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2005 DIGILAW 638 (AP)

Khanala Venkata Krishna Yadav v. State Of A. P.

2005-07-15

BILAL NAZKI, K.C.BHANU

body2005
K. G. BHANU, J. ( 1 ) THESE two appeals are directed under Section 374 (2) of the code of Criminal Procedure, 1973 (for short cr. PC ) against the judgment dated 18-12-2002 passed in S. C. No. 991 of 2002 on the file of the Court of the III Additional district and Sessions Judge, L. B. Nagar, rangareddy District, wherein both the accused were convicted under Section 302 ipc and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- each and in default of payment of fine to suffer simple imprisonment for three months each and further convicted under section 380 IPC and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- each and in default of payment of fine to suffer simple imprisonment for three months each and ordered both sentences shall run concurrently. ( 2 ) THE brief facts that are necessary for the disposal of the present criminal appeals are as follows: ( 3 ) A-1 is the appellant in Criminal appeal No. 294 of 2003 and A-2 is the appellant in Criminal Appeal No. 324 of 2003. ( 4 ) THE case of the prosecution as unfolded by the witnesses examined on its behalf may be delineated as follows: ( 5 ) A-1 is no other than the husband of the deceased K. Sailaja and A-2 is the cousin brother of A-1. PW-4 is the father of the deceased. At the time of incident, A-1 was working in Vasantha group of companies. The marriage of the deceased Sailaja with A-1 was performed in the year 2000 at Kamalapuram. At the time of marriage, an amount of rs. 1,50,000/- besides jewellery (MOs. 1 to 7) towards dowry were given by PW-4 to his daughter. The deceased and A-1 lived amicably about four months, after the marriage. Thereafter, A-1 disliked the deceased stating that the hair on her head is drooping and she was not good looking and therefore he wanted to marry again, a beautiful girl. PW-4 invited A-1 and his daughter for the first Ugadi festival after the marriage and gave presentations and other articles to A-1 as per the custom. With all the clothes and articles, A-1, the deceased Sailaja and the wife of PW-4 went to the house of A-1 at Proddutur. The mother of the accused is no more. PW-4 invited A-1 and his daughter for the first Ugadi festival after the marriage and gave presentations and other articles to A-1 as per the custom. With all the clothes and articles, A-1, the deceased Sailaja and the wife of PW-4 went to the house of A-1 at Proddutur. The mother of the accused is no more. On the next day, the father of the accused and junior maternal aunt of A-1 insulted the wife of PW-4 and the deceased stating that they have not given the presentations suitable to their status. As the deceased informed the wife of PW-4 that she was being ill-treated, the wife of PW-4 brought back the deceased from Proddatur. Later, a-1 came to Hyderabad from his native place. Then PW-4 convinced the deceased and sent her along with A-1. Thereafter, pw-4, his wife and his other two daughters came to house of A-1 at her Hyderabad. At that time, they found A-2 at the house of A-1. When PW-4 enquired the deceased about A-2, the deceased told him that A-2 is the son of the junior maternal aunt of A-1 and will stay in their house. The deceased also informed her father that she was feeling difficult to live in the single room of A-1 along with A-2 and requested him to inform A-1 to send out a-2. While the deceased and A-1 were living together in the Vasantha Enclave, A-2 used to go to the house of A-1 both morning and evening every day. On the date of incident i. e. , on 29-6-2001 at about 9. 15 p. m. , PW-3, the watchman of Vasantha enclave, Chintal saw A-1 and A-2 going out on the scooter of A-1. On the next date of the incident at about 5. 30 a. m. , the watchman found that the house of A-1 was locked from outside. At about 10. 15 or 10. 30 a. m. , A-1 and A-2 and PW-2 came to the apartment of A-1. A-1 enquired about his wife and the watchman told them that she might have gone out for making a phone call or for purchase of vegetables. When A-1 and PW-2 looked into the house by getting on a stool through the ventilator, the deceased Sailaja was inside lying on the cot and her face was covered with pillow. A-1 enquired about his wife and the watchman told them that she might have gone out for making a phone call or for purchase of vegetables. When A-1 and PW-2 looked into the house by getting on a stool through the ventilator, the deceased Sailaja was inside lying on the cot and her face was covered with pillow. Thereupon, PW-1 went to the jeedimetla