JUDGMENT 1. The instant appeal under Section 374 of the Code of Criminal Procedure ('the Code for short) sent from jail is directed against the judgment and order dated 27.8.2004 rendered in Sessions Case No. 45 of 2003 by which appellant Laxman ('accused' for short) has been convicted for the offence under Sections 364, 302/34, 201/34 of the Indian Penal Code ('Indian Penal Code.', for short) as the accused was found guilty for kidnapping and committing murder of Prakash, a boy of 14 years of age and screening of the offence and therefore he was sentenced as under : Offence Sentence 364 Indian Penal Code. 10 years' rigorous imprisonment and fine of Rs. 2,000, in default of payment of fine to undergo further simple imprisonment for two months. 302/34 Indian Penal Code. Imprisonment for life and fine of Rs. 5,000, in default of payment of fine to undergo further simple imprisonment for four months. 201/34 Indian Penal Code. 7 years' rigorous imprisonment and fine of Rs. 1,000, in default of payment of fine to undergo further simple imprisonment for one month. All the substantive sentences were ordered to run consecutively i.e. one after another. 2. The prosecution case, as disclosed from the F.I.R. and unfolded during trial is that on 9.10.2002 PW-2 Tej Ram (Complainant) lodged a written report Ex.P-2 at Police Station Pratap Nagar, District Udaipur stating therein that on that day his son Prakash Meghwal, aged 14 years had gone to Jai Shree Colony to see Garba at about 8.45 P.M. and thereafter at about 9.45 P.M. he received a telephone call from unknown person which was attended by his daughter Jamana who called him on line and when he talked with that person on telephone he told him that as he (complainant) was flying high so he would kill him and would end his whole family. The unknown person asked him about the whereabouts of his children at which the complainant asked him to disclose his identity to which he replied that he was his father and stated that his child was with him and after saying so disconnected the telephone line. The complainant thereafter made search for his son at Jay Shree Colony, Bohara Ganesh and all other Garba places but his son was not found, therefore, he apprehended that someone had kidnapped his son. The complainant thereafter made search for his son at Jay Shree Colony, Bohara Ganesh and all other Garba places but his son was not found, therefore, he apprehended that someone had kidnapped his son. His son Prakash was seen by PW-7 Wasim at 9.30 P.M. going towards Bohra Ganeshji and PW-18 Ganpat also saw him with two boys going towards the gate of Mohan Lal Sukhadiya University. 3. On the basis of this report, F.I.R. No. 290/2002 Ex.P-22 under Section 365 Indian Penal Code. was registered at the Police Station against unknown person and during the course of investigation statements of witnesses were recorded, the dead body of the deceased was recovered on the information of accused and inquest was held on the dead body and thereafter it was sent for autopsy. The site plan was prepared and blood sample was taken from the dead body of the deceased which was sent to FSL for examination. Mudamal articles Gupti and a white handkerchief were also recovered on the information of accused in the presence of Panchas. 4. At the end of investigation, since incriminating evidence was found against accused-appellant Laxman as well as juvenile accused Mahendra Singh they were booked and arrested. Accused Mahendra Singh was charge-sheeted in Juvenile Court whereas charge-sheet was filed against accused-appellant in the Court of Additional Chief Judicial Magistrate No. 1, Udaipur for the offence under Sections 302, 364 and 201 Indian Penal Code., who committed the case to the Court of Sessions, Udaipur as the offence under Section 302 Indian Penal Code. is exclusively triable by the Court of Sessions. The Addl. Sessions Judge (Fast Track) No. 1, Udaipur ('trial Court', for short), to whom the case was made over for trial, framed charge against accused for the offence under Sections 364, 302 or 302/34, 201 or 201/34 which was read over and explained to him. Accused pleaded not guilty and claimed to be tried, therefore, he was put to trial. 5. To prove the culpability, the prosecution examined as many as 21 witnesses and relied upon their oral testimony. The prosecution also produced 43 documents, which were exhibited and the contents thereof were relied upon. 6. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against him and recorded his further statement under Section 313 of the Code. The prosecution also produced 43 documents, which were exhibited and the contents thereof were relied upon. 6. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against him and recorded his further statement under Section 313 of the Code. In his further statement, the accused produced three statements Ex.D-1 to D-3 recorded under Section 161 Criminal Procedure Code of witnesses PW-17 Abhay Kumar, PW-18 Ganpat and PW-2 Tej Ram. The accused denied the case of the prosecution in its entirety and stated that a false case has been made out against him by the police, however, neither he led any evidence nor examined any witness to support his defence. 