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2003 DIGILAW 1118 (RAJ)

Bheem Singh v. State of Rajasthan-(144)

2003-08-05

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2003
JUDGMENT 1. :- This appeal has filed by appellant Bheem Singh against the judgment of conviction and order of sentence dated 21.12.1999 passed by the learned Special Judge, thereby convicting the appellant for offence under Section 302 and 364 Indian Penal Code and sentencing him to undergo life imprisonment and 3 year rigorous imprisonment, respectively. 2. On 20.8.91, one Ram Prakash (PW1) S/o Shri Tulsa Ram submitted a detailed typed report, Ex.P4 to the Superintendent of Police, Ajmer requesting him to get a case registered and to get the investigation done in the light of allegations made in the report. As per the report, his brother Ram Swaroop (since deceased) was missing since 13.7.91. He suspected that probably appellant Bheem Singh and his uncle Bacchan Singh have murdered his brother Ram Swaroop. The Superintendent of Police forwarded the report to the Station House Officer, Christian Ganj, Ajmer directing him to register a case and to investigate into the matter. Accordingly, the SHO registered a case for offence under Sections 364 and 365 Indian Penal Code vide FIR, Ex.P.5. 3. On 15.7.91 PW 18 Girish Chand Sharma, A.S.I., Police Station Rakabganj, Agra received a written report of PW 13 Sanjay Kumar to the effect that one person named Rameshwar Dayal who had come to the Tourist Lodge in the night at about 1.00 AM and stayed there was found dead in the morning. This information was recorded in the Roznamcha at Sl. No. 24, a copy of which is Ex.P.25. Having received the information, PW 18 Girish Chand Sharma rushed to the Tourist Lodge and found dead body of a person lying in the bath room of Room No.17. He prepared inquest report, Ex.P.12 and also took in possession one bottle found in the bath room, vide memo Ex.P.13. He sent the dead body for post mortem examination vide letter Ex.P.20. He also prepared sketch (Ex.P.24) of the dead body and got the photographs (Exs. P10 and P11) of the dead body. 4. On 20.8.91, Chiranji Lal, who was posted as SHO, Police Station Christian Ganj, Ajmer received report, Ex.P.4 and registered a case vide FIR, Ex.P5. Chiranji Lal inspected the site and drawn site plan, Ex.P.16. He seized the register of Tourist Lodge vide memo Ex.P.14. He also seized one register and one copy containing hand-writing of Bheem Singh vide memo Ex.P.18. On 20.8.91, Chiranji Lal, who was posted as SHO, Police Station Christian Ganj, Ajmer received report, Ex.P.4 and registered a case vide FIR, Ex.P5. Chiranji Lal inspected the site and drawn site plan, Ex.P.16. He seized the register of Tourist Lodge vide memo Ex.P.14. He also seized one register and one copy containing hand-writing of Bheem Singh vide memo Ex.P.18. Chiranji Lal recorded the information of Bheem Singh vide memo Ex.P.19. He also seized suit case of deceased Ram Swaroop vide memo Ex.P.20 and one register containing hand-writing of deceased Ram Swaroop vide memo Ex.P.21. Bacchan Singh produced a letter Ex.P.28 to Chiranji Lal. It may be stated that Chiranji Lal died during investigation and, therefore, he could not be examined as a witness. However, his hand-writing and signatures on the above referred documents have been identified by PW 15 Mool Singh and PW 19 Natwar Lal as they were conversant with his signatures and hand-writing, he being companion and subordinate in the service in the same department. 5. PW 15 Mool Singh, A.S.I. first recorded the statements of witnesses under Sec.161 Cr.P.C. He seized letter, Ex.P:I, envelop Ex.P.2 and. pass book Ex.P. 3 produced by PW 1 Ram Prakash, brother of the deceased. 6. PW 19 Natwar Lai, Deputy Superintendent of Police arrested accused Bheem Singh vide arrest memo, Ex.P.26. He has stated that Chiranji Lal seized registers Ex.P.29, P.30 and P.31 and one copy Ex.P.32. He has also deposed that Ex.P.33 to P.44 bear the signatures of J.R. Yadav, AST. 7. The post mortem report of deceased Ram:Swaroop is Ex.P/23. The doctor who conducted autopsy opined that cause of death was asphyxia as a result of ante-mortem injuries. The investigating Officer collected the entire papers from the Investigating Agency at Agra, concerning the death of Ram Swaroop. 8. PW 20 Ajay Kumar Meena, Judicial Magistrate No.3, Ajmer conducted test identification parade of accused Bheem Singh and prepared Exs. P.18 and P.19. Ram Prakash identified the cloths etc. of the deceased and Paras Ram identified his watch vide memos Ex.P6 and P46, respectively. 9. Having completed entire formalities, the police submitted a charge sheet against the accused appellant-in the court of Judicial Magistrate No.3, Ajmer. The learned Magistrate having found the case exclusively triable by the court of Sessions, committed the case to the court of Sessions. 10. of the deceased and Paras Ram identified his watch vide memos Ex.P6 and P46, respectively. 