Police Station and lodged a police report. PW-11 registered the case in crime No. 281 of 2001 under Section 302 ipc. He further examined PW-1 and recorded his statement. Thereafter, he proceeded to the scene of occurrence. He examined PWs. 2 and 3 and recorded their statements. After his arrival, the lock was broke open and they entered into the house. The clues team collected the fingerprints at the scene of occurrence. He conducted the scene of occurrence panchanama in the presence of PW-5 and others and prepared Ex. P2. He also prepared Ex. P3, a rough sketch of the scene of occurrence and seized 14 material objects. He gave a requisition to the Mandal Revenue officer, pw-7 to conduct inquest on the dead body of the deceased. The scene of occurrence was got photographed. PW-7 conducted inquest on the dead body of the deceased at the mortuary of Gandhi hospital, Secunderabad on 1-7-2001 at about 11. 00 a. m. , in the presence of PW6 and others and prepared Ex. P4, inquest report. After inquest, the dead body was sent to post-mortem examination. PW-10 is the doctor, who conducted autopsy over the dead body of the deceased on 1-7-2001 between 2. 50 p. m. to 3. 50 p. m. , and opined that the deceased died due to smothering. On 15-7-2001 the Crime Party constables apprehended A-1 and A-2 at Jeedimetla and produced them before pw-11. On interrogation A-1 and A-2 gave confessional statements separately. In pursuance of the confessional statements, they led the police and mediators to the room of A-2. A-2 took out the jewellery from the socks in his shoes and produced the same before the mediators, which were seized. He has taken the fingerprints of A-1 and A-2 in the Police Station and sent them to the judicial custody. After receipt of the Forensic Science Laboratory report and after completion of investigation, pw-12 filed charge-sheet before the judicial First Class Magistrate, Medchal. He has taken the fingerprints of A-1 and A-2 in the Police Station and sent them to the judicial custody. After receipt of the Forensic Science Laboratory report and after completion of investigation, pw-12 filed charge-sheet before the judicial First Class Magistrate, Medchal. The learned Magistrate came to the conclusion that the case is one exclusively triable by the Court of Session and therefore committed the case to the Court of Session, Ranga reddy District. Upon hearing both sides and considering the material on record, charges under Sections 302, 201 and 380 ipc were framed against both the accused, for which they pleaded not guilty and claimed to be tried. To substantiate its case, the prosecution examined PWs. 1 to 12 and marked Exs. Pl to P32 besides marking of mos. l to 15. ( 6 ) THE learned Sessions Judge having accepted the prosecution evidence came to the conclusion that it established the case against the accused for the charges under Sections 302 and 380 IPC and accordingly convicted and sentenced the accused. Insofar as the charge under section 201 is concerned, the accused were found not guilty and therefore they were acquitted. ( 7 ) IN this appeal, Sri C. Padmanabha reddy, learned Senior Counsel appearing for the appellant-A-1 contended that the circumstances relied upon by the prosecution at best throw suspicion against the accused; that suspicion however strong cannot find place in legal point; that finding of fingerprint of A-1 in the house cannot be an incriminating circumstance; that the alleged confessional statement of A-1 is not a statement which falls under Section 27 of the Indian Evidence Act, 1872 so as to conclude that it was an incriminating circumstance, that the place of recovery of mos. 1 to 7 is known to the police prior to the recovery and therefore it cannot be taken as incriminating circumstance; that due to fear the accused might have absconded and therefore absconding by itself does not lead to an irresistible conclusion that a-1 is the assailant of the deceased, that the medical evidence completely rules out the possibility of taking place of death on the day as alleged by the prosecution and the only circumstance that is relied upon by the prosecution is the evidence of PW-3 wherein both A-1 and A-2 were seen at about 9. 