7. On appreciation, evaluation and scrutiny of the evidence on record, the trial Court came to the conclusion that homicidal death of deceased Prakash has been proved by the prosecution and there was motive on the part of the accused to kill the deceased. The trial Court on the basis of circumstantial evidence, has recorded a categorical finding that the accused kidnapped Prakash and after committing murder with a view to screen the offence he threw the dead body of the deceased, therefore, complicity of the accused in committing the crime has been established, and therefore, convicted the accused as stated hereinabove by its judgment and order dated 27.8.2004. It is this judgment and order which has given rise to this appeal at the instance of the accused. 8. Assailing the impugned judgment and order Mr. Mridul Jain and Mr. Shaitan Singh for the accused appellant and Mr. K.R. Bhati, Amicus Curiae appointed in this case have submitted that it is a case of no evidence as there is no eye-witness, and the case of the prosecution is based on circumstantial evidence but linking circumstances are missing and complete chain has not been established. According to them, misconceived and illegal reliance has been placed on the doctrine of "last seen together" by the trial Court. It is contended that there is no evidence to the effect that deceased and accused were seen together and that the accused had taken the deceased. According to them, misconceived and illegal reliance has been placed on the doctrine of "last seen together" by the trial Court. It is contended that there is no evidence to the effect that deceased and accused were seen together and that the accused had taken the deceased. It is emphasised by the learned counsel that the blood sample of the deceased was taken two days after the recovery of weapon is doubtful and further it is also emphasised by them that though the prosecution relied upon the telephone bill but the owner of the STD/PCO has not identified the accused. 9. On the aforesaid premise, according to the learned counsel for the accused there is no evidence on which conclusion can be drawn about the guilt of the accused. According to them, the circumstances which are pitted by the prosecution are not fully established, therefore, the impugned judgment of conviction and order of sentence is against the evidence on record. They, therefore, urged to quash the impugned judgment of conviction and order of sentence by allowing this appeal and thereby acquitting the accused of the offence with which he was charged. 10. Per contra Mr. K.R. Bishnoi, learned Public Prosecutor has supported the impugned judgment and order as according to him on the circumstances pitted by the prosecution there is no escape from the conclusion that a crime has been committed by the accused and none else. He, therefore, urged to dismissed the appeal. 11. We have considered the submissions advanced by Mr. Mridul Jain, Mr. Shaitan Singh for the accused-appellant as well as Mr. K.R. Bhati, Amicus Curiae so also Mr. K.R. Bishnoi, learned Public Prosecutor. We have also perused the impugned judgment and order and the record of the case. 12. So far as the homicidal death of deceased Prakash is concerned, the prosecution has examined and relied upon the oral testimony of PW-8 Dr. Akhilesh Sharma, who performed the postmortem on the dead body of deceased Prakash and who has prepared the postmortem report which is on record at Ex.P-18. 13. On conjoint reading of evidence of PW-8 Dr. Akhilesh Sharma and Postmortem Report Ex.P-18, it is seen that Dr. Akhilesh Sharma, who performed the postmortem on the dead body of deceased Prakash and who has prepared the postmortem report which is on record at Ex.P-18. 13. On conjoint reading of evidence of PW-8 Dr. Akhilesh Sharma and Postmortem Report Ex.P-18, it is seen that Dr. Akhilesh Sharma has noted the following injuries on the dead body of deceased Prakash : 1 Multiple abraded bruise in size 13 cm x 6 cm back of right elbow and arm varying in size 2 cm x 0.5 cm to 1 cm x 0.5 cm 2. Stab perforated wound incised margin 1 cm x 0.5 cm on 9th intercostals space on right side chest. 10 cm below right nipple and 7 cm lateral to XI phi stein. Reddish clotted blood present inverted margin obliquely present. 3. Exit wound 0.5 cm x 0.5 cm on right side back 4 cm lateral to mid spine. 4. Abraded bruise 12 cm x 4 cm on left side neck and front of neck almost horizontally placed. Skin is brownish parchment like on dissection of neck muscle on both side of neck is contused. Muscle hemorrhagic present. Trachea is congested. The doctor opined that the cause of death was asphyxia due to pressure on neck and mentioned that simultaneously there was finding of hemorrhagic shock due to injury No. 2. Therefore, it is duly proved that the deceased died a homicidal death. 