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Himachal Pradesh High Court · body

2013 DIGILAW 918 (HP)

PRADEEP KUMAR v. STATE OF HIMACHAL PRADESH

2013-10-29

RAJIV SHARMA, SANJAY KAROL

body2013
JUDGEMENT RAJIV SHARMA, J. 1. SINCE common questions of law and facts are involved in both these appeals, the same were taken up together and are being disposed of by a common judgment. Whether reporters of the local papers may be allowed to see the judgment? yes 2. IN Criminal Appeal No. 211 of 2008, accused Deep Ram and Neeraj Kumar have challenged the judgment dated 26.3.2008 whereby they have been convicted under sections 302 and 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/ - each. In case of default of payment of fine, they were ordered to undergo further rigorous imprisonment for a period of three years. Appellant Pradeep Kumar has challenged the same judgment whereby he has been convicted under section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 10,000/ -. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for two years. Case of the prosecution, in a nutshell, is that on 10.9.2006 at 5.15 P.M. Puran Chand (PW -1) accompanied by his brother Gopi Chand (PW -2) went to the Police Station, Chirgaon. They got FIR No. 80/2006 Ex.PW -1/A registered against accused. According to complainant, he has two daughters, namely, Raj Kumari and Reeta Kumari. He has also two sons, namely, Rajwant and Jaiwant. Reeta Devi was married about five years ago to accused Deep Ram resident of village Chichwari. She had a daughter, who was 1 1/2 years old. Accused Deep Ram was residing with his family in the house of his sister Suban Dei in village Shounther. Fair of Devta Mahasu was held on 5.9.2006 in village Rohal. On that day accused Deep Ram came to his house. He enquired from Deep Ram why he was not accompanying Reeta Kumari. Accused Deep Ram told that she has gone to village Jhanjwari to attend Foolyach fair and will come to village Chichwari on 6.9.2006. Thereafter accused Deep Ram left. Reeta Kumari did not visit his house on 6.9.2006. He asked his wife Gianpati to go to the house of accused Deep Ram to inquire about the daughter. Accused Deep Ram told that she has gone to village Jhanjwari to attend Foolyach fair and will come to village Chichwari on 6.9.2006. Thereafter accused Deep Ram left. Reeta Kumari did not visit his house on 6.9.2006. He asked his wife Gianpati to go to the house of accused Deep Ram to inquire about the daughter. Gianpati came back and told that on 4.9.2006, one of the accused Neeraj Kumar had brought the daughter of Reeta Kumari to the house of Deep Ram in village Chichwari. He left the child in the village and came back to village Shounther. Gianpati came to know that Reeta Kumari was missing from her house in village Shounther since 4.9.2006 ONWARDS and her whereabouts were not known. PW -1 Puran Chand searched for his daughter in the houses of his relatives, but in vain. He suspected that Deep Ram, Pradeep Kumar and Neeraj Kumar have kidnapped his daughter with intent to kill her. Police received a telephonic message from Sh. Sunil Kumar, Pradhan, Gram Panchayat, Sari (Gaonsari) on 10.9.2006 at 7.15 P.M. that a dead body was lying in Gaonsari Kufshala -Thach. Police went to the spot. Dead body of Reeta Kumari was recovered. There were injuries marks on the neck, face and both wrists of the deceased. Clotted blood was there on the nose and face. There was a shoe on the left foot of the deceased and shoe of right foot and Dhathu (scarf) were lying near the dead body. Photographs of the dead body were taken. Site plan was prepared. Dead body was decomposed. Headgear was taken into possession. Post -mortem was conducted by Dr. Manoj Maitan. Inquest report was also prepared. The rope, shawl and headgear of the deceased were sent for chemical test to Forensic Science Laboratory, Junga. Investigation was completed and the challan was put up in the court after completing all the formalities. 4. Prosecution examined as many as 17 witnesses to prove the case against accused persons. Accused persons were also examined under section 313 of the Code of Criminal Procedure. According to the statement of Deep Ram recorded under section 313 of the Code of Criminal Procedure, he was innocent and he has been falsely implicated. Neeraj Kumar has also pleaded his innocence. Pradeep Kumar has also pleaded his innocence. Trial court convicted the accused and sentenced them, as noticed hereinabove. 4. MR. According to the statement of Deep Ram recorded under section 313 of the Code of Criminal Procedure, he was innocent and he has been falsely implicated. Neeraj Kumar has also pleaded his innocence. Pradeep Kumar has also pleaded his innocence. Trial court convicted the accused and sentenced them, as noticed hereinabove. 4. MR. Satyen Vaidya has vehemently argued that the prosecution has failed to prove the case against the accused. He then argued that there are major contradictions in the statements of witnesses, which have not been explained. Mr. R.S. Verma, learned Additional Advocate General has supported the judgment dated 26.3.2008. 5. PW -1 Puran Chand has deposed that his daughter Reeta Kumari was married to accused Deep Ram. Deep Ram used to reside in village Shounther in the house of Suban Dei. She was sister of Deep Ram and a widow. She was employed at Jubbal. The mother -in -law of Reeta Kumari wanted her daughter -in -law and Deep Ram to live at Shounther and look after the property of Suban Dei. Otherwise Deep Ram was resident of village Rohal. His brother Pradeep Kumar used to live in village Rohal. However, at times, he used to visit Shounther. Deep Ram and Pradeep Kumar had kept one Neeraj as a servant for the last 3 -4 years. On the last 21 day of Bhado, a fair was being held in village Chichwari. Accused Deep Ram visited his house. He asked where his daughter was. Deep Ram told that she has gone to Jhanjhwani fair. Deep Ram left in the night. He told him that Reeta would come to him next day. However, Deep Ram did not come back. Rohal is the name of area in which five villages fall. Chichwari is one of them. Deep Ram's house was in village Chichwari, which was about 1 - 2 furlongs. After the fair, his wife went to Deep Ram's house in village Chichwari. Accused were not there. He alongwith co -villagers went in search of Reeta Kumari, but she was not found. He went to Police Station where FIR Ex.PW -1/A was lodged. He came to know on 10th day of the English month that dead body of his daughter was found at Kufshala Thach. They went to Kufthala -Thach. They noticed his daughter was having injuries on her arms and her face was swollen. He went to Police Station where FIR Ex.PW -1/A was lodged. He came to know on 10th day of the English month that dead body of his daughter was found at Kufshala Thach. They went to Kufthala -Thach. They noticed his daughter was having injuries on her arms and her face was swollen. Dhatu (headgear) and one of her shoes were lying nearby. Police took photographs and Dhatu, shoe and dead body were also taken into possession. Post -mortem was conducted. Dead body was handed over to them. She was killed by accused persons. She told many times to him that accused persons used to harass her. In his cross -examination, he has deposed that Deep Ram