JUDGMENT : H.R. Shelat, J. The respondent, Mahendra alias Ratilal Harjivan Luhar, placed on trial in connection with the offences punishable under Section 302, 459 and 397 of the Indian Penal Code in Sessions Case No. 34 of 1984, in the Court of the Additional Sessions Judge at Rajkot, came to be acquitted on 14th November 1984. The State, being aggrieved by the order of acquittal, has therefore preferred this appeal challenging the legality and validity of the acquittal order. Necessary facts may, in brief, be stated. 2. There is Hira Panna Textile Factory (for short "the factory") situated in Govindbaug area of Rajkot city. In that factory, Ukabhai Mavjibhai was serving as a watchman. Ordinarily, his duty hours were after Sunset to Sunrise. As usual, after taking his supper on 9th June 1984 he had gone to the factory for performing his duty as watchman. On 10th June 1984 his wife Chothiben in the early morning hours went to the factory to serve a cup of tea to her husband Ukabhai Mavjibhai. She found abnormal situation. Without any knocking or exertion the door could be opened as it was not bolted from inside. When she went into the terrace from one room to the another of the factory she found her husband lying in wounded condition on the heap of the sand. Her husband was injured on head, near left ear, and left eye. She saw about 3 wounds from where blood had emitted. She could also see a gore. She immediately scuttled to her house and informed her son about the poignant scene she saw on the terrace. Her son informed Shankerlal Laljibhai who is one of the partners of the factory. Shankerlal Laljibhai reached the factory and found that his watchman Ukabhai was no more because of deadly assault by some one. He also found that the steel cupboard was broken open and the things and money kept therein were stolen, along with the brief case black in colour. Approximately Rs. 2200/- were also found stolen. The son of the watchman then lodged the FIR with Rajkot police station. The concerned Police Officer of the police station then took the investigation on hand. 3. How the accused (respondent) came to be arrested may now be stated. After committing the offence he had left Rajkot by a train. Approximately Rs. 2200/- were also found stolen. The son of the watchman then lodged the FIR with Rajkot police station. The concerned Police Officer of the police station then took the investigation on hand. 3. How the accused (respondent) came to be arrested may now be stated. After committing the offence he had left Rajkot by a train. When on 10th June 1984 the train reached Wankaner in the afternoon he alighted. The Ticket Collector on duty at the platform found his movements suspicious. He therefore asked to show the ticket but he could not as he was travelling without ticket. The Ticket Collector then charged Rs. 15/- and issued a receipt. At that time he was in possession of the black Aristrocrat brand brief case. He then, instead of going out of the station-area, loitered at the platform. He again boarded the train and went into the toilet room. Changing the clothes he came out. Sometimes thereafter he again boarded the train, went into the toilet room and putting on the original dirty clothes he came out of the coach and started loitering on the platform. Frederick Motilal serving as Railway Police Constable was on duty. He was watching the suspicious movement of the accused. He suspected because accused was found dingy in appearance. Still, however, he was having costly Aristocrat brand brief case. He therefore called respondent and interrogated. During the interrogation his suspicion grew stronger. He suspected hanky-panky. When the brief case was searched, envelopes, gift-cards, key, rubber stamps of the factory etc., were found. Over and above such things belonging to the factory, under-garments, napkins, Jeans, pant etc. were also found. On being questioned, the respondent was fumbling and mincing the matter by replying evasively and avoiding to explain about his possession of those articles. From his brief case, Rs. 1,760/- were also found regarding which no satisfactory explanation was offered. The police constable arrested the respondent (accused) under Section 41(1)(d) of the Code of Criminal Procedure. By the time the police had already received the information about the offence of murder and robbery having been committed in the factory during the previous night between 9th June and 10th June 1984. The Railway police at Wankaner then intimated the police at Rajkot that the accused of the said incident was arrested. By a transfer warrant, therefore, the respondent was taken into custody by Rajkot police. The Railway police at Wankaner then intimated the police at Rajkot that the accused of the said incident was arrested. By a transfer warrant, therefore, the respondent was taken into custody by Rajkot police. The accused arrested was none else but the respondent before this Court & trial Court. He right from the very beginning to misguide and hoodwink the police authority and others, misrepresented himself to be "Mahendra Harjivan Luhar", the name of his brother, rather than stating his correct name, 'Ratilal Harjivan Luhar'. As the incorrect name given to the police, record accordingly was prepared and after the investigation was over, a charge sheet against the respondent was filed in the Court of the Judicial Magistrate (F.C.) at Rajkot. As the learned Magistrate was not having the jurisdiction to hear and decide the case of murder, he committed the case to the Court of Sessions at Rajkot relating to the offences punishable under Section 302, 459, 397 & 411 of the Indian Penal Code. The learned Sessions Judge at Rajkot assigned the case to the then Additional sessions Judge, Rajkot, for hearing and disposal in accordance with law. On 5th March 1984, a charge, Ex.1 against the respondent was framed and later on it was amended and re-framed on 16th October, 1984. The respondent pleaded not guilty and claimed to be tried. The prosecution then led necessary evidence. Appreciating the evidence before him and considering the rival submissions made, the then learned Additional Sessions Judge reached the conclusion that the prosecution had failed to establish the charge beyond reasonable doubt because the case was hinging on circumstantial evidence as there was no eye witness, and every chain of the circumstances was not established indicating the guilt on the part of the respondent. Giving benefit of doubt, therefore, the learned Additional Sessions Judge, delivering the judgment on 14th November 1984, acquitted the respondent. Challenging the legality and validity of the acquittal order, the State has, therefore, preferred this appeal. 