15 p. m. , and this circumstance alone is not sufficient to convict A-1 and therefore he prays to set aside the conviction and sentence against A-1. ( 8 ) ANOTHER Senior Counsel Sri Bali reddy, appearing for the appellant-A-2 contended that A-2 was not residing with a-1 at the time of incident. The only circumstance against A-2 is that at his instance some gold jewellery was seized and that cannot be a recovery within the meaning of Section 27 of the Evidence Act in view of the fact that the police already knew about the place of concealment of mos. 1 to 7 and therefore, the police might have placed the MOs. 1 to 7 at the house of a-2 and hence there are absolutely no grounds insofar as A-2 is concerned to convict him and that on mere surmises and conjectures A-2 was convicted by the Trial court and hence he prays to set aside the conviction and sentence recorded against a-2. ( 9 ) ON the other hand, Sri Nageswara rao, the learned Public Prosecutor vehemently contended that the death of the deceased is homicidal and there was no scope or possibility for anybody to enter into the house of the deceased; that, immediately after the death, both the accused were seen going by the watchman and on the next day morning A-1 and A-2 along with PW-2 came to the house and at that time the house was locked from outside and further the recovery of MOs. 1 to 7 would indicate that the offence was committed by a-1 and A-2 alone and none else and the accused absconded for about 15 days after the death which is another circumstance to show about the involvement of the accused in this case. Though there is a conflict between the medical evidence and ocular evidence with regard to the death of the deceased, but there was no basis for the doctor to arrive at a conclusion that the deceased died about 12 to 18 hours prior to the post-mortem examination and therefore much importance cannot be given to the opined evidence and hence he prays to dismiss the appeal. ( 10 ) PW-7 is the Mandal Revenue officer, at the relevant point of time. He conducted inquest on the dead body of the deceased on 1-7-2001 at 11. 00 a. m. , in the presence of PW-6. ( 10 ) PW-7 is the Mandal Revenue officer, at the relevant point of time. He conducted inquest on the dead body of the deceased on 1-7-2001 at 11. 00 a. m. , in the presence of PW-6. PW-6 is one of the mediators, who was present at the time of inquest. The panchas opined that the deceased died due to the injuries found on her head and Ex. P4 is the inquest report. It is not specifically suggested to PW-7 that he did not conduct any inquest on the dead body of the deceased. Therefore from the evidence of PW-7 it is clear that the inquest was held on 1-7-2001 at 11. 00 a. m. , and as per the opinion expressed by the inquest mediators, it was a homicidal death. ( 11 ) PW-10 is the Doctor who conducted autopsy on the dead body of the deceased on 1-7-2001 from 2. 50 p. m. to 3. 50 p. m. and found the following injuries:"1. An irregularly circular lacerated injury over right temporo parital region, 2. 5 cm into scalp deep, margins irregular and contusted. 2. Contusion of 2 x 1. 5 cms over inner side left half of lower lip with mucosal laceration red in colour covered with blood clot. 3. Contusion of 1. 5 x 1 cms over inner side, right half of the lower lip nearer to mid line, red in colour. 4. Mucosal abrasion of 3 x 1 cm over middle of the upper lib. 5. Fracture of left central incisor, near the neck, fracture side is covered with blood clot, corresponding to Injury no. (2) above. 6. Contusion of scalp 13 x 5 cms over right temporo perital region with contusion of right temporalis muscle. " ( 12 ) HE opined that the approximate time of death is 12 to 18 hours prior to the conducting of post-mortem examination and the cause of death to the best of his knowledge and belief was due to smothering. Ex. P17 is the post-mortem certificate issued by him. ( 13 ) THE fact of homicidal death of the deceased is not denied or disputed in the cross-examination. There is no direct evidence to prove the guilt of the accused. The prosecution case depends or rests upon the circumstantial evidence only. Ex. P17 is the post-mortem certificate issued by him. ( 13 ) THE fact of homicidal death of the deceased is not denied or disputed in the cross-examination. There is no direct evidence to prove the guilt of the accused. The prosecution case depends or rests upon the circumstantial evidence only. The law, which is now well settled about the circumstantial evidence, is that it should be such as to point only to the guilt of the accused and the evidence should exclude all other hypothesis except that of the guilt of the accused. In order to prove the case, the prosecution relied upon the following circumstances: (1) The motive for causing the death of the deceased. (2) The accused were seen going on the scooter soon after the death. (3) A-1 and the deceased were residing in the house at the time of incident. (4) Locking of the door from outside, misleading statement of A-1, immediate conduct of the accused and recovery of