9. Having completed entire formalities, the police submitted a charge sheet against the accused appellant-in the court of Judicial Magistrate No.3, Ajmer. The learned Magistrate having found the case exclusively triable by the court of Sessions, committed the case to the court of Sessions. 10. The case came to be tried by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Ajmer. The learned trial court, on the basis of evidence and material collected during investigation and placed before it and after hearing arguments of the counsel for the parties, framed charges against the appellant. The appellant denied the charges and claimed trial. 11. In order to prove its case, the prosecution examined as many as 20 witnesses and got exhibited numerous documents. Thereafter, appellant was examined under Section 313 Cr.P.C. No oral evidence was adduced in defence. 12. At the conclusion of trial and after hearing counsel for the parties, the learned trial court found the accused appellant guilty of having committed offence under Sections 302 and 364 Indian Penal Code and accordingly convicted and sentenced him in the manner stated above. Hence this appeal against the judgment of conviction and order of sentence. 13. We have heard learned counsel for the parties and gone through the judgment under appeal and the evidence and material on record. 14. In the case at hand, there is no direct evidence and the entire case rests solely on circumstantial evidence. In a case of circumstantial evidence the essential ingredients to prove guilt of an accused are (i) the circumstances from which the conclusion is drawn should be fully proved (ii) the circumstances should be conclusive in nature (iii) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence and (iv) the circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused. In this view of the matter what we have to examine is whether the circumstantial evidence in the case at hand is sufficient to meet the required standard of proof. 15. In this view of the matter what we have to examine is whether the circumstantial evidence in the case at hand is sufficient to meet the required standard of proof. 15. Having gone through the impugned judgment and the evidence and material on record we find that the prosecution has put forward following circumstances which the trial court has relied upon in basing conviction of the appellant: (1) the accused appellant was last seen in the company of deceased Ram Swaroop; (2) Identification of the appellant; (3) concealing the identity of himself and that of deceased Ram Swaroop; (4) creation of false evidence to prove his presence at Ajmer and Diggi. 16. In order to prove the first circumstance the prosecution has relied upon the evidence of PW4 Laxman Ram, PW 5 Mst. Geeta, PW 6 Parsa Ram, PW 7 Bholu Ram and PW 13 Sanjay Kumar. 17. PW 4 Laxman Ram has deposed that in the evening of 13.7.1991 he had gone to purchase vegetables and while he was busy in purchasing vegetables, Ram Swaroop and Bheem Singh were passing through. Ram Swaroop had a attachy in his hand. On being asked by this witness as to where they were going, Ram Swaroop informed that he and Bheem Singh Chaudhary were going out for some purpose. 18. PW 5 Mst. Geeta is a land lady and deceased Ram Swaroop was her tenant. This witness was declared hostile, but was allowed,to be cross examined. In her cross examination, Mst. Geeta has deposed that on 13.7.1991 Ram Swaroop deceased informed her that he was leaving with appellant Bheem Singh and will return after some time. She stated that some body came and made a call to Ram Swaroop. Thereafter Ram Swaroop left the house with an attachy. While leaving the place, Ram Swaroop also informed Mst. Geeta that he has posted letter to his village and if some one comes from the village, she may inform the person whoever comes that he has left with Bheem Singh. The witness was cross examined at great length, but nothing could be elicited to infer that she is not a witness of sterling worth or that she is not telling the truth. 19. The witness was cross examined at great length, but nothing could be elicited to infer that she is not a witness of sterling worth or that she is not telling the truth. 19. PW 6 Parsa Ram, who is a teacher by profession, has deposed that on 11.7.91 deceased Ram Swaroop met him and told that on 13.7.91 he will go out with Bheem Singh and on enquiry by this witness, Ram Swaroop informed that they will be going to purchase a car. As per this witness, Ram Swaroop demanded his wrist watch and he fulfilled his demand. The witness identified his wrist watch, Article-1, which was found lying near the dead body of Ram Swaroop. 20. PW 7 Bholu Ram, a taxi is yet another witness of last seen. He has deposed that on 14.7.1991 deceased Ram Swaroop and appellant Bheem Singh both met him at Jaipur Roadways Bus Stand when he reached there at 5.30 PM. The witness stated that he carried passengers from Kishangarh and reached Jaipur by Taxi and both deceased and the accused met him just opposite the main gate of bus stand. He clarified that he had a talk with Ram Swaroop and Bheem Singh both. According to this witness, accused Bhim Singh told him that since transaction of purchasing car could not be settled, therefore, he would be taking Ram Swaroop to Agra for making him available a car at the cheap rate. The witness claims that all the three consumed liquor at the bus stand. The witness stated that leaving both Ram Swaroop and Bheem Singh at the Bus stand, he took the passengers in his taxi and returned back. He came to know about the murder of Ram Swaroop through news paper. This witness was also cross examined at length, but nothing could be elicited so as to discard his testimony. 