4. The learned APP, Mr. Bukhari contends that immediately after the incident when the respondent was found in possession of Aristocrat brand brief case with the stationery of the factory and abovestated things, a presumption in law arises, especially when the respondent failed to account satisfactorily about the possession thereof that he was the perpetrator of the crime. However the learned Judge has unjustly discarded the said circumstance on record. However the learned Judge has unjustly discarded the said circumstance on record. The condition of the respondent was poor and he had taken leave for going to Jat-Pipali, his native place. He had also taken Rs. 100/- from his master to meet with the expenses he had to incur for going to his native place. Instead of going to Jat-Pipali, his native place, he was found in Wankaner along with the brief case and abovestated things. The accused was serving in welding work near to the factory. He used to go to the factory for fetching water and also used to go to the pangalla for purchasing pan. He was therefore known to Shankerlal Lalji & Prakash Hasanand, the partners of the factory, Dhanjibhai Jivabhai who is running the pangalla and Gopalbhai Khimjibhai with whom the respondent was serving in welding work. The condition of the respondent was stringent. He used to purchase pan on credit and used to borrow money often from different persons. He was earning Rs. 15/- or Rs. 17/- a day. However, when he was found in possession of Rs. 1,760/-, there was a reason to presume that the respondent had committed the alleged offences. Before the Court, the accused represented himself to be "Mahendra", his brother's name, though his real name is "Ratilal". As his clothes had dirtied, the respondent purchased Jeans pant and other garments after the incident while on way to Wankaner. The evidence on record,in short, according to the learned APP was cogent indicating the guilt of the respondent. Mr. Kamlesh M. Sheth, learned advocate representing the respondent has supported the order of acquittal passed by the learned Additional Sessions Judge adopting the reasonings assigned in the judgment by the learned Additional Sessions Judge. He has further contended that the evidence on record was fishy and was suffering from inherent improbabilities. The presumption of the innocence of the respondent was not at all shaken by the prosecution. The learned Judge was, therefore, perfectly right in acquitting the respondent because in this case, solely depending upon the circumstantial evidence, every chain of the circumstances was not established unerringly pointing to the guilt of the respondent. There were certain contradictions & infirmities pointed out by the trial Court tarnishing the credibility of the case of the prosecution. 5. The learned Judge was, therefore, perfectly right in acquitting the respondent because in this case, solely depending upon the circumstantial evidence, every chain of the circumstances was not established unerringly pointing to the guilt of the respondent. There were certain contradictions & infirmities pointed out by the trial Court tarnishing the credibility of the case of the prosecution. 5. We have gone through the entire evidence on record with meticulous care and finicky details, and have also perused the impugned judgment. We cannot put a seal of approval to the findings and reasonings of the learned Judge as well as the conclusions he has drawn. The learned Additional Sessions Judge, observing as mentioned herein below, has held that the evidence on record casts clouds of suspicion on the credibility of entire wrap and woof of the prosecution story; but we find that the approach of the learned Judge is eerie, demented and funny. He has found fault with the evidence of the prosecution without any ratiocination just for justifying the acquittal by hook or crook. Below mentioned strong appealing circumstances on record are discarded without any logical justification, and irrationality, conjectures and doctrinairism have dominated the analytical process of the learned Judge. The Court has to while appreciating the evidence, bear in mind the hard reality that the prosecution cannot in all cases come forward with arithmatically accurate and explicit evidence, and also with photographic memory of the witnesses. Further, their capacity to describe vividly and graphically in good & proper words can never be expected. However, discussing the evidence at different stages of the judgment, the learned Addl. Sessions Judge has unjustly finding fault ingeminated that the case of the prosecution is not worthy of credence and unsafe to rely upon because of infirmities, and doubts that arise. He then passed the order of acquittal. 6. Before we proceed to dissect the merits of the case, it may be stated that the present appeal had come up for hearing before the then Bench comprising of Mr. Justice R.K. Abichandani and Mr. Justice A.L. Dave. He then passed the order of acquittal. 6. Before we proceed to dissect the merits of the case, it may be stated that the present appeal had come up for hearing before the then Bench comprising of Mr. Justice R.K. Abichandani and Mr. Justice A.L. Dave. The said Bench, after hearing the parties, reversed the judgment and held the respondent guilty of the offences under Section 302, 459 & 397 of the Indian Penal Code, reaching the conclusion that the prosecution had successfully established the charge levelled against the respondent, beyond reasonable doubts, but as he was not present in the Court, non-bailable warrant was issued. After the same was executed, the said Bench was shocked to know that the person who was brought to the Court pursuant to the non-bailable warrant was, no doubt, having the name 'Mahendra', but not the real culprit as he divulged that no doubt his name was 'Mahendra Harjivan Luhar', he was in fact not the perpetrator of the crime, his brother might be whose name was 