jewellery from the room of the accused, at the instance of A-1. ( 14 ) THE law relating to substantial evidence is very well settled about five decades back in Hanumant Govind nargundkar v. State of M. P. , AIR 1952 sc 343 , wherein it was held:"it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " ( 15 ) IN the decision reported in Padala veera Reddy v. State of A. P. , AIR 1990 sc 79 , it was held:"when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " ( 16 ) WE may also make a reference to the decision reported in Sharad Birdhichand sarada v. State of Maharashtra, AIR 1984 SC 1622 , wherein it was held that the following circumstances must be fully established by the prosecution before conviction. They are:"1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature tendency; 4. they should exclude every possible hypothesis except the one to be provided; and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. they should exclude every possible hypothesis except the one to be provided; and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. " ( 17 ) BEARING the above principles in mind, now it has to be seen whether the prosecution established all the circumstances so as to convict the accused. ( 18 ) WITH regard to the first circumstance, the motive plays an important role in a criminal trial. Motive is not the integral part of the trial. It is only an aid in assessment of criminality. There must be reasons, which provoke or motivate a man to commit the serious crime of murder. The motive being the state of mind there may not be able to know as to what was the motive for a particular offence. ( 19 ) IN the decision reported in Atley v. State of U. P. , AIR 1955 SC 807 , it is held that:"where there is clear proof of motive for the crime, that lends additional support to the finding of the Court that the accused was guilty but the absence of clear proof of motive does not necessarily lend to the contrary conclusion. " ( 20 ) THE motive for the incident is A-1 disliking the deceased. PW-4, who is the father of the deceased, stated that A-1 developed disliking towards the deceased stating that the hair on her head was drooping and she was not good looking and therefore A-1 wanted to marry again a beautiful girl. On one occasion when the deceased informed her mother that she was being ill-treated by A-1, she was brought to her parent s house. It is suggested to him that A-1 was living with the deceased happily till her death, but the same was denied by PW-4. Except giving a suggestion that A-1 did not develop dislike towards his daughter, nothing is elicited to discard the testimony of PW-4. No doubt, PW-4 is the father of the deceased, but at the same time his evidence cannot be disbelieved on that ground alone. The evidence of PW-4 is clear that A-1 developed disliking towards the deceased, as the deceased was not good looking. No doubt, PW-4 is the father of the deceased, but at the same time his evidence cannot be disbelieved on that ground alone. The evidence of PW-4 is clear that A-1 developed disliking towards the deceased, as the deceased was not good looking. The evidence of PW-4 is convincing and trustworthy. ( 21 ) WITH regard to the second circumstance, PW-3 saw A-1 and A-2 on the date of incident going out on the scooter of A-1. Again on the next day morning, he found that the house of a-1 was locked from outside and at about 10. 15 a. m. or 10. 30 a. m. , A-1 and A-2 and pw-2 came to the apartment of A-1. The fact that A-1 and A-2 left the house at 9. 15 p. m. on the date of incident is not specifically denied or disputed. Otherwise there is no reason for those witnesses to say something against the accused. He was cross-examined at length and nothing has been elicited to discredit the testimony of pw-3. Therefore, it is clear from the evidence of PW-3 that on the date of incident at about 9. 15 p. m. , A-1 and A-2 went out on the scooter of A-1. The evidence of pw-3 is also clear that A-1 was residing with his wife (deceased) in Flat No. 004 in the ground floor. The evidence of PW-4 also would go to show that A-1 and deceased were alone residing in the flat as on the date of incident. As a matter of fact, it is stated by PW-1 that A-1 telephoned to him stating that his wife was found missing. A-1 also informed to PW-2 that his wife was found missing. Therefore, this part of evidence, which remain unchallenged, indicates that as on the date of incident A-1 was residing with the deceased in Flat no. 004 of Vasantha Enclave, Chandanagar, chintal. ( 22 ) THE flat of the A-1 was locked from outside. PW3 stated that on the next date of incident when he was watering the plants, he found that the house of A-1 was locked from outside. On receipt of phone call from A-1, PW-2 went to the house of the deceased on the next day at about 10. 