JUDGMENT 1. - Business rivalry was the cause behind the murder of Ramdev, who was successfully running garments factory. His neighbour Harish Yadav, appellant herein, who was also involved in garment business, suffered huge loss because of Ramdev's factory, one day took Ramdev with him and thereafter both had disappeared. After some days dead body of Ramdev was found in a decomposed condition, whereas Harish Yadav, who after closing his factory went away from Jaipur, was seen living in Uttar Pradesh. He was nabbed and put to trial before learned Additional Sessions Judge No. 1, (Fast Track) Jaipur City, Jaipur. Learned Judge vide judgment dated July 22,2002 convicted and sentenced the appellant as under: U/s. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for six months. U/s. 364 IPC: To suffer rigorous imprisonment for ten years and fine of Rs. 500/-, in default to further suffer simple imprisonment for three months. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on March 23, 2001 informant Om Prakash Chaudhary PWI5 submitted a written report (Ex. P.8) at Police Station, Gandhi Nagar, Jaipur with the averments that his brother Ramdev Chaudhary was running a factory of garment in the name and style of 'Gayatri Garments'. His business of garment was so flourishing that it had adverse effect on nearby garment factories run by Bhupendra Yadav and Harish Yadav. Around twenty days back Harish and Bhupendra came to the factory of Ramdev and abused him. They asked Ramdev to close the factory and threatened him to kill. On March 22, 2001 around 8 P.M. Bhupendra came to the factory of Ramdev and took Ramdev with him. Thereafter Ramdev did not return back. On that report a case under section 365 I PC was registered and investigation commenced. On April 4, 2001 dead body of Ramdev in a decomposed state was found near Jhalana Road. It was subjected to autopsy. Necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1, Jaipur City, Jaipur. Charges under sections 364,302 read with 341 PC were framed against the appellant, who denied the charge and claimed trial. In due course the case came up for trial before the learned Additional Sessions Judge No. 1, Jaipur City, Jaipur. Charges under sections 364,302 read with 341 PC were framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 16 witnesses. In the explanation under Section 313 Cr.P.C. the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above 3. Undeniably death of Ramdev was homicidal in nature. As per Post Mortem report (Ex. P8) the condition of the dead body was as under: Skull & face: Scalp tissue attached at few places more on anterior sides with mud, scalp tissue present at places only which are easily pulled out. Hairs are also present on chin and both sides of face, more on Lt. side face. On removing the scalp tissue blood stain is present over both tempro parietal bones on both sides, few pieces are depressed, Margins of fracture bones showing blood stain which is dried, brownish black in colour (antemortem in nature). Lt. eye ball is completely missing from socket, while on Rt. side unidentified soft tissue is present in socket. Mouth is semi opened, tongue is not visible. All frontal teeth are visible and intact, slightly loose in the sockets. Skin over face is dry & slightly hairs. Rt. ear is completely eaten by lower animals while Lt. ear is partially eaten away (post mortem in nature) on opening the skull, fractures of both sides temporal parietal bones extending upto base of skull through. Middle cranial fossa with blood stained margins (Ante mortem in nature). Brain is missing except a disorganized blackish foul smelling material is present Dura meter is not recognised. Neck : Skin is dry & hard, on dissection underneath structures does not show blood stain. Hyoid bone & other cartilages are normal. Cervical vertebra's are normal but exposed posteriorly. Thorax & abdomen : Skin over this regions are dry & slightly hard. Rt. side of upper ribs are partially exposed on opening the thorax both clavicles, scapular, stream & Lt. side ribs are found intact. Ribs of Rt. side from 4th 8 mortem in nature. Thoracic cavity is almost empty except small collapsed blackish mass present in both sides suggestive of partially identified lung tissue. Rt. side of upper ribs are partially exposed on opening the thorax both clavicles, scapular, stream & Lt. side ribs are found intact. Ribs of Rt. side from 4th 8 mortem in nature. Thoracic cavity is almost empty except small collapsed blackish mass present in both sides suggestive of partially identified lung tissue. Soft pulpy partly identified, heart is also present. In the opinion of Dr. B.M. Gupta PW9 the cause of death was injuries to skull. Time of death was about one to two weeks prior to post mortem examination. 4. We have given our anxious consideration to the submissions advanced before us and with the assistance of Learned Counsel, gone through the evidence on record. 5. Since there was no eye witness of the occurrence and the prosecution founded its case on circumstantial evidence, we have, therefore, to examine whether: (i) the circumstances from which an inference of guilt is sought to be drawn, have been cogently and firmly established; (ii) those circumstances are of a definite tendency unerringly pointing towards the guilty of the appellants; (iii) the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellants and none else. 6. Learned trial court in para 32 of the judgment found he following circumstances established against the appellant: (i) According to statements of Jagdish PW13 and Om Prakash PW15 the appellant had business rivalry with the deceased. (ii) Few days prior to the incident the appellant came to the factory of deceased and threatened the deceased to kill if his garment business is continued. (iii) As per the testimony of Jagdish P W13 the appellant used to ask the deceased to allow his labourers to work in his (appellant) factory but the deceased never acceded the