JUDGMENT 1. - Jealousy, the green-eyed-monster, started controlling the life of Bahadur Singh, appellant herein, when his beloved Asha left him alone and married to Jitendra. On the allegation of murder of Jitendra, Bahadur Singh, along with three coaccused, was put to trial before learned Additional Sessions Judge (Fast Track) No.2 Jhalawar, who vide judgment dated October 20, 2003, while acquitting co-accused persons, convicted and sentenced the appellant under Section 302 Indian Penal Code to suffer imprisonment for life and fine of Rs. 2,000/-, in default to further suffer rigorous imprisonment for one year. 2. On September 29, 2002 around 7 AM while Pratap (Pw.1) was going towards Bandha Talai with his cows, he found a dead body lying in a ditch. Pratap handed over a written report (Ex.P-1) at Police Station Mandawar. On that report case was registered and investigation commenced. Dead body was subsequently identified as of Jitendra Bhatnagar. Autopsy was performed. As many as four stab wounds were found on the dead body. Cause of death was asphyxia due to strangulation. Statements of witnesses were recorded. The deceased was last seen alive in the company of appellant and three others. All of them were nabbed and at the instance of appellant a wallet belonging to deceased got recovered. Necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.2 Jhalawar. Charges under sections 323/34, 324/34, 307/34, 302/34, 120B, and 115 Indian Penal Code were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 29 witnesses. In the explanation under Section 313 Criminal Procedure Code, 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. The prosecution in support of its case examined as many as 29 witnesses. In the explanation under Section 313 Criminal Procedure Code, 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. Since the case of prosecution rests on the circumstantial evidence, we have 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 guilt 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. 4. Having gone through the impugned judgment we notice that learned trial court founded conviction of the appellant on the following circumstances:- (i) Death of Jitendra was homicidal in nature. (ii) Jitendra was last seen alive in the company of appellant. (iii) Appellant had a motive to kill Jitendra. (iv) Pursuant to disclosure statement of appellant wallet belonging to the deceased got recovered. 5. Learned counsel for the appellant vociferously criticised the impugned judgment and made following submissions:- (i) The appellant is entitled to be acquitted since his case is not distinguishable with that of the case of three co-accused persons, who have been acquitted. In support of this contention reliance is placed on Kunji Vs. State of Rajasthan [2008(1) RLW 145]. (ii) Alleged recovery of wallet at the instance of appellant was farce. Wallet was not subjected to identification by the wife of the deceased Asha (Pw.26) and Motbirs Ram Prasad (Pw.3) and Tej Karan (Pw.4) did not support the recovery. Reliance is placed on Mani Vs. State of Tamil Nadu [2008 CrLJ 1406]. (iii) Lokesh (Pw.7) was highly unreliable witness in view of these pronouncements- (2) Muluwa Vs. State of MP (1976)1 SCC 37 . (3) State of Rajasthan Vs. Magani Ram [JT 2001 SC (3) 541] . (4) Sattatiya @ Satish Vs. State of Maharashtra [JT 2008(1) SC 434] . (5) Bhimapa Chadappa Hosamani Vs. State of Karnataka [2007(1) SCC (CR) 456] . (6) State of Orissa Vs. Brahamananda [ AIR 1976 SC 2488 ] . (7) Kajal Sain Vs. State of Assam (2002)2 SCC 551 . 6. Magani Ram [JT 2001 SC (3) 541] . (4) Sattatiya @ Satish Vs. State of Maharashtra [JT 2008(1) SC 434] . (5) Bhimapa Chadappa Hosamani Vs. State of Karnataka [2007(1) SCC (CR) 456] . (6) State of Orissa Vs. Brahamananda [ AIR 1976 SC 2488 ] . (7) Kajal Sain Vs. State of Assam (2002)2 SCC 551 . 6. We now proceed to consider each circumstance in view of submissions advanced before us.HOMICIDAL DEATH: 7. Death of Jitendra according to post mortem report (Ex.P-26) was homicidal in nature. Following injuries were found on the dead body:- 1. stab wound 1cm x 1/2cm x 1cm ) x 3 in hypocondrium 2. Stab wound 2c, x cm x 1 in Rt.axillary line 8th inter costal space. 3. Stab wound 2cm x 1/2cm x 1cm) x 2 in mid axillary line 6th & 7th inter costal space. 4. Stab wound 1cm x 1/2cm x 1cm in Rt.5th inter costal space anterior thorax. According to Dr. Suman Kumar Jindal (Pw.16), who performed autopsy, the cause of death was asphyxia due to strangulation.MOTIVE: 8. It is well settled that if the evidence shows that the accused having a strong motive had the opportunity of committing the crime and the established circumstances exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be complete as to hold the accused guilty. In the instant case the prosecution examined Asha (Pw.6), who is the wife of deceased, to establish that the appellant wanted to marry Asha and when she refused to marry him, he threatened her. Asha in her deposition stated thus:- " esjs iM+ksl esa cgknqj flag jgrk Fkk -----esjh tc 'kknh dh ckrphr py jgh Fkh rc blus esjs ls dgk fd vk'kk rw esjs ls 'kknh