15 a. m. and found A-1 and A-2. PW3 stated that on the next date of incident when he was watering the plants, he found that the house of A-1 was locked from outside. On receipt of phone call from A-1, PW-2 went to the house of the deceased on the next day at about 10. 15 a. m. and found A-1 and A-2. At that time, A-1 informed that the deceased was found missing and she went out locking the door of the house. PW-11 after receipt of the report from PW-1 went to the house of A-1 and broke open the lock of the flat of A-1. Therefore, there is a scope or possibility for A-1 to lock the door of the house. If it is a case of third parties entering into the house, for any other reason, normally the door would not have been locked from outside. ( 23 ) THE immediate conduct of the accused is very unnatural. The evidence of pws. 1 and 3 would clearly go to show that a-1 peeped into the flat through the ventilator. He obviously made a misleading statement to PWs. 1 and 2 who are co-employees of the Accused No. 1. PW1 categorically stated that about 10. 30 a. m. , a-1 telephoned to him and informed that his wife was found missing. Naturally, the immediate conduct of the accused is to ascertain from the neighbours or from the watchman with regard to the missing of the deceased and thereafter lodge a complaint. After seeing the dead body, the accused was absconding. No explanation was forthcoming as to why the accused has to abscond for about 15 days even after coming to know about the death of the deceased. After seeing the dead body in the house, he did not try to give a report to the police. Even when he was examined under Section 313 Cr. P. C. , he did not say anything as to why he has to abscond for about 15 days. He has not given any explanation for not giving any report to the police, when his wife was found missing. On any aspect, A-1 did not give any explanation. Therefore, this circumstance is also proved beyond reasonable doubt. P. C. , he did not say anything as to why he has to abscond for about 15 days. He has not given any explanation for not giving any report to the police, when his wife was found missing. On any aspect, A-1 did not give any explanation. Therefore, this circumstance is also proved beyond reasonable doubt. No doubt, absconding of accused for a variety of reasons may not by itself is sufficient to arrive at a conclusion that the crime was committed by the accused, but it can be taken as an additional link in the chain of circumstances. In the absence of any explanation, this circumstance can be taken as a link in the chain of circumstantial evidence. ( 24 ) WITH regard to the recovery of jewellery, PW11 interrogated A-1 and A-2 in the presence of PW-8 and another. A-1 gave confessional statement as in Ex. P5, whereas A-2 gave a confessional statement as in Ex. P6. Both these documents indicate that the ornaments were concealed. ( 25 ) IN order to attract Section 27 of the Indian Evidence Act, the following conditions are necessary: (1) there must be discovery of fact which is relevant (2) the discovery of such fact must be deposed (3) at the time of receipt of the information the accused must be in police custody (4) that only remedy of the information as relates distinctly to the fact thereby discovered is admissible under Section 27 of the Evidence Act. ( 26 ) THE various requirements of the section have been highlighted by the apex court in the decision reported in Anter Singh v. State of Rajasthan, 2004 (10) SCC 657 , wherein it is held:"the various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused s own act. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused s own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. " ( 27 ) BOTH the accused gave similar statements as in Exs. P5 and P6 respectively with regard to the concealment of ornaments of the deceased, which are marked as mos. 1 to 7, but with regard to the showing of the place, the accused No. 2 took out the jewellery from the socks in his shoe and handed over the same and the police seized MOs. 1 to 7 as in Ex. P7. MOs. 1 to 7 belonged to the deceased. PW4 who is the father of the deceased categorically stated some jewellery were given to A-1 at the time of marriage, it is suggested to him that he has no capacity to give dowry and jewellery, but nothing has been elicited to discard his testimony. But the fact remains whether the jewellery under MOs. 1 to 7 were given or not, admittedly belonged to the deceased. PWs. 8 and 