request of the appellant. (iv) On March 22,2001 around 8.30 P.M. appellant took the deceased with him for conversation. According to Babloo PW14 the appellant, deceased and others around 10 P.M. consumed liquor together in the factory premises of Bhupendra. (v) Jagdish PW 13 around 11.30 P.M. saw Harish, Bhupendra and Ramdev going together on a Scooter. (vi) Thereafter Ramdev was not seen anywhere with anybody. (vii) When Ramdev was searched at the house of Harish, his Bhabhi told that he had left the house at seven O'clock with his clothes. (v) Jagdish PW 13 around 11.30 P.M. saw Harish, Bhupendra and Ramdev going together on a Scooter. (vi) Thereafter Ramdev was not seen anywhere with anybody. (vii) When Ramdev was searched at the house of Harish, his Bhabhi told that he had left the house at seven O'clock with his clothes. Thereafter Harish was not seen at his house and even police failed to search him. (viii) Harish could be nabbed from his paternal house, situated at Uttar Pradesh. He could not explain as to why he remained away from his garment work for so long. (ix) Scooter, which was parked at the Stand of Zanana Hospital by the appellant while leaving Jaipur for Uttar Pradesh, was recovered at the instance of appellant vide memo Ex. P6. (x) The dead body of Ramdev was found at the nearby place where the deceased was last seen alive in the company of the appellant. Plea of alibi of appellant was found false. (xi) Deposition of Prem Singh PW3 that in the night of 22 Harish, Bhupendra and Ramdev consumed liquor and remained together could not be shattered in the cross examination. (xii) Deposition of Jeewan Singh SI PW12 that Harish and Bhupendra absconded from their house was not challenged in the cross examination. (xiii) Deposition of Jagdish PW13 that Bhupendra and Harish took Ramdev from Factory, around 11.30 P.M. on a scooter driven by Harish, towards University could not be shattered in the cross examination. (xiv) Business rivalry of Ramdev and Harish was established since both were indulged in the business of Garments. (xv) Dead body was found in decomposed condition and the body and other articles were identified as of Ramdev by Om Prakash PW15. Time of death and time of kidnapping had similarity. 7. In order to test the findings of learned trial court when we look at the evidence adduced by the prosecution at the trial we notice that Jagdish PW13 in his deposition stated that he knew Ramdev. Earlier he was doing the work of stitching later on he installed his own factory of stitching. Around 15-20 days prior to Holi, Harish Yadav and Bhupendra Yadav threatened Ramdev of dire consequences if he would continue with his factory. After few days he saw Harish and Bhupendra taking Ramdev on scooter towards University. 8. Earlier he was doing the work of stitching later on he installed his own factory of stitching. Around 15-20 days prior to Holi, Harish Yadav and Bhupendra Yadav threatened Ramdev of dire consequences if he would continue with his factory. After few days he saw Harish and Bhupendra taking Ramdev on scooter towards University. 8. Om Prakash PW 15 deposed that earlier he, Ramdev and Babloo used to work in the factory of Bhupendra, thereafter Ramdev installed separate factory. Since-work of Bhupendra and Harish got adversely affected, they annoyed with Ramdev and 20 days prior to Holi Bhupendra and Harish threatened Ramdev to close the factory otherwise they would kill him. On March 22, 2001 about 8 P.M. Bhupendra and Harish called Ramdev for conservation; The work of factory continued till 12 in the night but Ramdev did not return. On the next day around 10 A.M. Bhupendra brought some clothes for fixing labels and informed that Madam called Ramdev. When he (Om Prakash) informed that Ramdev did not return back from the last night, Bhupendra took him (Om Prakash) to Prem Singh, who told Bhupendra that he (Prem Singh) left Ramdev with Bhupendra himself. Bhupendra became upset and thereafter Bhupendra also disappeared. After 13-14 days dead body of Ramdev was found. Blue shirt, cream pant, red vest, Jantar and other belongings of Ramdev were identified by him. 9. Testimony of Om Prakash gets corroboration from the evidence of Prem Singh PW3, who had seen around 9.30 P.M. Harish, Bhupendra and Ramdev together in the house of Bhupendra. Prem Singh along with Sanjay and Vinod remained in the house of Bhupendra and they consumed liquor with Ramdev, Harish and Bhupendra. Vinod Kumar PW5 and Sanjay PW6 also toed the line of Prem Singh. We have carefully scanned the cross examination of these witnesses but nothing favourable to the appellant could be extracted. On examining these witnesses from the point of view of trustworthiness we find that they are reliable witnesses. 10. The prosecution is able to establish that the appellant on the date of incident was present at Jaipur and the explanation given by him in his statement under section 313 Cr.P.C. that on the date of incident he was at his village Kaurara District Firozabad (UP) and had no business relationship with the deceased, was found false. 10. The prosecution is able to establish that the appellant on the date of incident was present at Jaipur and the explanation given by him in his statement under section 313 Cr.P.C. that on the date of incident he was at his village Kaurara District Firozabad (UP) and had no business relationship with the deceased, was found false. This fact has been proved beyond reasonable doubt that prior to his death Ramdev was last seen alive in the company of the appellant. 11. "Last seen theory" has been the subject matter of various judicial decisions. In State of U.P. v. Satish, 2005 (1) WLC (SC) Cri. 437 : 2005 (2) CCC 305 (S.C.) : (2005) 3 SCC 114 , their Lordships of Supreme Court had occasion to consider "last seen theory" and it was indicated as under: (Para 22) "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. 