came to his house on 5th day of the month. He came in the night. He did not know the exact time. He and his wife were present in the house. He stayed in the house for about 1 1/2 hours. He has denied the suggestion that Deep Ram told him that he has come to his house to ascertain whether Reeta was there. Deep Ram, in his, and in presence of his wife told that Reeta had gone to Jhinjhwani fair. According to him, house of Suban Dei was between Shounther and Maktot. He also denied the suggestion that Deep Ram had gone to carpenter since morning and when he returned at about 2.00 P.M. to take food in his house, he did not find Reeta there. He has also denied the suggestion that Deep Ram told him that Reeta might have gone to cut the grass and thereafter, after taking food he again went to the carpenter. He has also denied the suggestion that Deep Ram told them that when in the evening he returned home, he did not find Reeta there. He also denied the suggestion that Deep Ram told him that he made search of Reeta Kumari. He was not aware of the complaint filed by accused Deep Ram on 7th day at Police Post, Chirgaon about Reeta's disappearance. He had reported to the police on 10th day that accused have killed his daughter. He has disclosed the names of accused persons in the FIR. He was at the Police Station when he came to know that dead body of his daughter was lying at Kufshala Thach. He had reported to the police on 10th day that accused have killed his daughter. He has disclosed the names of accused persons in the FIR. He was at the Police Station when he came to know that dead body of his daughter was lying at Kufshala Thach. According to him, his daughter was used to be harassed by accused persons, though admitted that he had not initiated any proceedings anywhere against them. 6. PW -2 Gopi Chand is brother of PW -1 Puran Chand. According to him, Deep Ram used to live in his village and also used to visit Shounter. Neeraj Kumar was kept by two brothers as servant. He visited the house of his brother Puran Chand on 6.9.2006. He came to know that Deep Ram had visited him during the night. Puran Chand disclosed him that his daughter Reeta did not come to the fair in Rohal. She had gone to Jhinjhwani fair. Neither Reeta nor the accused had come to Rohal fair on 7.9.2006. Wife of Puran Chand went to the house of Deep Ram, but she found only the mother of accused Deep Ram. She told that Reeta was at Shounther. Many people of Village Chichwari went to Shounther in search of Reeta. Reeta was not found there. Thereafter, Puran Chand and he went to Police Station, Chirgaon on 10th day and lodged report against all the three accused persons. When they reached there, accused Deep Ram was already in the Police Station. They went to Kufshala Thach and found her dead body. She was having injuries on arms and the throat. Her Dhatu and shoe were lying nearby. Dhatu was soiled with blood. Police took photographs and also took into possession Dhatu. The post -mortem was also conducted. On 17.9.2006 accused Deep Ram disclosed to the police in his presence that he could produce the weapons of offence which he used to kill Reeta. Police recorded statement of Deep Ram vide Ex.PW -2/A. Thereafter, he took them to Shounther. From the drum kept in the room, he took out a rope, a shawl, a quilt and cover of mattresses. Police took into possession these articles vide Ex.PW -2/B. In his cross - examination, he has deposed that wife of Puran Chand, Gianpati had gone to accused house on 7.9.2006. She returned to her house on the same day. From the drum kept in the room, he took out a rope, a shawl, a quilt and cover of mattresses. Police took into possession these articles vide Ex.PW -2/B. In his cross - examination, he has deposed that wife of Puran Chand, Gianpati had gone to accused house on 7.9.2006. She returned to her house on the same day. On 17.9.2006 when accused Deep Ram made disclosure statement, he and Rajwant were in the Police Station. He made disclosure statement at 10.00 A.M. He signed memos once at the Police Station and second at the place of recovery of articles. He has denied the suggestion that Deep Ram never produced the articles before the Police. Pw -3 Raj Bant is brother of Reeta. He has disclosed that on 4.9.2005 Deep Ram came to their house at night. His mother asked Deep Ram why he has not brought Reeta for the fair. He told him that he would bring her next day. He also told that on that day she had gone to a fair at Jhanjhwani. His mother also went to Deep Ram's house. Deep Ram's mother told his mother that Reeta was missing. He went in search of his sister to Shounther. He did not find his sister. Sh. Sunil Kumar, President, Gram Panchayat, Gaonsari telephonically informed Arvind of his village that dead body of Reeta was seen at Kufshala Thach. They went to Kufshala Tach. Dead body of his sister was lying there. Her mouth was swollen. Injuries were found on her arms. A shoe and Dhatu of his sister were lying nearby. Police took into possession these articles vide memo Ex.Pw -3/A. He came to know about the recovery of dead body of Reeta on 10.9.2005 IN the evening of 10/11th day of September. He, Satya Dev and Vidya SaIN were present IN his house. On 7.9.2005, Deep Ram, his sister and Neeraj met him at Shounther. They told him that they were also searchINg for Reeta. He has admitted that Deep Ram had lodged report about Reeta havINg gone missINg. He also admitted that his father had lodged report before the knowledge about the dead body lyINg IN Kufshala Thach. His father had expressed suspicion about the accused murderINg his sister. 10. PW -4 Vidya SaIN has deposed that Reeta was daughter of his uncle. He has admitted that Deep Ram had lodged report about Reeta havINg gone missINg. He also admitted that his father had lodged report before the knowledge about the dead body lyINg IN Kufshala Thach. His father had expressed suspicion about the accused murderINg his sister. 10. PW -4 Vidya SaIN has deposed that Reeta was daughter of his uncle. He was told by Puran Chand that Reeta's daughter had been brought by Neeraj from Shounther to Deep Ram's house at Chichwari. Puran Chand told that on 5.9.2006 Deep Ram came to his house and on beINg asked about Reeta, disclosed that she had gone to Hounchali for Fulyach. He came to know from Puran Chand that dead body of Reeta was seen at Kufshala -Thach. He also went to Kufshala Thach on 11. 9.2006. A shoe and Dhatu were lying nearby. Post - mortem of the dead body was conducted. Dead body was handed over to Gopi Chand and Rajwant vide memo Ex.PW -4/A. In his cross -examination, he has specifically deposed that daughter of Reeta was brought by Neeraj to Chichwari on 4.9.2006. He did not know that on 4.9.2006 Reeta herself handed over the child to Neeraj for being carried to Chichwari. 