'Ratilal'. Another warrant was, therefore, issued pursuant to which respondent was produced before the said Bench. The real facts then came to light. The judgment dictated by the said Bench was recalled and the appeal was then ordered to be heard a fresh. Some time thereafter the appeal is assigned to us for hearing and disposal. The question of identity, of the real culprit, does not survive before us because Ratilal, the real culprit (respondent) who from the very beginning came out with his name as 'Mahendra' so as to put the authority and others to mistract and hoodwink, was, confronted, and perusing the record as well as the notices and signatures on record, the said Bench reached the irresistible and the only possible conclusion that 'Ratilal', the present respondent was right from his arrest pretending to be 'Mahendra' was the real perpetrator of crime. When the said Bench made grilling inquiry putting necessary question, Ratilal, the present respondent admitted that he was the accused who was arrested and tried in the lower Court. It could also be found that some times respondent represented himself as "Narendra" also. He then filed the affidavit to that effect on record. His ld. advocate, Mr. When the said Bench made grilling inquiry putting necessary question, Ratilal, the present respondent admitted that he was the accused who was arrested and tried in the lower Court. It could also be found that some times respondent represented himself as "Narendra" also. He then filed the affidavit to that effect on record. His ld. advocate, Mr. K.M. Sheth also made it clear before us at the commencement of the hearing that he was representing "Ratilal", the respondent, who is, according to the case of the prosecution, real culprit and who misrepresented himself to be 'Mahendra' right from inception. Thus, the question regarding the identity of the accused is set at rest. It may be mentioned here that Karsan Uka Ex.14; Chothiben Kalabhai Ex.21, Gopal Khimji Ex.22, Bhura Khimji Ex.27, Kanji Jiva Ex.28, Mukeshbhai Vasudev Ex.36, Abdul Isha Ex.38, Bharatbhai Kishanbhai Ex.39, Himatbhai Raghavbhai Ex.40, have also in the court identified the accused respondent making it clear how they came to know him, and from what day. 7. This is the appeal wherein order of acquittal is challenged. We are conscious about the fact that ordinarily, we cannot disturb the order of acquittal rendered by the Court below on the ground that out of two reasonably possible views, our view is better than the view of the lower court; but we can upset the same in appeal if we find that the approach of the trial Court is manifestly erroneous and the conclusions drawn are wholly unreasonable, perverse and two views are not possible. For such view, a reference of the decision of Apex Court in Bharwad Jakshibhai Nagjibhai v. State of Gujarat 1996 (1) GLH 226 may be made. 8. It may be made clear that there is no eye witness to the incident. The prosecution, therefore, solely relies upon different circumstances. In other words, the case of the prosecution solely depends upon the circumstantial evidence. When that is so, the prosecution has to prove every link of the circumstance satisfactorily by direct evidence without missing a single link, and prosecution must show that every link of the circumstances is a pointer to the guilt of the accused and not the innocence. The Court has, therefore, to see that the circumstances on record, viewed from different angles, finger at the guilt of the accused, leaving no scope about the possibility of his innocence. The Court has, therefore, to see that the circumstances on record, viewed from different angles, finger at the guilt of the accused, leaving no scope about the possibility of his innocence. The circumstances in other words need not be susceptible to two equally possible inferences. The Court has, therefore, to not only consider the circumstances separately, but has also to consider cumulative effect thereof because any missing link in the chain is fatal to the prosecution. To put in differently, all the circumstances on record must show conclusively the guilt of the accused with no hypothesis, and not the least scope for accused to slip away, i.e., leaving no scope indicating innocence of the accused. The evidence must therefore point to the guilt and guilt of the accused, i.e., the accused alone and none else is the perpetrator of the crime leaving no possibility about his innocence. Of course, motive is the strong circumstance when the whole case hinges upon the circumstantial evidence, yet absence thereof will not be a cause for the prosecution to have retreat in the battle field if the case is entirely based on circumstantial evidence when the circumstances on record leave no possibility of innocence of the accused from any angle. Keeping such law about the circumstantial evidence in mind, we will proceed to show how all the circumstances are individually and collectively incriminating, and the prosecution does not suffer a serious jolt as held by the trial Court. 9. We shall now proceed to dissect the merits of the reasoning & views of the ld. Addl. Sessions Judge mentioning simultaneously our views so as to show how the observations and views of the ld. Judge are illogical, and lose the ground to stand upon, and the circumstances on record admit no other possibility, as well as two views are also not reasonably possible. The prosecution has come out with the case that Rs. 2200/- were stolen, but Shankerlal, the partner of the factory before the Court stated that it was round about Rs. 700/- to 1400/-, while Rs. 1760/- were found from the possession of the accused when the Wankaner Railway police searched the brief case. The discrepancy regarding the amount on record was, according to the ld. Judge, giving rise to doubt. Recovery of the amount is therefore not the appealing circumstance to connect the respondent with the guilt. 10. 700/- to 1400/-, while Rs. 1760/- were found from the possession of the accused when the Wankaner Railway police searched the brief case. The discrepancy regarding the amount on record was, according to the ld. Judge, giving rise to doubt. Recovery of the amount is therefore not the appealing circumstance to connect the respondent with the guilt. 