JUDGMENT Surinder Singh, J -- State has challenged the acquittal of the respondents passed by the learned trial Court, in Sessions case No. 53-S of 1995, decided on 28.2.1997, for the offences punishable under Sections 302, 392 read with Section 34 Indian Penal code, in the present appeal, allegedly committing the murder of late Shri Om Parkash Banga and robbery of Jewellery from his residence. (A) BACKGROUND OF THE CASE. 1. Shri Om Parkash Banga (deceased) was running business in his five storied building in Naya Totu Bazar. He had a cloth shop abutting his residence; where he was living in the said accommodation with his wife PW 4 Smt. Sudershan Banga, one unmarried daughter and son PW3 Avinash Banga, a school going son. His elder daughter Sangeeta was already married at Ambala to PW7 Harish Kumar. On 24.4.1995 Smt. Sudarshana Banga had gone to Ambala to drop her daughter Sangeeta in the house of her in-laws along with another daughter, leaving behind her husband Om Parkash Banga and his son PW3 Avinash Banga. In their absence on 26.4.1995, Shri Om Parkash Banga was found murdered. His dead body was lying in the bed room. The music sound system was going on high pitch. (B) POSECUTION STORY. 2. In nutshell, prosecution story goes on like this. Accused respondent Darshan Kumar was a client of the deceased and had been occasionally visiting his work place. On 26.4.1995, at about 8. 45 Am., he along with his friend Surjeet Kumar accused visited the business premises of deceased Om Parkash at Naya Totu. At that time, the door of the shop was open but he was in the kitchen, preparing break-fast for his son who, at that time was a student of 9th standard and was to go to his School. Darshan Kumar had borrowed some money from the deceased and was to settle the accounts with him. The deceased told him to wait for sometime in the drawing room and both of them kept sitting there and he went to kitchen to prepare the breakfast for himself and his son. (ii) After preparing the breakfast and serving it to his son, he joined the respondents in the drawing room. The deceased told him to wait for sometime in the drawing room and both of them kept sitting there and he went to kitchen to prepare the breakfast for himself and his son. (ii) After preparing the breakfast and serving it to his son, he joined the respondents in the drawing room. After getting ready for his school, his son PW3 Avinash Banga left for his school around 9.15 a.m. leaving behind his father in the company of the respondents, who, at that time were discussing some matter. (iii) When son of the deceased had left for the School, respondents allegedly committed the murder of Om Parkash Banga. Respondent Surjeet Kumar inflicted injury with a sharp edged weapon on the chest of the deceased. Thereafter both the respondents caused the death of deceased by strangulation, smothering and threw him on the floor of his bed-room. Thereafter both of them decamped with the jewellery of the deceased and his wife (PW4). (iv) PW2 Nirmala DeviDevi, was an employee in a Song and Drama Division of Government of India. Her office was in one of the portion of the same building owned by the deceased. Around 10.45 a.m., she visited the shop of the deceased with a view to buy dupatta. She found the shop partly open but after waiting for sometime, nobody turned up. Thus, she stepped in to the adjoining room of the deceased. She was aghast to see the dead body of Om Parkash Banga lying with face downwards on the ground in a pool of blood. The music sound system was on high pitch. She raised an alarm. Son of the deceased PW3 Avinash Banga was called from the School. He reached his residence at about 11 a.m and noticed that his father was lying with the face downwards, blood was all around. He informed his mother telephonically, who was at Ambala. (v) On receiving information from her son PW4 Smt. Sudrashan Banga along with both her daughters and PW7 Harish Kumar her son-in-law reached the same evening i.e. 26.4.1995 at about 4 p.m. Shimla at her residence. In the meantime, PW16 Amar Dev had informed the police at about 11.30 a.m. PW22 Jeet Ram Inspector/SHO along with police party visited the spot and took into possession the dead body of the deceased. (vi) On seeing the dead body, Smt. Sudarshana Banga fell unconscious. In the meantime, PW16 Amar Dev had informed the police at about 11.30 a.m. PW22 Jeet Ram Inspector/SHO along with police party visited the spot and took into possession the dead body of the deceased. (vi) On seeing the dead body, Smt. Sudarshana Banga fell unconscious. PW7 Harish Kumar took her to IGMC Shimla. She was discharged after giving some medicines and reached her residence at about 10 p.m. (vii) The dead body was sent for autopsy. Police picked-up the blood from the bed-room in a small bottle Ext. P16 which was sealed. PW22 Jeet Ram Inspector also took into possession the blood stained pillow Ext. P17, bed-sheet Ext. P18 and both these items were sealed and taken into possession vide recovery memo Ext.PW7/B. (viii) In the morning of 27.4.1995 PW4 Sudarshana Banga inquired from her son about the sequence of events. It was then, he told her that around 8.45 a.m. on the previous day, when he was to go to the School, respondents had visited his father. Out of them, he knew respondent Darshan Kumar @ Banti as he had been oftenly visiting his father in his shop/residence. He also told that he could recognize another person who was accompanying him. He further informed her that both the respondents and his father were in the drawing room when he left for his School. (ix) Thereafter PW4 