12. In Ramreddy Rajesh Khanna Reddy v. State of A.P., 2006 (1) WLC (SC) Cri. 490 : 2006 (2) ACJ 250 (S.C.) : 2006 (2) CCC 400 (S.C.) : (2006) 10 SCC 172 , the Apex Court held that last seen theory comes into play where the time-gap between the point of time when the accused and the .deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. 13. In Mohibur Rahman v. State of Assam, 2002 (2) WLC (SC) Cri. 13. In Mohibur Rahman v. State of Assam, 2002 (2) WLC (SC) Cri. 406 : 2002 (2) ACJ 528 (S.C.) : (2002) 6 SCC 715 the Apex Court held as under: "The circumstances 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 in 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. In the present case there is no such proximity of time and place. The dead body had been recovered about 14 days after the death on which the deceased was last seen in the company of the co-accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together does not bear such close proximity with the death of the victim by reference to time or place. Merely because the co-accused was last seen with the deceased a few un-ascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal. Accordingly, the co-accused's conviction under Sections 302/34 and 201/34 IPC alongwith the sentence passed thereon is set aside. He is acquitted. He shall be released forthwith unless required to be detained in connection with any other offence. 14. In Bodhraj v. State of J&K, (2002) 8 SCC 45 the Apex Court held that last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It was also held that it would be hazardous to come a conclusion of guilt in cases where there is no positive evidence to conclude that the accused and the deceased were last seen together. It was further held that where two views are possible, the view in favour of the accused has to be preferred. But where the relevant materials are not considered to arrive at a view by the trial court, the High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial court. On facts, reversal of acquittal by High Court was held proper. 15. In State of Karnataka v. M.V. Mahesh, 2003 (2) WLC (SC) Cri. 213 : (2003) 3 SCC 353 , the Apex Court indicated as under: (Para 3) "Even if we proceed on the basis that the DN A examination resulted in identifying the bones found by the police as that of Beena, still what has to be established is involvement of the respondent in the commission of her murder. For that purpose reliance is placed upon the evidence of PWs. 2,6,17,28 and 29 who claimed to have seen Beena in the company of the respondent. The explanation sought to be offered by the respondent is that he took her to the place of her relatives next morning at about 5.45 A.M. while the evidence of the witnesses referred to just now is that they saw her last on 28.11.1985. The statement made by the respondent was false is not established. Merely being seen last together is not enough. What has to be established in a case of this nature is definite evidence to indicate that Beena had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in absence of the corpus deficit it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court. In this case no such material is made available to the court. 16. In Mohan Singh v. Prem Singh, 2003 (1) WLC (SC) Cri 8 : 2003 Cri.LJ. In this case no such material is made available to the court. 16. In Mohan Singh v. Prem Singh, 2003 (1) WLC (SC) Cri 8 : 2003 Cri.LJ. 11 he Hon'ble Supreme Court held as under: "The statement made in defence by accused under section 313 Cr.P.C. can certainly be taken aid of the lend credence to the evidence led by the prosecution, but only a part of such statement under section 313 Cr.P.C. can not be made the sole basis of his conviction. We thus find that the false statement of appellant Harish provides additional link to the chain of circumstantial evidence. 17. Having analysed the material on record we find that the appellant and deceased had business rivalry and because the business of appellant had been adversely affected by the garment factory installed by the deceased, the appellant threatened the deceased to kill in case he would continue with his business. Thus the prosecution is able to establish the motive behind the murder. 18. Following circumstances are found established against the appellant: (i) The deceased was last seen alive in the company of appellant, (ii) The motive behind the death of deceased was business rivalry, (iii) The appellant absconded immediately after the deceased disappeared, closing his factory. (iv) The plea of alibi raised by the appellant was found false, (v) Death of deceased was homicidal in nature. 19. From the facts established we find that the circumstantial evidence in the instant case does not fall short of the required standard of proof. The circumstances so established are consistent only with the guilt of appellant and inconsistent with his innocence. All the circumstances exclude with certainty the possibility of guilt of any person other than the appellant and the false statement of appellant Harish provides an additional link to the chain of circumstantial evidence. Learned trial Judge in our opinion committed no illegality in convicting the appellant. 20. In the ultimate analysis, we find a combination of facts creating network through them there is no escape for the accused. The material collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant is guilty. We find that the chain of circumstantial evidence against the appellant is complete and incapable of any explanation or any other hypothesis than of the guilt of the appellant. 21. The material collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant is guilty. We find that the chain of circumstantial evidence against the appellant is complete and incapable of any explanation or any other hypothesis than of the guilt of the appellant. 21. For these reasons, we find no merit in these appeals and they accordingly stand dismissed. Conviction and sentence of appellant under section 302 IPC are maintained.Appeal Dismissed. *******