10. This circumstance does not provide a scope indicating the possibility of the innocence of the respondent. The learned Judge has missed to take a note of the fact that after the incident the respondent had been to the shop of Himatbhai Raghavbhai (Ex.42) and had purchased a Jeans pant for Rs. 50/-. Further Rs. 15/- were also charged by the Ticket Checker Bharatbhai Kishanbhai (Ex. 39) when at Wankaner platform the respondent was found without ticket. Abdulbhai Ishabhai (Ex.38) is running the hotel. At 5.00 or 5.30 A.M. on 10th June 1984, the respondent had been to his hotel for taking tea and snacks where he spent Rs. 5.30 ps. He must have accordingly on way to Wankaner spent for his necessities and requirements. When that is so, naturally Rs. 2200/- in tact would not be found from the respondent. In view of the matter, the fact that only Rs. 1760/- were found, would, on the contrary, considering the expenses the respondent had incurred, help the prosecution rather than giving rise to a doubt against the prosecution. We therefore do not agree with respondents' ld. advocate and learned Addl. Sessions Judge that this circumstance is having tarnishing impact on the case of the prosecution. 11. A diary from the brief case was found by Frederick Motilal, the police constable at Wankaner, wherein a letter "T" was written and against the said letter, Rs. 3/- was found written. The learned Judge, therefore, reached the conclusion that the respondent was not travelling without ticket. He had spent Rs. 3/- for the ticket. There was, therefore, no reason to charge penalty from him, and the brief case also must not be with him. The prosecution under mistaken belief or for any other hypothesis presupposed that respondent was the wrongdoer. 12. Of course from the brief case when it was searched at Wankaner, a diary was found wherein aforesaid contents were found to have been written, but one cannot jump to the conclusion that the respondent had purchased the ticket. The prosecution under mistaken belief or for any other hypothesis presupposed that respondent was the wrongdoer. 12. Of course from the brief case when it was searched at Wankaner, a diary was found wherein aforesaid contents were found to have been written, but one cannot jump to the conclusion that the respondent had purchased the ticket. The respondent does not say that he purchased the ticket and lost it some where. Further, a receipt for Rs. 15/- issued by the Ticker Checker at Wankaner, having out-rooting effect, in clear terms shows that the respondent was found without ticket and therefore he was charged Rs. 15/- inclusive of penalty amount by the Ticket Checker at Wankaner. The 'T' and Rs. 3/- jotted down in the diary therefore cannot be interpreted against the prosecution. It is also not clear that 'T' and "Rs.3/-" were written by the respondent. It is possible that the partner or employee of the factory using the brief case might have made the entry regarding some items, as diary belongs to the factory. 13. No doubt, it transpires from the evidence of the employer of the respondent (Ex.22) that the respondent was paid Rs. 17/- per day, and for going to his native place he had taken advance of Rs. 100/-. The respondent was addicted to pan. Whenever respondent used to go to the pangalla he used to purchase the pan on credit is the emanation from the evidence of pangallawala (Ex.28) who has stated that often respondent used to go to him & purchase pan. He used to jot down on the card piece of cigarette box. The ld. Addl. Sessions Judge however construed that one cannot jump to the conclusion that respondent was impecunions and had no way out but to commit wrong, because he was earning Rs. 17/- a day which could be termed sufficient in those days, and no one would think of committing theft or any other wrong as canvassed. 14. As made clear by Gopal Khimji (Ex.22) the master of the respondent, he was paying Rs. 17/- a day to the respondent for the work he was doing in his factory, but it would not be just to jump to the conclusion as has been done by the learned Judge that the income of Rs. 14. As made clear by Gopal Khimji (Ex.22) the master of the respondent, he was paying Rs. 17/- a day to the respondent for the work he was doing in his factory, but it would not be just to jump to the conclusion as has been done by the learned Judge that the income of Rs. 17.00 a day in those days was sufficient and no one would commit a wrong for getting money. The ld. Judge has also fallen into error in so holding. He has missed to note that person's ambition or avariciousness knows no bound. A person is therefore not satisfied with what he is having. He would always try to multiply the income and whatever comforts or good he is having. Some who are not the right thinking persons, or not able to endure, or are indiscreet, or half-baked, or peccables, or impassionate or silly, may in order to satisfy their avariciousness or ambition commit wrong. Further, one cannot ignore the fact that the respondent had for going to his native place shortly before the day of incident, taken advance of Rs. 100.00 from his master. One cannot also ignore the fact emerging from the evidence of Khimjibhai Ex.28 who is running the pangalla. According to him respondent used to go to him to purchase pan and many times he purchased pan on credit, and the total of the dues to him had gone to Rs. 150/-. The fact that accused had to pay Rs. 150/- to Pangallawala and Rs. 100/- to the master in clear terms indicates that the income of Rs. 17/- a day was not at all sufficient to meet with the expenses the respondent had to incur in those days. This circumstance though cannot be the sole yardstick but having some impact on the contrary supports the case of the prosecution. To meet the two ends when found difficult, remaining upright, the respondent, who was often going to the factory for fetching water, knew many things about the factory and could gather ifs, how, what & where. He then ideated a plan to have more money, and it was to commit theft or robbery, if required to do other wrongs while committing theft or robbery. 15. He then ideated a plan to have more money, and it was to commit theft or robbery, if required to do other wrongs while committing theft or robbery. 