Sudarshana Banga made a statement Ext. PW4/A to the Police under Section 154 of the Code of Criminal Procedure which was made the basis of registering FIR Ext. PW17/A. 3. PW21 Dr. D.K. Ghosh Professor and Head of Department of Forensic Medicine IGMC Shimla had conducted the autopsy of the dead body on 27.4.1995. In his opinion, deceased had died due to asphyxia due to ligature strangulation and smothering (an attempt) causing cardio respiratory failure. (C) RECOVERIES AND MEDICAL EXAMINATION OF ACCUSED PERSONS: 4. On 28.4.1995 respondent Darshan Kumar was arrested by the police and bill Ext. PW7/F with respect to dry cleaning of the jacket was recovered from the possession of the said respondent. During his interrogation by PW22 Inspector Jeet Ram, he made a disclosure statement Ext.PW5/A in the presence of PW5 Sain Ram and PW7 Harish Kumar to the effect that he had kept concealed his blood stained shirt Ext. P14 in the bushes at Chakkar by-pass road and Mufflar (scarf) Ext. During his interrogation by PW22 Inspector Jeet Ram, he made a disclosure statement Ext.PW5/A in the presence of PW5 Sain Ram and PW7 Harish Kumar to the effect that he had kept concealed his blood stained shirt Ext. P14 in the bushes at Chakkar by-pass road and Mufflar (scarf) Ext. P19 in the area of Bemloe which was used to strangulate the deceased. He could recover the same. Pursuant to the said disclosure statement, the above articles were got recovered. The bill Ext. PW7/F recovered from the possession of Darshan Kumar pertained to M/s Lal and Sons dry cleaners, whereby he had given his Jacket Ext. P20 for dry-cleaning on 26.4.1995. It was taken into possession from them vide memo Ext. PW7/E. 5. As per case of the prosecution, after committing alleged crime, respondent Surjeet Kumar had left for Amritsar along with some jewellery. He was arrested at Amritsar and brought to Shimla on 30.4.1995. He made disclosure statement at Shimla that some of the jewellery articles were kept by him in the house of his sister. He asked his brother-in-law PW10 Vijay Kumar to fetch the jewellery from the house of his sister which was produced by PW10 aforesaid before the Police on 2.5.1995. The said articles contained three gold rings Ext. P3 to Ext. P5, three gold plated bangles Ext. P6 to Ext. P8 and two pairs of artificial ear rings Ext. P9 and Ext. P10, which were identified by PW4 Sudarshana Banga to be her own. 6. After his arrest on 27.4.1995 Darshan Kumar was got medically examined on 29.4.1995 at 4 p.m. He was having linear abrasion 3cm long over lateral aspect of left wrist joint. Probable duration was around 48 hours. His Medico Legal Certificate is Ext. PW1/A. 7. Surjeet Kumar accused was got medically examined on 1.5.1995 at 2 p.m. He was found having three simple injuries caused within a week. His Medico Legal Certificate is Ext. PW4/A. 8. He also made disclosure statement Ext. PW9/A on 1.5.1995 in the presence of PW9 Rameshwar Vaid and one Vinay Kumar to the effect that he had concealed the knife Ext. P15 in his room in Krishna Nagar Shimla and also blood stained pull-over Ext. P21. Thereafter he also disclosed having concealed one pair of gold ear rings Ext. P1 and one gold plated chain Ext. P2 in his room, in the presence of witnesses. P15 in his room in Krishna Nagar Shimla and also blood stained pull-over Ext. P21. Thereafter he also disclosed having concealed one pair of gold ear rings Ext. P1 and one gold plated chain Ext. P2 in his room, in the presence of witnesses. The jewellery Ext. P1 and P2 were recovered and were identified by PW4 Sudarshana Banga allegedly having been stolen from her residence. Knife Ext. P15 and pullover with blood stained Ext. P21 were also got recovered and sealed. 9. On 5.5.1995, PW22 Jeet Ram Inspector raided the residential premises of Darshan Kumar accused located in the area of New Shimla in the presence of Sudarshana Banga and recovered silver jewellery Ext. P11 to Ext. P13 which were taken into possession vide memo Ext. PW4/D. These were identified by Smt. Sudarshana Banga, belonging to her. (D) FORENSIC REPORT. [EXT. PX] 10. Jacket Ext. P20 and blood stained shirt of Darahsn Kumar accused and pullover of accused Surjeet Kumar Ext. P21, knife Ext. P15, pillow Ext. P17 bed-sheet Ext. P18 and bottle Ext. P16 containing blood collected from the spot were sent for the forensic examination. As per the report, the jacket Ext. P20, other items contained human blood of group ‘B’. Though the jacket had the blood stains, but its origin could not be determined. 11. After recording the statements of the witnesses and completion of the investigation, police found the complicity of the respondents in the commission of the aforesaid crime hence presented the challan in the Court for their trial. 12. After committal of the case, respondents were charge-sheeted by the learned trial Court for the aforesaid offences to which they pleaded not guilty and claimed trial. 13. To prove its case, prosecution examined its witnesses and respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were found attendant upon them. 14. When called upon to enter into their defence, they examined DW1 Smt. Manjit, sister of respondent Surjeet Kumar. According to her, her brother did not visit Amritsar nor gave any jewellery to her, as alleged. She further stated that the police had not requisitioned any jewellery from her house through anybody. (E) FINDINGS OF ACQUITTAL BY THE LEARNED TRIAL COURT. 15. According to her, her brother did not visit Amritsar nor gave any jewellery to her, as alleged. She further stated that the police had not requisitioned any jewellery from her house through anybody. (E) FINDINGS OF ACQUITTAL BY THE LEARNED TRIAL COURT. 