11 have categorically stated about the recovery of MOs. 1 to 7 at the instance of a-1 and A-2. Both A-1 and A-2 were having knowledge about concealment of mos. 1 to 7 at the house of A-2. None of the accused gave any explanation as to why the jewellery of the deceased were concealed in the house of A-2 ( 28 ) LEARNED Counsel appearing for the appellants basing on the admissions made by PW-8 contended that the police have knowledge about the concealment of mos. 1 to 7 at the house of A-2. No doubt, pw-8 admitted in the cross-examination that the Police Constables came to his company and informed him that the gold jewellery was traced and panchanama has to be written and so the Inspector of Police called them to the Police Station. 1 to 7 at the house of A-2. No doubt, pw-8 admitted in the cross-examination that the Police Constables came to his company and informed him that the gold jewellery was traced and panchanama has to be written and so the Inspector of Police called them to the Police Station. Their admission in the cross-examination cannot be taken as a circumstance so as to disbelieve the entire statement or to arrive at a conclusion that the police already knew about the place of concealment. The entire evidence has to be looked into in order to appreciate the evidence. If the entire evidence of PW-8 is read, with regard to the arrest of A-1 and A-2 and seizure of gold jewellery, it would clearly go to show that on the confessional statements given by A-1 and A-2, MOs. 1 to 7 were seized at the instance of A-2. When it is suggested to him that A-1 and A-2 did not give any confessional statements and that mos. 1 to 7 were not recovered from A-1 and A-2, the same has been denied. PW-8 is also working in the same company of the a-1. He has no reason to depose falsely against the accused. PW11 is the investigating Officer. If really the police knew about the concealment of gold jewellery at the house of A-2 through any source, it must be within the knowledge of pw11, because he is the Investigating officer. His evidence is very categorical and clear that at the instance of the A-1 and A-2, the gold jewellery was seized under panchanama at the house of A-2. It is not suggested to PW11 that even prior to A-1 and A-2 pointed out the jewellery, he had some other information or knowledge about the concealment of the jewellery so as to exclude the same from the purview of section 27 of the Indian Evidence Act. It is not the case of the accused that prior to the seizure of MOs. 1 to 7 from the house of A-2 under Ex. P7 seizure report, the police searched the house of A-2 and found the gold jewellery in the socks of the shoe. It is also not the case of the accused that the police planted these MOs. 1 to 7 in the house of A-2 so as to strengthen the prosecution case. P7 seizure report, the police searched the house of A-2 and found the gold jewellery in the socks of the shoe. It is also not the case of the accused that the police planted these MOs. 1 to 7 in the house of A-2 so as to strengthen the prosecution case. In view of the fact that A-2 only pointed out the place where the concealment of jewellery, we are of the opinion that the seizure of MOs. 1 to 7 under Ex. P6 definitely attracts Section 27 of the Evidence Act insofar as A-2 is concerned and is admissible under law. Insofar as A-1 is concerned, though he did not point out the place of concealment, but at the same time the said fact cannot be treated as recovery within the meaning of Section 27 of the Evidence Act. But certainly it can be said that A-1 was having knowledge about the concealment of the jewellery. ( 29 ) IT is contended by the learned counsel for the appellants that the medical evidence completely rules out the possibility of the death on the date as alleged by the prosecution. It is the specific case of the prosecution that the incident took place on the night of 29-6-2001. A specific charge has been framed against the accused that they committed murder of the deceased after 8. 30 p. m. , on 29-6-2001. As a matter of fact, the dead body was noticed on 30-6-2001 at about 10. 15 a. m. Basing on Ex. P1 report, PW11 registered the case at about 12. 