21. PW 13 Sanjay Kumar was, at the relevant time, posted as Receptionist at Tourist Lodge, Agra where dead body of deceased Ram Swaroop was found lying in room No.17. He has deposed that in the night intervening 14/15th July, 1991 he was on duty at the said hotel from 8.00 PM to 8.00 AM. According to this witness, at about 1-1.30 in the night, two persons came to his hotel and accused Bheem Singh made entries in the hotel register and paid Rs. He has deposed that in the night intervening 14/15th July, 1991 he was on duty at the said hotel from 8.00 PM to 8.00 AM. According to this witness, at about 1-1.30 in the night, two persons came to his hotel and accused Bheem Singh made entries in the hotel register and paid Rs. 100/- as an advance against the rent of the room. The witness asked Bheem Singh to make entries of two persons in the column of register meant for entering the 'number of persons'. The accused first made entries of two persons and then stated that another person would be leaving. Therefore; the witness states that he replaced the number of visitors by 1 and cut 2', Thereafter, the witness sent keys of room No. 17 with Mohan, peon. The witness further stated that accused Bheem Singh left the hotel after 2- 2.30 hours in the night and at that time he had a suite-case in his hand. In the morning, one Shanker, Waiter of the hotel informed the witness on intercom phone that room No.17 was vacant and guest was not there, but luggage was lying there. The witness then disclosed this fact to PW 8 Rajesh Anand, owner of the Lodge who was standing nearby. Rajesh Anand, in turn, directed the witness to check the rgom. Having reached there, the witness found the door of the room opened and when he pushed the door of bath room he found a person lying there who had stayed in the Lodge in the night. Under the direction of PW 8 Rajesh, the witness rushed to police station, Rakabganj (Agra). This witness also identified the accused appellant in the identification parade held at Ajmer as would be evident from the identification memo, Ex.P.19 which bears his signatures from portion 'A' to 'B'. A glance at hotel registrars (Ex.P15) it appears that he made entries at SI. No 1169 from portion marked 'A' to 'B' by showing the name of Rameshwar Dayal instead Ram Swaroop. PW 13 Sanjay Kumar is an independent witness and he was also cross examined at length and nothing could be elicited from him which may lead us to infer that he is not a witness of sterling worth. Witnesses Shanker and Rajesh Anand have also corroborated his testimony. 22. PW 13 Sanjay Kumar is an independent witness and he was also cross examined at length and nothing could be elicited from him which may lead us to infer that he is not a witness of sterling worth. Witnesses Shanker and Rajesh Anand have also corroborated his testimony. 22. It may also be stated that PW 1 Ram Prakash brother of the deceased received letter dated 10.7.91, Ex.P.1 of Ram Swaroop, wherein Ram Swaroop informed that he is going with accused Bheem Singh and will return after few days. 23. Having scrutinised the evidence of above witnesses, we see no reason to disbelieve or discard the testimony of these witnesses of last seen. We also do not find any thing to suggest that these witnesses had animocity against the appellant so as to persuade them to falsely implicate the appellant in a heinous offence like murder. From the oral testimony of the above witnesses and the letter Ex.P.1 of deceased Ram Swaroop it is well established that Ram Swaroop and appellant Bheem Singh left Ajmer on 13.7.91. On 14.7.1991 they tried to purchase a car at Jaipur, but they could not do so and therefore they proceeded to Agra and stayed at Tourist Lodge. Thereafter, the accused leaving behind Ram Swaroop in room No. 17 of the said Lodge left the Lodge at about 4.00 AM and at about 6-7 AM, Ram Swaroop was found dead in the bath-room of Room No. 17 of the said Lodge. In this view of the matter, it must be concluded that the prosecution has been able to prove beyond reasonable doubt the first circumstance that the deceased was last seen in the company of appellant Bheem Singh. 24. Now we proceed to discuss the prosecution evidence adduced in order to prove the second circumstance i.e. identification of the appellant. 