15. Since it was a case of circumstantial evidence, learned trial Court on the scrutiny of the evidence did not rely upon the circumstances aforesaid, as such acquitted the respondents of the offences charged. (F) SUBMISSIONS BEFORE THIS COURT IN APPEAL. 16. Shri R.K. Sharma, learned Senior Additional Advocate General duly assisted by Shri Rajinder Dogra, learned Additional Advocate General forcefully argued that the learned trial Court wrongly disbelieved the testimony of PW3 Avinash Banga son of the deceased. Respondent Darshan Kumar after arrest was medically examined and disclosed to PW1 Dr. L.R. Verma having sustained injuries in scuffle at 9.30 a.m. on 26.4.1995 which corresponded the time of death of the deceased caused within 30 hours. Further PW6 Dr. D.C. Chauhan had also conducted the medical examination of accused Surjeet Kumar on 1.5.1995 at 2 p.m. and noticed three injuries on his person having caused with blunt weapon with edge and duration was within a week which too corresponds to the time of death of the deceased. It is also argued that the motive to cause the murder is writ large. Respondents are also connected by the recoveries of the blood stained clothes to which they got effected and also pursuant to their disclosure statements jewellery of PW4 Sudarshana Banga was got recovered by them. It is also argued that some of the articles, belonging to the deceased and his wife, as stated above, were recovered from the residence of respondent Darshan Kumar which were identified by PW4 Smt. Sudarshana Banga to be belonging to her, no satisfactory explanation was offered by the accused. Thus, in the totality of the circumstances, and also the report of the forensic examination, duly supported by the medical evidence categorically establishes the involvement of the respondents in the commission of the aforesaid offences and their acquittal has caused miscarriage of justice. 17. On the other hand, Shri Neeraj Sharma, learned counsel for the respondents while supporting the impugned judgment of acquittal vehemently argued that the testimony of PW3 Avinash Banga with respect to last seen does not inspire confidence and the alleged recoveries are nothing but a procured evidence. 17. On the other hand, Shri Neeraj Sharma, learned counsel for the respondents while supporting the impugned judgment of acquittal vehemently argued that the testimony of PW3 Avinash Banga with respect to last seen does not inspire confidence and the alleged recoveries are nothing but a procured evidence. He also ventilated that regarding theft of the jewellery items, no report was made by PW4 Smt. Sudarshanas Banga in her statement Ext. PW4/D which culminated into FIR and further that the recovery of any articles from the possession of respondent Surjeet Kumar also stands not connected with the offence. He further argued that the circumstances put forth do not fully establish the guilt of the respondents’ as they are not of conclusive nature and tendency, therefore, the acquittal of the respondents could not be interfered with. (G) OUR DISCUSSION OF EVIDENCE AND FINDINGS: 18. We have given our thoughtful consideration to the rival contentions of the parties and have carefully and cautiously reappraised the evidence on record. 19. It stands proved on record that death of deceased Om Parkash Banga was homicidal. There were as many as 6 ante-mortem injuries on his person which are described in his post mortem report Ext.P21/A as under:- “1. There was presence of a contusion purplish in colour on mid fore head portion measuring 11 cmx 8 cms size, bone deep. 2. Also present is another contusion on bridge of nose 1 cm. from Nasion 1x 1 cm. size with evidence of slight flattening of the tip of nose with clotted blood all over and around the nostrils. 3. Presence of contusion on the inner aspect of lower lip along with multiple petechial heamorrhagic spots. 4. There were presence of four scratch abrasions two of them cresenteric nail abrasions (Nail scratch abrasions) on right lower aspect of cheek along right mandibular ranus near to the angle along with two linear scratch abrasions on left lower face and left lateral aspect of neck measuring 5 cmsx 3 cms respectively. 5. There was presence of a sharp cut injury on front of chest in mid line with sharp cut inverted margins 1x 05 x 02 cms. Deep just bone deep, upper and slightly bivelled and directed left to right and below upwards in an oblique direction. 6. 5. There was presence of a sharp cut injury on front of chest in mid line with sharp cut inverted margins 1x 05 x 02 cms. Deep just bone deep, upper and slightly bivelled and directed left to right and below upwards in an oblique direction. 6. Presence of a sharp cut injury 1 cmx.5 x0.3 cm at the base of right thumb on inner aspect towards index finger with blood all around.” 20. PW21 Dr. D.K. Ghosh also found the patterned ligature mark on the front and middle portion of neck running horizontally over the thyroid cartilage, 17 cms. long and 6 cms broad (in its broadest part) with evidence of a contusion oval shaped on right side inter mixed with mark with no evidence of any abrasions around the edges except for multiple has on the sides of the neck above clavicles more on right side. In the opinion of the doctor, the cause of death was asphyxia due to ligature strangulation and smothering which caused cardio respiratory failure and death. His final report is Ext. PW21/B. Doctor aforesaid also stated that the cut-injuries which have come on the clothes of the deceased, viz. shirt, banyan ((under vest), corresponding to injuries in front of the chest can be procured by the weapon (knife) which is Ext. P15. The mark of asphyxia consequent to ligature strangulation could be caused by the type of muflar Ext. P19 which is more consistent with findings on the front of neck regarding length and breadth of the ligature mark stated by him. 21. Now, the moot question in the instant case is whether the respondents are connected with offences charged or not. There is however, no direct evidence about the alleged crime. Prosecution relies upon following three circumstances: (i) Last seen, (ii) Injuries on the accused persons; AND (iii) Recoveries. 