11. PW -5 Vidya Nand has deposed that on 10.9.2006 he took his sheep and goats to Kufshala Thach. He saw a dead body. He had heard that daughter of Puran Chand was missing. In the evening, he came back to his village with his sheep and goats. He telephonically informed Harvinder of Puran Chand village Chichwari that he has seen a deed body at Kufshala Thach. He alongwith police on the next day went to Kufshala Thach. Police took into possession a shoe and Dhatu lying nearby the dead body. In his cross -examination, he has deposed that he did not find any injury on the dead body. Pw -6 Feemi Ram has testified that he was carpenter in the accused persons' house at Jhanjru. Village Jhanjru is between Shounther and Maktot. He worked for six days. Thereafter he worked for two days and on 3rd and 4th day of the month. On the 4th day accused Deep Ram and his wife Reeta were present in the house. Accused Neeraj was also present. Third accused was not present there. His son -in -law Devi Ram was also a carpenter. He was working with him. Thereafter he worked for two days and on 3rd and 4th day of the month. On the 4th day accused Deep Ram and his wife Reeta were present in the house. Accused Neeraj was also present. Third accused was not present there. His son -in -law Devi Ram was also a carpenter. He was working with him. The house where food used to be prepared was about 20 meters above the place where new house was being constructed. Deep Ram had left about half an hour before them to the upper house for taking lunch. After about half an hour, accused Deep Ram called them for taking lunch. They went and took their lunch outside the house. They used to take food outside because they belong to lower caste. They after taking lunch came down for their work. However, after about half an hour, accused Deep Ram also came down for the work. Deep Ram told him that he did not know where his wife had gone. He told that perhaps she has gone to bring grass. They left at 5.00 P.M. Till then they had not seen Reeta there. On 7th day of month, accused and Dinesh came to his house. Deep Ram told that his wife was missing. He asked to accompany him to lodge a report about her having gone missing. He came with him to Police Station. In his cross -examination, he has deposed that she sent her daughter to Rohal through accused Neeraj. Thereafter, Neeraj had left and he did not seen him there till evening. They have not seen any quarrel between Deep Ram and Reeta. 9. PW -7 Om Parkash has deposed that on 4th September, last year, he was present at his house at village Chichwari. Neeraj brought the girl child of Deep Ram from Shaunther to Chichwari. He came to know on 6 -7th of September that the mother of girl child has gone missing. The villagers went in search of Reeta. He came to know that dead body of Reeta was lying in a jungle. The villagers went to jungle on the 11th day. He saw the dead body. Police took photographs. He had gone to the house of Pradeep on 10.9.2006 before going to the Jungle. He was cross -examined by the Public Prosecutor. He has admitted that he has seen that Reeta's face was swollen. The villagers went to jungle on the 11th day. He saw the dead body. Police took photographs. He had gone to the house of Pradeep on 10.9.2006 before going to the Jungle. He was cross -examined by the Public Prosecutor. He has admitted that he has seen that Reeta's face was swollen. He has also admitted that accused were from the same village and were from the same brotherhood. He also belongs to the same community. He was on visiting terms with the accused in hours of misery and happiness. He has admitted in his cross -examination that Reeta was his niece. According to him, Neeraj came to the village with a girl child after 4 -5 P.M. He has also admitted that relations between Reeta and Deep Ram were cordial. 10. PW -8 Vijay Kumar has deposed that accused Neeraj came to his house on 4.9.2006 at 8.30 P.M. and they immediately proceeded to Hingori to watch Foolyach fair. Accused Neeraj was working as a servant with accused Deep Ram. His brother was also with them. They were together till the day broke. Pw -9 Pradeep Singh has deposed that when he was returning from his orchard to his village Haunchali, police met him at place Khera. Police asked him to stop. Police obtained his signatures on some papers. He had not seen anything. He was declared hostile. He has identified his signatures on papers mark 'A' mark 'B' and mark 'C'. According to him, these documents were already written when he signed the same. He has studied upto 8th standard. He has not read the contents nor the same were read over to him by the police official. In a court question put to him why did he sign the documents, his answer was that he has committed mistake. He was also put a question by the court that would he sign any paper on the asking by the police, his answer was that he signed believing the police. He has denied that accused Pradeep disclosed to the police in his presence that ropes with the help of which he and accused persons Deep Ram and Neeraj carried the dead body of Reeta were thrown by them in Khera Nullah in bushes or that he could get them recovered. He has denied the suggestion that accused Pradeep while moving ahead of them produced two ropes from Khera Nullah. He has denied the suggestion that accused Pradeep while moving ahead of them produced two ropes from Khera Nullah. He has also denied the suggestion that police measured the ropes in his presence and made them into a parcel. He has also denied that in his presence accused persons made statement to the police that they could identify the place where they carried the dead body of Reeta. He has also denied the suggestion that accused persons signed mark 'C' in his presence. 11. PW -10 Constable Prem Nath has deposed that MHC Tenjin Chherring handed over to him four parcels vide RC No. 51/2006. He deposited the four parcels on the same day in F.S.L. and obtained receipt on RC. 12. PW -11 Sunil Kumar has deposed that he knew accused Deep Ram, who was living at Shounther in his sister's house. According to him, on 10.9.2006, Vijay Nand informed him on telephone that dead body of a lady was seen at Kufshala. He then informed the police over telephone. Pw -12 Dr. Manoj Maitan has conducted the post -mortem on the basis of application Ex.Pw -12/A. According to him, he went to the spot on 11.9.2006. He has noticed ante mortem injuries on the body. Abrasions were found over both writs neck and both cheeks. There was no mark of ligature over neck. According to his opinion, deceased died due to asphyxia/smothering. Probable time elapsed between injury and death was few seconds. Time between death and post -mortem was more than 72 hours. According to him, since the injuries were symmetrical over mid line of face and neck, therefore, probably they could have been caused if the face and neck was pressed by hand or fingers. According to him, asphyxia could be due to various conditions such as drowning, gases, traumatic, smothering, throttling etc. According to him, since there were injuries on the cheeks, therefore, it could be said that it was a case of asphyxia by smothering. According to him, throttling needs large amount of force as compared to smothering to cause death. 13. PW -13 Partap Singh has deposed that he was in Khera jungle with his cattle. He was called to come down to the road. His signatures were obtained on some papers. He was declared hostile. According to him, throttling needs large amount of force as compared to smothering to cause death. 