25. It appears from the evidence on record that the appellant Bheem Singh was identified to be the person who along with deceased Ram Swaroop had stayed in the Tourist Lodge Hotel, Agra in the night intervening 14/15th July, 1991. PW 13 Sanjay Kumar has identified accused appellant Bheem Singh in the court. He has deposed that it was accused Bheem Singh who had made entries in the hotel register. PW 13 Sanjay Kumar has identified accused appellant Bheem Singh in the court. He has deposed that it was accused Bheem Singh who had made entries in the hotel register. This witness has proved beyond doubt that it was accused Bheem Singh, present in the court, who had visited the hotel along with deceased Ram Swaroop. He clarified that Bheem Singh had made entries in the hotel register and had entered the name of Ram Swaroop as Rameshwar Dayal, resident of Meeruth. That apart, a glance at the identification memo Ex.P/19A, which bears the signatures of this witness from 'A' to 'B' makes it abundantly clear that accused appellant was correctly identified by PW 13 Sanjay Kumar in the identification parade held at Ajmer on 11.10.1991. PW20 Ajay Kumar Meena, Judicial Magistrate No.3 observed all the legal formalities during test identification parade. Thus, the second circumstance also stands proved beyond doubt. 26. Now we come to the third circumstance. In order to conceal the identity, the accused first entered fictitious name of deceased as Rameshwar Dayal instead Ram Swaroop in the register (Ex.P15) of Tourist Lodge. As against the column meant for 'occupation' the accused wrote 'Business'. He also entered false address in the column 'Permanent Address', as 232/10, Idgah Mohalla, Meerut. He also gave false information as regards the place of arrival and the destination. As against column 'Arrival' he mentioned Delhi and in the column 'Going to' the appellant has written Kanpur. A glance at the FSL report, Ex.P.27 it is evidently dear that the entries made in the Tourist Lodge Register at Page Nos. 152-53, serial No.1169 have been tallied with the speciman handwriting of accused Bheem Singh in Exs. P30 to P44 (marked A 1 to A 55). Concealing the identity by furnishing false particulars is indicative of evil design and intention of the accused appellant. 27. The accused has also tried to create false evidence in order to prove his presence else-where. Reference may be made to Ex.P. 28 the letter written by accused in the name of his sister Babli. Accused Bheem Singh has written this letter Ex.P.28 in the name of his sister Babli. A perusal of this letter shows that it was addressed to his uncle. Through this letter Babli requested to send her brother Bheem Singh to village Diggi. Accused Bheem Singh has written this letter Ex.P.28 in the name of his sister Babli. A perusal of this letter shows that it was addressed to his uncle. Through this letter Babli requested to send her brother Bheem Singh to village Diggi. The FSL report, Ex.P27 certifies that this letter was in the hand writing of accused Bheem Singh. This fact alone is sufficient to infer that in order to prove his presence at Ajmer and Diggi accused Bheem Singh manipulated this letter Ex.P.28 in the name of his sister Babli. 28. Apart from what has been discussed above, the conduct of the accused appellant is also one of the circumstance to provide a link so as to establish his guilt. From the evidence on record it appears that a accused Bheem Singh leaving behind Ram Swaroop in the Tourist Lodge, Agra did not return to Ajmer and went to Diggi and Tarsar, district Alighar and that he could be found present there only on search having been made by PW I Ram Prakash and PW 2 Bhawru Ram. The accused was traced on 10.8.1991. The conduct of the accused goes to show that he tried to hide himself after he committed the offence. As stated above, the fact that the accused made wrong entries in the register, Ex.P.15 of Tourist Lodge, Agra and left the Lodge at 4.00 AM on 15.7.1991 leaving behind Ram Swaroop is a circumstance against the appellant, for which the appellant could not offer any explanation, which is indicative of his evil design and ill intention. 29. The question which now emerges for our consideration is whether the death of deceased Ram Swaroop was homicidal. PW 17 Dr. S.N. Gupta conducted autopsy on the dead body and prepared post mortem report, Ex.P.23. The cause of death has been stated to be asphyxia due to strangulation. The doctor also noticed ligature marks over the neck of deceased as would be evident from Ex.P.23. He found larynx and trachea, right and left lungs congested. The heart at the right was full and left was empty. The spleen and kidneys were found to be congested. Undoubtly, strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. 30. He found larynx and trachea, right and left lungs congested. The heart at the right was full and left was empty. The spleen and kidneys were found to be congested. Undoubtly, strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. 30. The ligature mark is a well defined and slightly depressed mark corresponding roughly to the breadth of the ligature, usually situated low down in the neck below the thyroid cartilage and encircling the neck horizontally and completely. 