22. In a case where there is no direct evidence and the case hinges upon the circumstantial evidence, the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622: 1984 Cr.L.J. 1738 has laid down following five golden principles as to how the circumstantial evidence has to be appreciated in a case. These principles are being continuously and constantly followed and hold good even today. These principles are being continuously and constantly followed and hold good even today. It pointed out the conditions that must be followed before a case against an accused based on circumstantial evidence can be said to be fully established. They are: “(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. (i) 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 explained on any other hypothesis except that the accused is guilty. (ii) The circumstances should be of a conclusive nature and tendency. (iii) They should exclude every possible hypothesis except the one to be proved, and (iv) There should 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.” 23. A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 24. Further in Padala Veera Reddy versus State of Andhra Pradesh and others AIR 1990 SC79 and recently in Paramjeet vs. State of Uttrakhand: (2010) 10 SCC439 the above principles of law laid in Shard Birdhichand’s case supra have been reiterated. 25. To sum up, in case of circumstantial evidence, the inference of guilt should be drawn only if the circumstances are consistent with the hypothesis of the guilt of the accused excluding from other hypothesis and are of a conclusive nature. 26. Keeping in forefront the aforesaid ratio laid down by the Apex Court the evidence in the instant case is required to be appreciated with respect to the circumstances short-listed above. (i) LAST SEEN: 27. PW2 Smt. Nirmala DeviDevi is the witness who had seen the deceased Om Parkash Banga on 26.4.1995 lying dead on the floor of his room which was adjacent to his shop. She noticed that at that time the tape-recorder was playing on a high pitch in that room. She was shocked and stepped out of the room and raised alarm. After sometime, people had gathered there. She noticed that at that time the tape-recorder was playing on a high pitch in that room. She was shocked and stepped out of the room and raised alarm. After sometime, people had gathered there. Thereafter PW3 Avinash Banga, son of the deceased was contacted in his school who was only informed about the ill-health of his father. He immediately rushed to his residence and reached about 11 a.m., he found his father lying dead on the ground with face down ward in a pool of blood. 28. PW16 is Amar Dev noticed the crowed outside the house of the deceased, went there and on coming to know about the murder of the deceased telephonically informed the police. Pursuant to this information, PW22 Inspector SHO Jeet Ram visited the spot around 11.45 a.m. and conducted the inquest proceedings. FIR came to be registered by him on the next date on statement Ext. PW4/A given by Smt. Sudarshanaa Banga, as stated above. 29. PW3 Avinash Banga is a material witness on this circumstance. He testified that on 26.4.1995 he was getting ready for his School. Respondent, whom he identified during the trial in the court, had visited his father at his residence. His father told them to sit in the drawing room. Both of them stayed there. His father prepared the break-fast for him. He provided the break-fast to him and took his own break-fast to the drawing room where the respondents were sitting. The break-fast was finished by his father in his presence. He left for his school around 9.15 a.m. He further testified that right from 8.45 a.m. when he left for his School, respondents were sitting in the drawing room, discussing accounts and striking balance with his father. He further stated that earlier accused Darshan Kumar had also been visiting their house. He knew him by face. He also informed about the above facts, next morning to her mother, as she was unwell when she saw the dead body of his father and fell unconscious. 30. In cross examination, he stated that he was also interrogated/ questioned by the police before arrival of his mother and he had disclosed the name of accused Darshan Kumar to police who was nick named as Banti but he saw accused Surjeet Kumar for the first time on that day along with Darshan Kumar. 