13. PW -13 Partap Singh has deposed that he was in Khera jungle with his cattle. He was called to come down to the road. His signatures were obtained on some papers. He was declared hostile. He has denied the suggestion that accused Pradeep was with the police and in his presence made a statement that he has concealed ropes in bushes in Khera Nullah jungle. He has identified his signatures on mark 'A'. He has denied the suggestion that memo was signed in his presence by accused Pradeep Kumar. He has also denied the suggestion that accused Pradeep produced to the police two ropes from Khera Nullah Jungle. He has identified his signatures on memos mark 'A', 'B' and 'C'. He has denied the suggestion that accused shown to the police in his presence the place where he has thrown the dead body. According to him, he signed the memos due to fear of police. He has admitted that he did not tell about this to any Punch or Pradhan. 14. PW -14 Constable Ramesh Chand has proved daily diary Ex.PW -14/A dated 7.9.2006 and Ex.PW -14/B DDR No. 14 dated 7.9.2006. Pw -15 Pritam Chand has deposed that he has been working as S.H.O. in Police Station Chirgaon since 11.5.2006. Deep Ram arrived at the Police Station and lodged report about his wife Reeta having gone missing. Puran Chand lodged FIR Ex.Pw -1/A. He was informed telephonically by Sunil Kumar, President that dead body of a female was seen in jungle Kufshala Thach. He also proceeded to the spot. He after receiving the report of chemical analysis Ex.Pw -15/C prepared the challan. He after receiving another report from Forensic Science Laboratory Ex.Pw -15/D, prepared the supplementary challan. 15. PW -16 Tenjin Chhering has deposed that ASI Tej Ram deposited a parcel sealed with seal impression 'T' and two parcels sealed with seal of M.O. CHC with him. On 17.9.2006, ASI Tej Ram deposited one gunny bag sealed with seal impression 'T' with him in the Malkhana. On 19.9.2006, ASI Tej Ram deposited a parcel sealed with seal impression 'M' with him in the Malkhana. Sample seals were also deposited with him. Entries in this regard were made by him in the Malkhana register. On 17.9.2006, ASI Tej Ram deposited one gunny bag sealed with seal impression 'T' with him in the Malkhana. On 19.9.2006, ASI Tej Ram deposited a parcel sealed with seal impression 'M' with him in the Malkhana. Sample seals were also deposited with him. Entries in this regard were made by him in the Malkhana register. All the parcels and envelop were sent by him to F.S.L., Junga on 23. 9.2006 VIDE RC No.51/2006 through constable Prem Nath. After returning to the Police Station, constable Prem Nath handed over the RC to him. He has denied the suggestion that seal 'T' which was used in the case was used by ASI Tej Ram in other cases also. 23. PW -17 Tej Ram has testified that he received a telephonic call in Gosakwari from Police Station, Chirgaon that Sunil Kumar, Pradhan intimated that a dead body was lying in Gosakwari jungle at a place known as Kufshala Thach. He proceeded to Kufshala Thach with the staff in the morning of 11.9.2006. The dead body was identified to be that of Reeta by her brothers. The scarf and one shoe of Reeta were lying at some distance. One of the shoes was worn by her. He checked the dead body. Injuries were seen by him on neck and back. He took photographs Ex.PW -17/A to Ex.PW -17/E of the dead body. The team of doctors was called on the spot. After post -mortem the dead body of Reeta was handed over on Sapurdari to her brother Rajwant VIDE memo Ex.PW -4/A. Scarf and shawl which were lying on the spot were taken into possession. Map Ex.PW -17/G was also prepared. Inquest report Ex.PW -17/H was prepared by him. According to him, accused Deep Ram made a disclosure statement Ex.PW -2/A in the presence of witnesses. He disclosed that he could get the rope, shawl and cover of mattresses recovered with the help of which he has killed Reeta. The disclosure statement was signed by the accused and the witnesses. Accused led the police and got the cover etc. Ex.P -1 to P -4 recovered in presence of witnesses. These were got recovered from an iron drum. The rope, shawl and cover were having blood stains and long hair of a female. The disclosure statement was signed by the accused and the witnesses. Accused led the police and got the cover etc. Ex.P -1 to P -4 recovered in presence of witnesses. These were got recovered from an iron drum. The rope, shawl and cover were having blood stains and long hair of a female. These were taken into possession VIDE memo Ex.PW -2/B. Pradeep Kumar also made a disclosure statement Ex.PW -17/K in presence of witnesses that he could get the ropes recovered which were used to tie the dead body of Reeta in a quilt and for being taken to the jungle. Statement was signed by the accused and witnesses. Accused Deepak Kumar led the police party to jungle Gosakwari and got the ropes recovered from the bushes near a nullah. These were taken into possession VIDE Ex.PW -17/L. Seals and parcels were deposited with the MHC in the Police Station. In his cross -examination, he has admitted that prior to 10.9.2006, accused Deep Ram had given information in the Police Station that his wife Reeta was missing and efforts were being made to trace her. After the report was lodged by accused Deep Ram, police officials started search for Reeta. He did not know that accused Deep Ram and villagers were also searching for her. He left the Police Station to search for Reeta. On 10.9.2006 at 6.00 P.M. Sunil Kumar had informed the father of Reeta about the dead body. Accused Deep Ram made disclosure statement Ex.PW -2/A at about 11.00 A.M. Gopi Chand and Rajwant had reached the police station at about 9/9.30 A.M. He has denied the suggestion that no recoveries were effected at the instance of accused Deep Kumar. He has denied the suggestion that signatures of accused Pradeep Kumar were taken forcibly on the disclosure statement Ex.PW - 17/K and recovery memo Ex.PW -17/L. Accused Deep Kumar has made disclosure statement under section 27 of the EVIDEnce Act on 10.9.2006. According to him, he could get the rope, shawl and cover of mattresses recovered, which he has concealed at Jhanjnu VIDE Ex.PW -2/A. Rope alongwith shawl, cover of mattresses and one quilt with cover were recovered VIDE Ex.PW -2/B. The recovery of headgear and one plastic show is made VIDE memo Ex.PW -3/A. It was signed by Rajwant and Vidya Sain. The dead body was handed over to relations of Reeta VIDE Ex.PW -4/A. Ex.PW - 12/B is the post -mortem. According to this report deceased died due to asphyxia/smothering. Time between death and post -mortem was more than 72 hours. Ex.PW - 14/A is the report lodged by accused Deep Ram about the missing of his wife. According to the contents of Ex.PW - 14/A, on 4.9.2006, his wife has sent his daughter Kritika with Neeraj to her parental house. Thereafter, he went with Mistri. When he came to have his meal, he noticed his wife missing. He thought she has gone to fetch grass. Thereafter, he went for work and when he came back in the evening, he found his wife missing. Thereafter, he started searching for her. The report of FSL is Ex.PW - 15/C. According to this report, one rope and shawl, human hair were found. According to another FSL report Ex.PW -15/D, no traces of dye were found on sample. According to inquest report Ex.PW -17/H, injuries were noticed on the body of Reeta. Pradeep Kumar has also made a disclosure statement VIDE Ex.PW -17/A on the basis of which rope etc. were recovered VIDE Ex.PW -17/L. Ex.PW -17/J and Ex.PW -17/M are maps of the site prepared by the Investigating Officer. Accused Deep Ram has lodged missing report about his wife Ex.PW -14/A. According to him, his wife has sent daughter Kritika to her parental house in the morning on 4.9.2006 with Neeraj Kumar. Thereafter, he went for work and came back for lunch and found his wife missing. He thought his wife might have gone to fetch grass. However, when he came in the evening, he found his wife missing. According to PW -1 Puran Chand, accused Deep Ram visited his house at mid night on 21st of Bhado. He asked him about his daughter. Accused Deep Ram told that he has gone to Jhanjhwani fair. Thereafter, accused Deep Ram left and told PW -1 Puran Chand that Reeta would come to him next day. PW -1 Puran Chand sent his wife to Chichwari. Deep Ram's mother told her that probably Reeta was at village Shounther. PW -1 sent his son to village Shounther. He was told that Reeta was not there. In these circumstances, he lodged FIR Ex.PW -1/A. He has noticed injuries on her arms and her face was swollen. PW -1 Puran Chand sent his wife to Chichwari. Deep Ram's mother told her that probably Reeta was at village Shounther. PW -1 sent his son to village Shounther. He was told that Reeta was not there. In these circumstances, he lodged FIR Ex.PW -1/A. He has noticed injuries on her arms and her face was swollen. Her Dathu and one of her shoes were also found lying nearby. He has named the accused persons in the FIR. PW -2 Gopi Chand has also supported the version of PW -1 Puran Chand. According to him, when he went to the house of Puran Chand he came to know that accused Deep Ram had visited him during the night. Puran Chand has disclosed that Deep Ram told him that his daughter Reeta had not come to the fair in Rohal she had gone to Jhinjhwani fair. According to him, Puran Chand's wife went to Deep Ram's house. There she found only the mother of accused Deep Ram, who told her that Reeta was at Shounther. Accused Deep Ram has made disclosure statement Ex.PW -2/A before PW -2 Gopi Chand. On the basis of Ex.PW -2/A, rope, shawl, quilt and cover of mattresses were recovered VIDE recovery memo Ex.PW - 2/B. He has identified mattresses Ex.P -1, rope Ex.P -2, shawl Ex.P -3 and quilt Ex.P -4. PW -4 Rajwant has also deposed that accused Deep Ram had visited their house and his mother had also gone to Deep Ram's house on 6th day to inquire about his sister Reeta. Deep Ram's mother told his mother that Reeta was missing. He went on 7th day to Shounther to search for his sister. Sunil Kumar, President, Gram Panchayat Gaonsari informed Arvind that dead body of Reeta was seen at Kufshala Thach. According to PW -4 Vidya Sain, father of Reeta, Puran Chand, told him on 6.9.2006 that Reeta's daughter had been brought by Neeraj from Shounther to Deep Ram's house at Chichwari. Puran Chand also told that on 5.9.2006, Deep Ram had come to his house. He also went to Kufshala Thach on 11.9.2006 where dead body of Reeta was lying. In his cross -examination, he has deposed that daughter of Reeta was brought by Neeraj to Chichwari on 4.9.2006. Puran Chand also told that on 5.9.2006, Deep Ram had come to his house. He also went to Kufshala Thach on 11.9.2006 where dead body of Reeta was lying. In his cross -examination, he has deposed that daughter of Reeta was brought by Neeraj to Chichwari on 4.9.2006. Dead body was seen by PW -5 Vidya Nand and he informed Harvinder of Puran Chand's village Chichwari that he has seen a dead body at Kufshala Thach. 17. PW -6 Feemi Ram was the material witness. He was working as carpenter. According to him, Deep Ram and Reeta were present in the house on 4th day. Accused Neeraj was also present. One of the accused was not present since he lived in village Rohal. Deep Ram had left about half an hour before them to the upper house for taking lunch. They were also called for lunch. They went down and started their work. After about half an hour, accused Deep Ram came and told that he did not know where his wife has gone. According to him, she might have gone to fetch the grass. PW -7 Om Parkash is the most material witness. According to him, he was present in his house at village Chichwari. Neeraj has brought the girl child of Deep Ram from Shounther to Chichwari. He came to know on 6 -7th of September that mother of the child was missing. Thereafter, villagers went in search of Reeta. He came to know that body of Reeta was lying in the forest. He was declared hostile. He has admitted that all the accused persons were from the same village and also from the same brotherhood. PW -8 Vijay Kumar was also declared hostile. In his cross -examination, by the Public Prosecutor, he has admitted that he and accused persons belong to same caste. PW -9 Pradeep Singh though declared hostile but he identified his signatures on marks 'A', 'B' and 'C'. PW -10 Constable Prem Nath is the official witness. According to him, MHC Tenjin Chherring handed over to him four parcels vide RC No. 51/2006 for being carried to F.S.L. PW -11 Sunil Kumar has deposed that accused Deep Ram was living at Shounther in his sister's house. In the same house, wife of accused and one more were lived with him. According to him, MHC Tenjin Chherring handed over to him four parcels vide RC No. 51/2006 for being carried to F.S.L. PW -11 Sunil Kumar has deposed that accused Deep Ram was living at Shounther in his sister's house. In the same house, wife of accused and one more were lived with him. Vijay Nand informed him on telephone on 10.9.2006 that dead body of a lady was seen at Kufshala Thach. 18. PW -12 Dr. Manoj Maitan has opined that deceased died due to asphyxia/smothering. He has also noticed ante -mortem injuries, abrasions over both wrists neck and both cheeks. Though there were no marks of ligature over neck. It could be case of asphyxia by smothering, but since there were injuries in the throat, it could be case of throttling. PW -13 Partap Singh was declared hostile. He has identified his signatures on mark 'A', 'B' and 'C'. PW -15 Pritam Chand has deposed that Deep Ram had arrived at Police Station and lodged report about his wife Reeta having gone missing. PW -17 Tej Ram checked the dead body and found injuries on her person. He has noticed injures on neck and back. According to him, scarf and shoe were taken into possession on 11.9.2006. He has disclosed the manner in which disclosure statement was made by accused Deep Ram Ex.PW -2/A. According to him, disclosure statement was signed by the accused and witnesses and thereafter accused led the police party to his house and got the cover etc. Ex.P -1 to P -4 recovered in presence of the witnesses accordingly. The rope and shawl were having blood stained and long hair of a female. These were taken into possession vide memo Ex.PW -2/B. The memo was signed by the witnesses. According to him, accused Pradeep Kumar also made disclosure statement Ex.PW -17/K in presence of witnesses that he could get the ropes recovered which were used to tie the dead body of Reeta in a quilt and for being taken to the jungle. The same were taken into possession vide memo Ex.PW -17/L. The same were signed by the accused and witnesses. It has come in the statement of accused Deep Ram made under section 313 of the Code of Criminal Procedure that