 2 ) THE charge against the appellant was that he along with co-accused Gopal took Baja Rao alias Bajra from his house in Brahmpun, Jhoppar Patti, P. S. Haridwar, District Saharanpur and intentionally caused the death of Baja Rao on 3/411-1983 in the jungle of Rodhi Maidan and then threw his dead body into the river Ganga thus causing the evidence of offence to disappear to screen himself from the legal punishment and, therefore, he committed offences punishable under sections 364, 302, and 201, I. P. C. ( 3 ) IT may be mentioned here that the co- accused Gopal has been declared absconder in the charge sheet filed by the police and has not participated in the trial. ( 4 ) WHEN this appeal was listed last Shri Lal Ctandra Advocate, had been appointed amicus curiae to argue the matter on behalf of the appellant who has been heard at length, Sri. R. C. Deepak, learned A. G. A. has been heard in support of the State of U. P. and the entire record has beenexamined. ( 5 ) THE, prosecution case is that Baja Rao alias Bajra was living with his wife Smt Saraswati, P. W. 1 in Jhoppar Patti locality before which they were living with their father-in-law Amarchand in the slums of that locality. The appellant Shibboo Das was known to the deceased. However, in the year 1980 Shibboo Das was challenged under section 60 of the Excise Act on the report of Baja Rao as a result of which he nourished ill-will. It is said that on a particular day the appellant and his associate Gopal had gone to the house of P. W. 2 Amarchand in search of the deceased. However, on the statement of Amarchand and his daughter Smt. Saraswati saying that the deceased was not there, the accused left holding out threats that he would be killed. P. W. 4 Raj Kumar Chaddha has been examined to prove that he had made efforts to get a compromise done between the appellant and the deceased. However, on the statement of Amarchand and his daughter Smt. Saraswati saying that the deceased was not there, the accused left holding out threats that he would be killed. P. W. 4 Raj Kumar Chaddha has been examined to prove that he had made efforts to get a compromise done between the appellant and the deceased. ( 6 ) THE aforesaid circumstances brought out during the testimony of P. W. 2 Amarchand, P. W. 1 Smt. Saraswati and P. W. 4 Raj Kumar Chaddhave no doubt that the appellant and the deceased the lower strata of the society and too much reason and logic is not expected in their conduct. It was very natural for the appellant to have grudge against the deceased for his prosecution in the Excise Act case and that he had made attempts to attack the deceased before the incident. ( 7 ) SMT. Saraswatj has stated that on 3-11-1983 at about 7 p. m. the appellant and his associate Gopal had come to the deceaseds house and took away the deceased. He did not return for two days whereupon she had contacted the appellant but he did not tell the whereabouts except that the deceased had left for his Tea shop in the night of 3-11-1983 itself. ( 8 ) P. W. 5 Kishan Lal, a neighbour, has said that he had seen the deceased in the company of the appellant on 1-11-1983 at about 7-15 p. m. He has said that Smt. Saraswati complained to him also about the non-return of her husband. Conse quently on 6-11-1983 she got a First Information Report written through P. W. 4. Raj Kumar Chaddha, another neighbour, and lodged the First Information Report at Police Station Kotwali Haridwaron 6-11-1983 at 9. 30 A. M. P. W. 6 Har Stiyam Misra, constable, registered the case against the appellant and Gopal vide G. D. entries proved as Ex. Ka -5 under section 364, I. P. C. P. W. 9 Dhan Pal Singh Bhatti took up the investigation, recorded the statements of Smt. Saraswati, Raj Kumar and Kishan Lal and others and drew the site plan. He deputed some persons to trace out the deceased. On 6-11-1983 Kishan Lal joined the police force in searching the deceased and someone told them that a body was lying on the back of Ganga. He deputed some persons to trace out the deceased. On 6-11-1983 Kishan Lal joined the police force in searching the deceased and someone told them that a body was lying on the back of Ganga. Consequently P. W. 5 Kishan Lal, and the constable found the dead body at 11. 