30. In cross examination, he stated that he was also interrogated/ questioned by the police before arrival of his mother and he had disclosed the name of accused Darshan Kumar to police who was nick named as Banti but he saw accused Surjeet Kumar for the first time on that day along with Darshan Kumar. He identified him when he was brought to the Police Station in this case. He further clarified that respondent Darshan Kumar had been buying goods on credit from them and had also borrowed funds from his father. His father had been maintaining the accounts relating to the credit and money lending as well. He did not remember as to when he saw accused Darshan Kumar for the first time at his shop but stated that at an earlier occasion, prior to the said incident, respondent Darshan Kumar had visited them in the evening at the shop. He also stated that he did not know the number of the customers buying the goods on credit from their shop but according to him, he could name 20-25 such persons who are from their own area. He neither disclosed his address to the police nor he knew about it. Though he categorically stated that he had informed the police on the very day that two persons had visited their house when he was to leave for his School and his statement was recorded by the Police. 31. PW4 Sudarshanaa Banga his mother affords corroboration to his statement that she was informed by PW3 about the above facts in the morning on 27.4.1995, when she got up and was recovered from shock. Thereafter she made the statement Ext. PW4/A to the police which culminated into the FIR which makes the verbatim mention to the statement of PW3 Avinash Banga. 32. Against the aforesaid background, in our considered opinion, statement of PW3 Avinash Banga with respect to last seen theory of the deceased in the company of the accused-respondents could not be shattered. 33. PW4/A to the police which culminated into the FIR which makes the verbatim mention to the statement of PW3 Avinash Banga. 32. Against the aforesaid background, in our considered opinion, statement of PW3 Avinash Banga with respect to last seen theory of the deceased in the company of the accused-respondents could not be shattered. 33. Legally, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged when it is established that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that probability of any person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. In all cases it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is of a considerable long duration. There can be no fixed or strait-jacket formula for the duration of the time gap in this regard and it would depend on the evidence led by the prosecution to examine the possibility of any other meeting the deceased in the intervening period. 34. In the instant case PW3 Avinash Banga, the son of the deceased left for School at 9.15 am leaving his father in the company of the respondents. PW2 Nirmala DeviDevi saw the dead body in the bed room of the deceased at 10.45 a.m. as stated by her while the tape recorder was running on a high pitch. The time gap between last seen and detection of crime is too small, in the facts and circumstances that there was no possibility of any other person taking or approaching the deceased at the time of incident or before the commission of the crime in the intervening period. Thus, the evidence of last seen, in the instant case is quite relevant. 35. Learned counsel for the accused-respondents also forcefully argued that the statement Ext. Thus, the evidence of last seen, in the instant case is quite relevant. 35. Learned counsel for the accused-respondents also forcefully argued that the statement Ext. PW4/A of PW4 recorded by the police which culminated into FIR cannot be used for corroboration as it is hit by Section 162 of the Code of Criminal procedure and this document cannot be said to be FIR, as police had already started investigation on the tentative information recorded by them. 36. In Sambhu Das alias Bijoy Das and another versus State of Assam (2010) 10 SCC 374, the apex Court held that the principle of law in Sections 2 (h) and 157 of the Code of Criminal procedure is that when information regarding a cognizable offence is furnished to the police that information will be regarded as the FIR and all enquiries held by the police subsequent thereto would be treated as investigation, even though the formal registration of the FIR takes place only later. Neither FIR, nor inquest report nor post-mortem can be regarded as substantive pieces of evidence. FIR or inquest report may only be used to contradict or corroborate the maker thereof. Pertinently, PW4 Sudarshana Banga also gave description in FIR, of her jewellery, which was found missing. 37. Even if some report was made on the telephonic information to the police as in the instant case that was really the first information report which by itself would not effect the appreciation of evidence in any manner and on the evidence so recorded before the learned trial Court, the conclusion of the facts are required to be drawn. Therefore, the statement Ext. PW4/A of PW4, in any way, would not shatter. The last seen theory is only a relevant evidence for which the accused persons owe explanation but they also denied this circumstance under Section 313 of the Code of Criminal Procedure. Now what value should be attached to it, to appreciate we proceed to examine the other circumstances appearing in evidence. (ii) INJURIES ON THE PERSON OF THE ACCUSED: 38. The next circumstance is the injuries found on the person of the accused relatable to the time of alleged incident. Admittedly, murder of the deceased was committed on 26.4.1995 Police lodged the formal FIR on 27.4.1995, on the statement of PW4 Sudarshana Banga and on the same day arrested accused Darshan Kumar, as stated by PW22 Jeet Ram. The next circumstance is the injuries found on the person of the accused relatable to the time of alleged incident. Admittedly, murder of the deceased was committed on 26.4.1995 Police lodged the formal FIR on 27.4.1995, on the statement of PW4 Sudarshana Banga and on the same day arrested accused Darshan Kumar, as