he had requested his wife not to attend the fair since the carpenters were working. The same were taken into possession vide memo Ex.PW -17/L. The same were signed by the accused and witnesses. It has come in the statement of accused Deep Ram made under section 313 of the Code of Criminal Procedure that he had requested his wife not to attend the fair since the carpenters were working. However, his wife told him that she would prepare the meal and thereafter go to the fair. It could be the reason which incited the accused to kill her. Accused Pradeep Kumar and Neeraj were in the house. Carpenters were also working at a distance of about 20 meters. Accused Deep Ram has taken his meal as per PW -6 Feemi Ram and thereafter invited them to have their meal. Deep Ram had not told at that time that his wife was missing. Deep Ram came down and joined them and then he told that his wife was missing. Deep Ram visited the house of his in -laws on 5.9.2006. PW -1 Puran Chand and his wife inquired about their daughter. He told that she had gone to Jhanjhwani fair. He also told that she would come to them next day. Deep Ram visited the house of his in -laws in the mid - night. PW -3 Rajwant brother of deceased Reeta visited Shounther, but he did not find his sister there. Dead body of Reeta was found in the jungle. It was spotted by PW -5 Vidya Nand. 19. WHAT is most intriguing in this case is that why 1 1/2 years old daughter was carried by Neeraj Kumar to the house of accused Chichwari on 4.9.2006. PW -7 Om Parkash has also deposed that Neeraj had brought the girl child of Deep Ram from Shaunther to Chichwari. According to the report lodged by Deep Ram vide Ex.PW - 14/A, daughter was sent by Reeta herself. This cannot be believed. Why a lady would send her 1 1/2 years old daughter with servant without any justifiable reason. PW - 17 Tej Ram has noticed injuries on neck and back of Reeta. According to PW -12 Dr. Manoj Maitan, injuries were found on the body of Reeta. Abrasions over wrists, neck and both cheeks were found. According to his opinion, it was a case of asphyxia/smothering. PW - 17 Tej Ram has noticed injuries on neck and back of Reeta. According to PW -12 Dr. Manoj Maitan, injuries were found on the body of Reeta. Abrasions over wrists, neck and both cheeks were found. According to his opinion, it was a case of asphyxia/smothering. Learned trial court has rightly come to the conclusion that both the accused Deep Ram and Neeraj Kumar have killed Reeta Kumari. It is evident that one of the accused was holding hands of Reeta Kumari and other accused smothered/strangulated Reeta. She died due to asphyxia/smothering. Accused Deep Ram has made disclosure statement vide Ex.PW -2/A. It was signed by PW -2 Gopi Chand and PW -3 Rajwant. Recovery memo was also signed by PW -2, PW -3 and the accused. Recovery memo Ex.PW -3/A was also signed by PW -3 Rajwant and Vidya Sain. Accused Pradeep Kumar has also made disclosure statement under section 27 of the Indian Penal Code vide Ex.PW -17/K. It was signed by Pratap Singh and Pradeep Singh. Though both of them were declared hostile but they have identified their signatures on Ex.PW -17/K and Ex.PW -17/L whereby recovery of rope etc. were made. According to Ex.PW - 15/C, human hair were found on shawl and rope. The prosecution has duly proved that accused Deep Ram and Neeraj Kumar have killed Reeta in the house at Shounther by strangulating/throttling her. After killing Reeta Kumari, daughter was sent to Chichwari through Neeraj Kumar. This fact was duly proved by the statement of PW -7 Om Parkash. In Ex.PW -14/A accused has reported to the police that daughter was sent by Reeta Kumari to her parental house. Accused Deep Ram and Neeraj Kumar were present in the house. Deep Ram has not disclosed to the carpenters when they were having meals that his wife was missing, but he told them only after sometime. He had gone to his in -laws house, but answers given to PW -1 and his wife were not satisfactory. The motive to kill Reeta Kumari, as noticed hereinabove, was that she insisted to go to fair and the accused wanted her to stay back since the carpenters were working in the house. She had also assured the accused that she would prepare the meal. Body of Reeta Kumari was found in a jungle. Accused Pradeep Kumar is the real brother of Deep Ram. She had also assured the accused that she would prepare the meal. Body of Reeta Kumari was found in a jungle. Accused Pradeep Kumar is the real brother of Deep Ram. He has helped accused Deep Ram to dump the body in a jungle. It was spotted by PW -5 Vidya Nand. The post -mortem was also conducted in the jungle. Injuries were also noticed on the body by PW -2 Gopi Chand and PW -17 Tej Ram. The rope, quilt etc. used by the accused to dump the body at a distance place have been recovered on the basis of statement of Pradeep Kumar Ex.PW -17/K and the recoveries were effected vide memo Ex.PW -17/L. Similarly, accused Deep Ram has made disclosure statement on the basis of which rope, shawl, cover of mattresses etc. were got recovered. Disclosure statements and recovery memos have been signed by PW -2 Gopi Chand and PW -3 Rajwant. Accused Pradeep Kumar has definitely helped accused Deep Ram to dump the body and he has rightly been convicted for offence under section 201 of the Indian Penal Code. 20. IN the case in hand, the chain is complete. Reeta Kumari was present in the house with her husband on 4.9.2006. The daughter was sent through Neeraj Kumar to village Chichwari in the evening. Reeta Kumari served breakfast to accused Deep Ram. Deep Ram had taken his meal and thereafter he called carpenters to take the meal. He did not disclose that his wife Reeta Kumari was missing. He disclosed this fact only when he came down. He had visited the house of his in -laws. He assured Puran Chand (PW -1) that Reeta will come on the next day. He has lodged the report on 7.9.2006. In the report it is averred that Reeta Kumari has sent the daughter to her maternal home. Dead body was recovered in the jungle. It was identified by the father and brother. Voluntary disclosure statements have been made by accused Deep Ram and Pradeep Kumar on the basis of which recoveries were made. Cause of death is asphyxia/smothering. Accused Neeraj was also present in the house. Conduct of Deep Ram and Neeraj Kumar was unusual and unnatural. Since Reeta Kumari was in the house they had to explain the circumstances in which she had disappeared under section 106 of the Evidence Act. Cause of death is asphyxia/smothering. Accused Neeraj was also present in the house. Conduct of Deep Ram and Neeraj Kumar was unusual and unnatural. Since Reeta Kumari was in the house they had to explain the circumstances in which she had disappeared under section 106 of the Evidence Act. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan vs. Kashi Ram, (2006) 12 have held that the provision of section 106 of the Evidence Act are itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Their Lordships have further held that when the accused does not throw any light upon facts which are especially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. 