djysA rw eq>ls 'kknh ugha djsxh rks rsjs HkkbZ dks vkSj rq>s tku ls ekj nwaxk] ftlls 'kknh djsxh mldks Hkh ugha NksM+waxkA " She further stated that after her marriage the appellant came to her sasural at Bhawani Mandi and threatened her mother-in-law of dire consequences. Her mother-in-law then lodged report against the appellant. Asha was subjected to cross examination but her testimony could not be shattered. The prosecution is thus able to establish that since Asha after refusing to marry the appellant, entered into marriage with Jitendra the appellant became jealous. Her mother-in-law then lodged report against the appellant. Asha was subjected to cross examination but her testimony could not be shattered. The prosecution is thus able to establish that since Asha after refusing to marry the appellant, entered into marriage with Jitendra the appellant became jealous. The appellant used to visit Sasural of Asha and once he threatened mother-in-law of Asha who lodged a report with the police against the appellant. The appellant thus had a strong motive to commit the crime.EVIDENCE OF LAST SEEN: 9. In order to establish that Jitendra was last seen alive in the company of appellant, the prosecution examined Lokesh (Pw.7). In his deposition Lokesh stated that on September 28, 2002 Jitendra Bhatnagar asked to complete electric fitting in his house. In the house of Jitendra while he (Lokesh) was busy in his work, Jitendra asked him to accompany. They together visited Railway Station and Masoda Mandi. At Masoda Mandi he saw four persons sitting in white Tata-sumo RJ-17C 1282. They were Raj Bahadur, Raees, Manjeet and Bal Chand. He and Jitendra were made to sit in Tata-sumo. When the vehicle proceeded towards Bhim Sagar, he asked the driver as to why they were wandering. In the meanwhile, Bahadur Singh wrapped a rope round his neck and squeezed the rope but because of intervention of Jitendra he was saved. After sometime, having found them consuming liquor, he somehow escaped from the vehicle. He straightway reached to the house of Jitendra and informed the parents of Jitendra about the incident. Learned counsel for the appellant criticised the testimony of Lokesh from various angles. Having closely scrutinised the testimony of Lokesh, we notice contradictions and embellishments but on examining his evidence from the point of view of trustworthiness we find that while appellant took Jitendra with him in a vehicle, Lokesh was with them. Lokesh gave minute details from the point he accompanied appellant and the deceased till he escaped. Testimony of Lokesh gets corroboration from his injury report (Ex.P-25), which reads as under:- 1. Abrasi"on 16cm x 1cm around neck dark blue encircling 2. Abrasion 4cm x .5cm front of teeth 10. "Last seen theory" has been the subject matter of various judicial decisions. In State of U.P. Vs. Testimony of Lokesh gets corroboration from his injury report (Ex.P-25), which reads as under:- 1. Abrasi"on 16cm x 1cm around neck dark blue encircling 2. Abrasion 4cm x .5cm front of teeth 10. "Last seen theory" has been the subject matter of various judicial decisions. In State of U.P. Vs. Satish (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." 11. In Ramreddy Rajesh Khanna Reddy Vs. State of AP (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. 12. In Mohibur Rahman Vs. State of Assam (2002)6 SCC 715 the Apex Court held 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 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. 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 unascertainable 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 Indian Penal Code is concerned there is no evidence worth the name available against him. He is entitled to an acquittal. Accordingly, the coaccused's conviction under Sections 302/34 and 201/34 Indian Penal Code along with 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." 13. In Bodhraj Vs. 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 to a conclusion of guilt in cases where there is no other 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. 14. In State of Karnataka Vs. 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. 14. In State of Karnataka Vs. MV Mahesh (2003) 3 SCC 353 , the Apex Court indicated as under:- (para 3) "Even if we proceed on the basis that the DNA 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 claim 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 am. 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 delicit 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." 