stated by PW22 Jeet Ram. Accused Darshan Kumar was got medically examined on 29.4.1995 from PW1 Dr. L.R. Verma, Ripon Hospital, Shimla. He was having injuries on a linear abrasion 3 cm long ,over lateral aspect of his left hand wrist joint with scab formation and tapering towards anterior aspect. Surrounding skin margin was brownish red in colour. There was no evidence of bone injury. Accused Darshan Kumar stated to the doctor that he had sustained these injuries during scuffle on Wednesday, i.e., on 26.4.1995 which relates to the date and time of the murder of deceased. The nature of these injuries were simple and in the opinion of the doctor, it was caused with blunt weapon within a probable duration of ‘48 hours’. He issued Medico Legal Certificate Ext. PW1/A to this effect. The said doctor was subjected to meticulous cross examination. He adhered to the above statement, but opined that the injury in question could also be caused with a stick with pointed edge or also by fall. He specifically denied that the history given by the accused as to how the injuries were sustained by him are at the instance of the police to improve the case of the prosecution. 39. Accused Surjeet Kumar was arrested on 30.4.1995 from Amritsar, as stated by PW22 Jeet Ram. He was got medically examined from PW6 Dr. D.C. Chauhan at Ripon Hospital, Shimla on 1.5.1995. He noticed following injuries on his person. (i) Swollen wound about 2 cm area cut with 4x3 cm area on dorsum of left index finger on middle phalynix tender, no crapitus. No foreign body at the site of the injury. No medicines were taken for injury. Moment of finger with a normal limit with slight restriction on extension of left little finger. (ii) Two abrasion as shown in finger on right palm on dorsum aspect at the base of left index finger on meta carpul bone. Moment with normal limits. No tenderness on moment, no crapitus present. No foreign body seen crust present. Moment of finger with a normal limit with slight restriction on extension of left little finger. (ii) Two abrasion as shown in finger on right palm on dorsum aspect at the base of left index finger on meta carpul bone. Moment with normal limits. No tenderness on moment, no crapitus present. No foreign body seen crust present. (iii) Abrasion left chin on boney part about nail head size depressed, none tender, no crapitus, walking normally, no swelling. No other injury seen on the body. 40. The above injuries were opined to be simple in nature caused with blunt weapon with edge within a week which also corresponded to the date and time of murder of the deceased. He issued the Medico Legal Certificate Ext. PW6/A and according to the doctor, he was having the alleged history of being hit on the left little finger. With respect to the injures, as noted down in the Medico Legal Certificate, both the accused failed to offer any explanation as to how they sustained these injuries. Since the injuries in question on the person of both the accused correspond to the date and time of the murder of the deceased, therefore, this circumstance stands proved against them. (iii) RECOVERIES: 41. On the arrest of accused Darshan Kumar on 27.4.1995, bill Ext. PW7/F was recovered in the presence of PW7 Harish Kumar from his possession. It was of M/s Lal and Sons Dry-Cleaners, The Mall Shimla whereby a jacket Ext. P21 was given for dry-cleaning by him to PW8 on 26.4.1995 at 11 a.m. PW8 Shri R.D. Lal, proprietor of the aforesaid concern categorically stated that on 26.4.1995 accused Darshan Kuamr, whom he identified during the trial had handed over one jacket (Ext.P21) to him for the purpose of dry-cleaning which was booked vide bill Ext. PW7/F in his own hand and signed by the said accused. He also brought and produced the duplicate counter-file along with book bill. He identified the jacket Ext. P21 which was seized by the police which was dry-cleaned and was taken into possession vide memo Ext. PW7/E. He also stated that on that day he booked 18 orders of other customers. 42. Further, PW 7 Harish Kumar corroborated the above version of the seizure of the jacket in his presence. The said jacket was sent for the forensic examination. PW7/E. He also stated that on that day he booked 18 orders of other customers. 42. Further, PW 7 Harish Kumar corroborated the above version of the seizure of the jacket in his presence. The said jacket was sent for the forensic examination. Despite its dry-cleaning, it contained blood stains, however, the origin whereof could not be detected. 43. On 27.4.1995 Darshan Kumar made disclosure statement Ext. PW5/A in the presence of PW7 Harish Kumar and Sai Ram which led to the recoveries of blood stained shirt (Ext. P14) kept below the brass tree (rodo tree), near culvert in Shimla Totu area and a muffler (Ext. P19) from the bushes in the area of Chhota Shimla near ‘Nirankari Bhawan’. Both these items were sealed and sent for forensic examination. As per report, it contained human blood of group ‘B’. These circumstances were put to the accused under Section 313 of the Code of Criminal Procedure but his case was denial simplicitor. 