21. THEIR Lordships of the Hon'ble Supreme Court in Prithipal Singh and others vs. State of Punjab and another, (2012) 1 SCC 10 have held that section 106 is designed to meet certain exceptional cases in which it would be impossible for prosecution to establish certain facts which are particularly within knowledge of accused. Their Lordships of the Hon'ble Supreme Court have held as under: "53. In State of West Bengal v. Mir Mohammad Omar and Ors. etc. etc., AIR 2000 SC 2988 , this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also: Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 ; Sucha Singh v. State of Punjab, AIR 2001 SC 1436 ; and Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai, AIR 2003 SC 215 ). 79. Both the courts below have found that the accused/appellants have abducted Shri Jaswant Singh Khalra. In such a situation, only the accused person could explain as what happened to Shri Khalra, and if he had died, in what manner and under what circumstances he had died and why his corpus delicti could not be recovered. All the accused/appellants failed to explain any inculpating circumstance even in their respective statements under Section 313 Cr.P.C. Such a conduct also provides for an additional link in the chain of circumstances. The fact as what had happened to the victim after his abduction by the accused persons, has been within the special knowledge of the accused persons, therefore, they could have given some explanation. In such a fact -situation, the Courts below have rightly drawn the presumption that the appellants were responsible for his adduction, illegal detention and murder." 22. THOUGH PW -7 Om Parkash, PW -8 Vijay Kumar and PW -9 Pradeep Singh have turned hostile but the portion of their statements, which supports case of the prosecution can be taken into consideration. Rather they have admitted their signatures on the disclosure statement and recovery memos. Their Lordships of the Hon'ble Supreme Court in Gura Singh vs State of Rajasthan, (2001) 2 SCC 205 have held that merely because a witness is declared hostile, his entire testimony cannot be excluded from consideration. Their Lordships have held as under: "11. The testimony of Public Witness has been assailed on the ground that as he was allegedly declared hostile by the Public Prosecutor, no reliance can be placed upon his testimony. We have scrutinised the statement of Public Witness 2 and find that he had fully supported the case of prosecution in all material particulars. The testimony of Public Witness has been assailed on the ground that as he was allegedly declared hostile by the Public Prosecutor, no reliance can be placed upon his testimony. We have scrutinised the statement of Public Witness 2 and find that he had fully supported the case of prosecution in all material particulars. In his examination -in -chief the witness after vividly explaining the manner in which the extra judicial confession was made, stated that after walking on foot for about 4 kilometers he, in the company of others, reached Police Station Karanpur at about 12.00 noon and lodged the report but the Police Station did not register a case on the pretext that it was a family matter and that the report would be registered only after making an enquiry in the village. Finding such a statement to be realising from the earlier testimony, the Public Prosecutor sought the permission of the Court to declare the witness hostile and "cross -examine him on the ground that he had not stated that Exhibit P2 was not registered at once". The trial Court obliged the Public Prosecutor by permitting him to cross - examine to that extent. The cross -examination by the Public Prosecutor is restricted to the lodging of the First Information Report and not with respect to the factum of his deposition in so far as it relates to the making of extra judicial confession by the appellant. The defence also appears to be conscious of the fact that the Public Prosecutor had sought the permission to cross -examine the witness to a limited extent. The witness was subjected to lengthy and detailed cross -examination with respect to the making of extra judicial confession by the appellant. The trial as well as the High Court rightly relied upon his testimony to hold that the appellant had voluntarily made the extra judicial confession to the aforesaid witness. 12. There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. 12. There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Havana, AIR 1976 SC 202 : (1976 Cri LJ203), held that merely because the Court gave permission to the Public Prosecutor to cross -examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 : (1977 Cri LJ 173), it was observed that by giving permission to cross - examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross -examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross - examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy." 23. THEIR Lordships of the Hon'ble Supreme Court in Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123 have held that seizure witnesses turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS Act. 24. THEIR Lordships of the Hon'ble Supreme Court in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 6 SCC 312 have held that evidence of hostile witness may contain elements of truth and should not be entirely discarded. Their Lordships have held as under: "22. 24. THEIR Lordships of the Hon'ble Supreme Court in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 6 SCC 312 have held that evidence of hostile witness may contain elements of truth and should not be entirely discarded. Their Lordships have held as under: "22. The learned counsel for the appellant further submitted the doctor had not given his written opinion that the deceased was fit enough to give her statement. Though orally, the doctor said so. Relying on this part of the evidence especially the evidence of the husband of the deceased, the learned counsel for the appellant submitted that even though the husband may have been declared hostile, the law relating to appreciation of evidence of hostile witnesses is not to completely discard the evidence given by them. This Court has held that even the evidence given by hostile witness may contain elements of truth. 23. This Court has held in State of U.P. vs. Chetram and others, AIR 1989 SC 1543 , that merely because the witnesses have been declared hostile the entire evidence should not be brushed aside. [See para 13 at page 1548]. Similar view has been expressed by three -judge Bench of this Court in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, [ AIR 1991 SC 1853 ]. At para 6, page 1857 of the report this Court speaking through Justice Ahmadi, as His Lordship then was, after referring to various judgments of this Court laid down that just because the witness turned hostile his entire evidence should Their Lordships of the Hon'ble Supreme Court in Bhajju alias Karan Singh vs. State of Madhya Pradesh, (2012) 4 SCC 327 have held that evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. Their Lordships have held as under: "36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross -examination by the adverse party. 37. The view that the evidence of the witness who has been called and cross -examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross - examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases: (a) Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624 (b) Prithi v. State of Haryana (2010) 8 SCC 536 (c) Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 (d) Ramkrushna v. State of Maharashtra (2007) 13 SCC 525 ." 