31. In a case of death by strangulation, besides ligature mark, there may be abrasions and brises on the mouth, nose cheeks, fore-head, lower jaw or any other part of the body, if there has been struggle. Abrasion or finger nail marks may be produced on the neck by a person grasping for air. What would be the internal appearance due to Asphyxia, besides other symptoms, as per the medical evidence the larynx and trachea are congested. The lungs are usually markedly congested. The right side of the heart is full of dark fluid blood and the left was empty. The abdominal organs are darkly congested. All these symptoms have been mentioned in the post mortem report, Ex.P.23. 32. Learned counsel for the accused appellant has strenuously contended that in a case of circumstantial evidence, before relying upon the false explanation as an additional link against an accused, it must be proved that all the links in the chain are complete and do not suffer from any infirmity. In support of his argument learned counsel has placed reliance on a decision of the Apex Court in (1) Sharad Vs. State of Maharashtra ( AIR 1984 SC 1622 ) . 33. We have considered the above argument and have gone through the case law. Suffice it to say that the facts involved in the case at hand are entirely distinguished with those involved in the case cited at the bar. Further, the prosecution has been able to prove all the circumstances beyond reasonable doubts and there appears to be no additional link to be relied upon before all the circumstances stand proved. Therefore, this authority is of no help to the accused. 34. Further, the prosecution has been able to prove all the circumstances beyond reasonable doubts and there appears to be no additional link to be relied upon before all the circumstances stand proved. Therefore, this authority is of no help to the accused. 34. Questioning the medical evidence, learned counsel appearing for the appellant has contended that the doctor who conducted post-mortem did not find any external signs to indicate that death was due to strangulation and as such the accused appellant cannot at all be linked with the death of deceased. 35. We have considered the above argument. It must be borne in mind that strangulation may be committed without any noise or disturbance and even if other persons are in close vicinity, they may not be aware of the act. This may happen in garroting, where a victim is suddenly over powered from behind by using rope etc. If a rope is quickly tightened around neck, in that event, due to sudden loss of consciousness there would be no struggle and in that case external signs may remain absent. Thus, the argument of the learned counsel for the appellant is of no help to the accused. 36. It was next contended by the counsel for the appellant that no efforts were made to exclude the possibility of suicide by poison. Referring to the inquest report, learned counsel argued that a bottle was found lying near the dead body and it was mentioned in the inquest report that death occurred as a consequence of poisoning. 37. As regards the above argument, suffice it to say that there was no occasion and/or necessity for the victim to leave Ajmer and then to go to Agra, stay in a hotel and then to commit suicide. In our considered view, no man of prudence, who intends to do away with his life would ever think of committing suicide after first selecting a place for suicide. That apart, no question was put or suggestion was made to PW 17 Dr. S.N. Gupta whether the symptoms of poisoning on the dead body were appearing or not. 38. Learned counsel for the appellant has relied upon a decision of the Allahabad High Court in (2) Lai Singh Vs. That apart, no question was put or suggestion was made to PW 17 Dr. S.N. Gupta whether the symptoms of poisoning on the dead body were appearing or not. 38. Learned counsel for the appellant has relied upon a decision of the Allahabad High Court in (2) Lai Singh Vs. The State ( AIR 1956 All 731 ) and argued that it was not possible to say for certain that the marks found on the neck was a result of external pressure brought about by strangulation as no external signs were found on the body of deceased to indicate that death was due to strangulation and even the blueness of the finger nails and the typical post mortem appearance of asphyxial death were absent. On this strength, learned counsel argued that accused cannot be held guilty for causing death of deceased. 39. We have given our anxious consideration to the above argument and have gone through the case law cited at the bar. In Lal Singh's case (supra), the doctor did not find ecchymosis on the sub-cutaneous tissues and therefore, the Court, on the basis of the opinions expressed by Taylor, Lyon, Giaister and Modi in their respective books on medical jurisprudence and on the basis of oral testimony of Dr. S.N. Chatterjee to the effect that he had not come across a case in which there was an external bruise without there being ecchymosis on the subcutaneous tissues, held that Shanti Devi did not meet her death due to violence. As regards internal appearance, the Court observed that Shanti Devi contracted Pneumonia cannot be ruled out because she gave birth to a child in the month of January. The Court further observed that in Pneumonia death is due to Asphyxia, so that almost all the symptoms of asphyxial death, the internal symptoms would be found on a postmortem examination of the body. 40. In the case at hand, the doctor who conducted autopsy has not mentioned whether there was eccohymosis of subentaneous tissues or not. Secondly there is no evidence or suggestion that deceased died of Pneumonia. Therefore, the authority cited above is of no help to the accused appellant. From the internal symptoms noticed on post mortem examination, it is well established that deceased Ram Swaroop died due to strangulation. 