44. As already stated above, Surjeet Kumar was arrested on 30.4.1995, thereafter referred to medical examination as aforesaid. During interrogation he made disclosure statement Ext. PW9/A on 1.5.1995 to PW9 in the presence of Rameshwar Lal with respect to knife Ext. P15 , pull-over and sweater. Regarding one pair of gold ear rings, one yellow pandle Ext. P 1 and P2 respectively with his sister in ‘Ladakhi Muhalla’ below bus stand, Shimla, he could recover the same. Vide recovery memo Ext. PW4/B these were recovered and identified by Smt. Sudarshanaa Banga and were sealed with seal impression ‘R’. PW9 identified these items during the trial and categorically stated that these were identified by Sudarshanaa Banga belonging to her which fact was testified by Sudarshana Banga. Knife Ext. P15 was also recovered from below the bed-box vide recovery memo Ext. PW9/B which was also sealed with same seal and taken into possession vide memo Ext. PW9/C and sealed with same seal. PW9 Rameshwar La identified his signatures on the recovery memos and he also identified the pull-over Ext. P21, knife Ext. P15 and Sweater Ext. P20. The aforesaid items were sent for the forensic examination. The knife and sweater contained human blood of group ‘B’. (D) OTHER RECOVERIES: 45. During the course of interrogation, accused Surjeet Kumar also disclosed to the police that he had given some jewellery to his sister at Amritsar which could be got recovered by him. P15 and Sweater Ext. P20. The aforesaid items were sent for the forensic examination. The knife and sweater contained human blood of group ‘B’. (D) OTHER RECOVERIES: 45. During the course of interrogation, accused Surjeet Kumar also disclosed to the police that he had given some jewellery to his sister at Amritsar which could be got recovered by him. 46. Accused Surjeet Kumar was staying with PW10 Vijay Kumar in ‘Ladakhi Muhalla’ at the time of the murder of the deceased, as stated by PW10. He also stated that Surjeet Kumar had gone to the house of his sister in Amritsar and informed police about his absence when they contacted him in connection with the murder of the deceased. Police took him (PW10) to Amritsar for locating Surjeet Kumar along with his relative one Mohan Lal witness. Police traced out Surjeet Kumar in the house of his sister at Amritsar and brought him Shimla but he (PW10) stayed back at Amritsar on account of death in his near relations. During the trial he deposed that Mohan Lal informed him telephonically that one envelop of accused Surjeet Kumar was lying on the shelf of the room of his sister. He was asked to trace out this envelop and to bring it to Shimla. He brought it and handed over it to the police vide memo Ext. PW4/C on 2.5.1995. It contained jewellery, i.e., ear rings and bangles. He signed the recovery memo Ext. PW4/C and the envelop in which it was wrapped was exhibited as Ext. P22. In cross-examination, he denied that envelop Ext. P22 containing jewellery was recovered by the police at Amritsar on the very day of their visit though he admitted that police had given this envelop containing jewellery to him for producing the same before them and admitted that he did not pick-up the envelop from the house of his sister. Against these new facts, which emerge in his cross-examination, learned Public Prosecutor cross-examined him with permission of the Court. Then he admitted that Surjeet Kumar is his real brother-in-law and that he had gone to Amritsar. His earlier statement that he did not go there was a wrong statement but reiterated that the envelop Ext. P22 was given to him by the police at Amritsar. Then he admitted that Surjeet Kumar is his real brother-in-law and that he had gone to Amritsar. His earlier statement that he did not go there was a wrong statement but reiterated that the envelop Ext. P22 was given to him by the police at Amritsar. He also stated that he did not inquire about the caller of the telephone, then said he was telephonically informed about the envelop Ext. P22 containing jewellery on the shelf of the room of the sister of accused Surjeet Kumar and he was not knowing it earlier to the telephonic call. 47. Thus on scrutiny of his statement, we find that he has not spoken whole truth but this witness has blown hot and cold in the same breath with respect to bringing the envelop from Amritsar to Shimla for obvious reasons. 48. PW22 Jeet Ram Inspector stated that during interrogation Surjeet Kumar disclosed about these items having been kept at a particular place in the house of his sister, as he had given some jewellery to his sister at Amritsar which could be recovered by him. A relative of the accused contacted telephonically some one at Amritsar and on 2.5.1995 he produced the gold rings Ext. P3 and Ext. P5, gold plated rings Ext. P6 to P10 which were taken into possession vide recovery memo Ext. PW4/C. This aspect of the case has been corroborated by PW4 Sudarshanaa Banga in her statement. 49. On 5.5.1995 the house of Darshan Kumar was also raided in the presence of PW Sanjeev Kumar and Roop Lal from where silver ear rings Ext. P11 to P13 were recovered from his room, in the area of New Shimla which were identified by Sudarshanaa Banga at the time of its recovery to be her own, as having been stolen from her house which were sealed on the spot and taken into possession vide memo Ext. PW4/D. 50. Against the above facts, DW1 Manjit, sister of accused wrongly stated that her brother Surjeet Kumar did not visit Amritsar at any time in the year 1995 nor handed over the packet of jewellery to her nor police got the same summoned and requisitioned to Shimla. In cross examination, she stated that Surjeet Kumar is resident of Jalandhar and her sister is married to PW10 Vijay Kumar, aforesaid. In cross examination, she stated that Surjeet Kumar is resident of Jalandhar and her sister is married to PW10 Vijay Kumar, aforesaid. Before making statement in the trial court she admittedly stayed for the night with her sister and her husband Vijay Kumar at Shimla. She denied that in the end of April, 1995, accused Surjeet Kumar had visited her house and stayed there at the night which goes contrary to the statement of PW10 coupled with the fact that Surjeet Kumar was arrested from Amritsar. 