15. When two injuries, one on head and another on face was found on the person of deceased Ukabhai, the learned Judge is of the view that he could have counter acted to defend himself and there might be a scuffle between the two, with the result more injuries on the person of deceased could have been noted, but absence of many other injuries on the contrary does not connect the respondent with the offence. It is also the view of the learned Additional Sessions Judge that there were iron bars and many other things littered on the terrace. The respondent, if wanted to kill the watchman, could have used other things rather than the leg of a cot which was for the time being detached because of bugs' nuisance and vexation. He could have also wrapped a string round the neck and by strangulation he could have caused the death. When the leg of the cot is used, it would show that the respondent was not having the intention to cause death, and it would not be a circumstance indicating the guilt of the respondent. 16. It should be noted that initial one or two blows were proved fatal and they left no scope for any reaction or scuffle. The victim was fast asleep. He was unwary about the deadly attack. He in the circumstance cannot be expected to resist. It should hardly be stated that if the person goes to another place for committing the wrong he would try to finish up his task as early as possible and would soon leave the place. He would not stay for a longer period inviting the risk of being trapped & nabbed. As everything is to be done swiftly within a very short time, one would not think which would be the better way for securing his target. He would cause harm or give a blow with whatever he could lay his hand on immediately. It is possible that the leg of the cot being available easily nearby, the respondent with the leg caused the hurt and when two wounds were found sufficient, he would not then go on showering other blows and waste time. He would cause harm or give a blow with whatever he could lay his hand on immediately. It is possible that the leg of the cot being available easily nearby, the respondent with the leg caused the hurt and when two wounds were found sufficient, he would not then go on showering other blows and waste time. The circumstance on record therefore shows that the accused had the intention to cause death, and it points to no other possibility alike above stated other circumstances also, giving rise to no other possibility or inference. In our view, the reasons assigned by the learned Judge for discarding the circumstance are certainly weired. 17. No person would keep the things with him which would give a proof of his guilt and involve himself with the wrong. He would better throw away or destroy. The case of the prosecution, that the respondent was found with above stated stationeries and brief case at Wankaner platform, is, therefore, nothing but the innovation of the investigating agency, is the observation of the ld. Addl. Sessions Judge. 18. When a person has a time to think in cool atmosphere he would think deeply and decide when, how and what should be done, and what should not be done, but if he is in haste, after doing wrong, his mental equillibrium is disturbed and because of resultant folly he leaves some trace behind. After committing the wrong during the midnight or during wee hours on 10th June 1984 the respondent who had taken away the brief case with money must be in hurry to leave the place and flee to a farthest point first so that he might not be spoored, traced and nabbed. Whether he would like to keep with him or throw away the things can be thought of after leaving certain area. It should be noted that as per the evidence of Frederick, the police constable at Wankaner, the respondent was loitering on the platform and had twice gone into toilet room and had changed clothes. This shows that he was confused & perplexed and could not decide what to do ?. It should be noted that as per the evidence of Frederick, the police constable at Wankaner, the respondent was loitering on the platform and had twice gone into toilet room and had changed clothes. This shows that he was confused & perplexed and could not decide what to do ?. Hence, the respondent having been arrested with the brief case and stationery of the factory inclusive of the key of the cupboard, is not the unusual fact casting doubt on the case of the prosecution; and one cannot, as has been done by the learned Judge, take a view that nothing in fact had happened so as to rope in the respondent, but later on a case was engineered against the respondent which is the innovation of investigating agency so as to show on record that crime has not remained undetected. 19. The police seized the above stated things from the respondent, but all those things were not sealed and signatures of the panchas were not obtained thereon. The seizure was, thus, doubtful and not at all helpful to the prosecution. Abdul Isha Ex.38 runs hotel at Rajkot on Junction Road, opposite to Railway Station. At 5.00 or 5.30 A.M. on 10th June 1984 the respondent had gone to his hotel for a tea and his snacks. At that time, snacks were not ready, with the result a packet of biscuit and tea were served. This witness could see that the respondent was having a black brief case in his hand. This witness has also identified the respondent in the Court. His evidence is not believed by the learned Additional Sessions Judge on the ground that it would be difficult for any one to remember the face of the unknown person when numbers of customers during the day visit the hotel. 20. It appears clearly when panchnama was perused that all the formalities required to be undergone were gone through and there is no lapse on the part of the police. The seizure of the things from the possession of the accused clearly comes out from the panchnama, but without any base and conveniently ignoring the evidence, the ld. Judge has found fault with the same. It should be noted that a man may remember a particular incident with impression carved in mind, and may not rest of the incidents happening during the course of the day. Judge has found fault with the same. It should be noted that a man may remember a particular incident with impression carved in mind, and may not rest of the incidents happening during the course of the day. It all depends how the particular event strikes to his mind. Further, in the wee hours when one opens the hotel and starts to attend and serve the customer, as per the belief many have bred, one would remember the first order of the customer with which the day starts because the same is hinting at or suggestive of the fact how the day would come out or what can be the coming events during the day. Further, during the wee hours the hotel would not be thronged of or throbbing with flock of customers. It would therefore be possible for the hotel owner to remember the first customer coming to the hotel. There is therefore nothing unusual in the evidence of Abdul Isha. The learned Judge has ignoring this aspect strangely considered this circumstance to be in-supportive to the prosecution. 