14. So far as the instant case is concerned, there is no eye-witness to the incident of kidnapping, killing Prakash and throwing his dead body by the accused. The whole case of the prosecution rests on the circumstantial evidence. 15. It is settled principle of law that in order to sustain conviction on the basis of circumstantial evidence, prosecution must fulfill three conditions : (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) 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 it should also be incapable of explanation of any other hypothesis than that of the guilt of the accused. Further, in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. The above principles are laid down by the Supreme Court in the Case of Jaharlal Das v. State of Orissa, AIR 1991 SC 1388 . 16. It is also one of the settled principles of law that witnesses may tell lies but not circumstances. The Court must adopt cautions approach for basing conviction on circumstantial evidence. The Supreme Court has reiterated it in the case of State of Haryana v. Ved Prakash, AIR 1994 SC 468 . 17. The Supreme Court in the case of Ramkumar Madhusudan Pathak v. State of Gujarat, (1998) 7 SCC 702 has aptly and elaborately laid down the principles as to which are the circumstances establishing guilt of the accused. 18. The Supreme Court in the very well known case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , has laid down following five principles to base conviction on the circumstantial evidence : (i) 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; (ii) 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; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved, and (v) 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. 19. 19. In the later decision in the case of Jaipal v. State of Haryana, (2003) 1 SCC 169 , the Supreme Court has held that merely because the accused could have had a motive for causing death of the deceased it would not by itself be enough to sustain the finding of guilt against him. 20. Keeping in forefront the aforesaid principle enunciated by the Supreme Court in above referred to judgments with regard to how to appreciate the evidence in case of circumstantial evidence, we may now examine all the circumstances pitted by the prosecution. 21. To prove the case, the prosecution has pitted following four circumstances against the accused : (i) Last seen together; (ii) Sample of blood of the deceased match with the blood found on Gupti; (iii) Recovery of weapon from accused on the basis of information supplied by him as well as dead body was recovered at the instance of the accused; (iv) Telephone bill. 22. Now so far as first circumstance is concerned, i.e. accused has taken the deceased and thereafter he was not find alive, the prosecution has mainly relied upon the oral testimony of PW-1 Radha Krishan, PW-5 Manoj, PW-7 Wasim and PW-18 Ganpatlal. 22. 1 So far as PW-1 Radha Krishan is concerned, he has turned hostile, therefore, it is not necessary to re-appreciate his evidence. 22. 2 PW-5 Manoj is the brother of deceased Prakash, who has inter-alia testified that on 9.10.2002 in the evening at 9 O'clock he went to watch Garba at Jaishree Colony where earliei to him his younger brother Prakash had gone and when he reached Prakash was there and there he started watching Garba with his friends. He further testified that at 10 O'clock in the night he returned home back and last time he saw Prakash going towards Bohra Ganesh. 22. 3 Another witness PW-7 Wasim has inter-alia testified that on 9.10.2002 at 10 O'clock in the night he had gone to Bohra Ganesh, Sharda Colony with his friend Vinod to watch Garba where they saw Prakash going towards Bohra Ganesh so they called him but he did not stop and on reaching at the turn saw towards them but thereafter went away. He further testified that after watching Garba at Sharda Nagar they watched Garba at Bohra Ganesh and when came to home Prakash's father told that Prakash had been kidnapped. He further testified that after watching Garba at Sharda Nagar they watched Garba at Bohra Ganesh and when came to home Prakash's father told that Prakash had been kidnapped. He also testified that on his asking Ganpat whether he had seen Prakash, Ganpat told him that he had seen Prakash going with two boys on motorcycle towards University. 22. 