15. Bearing the principles laid down in aforequoted decisions if we proceed to scan the evidence of Lokesh (Pw.7) we find it truthful. His evidence that Bahadur Singh wrapped rope round his neck and squeezed the rope finds support from the injury report (Ex.P-25) according to which abrasion measuring 16cm x 1cm encircling his neck was found. It also appears from the inquest report of deceased Jitendra (Ex.P-2) that rope tied encircling the neck was found on the dead body.Thus the prosecution is able to establish that deceased was last seen alive in the company of appellant.RECOVERY OF WALLET: 16. It also appears from the inquest report of deceased Jitendra (Ex.P-2) that rope tied encircling the neck was found on the dead body.Thus the prosecution is able to establish that deceased was last seen alive in the company of appellant.RECOVERY OF WALLET: 16. In order to establish the recovery of wallet the prosecution examined Ram Prasad (Pw.3) and Tej Karan (Pw.4). Although motbirs did not support recovery, the Investigating Officer Kishan Lal (Pw.29) proved the information given by appellant. Kishan Lal deposed that after his arrest Bahadur Singh voluntarily gave information regarding black wallet of deceased. Disclosure statement of appellant was recorded in memo Ex.P- 44, which reads as under:- " eSaus ,l0,p0vks0 fd'kuyky oekZ dks LosPNk ls gokykr ds ikl cqyk dj lwpuk nh fd eSaus ,d dkyk cVok ftlesa e`rd dk QksVks dk ?kVuk LFky ls if'pe fn'kk ds 100 QqV djhc nwj [kkyh esa jsr feV~Vh esa 1 QqV djhc [kM~Mk [kksn dj xkM j[kk gS eSa py dj cjken djok ldrk gwaA " Pursuant to said information the appellant took Kishan Lal IO to the place where the black wallet of deceased was concealed. The appellant after digging a pit around 1 feet took out wallet of deceased, which was recovered vide memo Ex.P-13. 17. Section 27 of Evidence Act lays down an exception to the rule that a confession made by an accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the conditions prescribed by it. The law in India on the subject dealt with in Section 27 is wider than the common law in England. It appears from the provisions of Section 27 that it has been taken bodily from the English law. In both the laws there is a greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him then for one who knows of the danger. In English Law, the caution gives him a necessary warning and in India the fact of his being in custody of a police officer serves the purpose. 18. In Prakash Chand Vs. In English Law, the caution gives him a necessary warning and in India the fact of his being in custody of a police officer serves the purpose. 18. In Prakash Chand Vs. State (Delhi Admn.) [ AIR 1979 SC 400 ] the Apex Court held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct, under section 8, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27. 19. In Rammi Vs. State of MP (1999)8 SCC 649 , the Apex Court held thus:- (Paras 11&12) "Regarding the recovery of weapons, the prosecution could utilise statements attributed to the accused on the basis of which recovery of certain weapons was effected. Section 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which the accused had furnished to the police officer and which led to the recovery of the weapons." "True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused." 20. In Himachal Pradesh Administration Vs. Om Prakash (1972)1 SCC 249 the Apex Court interpreted Section 27 of Evidence Act thus:- "A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the 'cause and effect' that information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused." 21. In Ghanshyam Das Vs. State of Assam (2005) 13 SCC 387 the Supreme Court held that evidence regarding recovery could be looked into to appreciate the conduct of accused under section 8. It was observed as under:- (Para 5) "Another incriminating circumstance which corroborates the case of the prosecution is that the appellant led the IO PW.12 to Kharbhanga riverside and pointed out the place where he had thrown away the Khukri. According to the evidence of PW.12 the IO and PW.6, the Khukri was recovered from the river with the help of a diver. According to the evidence of PW.12 the IO and PW.6, the Khukri was recovered from the river with the help of a diver. Though both the courts have eschewed this circumstance from consideration on the ground that no information was recorded by PW.12 the IO so as to attract Section 27 of the Evidence Act, we are of the view that the evidence of PW.12 and PW.6 to the effect that the accused led them to the spot and pointed out the place where the Khukri was thrown, which fact stands confirmed by its recovery, can be looked into to throw light on the conduct of the accused under section 8 of the Evidence Act." 22. In the instant case Kishan Lal IO (Pw.29) recovered wallet belonging to deceased which contained photo of deceased from the place pointed out by the appellant in his disclosure statement. The appellant led Investigating Officer to the spot and got the wallet recovered. This incriminating circumstance corroborated the case of the prosecution. 23. Learned counsel for the appellant vociferously canvassed that the recovery effected by investigating officer was farce. We find no merit in the submission. Having closely scanned the testimony of Kishan Lal IO (Pw.29) we noticed that he conducted investigation fairly. We cannot approach the action of Investigating Officer with initial distrust. The investigating officer had no enmity with the appellant. It cannot be presumed that recovery of wallet at the instance of appellant is untrustworthy. The Supreme Court in State Govt.of NCT Delhi Vs. Sunil (2001)1 SCC 652 indicated in para 21 thus:- "It is for the accused, through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions." 24. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions." 24. We also find no merit in the submission that the appellant is entitled to acquittal since his case is not distinguishable with that of coaccused who have been acquitted. The case of Kunji Vs. State of Rajasthan [2008(1) RLW 145] , on which reliance is placed by learned counsel is distinguishable. In that case the charge against all the accused was that they shared common intention in committing the crime. Although Kunji and his two minor sons were named in the FIR, the court acquitted two co-accused and convicted Kunji alone. Under those circumstances this court held that case of Kunji was not distinguishable with that of the case of co-accused and Kunji was also entitled to benefit of doubt. 25. We now consider the other judicial pronouncements on which reliance is placed by learned counsel for the appellant. 26. In Balaka Singh Vs. State of Punjab (AIR 1975 SC 1961) it was indicated that when case of convicted accused is not severable from that of acquitted accused, entire prosecution case must be discarded. The instant case however is severable from that of acquitted accused persons. 27. In Mani Vs. State of Tamil Nadu [2008 CrLJ 1406] was the case where discovered articles were lying open barely 300 ft. away from the body of deceased and the same were recovered after ten days of the incident. The prosecution also failed to prove that discovered clothes belonged to deceased and motive for murder was also proved. As also the witness who found corpse at night did not report the matter till 10 O' clock of next day morning. Therefore the Apex Court extended the benefit of doubt to accused. 28. Muluwa Vs. State of MP (1976)1 SCC 37 , was the case where the Apex Court held that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand, for evidence is to be weighed not counted. 29. State of Rajasthan Vs. 28. Muluwa Vs. State of MP (1976)1 SCC 37 , was the case where the Apex Court held that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand, for evidence is to be weighed not counted. 29. State of Rajasthan Vs. Magani Ram [JT 2001 SC (3) 541] was the case where the witness did not try to save the lady nor the grandson of deceased took any step and the evidence of witnesses was contradicted by medical evidence, therefore the Apex court finding the conduct of witness to be unnatural held that the evidence does not inspire confidence and they cannot be relied upon and acquitted the accused. 30. Sattatiya @ Satish Vs. State of Maharashtra [JT 2008(1) SC 434] was the case where the witness, last seeing deceased with accused, made several improvements in his statements and even though accused used to come to the tailoring shop, where the witness worked, he denied knowing their names and he also denied the statements made to police, therefore the Apex Court held that the evidence was wholly untrustworthy. 31. In Bhimapa Chadappa Hosamani Vs. State of Karnataka [2007(1) SCC (CR) 456] the Apex Court held that credibility of the witness is to be tested by reference to the quality of his evidence which must be free of any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on that basis. It was indicated in para 24 thus:- "... This court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the court as wholly truthful, must appar to be natural and so convincing that the court has not hesitation in recording a conviction solely on the basis of the testimony of a single witness." 32. State of Orissa Vs. Brahamananda [ AIR 1976 SC 2488 ] was the case where the eye witness did not disclose the name of assailant for a day and a half, therefore the credibility of the witness was found untrustworthy and the accused was acquitted. 33. Kajal Sain Vs. State of Assam (2002)2 SCC 551 , was the case where the incident took place on the 14th night and the witnesses did not divulge any fact regarding incident till 18th, therefore the evidence of witnesses was found untrustworthy. 34. Aforequotted judicial pronouncements in the facts and circumstances of the case do not help the appellant. As already noticed the appellant had motive to commit crime. Lokesh (Pw.7) and deceased were taken by the appellant in a vehicle to lonely place. Appellant made attempt to strangulate Lokesh, but he somehow escaped leaving Jitendra in the company of appellant. Cause of death of Jitendra was strangulation and rope was found tied on the neck of dead body. Wallet belonging to deceased got recovered at the instance of the appellant. All these circumstances conjointly establish the guilt of the appellant. 35. 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 Bahadur Singh provides an additional link to the chain of circumstantial evidence. Learned trial Judge in our opinion committed no illegality in convicting the appellant. 36. For these reasons, we do not find any merit in the appeal and the same accordingly stands dismissed. Conviction and sentence of appellant under section 302 Indian Penal Code are maintained.Appeal dismissed. *******