30 A. M. on 6-11-1983 which was that of Bajra as identified by Kishan Lal, the constable remained with the dead body and Kishan Lal rushed to inform the police. On this information necessary G. D. entries were made (Ex. Ka-5) and subsequently the case was registered under section 302, I. P. C. Dhan Pal Singh, Investigating Officer, went to the spot, prepared the inquest report and all other papers relating to the dispatch of the dead body through constable P. W. 7 Bijendra Singh. ( 9 ) THE post mortem examination of the dead body of Baja Rao was conducted by P. W. 3 Dr. S. P. Ahuja, Medical Officer, Harmilap Mission Government Hospital, Haridwar on 7-11-1983 at 1. 00 P. M. The post mortem examination report prepared and proved by Dr. Ahuja is Ex. Ka-2. On external examination Dr. Ahuja found the age of the deceased 30 years, rigor mortis passed off from upper and lower extremities. Sand particles were present all over the body. Water regosities were present on both the soles and palms, both eyes were closed and the mouth was open. Blood was coming out from the right ear. There was fracture of upper and lower jaw right side. ( 10 ) DR. Ahuja found the following ante mortem injuries on his person:1. Incised wound 5-1/2 cm. x 2 cm. x brain cavity deep along with compound and communited fracture of left parietal bone 4-1/2 cm. above the left ear. 2. Ante mortem injury (lacerated wound) 3 cm. x I cm. on the left ear pinna. 3. Lacerated wound 2 cm. x 1 cm. x bone, deep on back of head 8 cm. behind the left ear. 4. Abraded contusion 3 cm x 5 cm. on left side temporal region. 5. Incised wound 2 cm. x 0. 7 cm. x bone deep on right side forehead, 31/2 cm. above the right eyebrow. 6. Contusion 9 cm. x 6 cm. on right side back, middle part. 7. Skin peeled off on left side back upper third. 8. Decomposition of the body started. on left side temporal region. 5. Incised wound 2 cm. x 0. 7 cm. x bone deep on right side forehead, 31/2 cm. above the right eyebrow. 6. Contusion 9 cm. x 6 cm. on right side back, middle part. 7. Skin peeled off on left side back upper third. 8. Decomposition of the body started. ( 11 ) ON internal examination Dr. Ahuja found depressed and communited fracture of frontal both parietal and occipital bone of both sides. He also found fracture of anterior fossa, middle fossa, both sides and posterior. The bran matter was lacerated and coming out of the fracture sitee and meningies were torn. Both the chambers of the heart were empty. ( 12 ) IN the opinion of Dr. Ahuja, the cause of death was on account of coma due to head injury. He also opined that injury Nos. 1 and 5 could possibly have been caused by heavy culling weapon say axe, while injuries Nos. 2, 3, 4, 6 and 7 with stone. The duration of the death, in his opinion, was about three days old. Dr. Ahuja also made it clear that the death could have resulted after 8-30 p. m. on 3-11-1983 and before 6-11-1983. ( 13 ) THE prosecution case further is that after having despatched the dead body for post mortem examination the Investigating Officer got an information that Shibboo Das appellant was going towards the railway station near Lalta Bridge. Consequently he rushed there and arrested him and recorded his statement on 6-11-1983. He made a confession and volunteered to get discovered the axe connected with this crime concealed in his tea shop and the stone which was also used in the offence and further volunteered to indicate the place where the murder was commiued. ( 14 ) CONSEQUENTLY the appellant went to his tea shop near Rodhi Maidan between Vishnughat and Gaoghat and took out the blood stained axe (Ex. 1) covered under worn and tom old clothes at about 5-30 p. m. The same day (6-11-1983) in the presence of one Surendra Kumar and P. W. 5 Kishan Lal, he took the party to the spot where the deceased was murdered in the bushes behind his Tea Shop in Rodhi Maidan wherefrom blsood stained stone and earth were taken possession of as well as blood stained earth was collected along with the plain earth. Site plan was also drawn. ( 15 ) THEREAFTER the investigation was taken over by P. W. 8 Lekhpal Singh with effect from 811-1983. He also made a search for co-accused Gopal and ultimately being satisfied that the appellant was guilty filed a charge sheet against him and showed co-accused Gopal as