41. Secondly there is no evidence or suggestion that deceased died of Pneumonia. Therefore, the authority cited above is of no help to the accused appellant. From the internal symptoms noticed on post mortem examination, it is well established that deceased Ram Swaroop died due to strangulation. 41. For the reasons aforesaid, it must be held that prosecution has been able to well establish beyond doubt that accused appellant and deceased both were last seen together, they visited Agra, stayed in Tourist Lodge Hotel, appellant first concealed the identity by giving fictitious particulars of the deceased and left the hotel leaving behind Ram Swaroop after commission of crime, did not reach Ajmer and went to his maternal grand fathers's place and created false evidence to prove his presence elsewhere. Therefore, we have no hesitation in holding that trial court was fully justified in holding the appellant guilty under Section 302 IPC. 42. It need be observed that it is well settled proposition of law that the circumstance of last seen does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. While dealing with a case of circumstantial evidence and considering the circumstance of last seen together, their Lordships of the Supreme Court in (3) Mohibur Rahman Vs. State of Assam (2002) 6 SCC 715 ) observed as under: "The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide." (emphasis added) 43. It is well established that accused appellant and deceased reached Tourist Lodge Hotel, Agra at about 1-1.10 in the night intervening 14/15th July, 1991. It is well established that accused appellant and deceased reached Tourist Lodge Hotel, Agra at about 1-1.10 in the night intervening 14/15th July, 1991. As stated above, he made false entries in the register of the Lodge and after about 2-2.30 hours of their reaching, the appellant leaving behind the deceased left the Lodge and in the morning at 6.00 AM deceased was found dead in the bath room of room No. 17 of the Lodge. Evidently the dead body of deceased was found at about 6.00 AM on 15.7.1991 where the appellant was found in the company of deceased till 4.00 AM. So there is close proximity of the place and the time between the event of the accused appellant having been last seen with the deceased and the factum of death. The accused appellant did not offer any explanation as to how and in what circumstances the victim suffered the death. Therefore, the inevitable conclusion is that the accused appellant murdered the deceased who was last seen in the company of deceased. 44. The appellant was also found guilty for offence under Section 364 Indian Penal Code for abducting deceased Ram Swaroop by deceitful means. The deceased accompanied the accused on the appellants misrepresentation and the misrepresentation was the result of accused appellant's pre plan to murder and by which the deceased himself was deceived and was induced to go. Accused himself wrote letter Ex.P.28 in the name of his sister to his uncle, wherein a request was made by the sister of accused to send the accused to village Diggi. From a perusal of the letter it appears from the postal seal that it reached Ajmer on 12.7.91. There is only seal on the letter. Therefore, it appears that letter was posted at Ajmer itself and was delivered at Ajmer. Therefore, in order to show his presence else where the accused created, false evidence. Such false evidence was created on 12.7.91 and accused and deceased left Ajmer on 13.7.91. Therefore, it can be concluded that since inception the accused had evil motive and intention to do away with the life of the deceased. To achieve the end, the accused by misrepresentation to get a car purchased to the deceased, deceived him and induced him to go with him. Therefore, it can be concluded that since inception the accused had evil motive and intention to do away with the life of the deceased. To achieve the end, the accused by misrepresentation to get a car purchased to the deceased, deceived him and induced him to go with him. Therefore, the prosecution, in our considered view has been able to prove charge under Section 364 Indian Penal Code against the appellant and the trial court was right in holding the appellant guilty for offence under Section 364 IPC.In the result, the appeal of the appellant fails and is hereby dismissed. The judgment of the trial court convicting the appellants under Sections 302 and 364 Indian Penal Code and awarding sentences thereunder is maintained.Appeal Dismissed. *******