21. As per the case of the prosecution, the factory owners were keeping the costly Aristocrat brief case near the cupboard wherein the key of the cupboard was kept. The key of the cupboard was also found from the brief case when the respondent was apprehended by the police at Wankaner Railway platform. The learned Judge has doubted such case of the prosecution assigning the reason that when the key in the brief case was very much available easily on hand, there was no necessity for the respondent to break open the cupboard, rake-up the drawers and interspersed the things in the cupboard. The case of the prosecution was, therefore, held to be a fiction. 22. No doubt, the key of the cupboard was found in a brief case when the same was searched by the police at Wankaner but that cannot give rise to a suspicion in the case of the prosecution as observed by the learned Additional Sessions Judge. For the reasons stated herein above, the wrong doer in haste forgets what to do, when & how and what not to do because at that time he does not have cool mind to think about. For the reasons stated herein above, the wrong doer in haste forgets what to do, when & how and what not to do because at that time he does not have cool mind to think about. Perspective thinking is restored when the wrong-doer perceives himself safe & secured at a place after efflux of time and does not have a fear of being apprehended there. 23. The learned Judge has discarded the strongest circumstance on record on the ground mentioned in para 17 herein above but that cannot be overlooked lightly. The Aristocrat black brief case, cards, covers and other stationery of the factory as well as the key of the cupboard of the factory were found from the possession of the accused when he was apprehended and interrogated at the Wankaner Railway Station. He was also found in possession of Rs. 1760/-, the stolen money. The respondent was also found in possession of the Jeans pant he purchased few hours before he was nabbed and undergarments, napkins etc., too. When accused was thus found in possession of above stated things and money belonging to the factory soon after the incident, and such possession is not explained, it is the strongest circumstance on record going to show that either the respondent is a thief or a recipient of the stolen property. This strongest circumstance giving rise to a presumption without any doubt shows that the respondent committed the offence of theft or robbery. 24. Of course, identification parade is not held, but it is not the justifying circumstance on record to throw the case of the prosecution overboard. In law, identification parade if not held cannot always be fatal to the prosecution because identification parade is a weak type of evidence. If the evidence of the witnesses on the point is otherwise credible & clinching and establishes the fact about the identity of the accused without any doubt, the omission to hold the identification parade would be of no value. Further, from other materials and circumstances, on record, corroboration is available establishing the identity of the accused without any doubt, omission to hold the identification parade would lose the value, and the same would not be fatal to the prosecution. As stated above, the witnesses have in clear terms identified the respondent assigning reason as to how & why they came to know him and from what day. As stated above, the witnesses have in clear terms identified the respondent assigning reason as to how & why they came to know him and from what day. There is no reason to doubt their testimony. In this case therefore omission to hold the identification parade cannot be considered to be the circumstance indicating the innocence of the respondent. 25. Whether respondent can be connected with the offence of murder is the question that arises for examination because alike presumption is not available in law, unless murder is found to have been committed as one of the series of the same transaction. It is made clear in the case of Baiju v. State of Madhya Pradesh - AIR 1978 S.C. 522 that if the offence of murder and robbery are found to have been committed in one transaction, and the accused is found to be in possession of the stolen property soon after the incident, the necessary presumption that would arise under Section 114 of the Indian Evidence Act is that he committed the offence of murder along with the robbery. From the evidence of Chothiben, the wife of the deceased, and Shankerlal, one of the partners of the factory, it is clear that on 9th June 1984 in the evening when the factory was closed nothing wrong had happened, every thing was in order. In the morning when Chothiben as usual went to the factory to serve the tea, her husband was found in wounded condition and had succumbed to the injuries he had sustained. In the room of the factory the cupboard was broken open and many things were found littered and the cupboard was also raked-up. In such facts & circumstance, both the incidents can be said to have happened during the same night. Both the incidents are therefore the series of one transaction. When that is the case, it can also be assumed that not only the respondent committed the offence of robbery, but before committing the offence of robbery he committed the murder feeling a creeping sensation so that while carrying out the robbery, the watchman might not come in his way and impede him at any moment. The presumption about murder is therefore available in law. 26. The respondent has come out with the case of total denial about his possession of the brief case when he was apprehended. The presumption about