00 noon on 30-6-2001. Therefore, there was unimpeachable evidence on record to show that the dead body was noticed in the morning of 30-6-2001. But the doctor who conducted the post-mortem examination on 1-7-2001 opined that the deceased might have died at any time in the intervening night of 30-6-2001/1-7-2001. The basis for arriving such a conclusion is that the colour of the injuries is red which indicates that the ante-mortem injuries would have been caused within 5 hours prior to postmortem examination. The finding of the red colour of the injuries is only an indicating factor to determine the approximate time of injury. The injuries, which are found to be red in colour were noticed by the doctor on the lips, a red colour could not be noticed insofar the injury on the right temporal parietal region. The finding of the red colour of the injuries is only an indicating factor to determine the approximate time of injury. The injuries, which are found to be red in colour were noticed by the doctor on the lips, a red colour could not be noticed insofar the injury on the right temporal parietal region. Such a finding of red colour injury on the lips cannot be lead to an irresistible conclusion that the deceased died on the intervening night of 30-6-2001/ 1-7-2001. It may be due to inadvertent mistake by the doctor. When there is a variance between the ocular and medical evidence, it is pertinent to refer a decision referred in State of Madhya Pradesh v. Dharkole, 2004 0 AIR (SCW) 6241, wherein it was held:"coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses account which had to be tested independently and not treated as the variable keeping in the medical evidence as the "constant". It is trite that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye-witnesses account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the credit of the witnesses; their performance in the witnesses-box; their power of observation etc. Then the probative value of such evidence eligible to be put into the scales for a cumulative evaluation. " ( 30 ) AS seen from the case of the prosecution, the deceased was found noticed by the prosecution witnesses including the accused at about 10. 00 a. m. , on 30-6-2001. It is nobody s case that the death had taken place on the intervening night of 30-6-2001/1-7-2001. " ( 30 ) AS seen from the case of the prosecution, the deceased was found noticed by the prosecution witnesses including the accused at about 10. 00 a. m. , on 30-6-2001. It is nobody s case that the death had taken place on the intervening night of 30-6-2001/1-7-2001. Therefore, much importance cannot be given to the evidence of the doctor who conducted the post-mortem examination, with regard to the approximate death of the deceased. ( 31 ) THE prosecution also placed reliance on the finding of fingerprints of a-1 in the house. PW-9 is the expert who gave Ex. P15 opinion. Even if it is assumed that the evidence of PW9 and the opinion ex. P15 cannot be said to be incriminating against A-1, because admittedly he is residing in the flat along with the deceased and therefore, the finding of fingerprints at the house of A-1 cannot be said to be incriminate against him, but that is only a neutral circumstance. ( 32 ) THE other evidence on record with regard to the observation of the panchanama, rough sketch of the scene of occurrence and seizure of clothes and finding of o group of blood, white cotton bed sheet and human blood on bed sheet and pillow cover are only formal in nature in view of the fact that death of the deceased and finding of the ante-mortem injuries on the dead body of the deceased are not in dispute. ( 33 ) THE evidence on record shows that a-2 used to go to the house of A-1 now and then, which is unimpeachable and on the date of incident both were seen going on the scooter. On the next day morning, the house of the deceased was found locked from outside. A-1 did not make any attempts to ascertain from the neighbours, when he found missing of his wife. He also did not give any complaint to the police. A-1 and a-2 absconded from the place of the incident. After arrest, the gold jewellery of the deceased was seized. ( 34 ) IN view of the above discussion, the circumstantial evidence to support the prosecution can be said to be of conclusive nature with complete and unbroken chain of circumstances leading to irresistible and unmistakable conclusion that it is the accused, they alone who have committed the murder of the deceased. ( 34 ) IN view of the above discussion, the circumstantial evidence to support the prosecution can be said to be of conclusive nature with complete and unbroken chain of circumstances leading to irresistible and unmistakable conclusion that it is the accused, they alone who have committed the murder of the deceased. The Trial Court upon proper appreciation of evidence on record, rightly found the accused guilty of the offences under Sections 302 and 380 ipc. ( 35 ) WE find no merits in these appeals. Accordingly, both the criminal appeals are dismissed confirming the conviction and sentence imposed by the Trial Court.