4 The last witness of last seen is PW-18 Ganpat, who according to us is star witness and has inter-alia testified that it was half past nine O'clock in the night of 9.10.2002 when he was going from his house to Bohra Ganeshji to watch Garba through the gate of the University and then he saw deceased Prakash, Laxman and Mahendra Singh going on motorcycle. They were going inside the University passing through the gate and at that time Mahendra Singh was driving the motorcycle, Prakash was sitting in the middle and Laxman was sitting at back. He further testified that on his calling Prakash from behind, Mahendra Singh slowed the motorcycle and then taken the motorcycle inside the gate of University and thereafter he went to watch Graba and there he told his friends that he had seen Prakash going towards University. He also testified that the motorcycle on which those three persons were going was having registration number R.N.H. 1222 and Prakash at that time was wearing blue pent and black T-shirt. In his cross-examination, he stated that he informed the police that he saw Prakash, Laxman and Mahendra Singh going on motorcycle and on the very night at half past 10 O'clock police personnel came to his uncle (Phoophaji) Tejram's house and enquired from him, his uncle and friends. He denied the suggestion that complainant Tejraj being his uncle he was giving statement to falsely implicate accused Laxman. 23. On overall appreciation of the evidence of the aforesaid witnesses, according to us PW-18 Ganpat has given the correct picture and from his evidence there is no escape from the conclusion that deceased was last seen in the company of the accused and the prosecution has established the evidence of last seen together. Therefore, it has to be held that the deceased was last seen in the company of the accused and thereafter he was not found alive. 24. Therefore, it has to be held that the deceased was last seen in the company of the accused and thereafter he was not found alive. 24. The second circumstance is of matching blood group found on the dead body of Prakash and on the Gupti which was recovered at the instance of accused Laxman and fully supports the prosecution case. 25. The third circumstance is recovery of the weapon 'Gupti' vide recovery map Ex.P-12. The accused supplied information under Section 27 of the Evidence Act and on the basis of that information a Gupti and white handkerchief were recovered. The information is Ex.P-9 and the recovery memo of Gupti and handkerchief is Ex.P-12. In this connection, the trial Court has examined witness PW-17 Abhay Kumar who has stated that in respect of recovery of Gupti on Ex.P-12 portion 'C' to 'D' bears his signature. The Investigating Officer Harishchandra Singh PW-21 has also stated that in his presence information was supplied by the accused voluntary and on the basis of said information the dead body of child and other articles were recovered in presence of Panchas. So accordingly to us this is also one of the strongest circumstance to connect the accused with the crime. 26. The last circumstance is of producing the telephone bill which is brought on record at Ex.P-16. From the said bill, it is seen that the telephone call made at the residence of the complainant, however the witness PW-11 Babulal has not supported Ex.P-16 and turned hostile, but the statement of complainant PW-2 Tej Ram that his daughter received a telephone call first is proved with regard to the threat to the life of Prakash, the motive for which though no mentioned in the F.I.R. which was of missing but can be ascertained from the testimony of Tej Raj that once accused said that he had broken the bulb of the shop and also tried to scuffle with him and also threatened him on telephone that he has become a high man. These circumstances can safely be connected with regard to the motive of the accused in regard to the kidnapping and killing of deceased Prakash. 27. These circumstances can safely be connected with regard to the motive of the accused in regard to the kidnapping and killing of deceased Prakash. 27. On overall reappraisal of the evidence, according to us all the circumstances are duly established by the prosecution to prove the complicity of the accused and the trial Court has given cogent and convincing reasons for coming to the conclusion about the guilt of the accused. The counsel appearing for the accused appellant are unable to dislodge the said findings. 28. We find ourselves in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court, as according to us, no other finding, conclusion or order except the one reached by the trial Court is possible on the evidence adduced by the prosecution and on the facts and in the circumstances emerging from the record of the case. 29. In aforesaid view of the matter, we do not find any merit in this appeal, therefore, we do not deem it expedient to interfere with the judgment and order of conviction and sentence recorded by the trial Court. The instant appeal lacks merit and deserves to be dismissed. 30. For the foregoing reasons, the appeal fails and accordingly dismissed, result of which is that the judgment and order of conviction and sentence dated 27.8.2002 recorded against the accused for offence under Sections 364, 302/34, 201/34 of Indian Penal Code. is hereby confirmed and "maintained. 31. Accused appellant Laxman is in jail, he will serve out the sentence as awarded, however, the order of the trial Court to the extent that all the substantive sentences shall run consecutively i.e. one after another is hereby modified and it is ordered that all the substantive sentences shall run concurrently.Appeal dismissed. *******