murder is therefore available in law. 26. The respondent has come out with the case of total denial about his possession of the brief case when he was apprehended. He was also found in possession of other articles and above stated stationeries and also the receipt which the Ticket Collector issued to him. Still, however, he also denied the same and took a false defence that he was never at Wankaner. Further, he was not going to Rajkot and naturally so because he had already committed the wrong at Rajkot and had to hide himself from the police. He wanted to go to his native place. However he has come forward with the say that he was going to Rajkot. Thus he has come out with a false defence. It may be made clear that if the accused takes a false defence it cannot take the place of a proof of the fact which the prosecution has to estabish in order to succeed. However, a false plea of the accused may be considered as an additional circumstance if other circumstances proved and established, without any doubt point to the guilt of the accused. This is what is held by the Supreme Court in the case of Tanviben Pankajkumar Divetia v. State of Gujarat (1997) 7 S.C.C. 156 . The false defence in this case taken by the respondent is therefore the additional circumstance supporting the case of the prosecution when above referred circumstances point to the guilt & guilt alone, of the accused. 27. It is also the submission of Mr. Sheth, the ld. advocate for the respondent that when in the case solely depending upon circumstantial evidence, "motive" is not shown & proved, the case of the prosecution may be held to be fishy and concocted. The contention must fail. No doubt, in the case solely depending upon circumstantial evidence, motive assumes greater importance. However, if the motive for the murder is not disclosed and established, it would not in all cases prove fatal to the prosecution. If the evidence on record is very clinching and reliable, conviction can be based even if the motive is not established. For such view, a reference of a case of Tanviben Pankajkumar Divetia (supra) may be made. However, if the motive for the murder is not disclosed and established, it would not in all cases prove fatal to the prosecution. If the evidence on record is very clinching and reliable, conviction can be based even if the motive is not established. For such view, a reference of a case of Tanviben Pankajkumar Divetia (supra) may be made. In the case on hand, above referred circumstances are clinching, reliable, leave no room to doubt or a possibility of innocence of the respondent, and they collectively and individually point to the only conclusion, and it is the guilt alone of the respondent. Hence, absence of motive is not fatal to the prosecution. It may however be mentioned that the motive in this case can be spelt out. It can be said that above stated financial stringencies has motivated and impelled & induced the respondent to commit theft or robbery, and to have success do other wrongs if required. Because of such motive, the respondent designed a plan and committed the offences as alleged. 28. Dr. T.H. Shah (Ex.9) has made it clear that the injuries she noted were sufficient to cause death in ordinary course of nature. The respondent right from the inception has pretended to be "Mahendra" though his correct name is "Ratilal", and it was with the intention to hoodwink the concerned authorities. To commit the offence of theft without any hindrance, he first thought it fit to do away with the deceased. He gave two blows on the head & face (vital parts) of the deceased with the leg of the cot which caused serious damage to brain. These injuries proved fatal as per the opinion of the doctor. The respondent also, as observed above, took up a false defence. In view of the matter, it can well be said that the respondent intentionally caused the death of Ukabhai and thereby committed the offence of murder punishable u/s. 302 of the I.P. Code. The respondent used the leg of the cot heavy in weight and then giving two blows caused fatal injuries to the deceased. While breaking open the cupboard and stealing the money & properties, or while carrying away the stolen goods, or before committing theft the respondent caused fatal injuries to which Ukabhai succumbed to the same. The respondent used the leg of the cot heavy in weight and then giving two blows caused fatal injuries to the deceased. While breaking open the cupboard and stealing the money & properties, or while carrying away the stolen goods, or before committing theft the respondent caused fatal injuries to which Ukabhai succumbed to the same. After Sun-set and before Sun-rise the respondent with the intention to commit offences entered into the factory-premises and committed lurking house trespass and then caused death by causing grievous hurt. He therefore committed the offences punishable under Sections 397 and 459 of the I.P. Code. 29. For the aforesaid reasons, we are of the firm view that the learned Additional Sessions Judge has fallen into error in evaluating the evidence and not considering the circumstances in their right perspective assigning illogical reasons. The above stated circumstances clearly point out the guilt of the respondent without leaving any scope for suspicion about or likelihood of innocence of the accused. The important links and chains of the aforesaid circumstances get snapped pointing to the guilt and guilt of the respondent and admit no possibility of innocence. The case of the prosecution and evidence led suffer from no inherent improbabilities as canvassed. Further, on appreciation of evidence with care, we find the appreciation of evidence made and conclusions drawn by the lower court is arbitrary, perverse and wholly in disregard of sound principles of law, and thereby it has reached wrong conclusions not at all possibly emanating from the materials on record. Hence, we can interfere with the order of acquittal and convict the accused. We, therefore, hold that the respondent - Ratilal alias Mahendra alias Narendra Harjivan Luhar is certainly guilty of committing the murder of Ukabhai Mavjibhai and robbery in the factory at Rajkot on the date and at the time alleged by the prosecution, after committing lurking house trespass. 