25. THEIR Lordships of the Hon'ble Supreme Court in Ramesh Harijan vs. State of Uttar Pradesh, (2012) 5 SCC 777 have again reiterated that any portion of evidence consistent with case of prosecution or defence can be relied upon. Their Lordships have further held that seizure/recovery witnesses though turning hostile, but admitting their signatures/thumb impressions on recovery memo, they could be relied on by prosecution. Their Lordships have held as under: "23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 ; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ). 24. In State of U.P. v. Ramesh Prasad Misra and Anr., AIR 1996 SC 2766 , this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543 ; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb and Ors. v. State of U.P., AIR 2006 SC 951 ; Sarvesh Narain Shukla v. Daroga Singh and Ors., AIR 2008 SC 320 ; and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462 . Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan and Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36 )." 26. MR. Satyen Vaidya also argued that accused Deep Ram had made all out efforts to trace out Reeta Kumari. However, this is contrary to the evidence led by the prosecution. According to the prosecution case, Reeta Kumari went missing on 4.9.2006. He lodged the report on 7.9.2006. His conduct was also unnatural before PW -1. Learned trial court has correctly appreciated the evidence produced by the prosecution. However, this is contrary to the evidence led by the prosecution. According to the prosecution case, Reeta Kumari went missing on 4.9.2006. He lodged the report on 7.9.2006. His conduct was also unnatural before PW -1. Learned trial court has correctly appreciated the evidence produced by the prosecution. Their Lordships of the Hon'ble in K.V. Chacko alias Kunju vs State of Kerala, (2001) 9 SCC 277 have held that conviction can be based on circumstantial evidence if the evidence satisfies the following three tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351 : ( AIR 1982 SC 1157 : 1982 Cri LJ 1243)." 27. THEIR Lordships of the Hon'ble Supreme Court in Anil Kumar Singh vs. State of Bihar, (2003) 9 SCC 67 have reiterated the necessary requirements for basing conviction on circumstantial evidence as under: "8. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof." 28. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof." 28. THEIR Lordships of the Hon'ble Supreme Court in State of Haryana vs. Jagbir Singh and another, (2003) 11 SCC 261 have held that the conviction solely on the basis of circumstantial evidence can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Thus, the circumstances have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. Their Lordships have held as under: "8. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063 ; Eradu and Ors. v. State of Hyderabad, ( AIR 1956 SC 316 ); Earabhadrappa v. State of Karnataka, ( AIR 1983 SC 446 ) : 1983(1) RCR (Cr.) 292 (SC); State of U.P. v. Sukhbasi and Ors. ( AIR 1985 SC 1224 ); Balwinder Singh v. State of Punjab, AIR 1987 SC 350 : 1987(1) RCR(Cr.) 517 (SC)); Ashok Kumar Chatterjee v. State of M.P. ( AIR 1989 SC 1890 ). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, ( AIR 1954 SC 621 ), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 9. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. 9. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193 : 1996(3) RCR(Cr.) 793 (SC), wherein it has been observed thus : "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the claim of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence..........". 10. In Padala Veera Reddy v. State of A.P. and Ors., ( AIR 1990 SC 79 : 1990(2) RCR(Cr.) 26 (SC)), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : "(1) the circumstances from which an inference of guilt is sought to be drawn, must been cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis then that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 11. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl. LJ 1104 : 1992(3) RCR(Cr.) 63 (SC)), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 12. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 12. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 13. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch - stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. 14. In Hanumant Govind Nagundkar and Anr. v. State of Madhya Pradesh, ( AIR 1952 SC 343 ), wherein it was observed thus : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 15. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 15. A reference may be made to a latter decision in Sharad Birdhicahnd Sarda v. State of Maharasthra, ( AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 16. These aspects were recently highlighted in State of Rajasthan v. Rajaram (2003 AIR SCW 4097 : 2003(4) RCR(Cr.) 238 (SC)). " Their Lordships of the Hon'ble Supreme Court in Gagan Kanojia and another vs. State of Punjab, (2006) 13 SCC 516 have explained the well -known principles in regard to appreciation of the circumstantial evidence as under: "10. 16. These aspects were recently highlighted in State of Rajasthan v. Rajaram (2003 AIR SCW 4097 : 2003(4) RCR(Cr.) 238 (SC)). " Their Lordships of the Hon'ble Supreme Court in Gagan Kanojia and another vs. State of Punjab, (2006) 13 SCC 516 have explained the well -known principles in regard to appreciation of the circumstantial evidence as under: "10. We would proceed on the well -known principles in regard to appreciation of the circumstantial evidence which were noticed by the High Court in the following terms: (1) There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all -human probability the act must have been done by the accused. (2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. (3) There should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. (4) On the availability of two inferences, the one in favour of the accused must be accepted. (5) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far - fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise." 29. THEIR Lordships of the Hon'ble Supreme Court in State of Goa vs. Sanjay Thakran and another, (2007) 3 SCC 755 have reiterated the tests for basing conviction on circumstantial evidence as under: "13. THEIR Lordships of the Hon'ble Supreme Court in State of Goa vs. Sanjay Thakran and another, (2007) 3 SCC 755 have reiterated the tests for basing conviction on circumstantial evidence as under: "13. The prosecution case is based on the circumstantial evidence and it is a well -settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See : State of U.P. v. Satish, (2005) 3 SCC 114 , Padala Veera Reddy v. State of Andhra Pradesh and Others, 1989 Supp. (2) SCC 706, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , Gambhir v. State of Maharashtra, (1982) 2 SCC 351 and Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh, AIR 1952 SC 343 ]." 30. CONSEQUENTLY, in view of the analysis and discussions made hereinabove, there is no merit in both the appeals and the same are dismissed, so also the pending application(s), if any.