51. Further, it is also evident from the statement of PW22 Jeet Ram, Investigating Officer and PW7 Harish Kumar that he had taken into possession a pillow-cover and bed-sheet which were blood) stained along with the blood taken in a bottle (Ext. P16) found in the room of the deceased, which were sealed and sent for forensic examination. As per forensic report, it contained the blood of group ‘B’ which tallied with the shirt Ext. P14 pull over Ext. P21, knife Ext. P15, sweater Ext. P20. Ligature marks on the neck of the deceased was of the same pattern as that of muffler alleged to have been recovered by Darshan Kumar, as stated by PW Dr. Ghosh, aforesaid. 52. The recoveries from the accused persons at various places were photographed. The witnesses of the recovery, as discussed above, fully support the case of the prosecution. Accused-respondents failed to explain the circumstances aforesaid which were found attendant upon them. Their case has been denial simplicitor. 53. The false denial is also an additional link in a case of circumstantial evidence. 54. We, while evaluating the circumstantial evidence available on record on the above different aspects of the case have watchfully examined the involvement of the accused-respondents in the case. The instant murder of Om Parkash Banga is diabolical and cruel in execution. 55. Supreme Court in Shivappa versus State of Mysore: AIR 1971 SC 196, held that if there is other evidence to connect an accused with crime itself, however, small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime. There is then no question of prosecution presumption if the evidence strengthens the other evidence already against him. It is only when the accused cannot be connected with crime except by reason of possession of the fruits of crime the presumption may be drawn. There is then no question of prosecution presumption if the evidence strengthens the other evidence already against him. It is only when the accused cannot be connected with crime except by reason of possession of the fruits of crime the presumption may be drawn. (E) CONCLUSION: 56. The circumstance last seen, unexplained injuries found on the persons of the accused relatable to the time of alleged occurrence, subsequent recoveries of ornaments, weapon of offence like knife and muffler, blood stained clothes of the accused persons having the same blood group as that of the deceased, on the top of it non-explanation or wrongful denial of circumstances provides an additional link to the prosecution case, thus lead us to the conclusion that the accused are guilty of the offences charged. 57. After scanning the above circumstances legally, we find and hold that there has been an implicit evidence, and the circumstances put forth stand fully established against each of the accused-respondents, which are of conclusive nature and tendency and also consistent only and only with the hypothesis of the guilt of accused persons excluding every possible hypothesis except the one to be proved. The chain is so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it show that in all human probability, the act must have been done by them. 58. Therefore, in our considered opinion, the judgment of acquittal passed by the learned trial Court is perverse, as the charges framed against each of the accused respondents stand fully established. Accordingly accused-respondents are held guilty and are hereby convicted for the offence punishable under Section 302 read with Section 34 Indian Penal Code for committing murder of Om Parkash Banga and also for committing robbery of jewellery from the residence of the deceased under Section 392 read with Section 34 Indian Penal Code. 59. In so far as the sentence is concerned it is not a rarest of the rare case which involves capital punishment and the life imprisonment is the minimum for the offence of murder. Therefore, there is no need to hear the accused-respondents on the quantum of sentence. As such, each of the convict-respondents are sentenced to undergo imprisonment for life and also to pay a fine of ` 25000/-each. Therefore, there is no need to hear the accused-respondents on the quantum of sentence. As such, each of the convict-respondents are sentenced to undergo imprisonment for life and also to pay a fine of ` 25000/-each. In default of payment of fine to further undergo simple imprisonment for a period of two years under Section 302 read with Section 34 Indian Penal Code. And also to undergo imprisonment for a period of five years and to pay a fine of `10,000/-and in default of payment of fine to further undergo simple imprisonment for a period of one year for the offence punishable under Section 392 read with Section 34 Indian Penal Code. 60. Both these sentences shall run concurrently. 61. Since convict-respondents are on bail, they are hereby directed to surrender before the learned trial Court, i.e. before the learned Additional Sessions Judge, Shimla on 14.2.2011. In case the Additional Sessions Judge is not available, in that event, the convict-respondents shall surrender before the learned Sessions Judge Shimla on the same day to serve out the sentence, failing which, the learned Additional/Sessions Judge shall take steps to execute the sentence aforesaid. Send down the records along with two authenticated copies of this judgment by the Court Master, to be given to each of the convicts by the learned trial Court free of costs, on their surrender or as and when apprehended.