an absconder. ( 16 ) THE appellant denied the charges against him and pleaded that he has been falsely implicated and the witnesses being under the influence of the police are deposing against him under pressure. No evidence has been led by him in defence. ( 17 ) THE instant case, therefore, rests on the aforesaid circumstances as there is no direct evisence of the crime. From the facts mentioned above the following circumstantial evidence has been proved beyond doubt against the appellant: (i there was enough motive for the appellants to commit the murder of the deceased as he has got him challaned under section 60 of the Excise Act on 2-6-1980. (ii) The appellant used to nourish iliwill and hostility against the deceaded and had gone to the house of the deceased about 10 months prior to nthe occurrence in search of the deceaded but finding him there left the place holding out threat to do away with the life of the deceased. (iii) The neihbours such as Raj Kumar Chaddha had come to know of the threats advanced by the appellant and tried to bring out a compromise betwiin them. (iv) The appellant along with his associate Gopal had come to the horse of the deceased at 7 p. m. and took him along on the pretext of some work. (v) The deceased did not return home for a the next two days and his dwife (P. W. 1 Smt. Saraswati) went to enquire the whereabouts from the appellant and tried to bring out a compromise between them. (vi) The F. I. R. of the case was lodged under section 364, I. P. C. on 6-11-1983 at 9. 30 A. M. by the wife of the deceased. (vii) Independent person such as P. W. 5 Kishan Lal had seen the deceased with the appellant on 3-11-1983 at about 7. 15 P. M. in the locality. (viii) The appellant was arrested from the railway station on 6-11-1983 where from he was likely to flee. 30 A. M. by the wife of the deceased. (vii) Independent person such as P. W. 5 Kishan Lal had seen the deceased with the appellant on 3-11-1983 at about 7. 15 P. M. in the locality. (viii) The appellant was arrested from the railway station on 6-11-1983 where from he was likely to flee. (ix) The axe and stones were recovered at the pointing out of the appellant who made a confessional statement before Dhan Pal Singh Bhatti, Investigating Officer and P. W. 5 Kishan Lal which will be admissible under section 27 of the Indian Evidence Act. The axe was, in fact, recovered from inside his Tea Stall concealed under worn and torn old clothes. The place of murder and the appellant which was lying in the bushes behind his own Tea Stall. (x) The cement pieces and clothes were having blood marks and stains but marks and stains but they had disintegrated and could not be found conclusively to be human blood. ( 18 ) THE cumulative effect of the aforesaid circumstances get doubly strengthened when a look is had at the post mortem examination which goes to indicate that the deceased had died as a result of injuries through a heavy-cutting weapon like axe and having been beaten by a stone. It gets further stremgtheneds when it is found that P. W. 5 Kishan Lal is also living in the same locality and earns his livelihood by pulling rickshaw and both these witnesses had absolutely no grudge against the appellant and appear to be wholly independent. Sufficient cross-examination was directed towards them but nothing material has been brought out to discrfedit their testimony. The cumulative effects on the only conclusion from the aforesaid circumstances is that the appellant had committed the muder of the deceased having first extended him threat then taken him out of his house on fales pretext along with his associate Gopal. ( 19 ) SO far as the charge under section 364, I. P. C. is concerned it need not be necessary to decide whether it has been proved or not because the charge against the appellant under sections 302/201, I. P. C. stands fully made out by the facts and circumstances noted above. ( 20 ) CONSEQUENTLY the appeaql fails and is dismissed. The applellant is in jail and will serve out the sentence awardered to him. ( 20 ) CONSEQUENTLY the appeaql fails and is dismissed. The applellant is in jail and will serve out the sentence awardered to him. Shri lal Chandra has argued the matter with ablitty. He may be paid Rs. 250/ -. Appeal dismissed. .