30. For the aforesaid reasons, this appeal is required to be allowed and the judgment and order passed by the learned Additional Sessions Judge are required to be quashed and set aside. The appeal is, therefore, allowed. The judgment and order of the trial Court recording the acquittal of the respondent are hereby set aside. The respondent is held guilty of the offences punishable under Section 302, 459 and 397 of the Indian Penal Code. 31. The appeal is, therefore, allowed. The judgment and order of the trial Court recording the acquittal of the respondent are hereby set aside. The respondent is held guilty of the offences punishable under Section 302, 459 and 397 of the Indian Penal Code. 31. Regarding the sentence, appropriate order will be passed hearing the respondent who is at present not before us. As he is in jail, we direct the Office to intimate the jail authority to keep the respondent present before us on 29th July, 1999. ....... (rmr). Further Oral Order: Reverting back to the sentencing process, we have heard the accused, in person, who was called from the jail. We have also heard the learned advocate for the accused and the learned Additional Public Prosecutor, Mr. Bukhari on the question of quantum of sentence to be imposed. In view of the facts and findings stated hereinbefore, for the offences under Section 302, 397 and 459, as mandated by the provisions of Section 235(2) of the Code of Criminal Procedure, 1973, (Code), the following aspects have been raised before us for taking a lenient and liberal view, while imposing punishment for the aforesaid offences for which respondent original-accused is held to be guilty, after quashing the acquittal judgment and order of the trial Court. (1) Accused stated before us that he was tried by the trial Court and he is not guilty; (2) He is aged about 32 and he has to shoulder the responsibility of maintaining his wife; (3) He is staying in a rented small place and his wife will not be able to take care of herself in his absence; (4) He also requested for mercy and leniency while considering the quantum of punishment. 2. There is a purpose and policy behind the sentencing process and the hearing to be afforded to the accused on the quantum of sentence. This innovative action, and resultant statutory provision in Section 235(2) of the Code is one more milestone on the path of free and fair trial to the accused persons as it is a fundamental human right. Therefore, provision is made under in Section 235(2) by the Parliament in its wisdom so as to strike a balance while quantifying the punishment. It is again an important step in the direction of reformative and rehabilitative projects and philosophy in the realm in the criminology and penalogy. 3. Therefore, provision is made under in Section 235(2) by the Parliament in its wisdom so as to strike a balance while quantifying the punishment. It is again an important step in the direction of reformative and rehabilitative projects and philosophy in the realm in the criminology and penalogy. 3. Needless to mention that the victimology is also, again, an important facet of sentencing process and policy. The Court cannot be oblivious, therefore, to this important aspect of Criminal Jurisprudence. The underlined design and purport and the main anxiety of the Court ought to be, in such cases, to see that a just and reasonable balance is struck while fixing the quantum of punishment for the proved complicity of offender. 4. Since the accused is held guilty for a murder, and therefore liable to be punished under Section 302 of the Indian Penal Code, which prescribes minimum sentence of imprisonment for life, extreme penalty of death, in the facts of the present case, obviously, would not be warranted and, rightly, therefore, also submitted by the learned Additional Public Prosecutor. Otherwise also, the parameter articulated by host of the judicial pronouncements that extreme penalty of death can be imposed in a rarest of rare case, which is not the factual scenario in the present case. Since Section 302 does not admit any further discretionary power upon the Court, less than imprisonment for life, and since we have not found this case fit for extreme penalty, we are left with only option to impose punishment of imprisonment for life, and since Section 302 of the Indian Penal Code commands minimum sentence, and also fine, and again looking to the financial status of the accused, the fine of Rs. 2,000/- is imposed, and in default thereof to undergo three months rigorous imprisonment. Since the accused person is in the custody and he is also called from the Jail so as to hear him on the quantum of sentence, obviously, further order in that regard would not be necessary, except to say that he would start serving out the punishment of imprisonment for life imposed hereinbefore by us for the complicity established beyond reasonable doubt. Of course, he would be entitled to the period of set-off, as contemplated by the provisions of Section 428 of the Code. Of course, he would be entitled to the period of set-off, as contemplated by the provisions of Section 428 of the Code. Since we have imposed imprisonment for life for the offences under Section 302 of the Indian Penal Code, we do not think it necessary to separately award sentence or fine, in so for as the complicity of the accused and the offences under Section 397 and 459 of the Indian Penal Code are concerned. So, no separate order of sentence is recorded in respect of these two offences. 5. After having heard even on the point of disposal of muddamal articles, we do not find it necessary to disturb the directions contained in the impugned judgment and order of the trial Court. Except the direction contained in Para 38 of the Judgment regarding Exhibits 15, 16, 17 & 18 and 34 referable to muddamal article No. 2, all such papers, gift cards, accounts which are exhibited, are ordered to be returned to the witness, Shankerlal Lalji, after the period of appeal, if any. We may again clarify, that rest of the order, pertaining to the muddamal articles recorded by the trial Court, is not disturbed, except what is stated in Para 32 of the impugned judgment of the trial Court. The Office is directed to suitably direct and issue warrant in terms of our aforesaid directions to the Jail authority, from where the accused is brought today for hearing. Appeal allowed.