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2016 DIGILAW 1332 (RAJ)

Anil @ Khem Chand Khatri v. State of Rajasthan

2016-09-09

DINESH CHANDRA SOMANI, MOHAMMAD RAFIQ

body2016
JUDGMENT : Mohammad Rafiq, J. This appeal seeks to challenge judgment dated 27.2.2008 whereby accused-appellant anil @ khem chand khatri has been convicted for offence under section 302 IPC as well as order dated 27.2.2008 passed by sessions judge, alwar (for short 'the trial court') whereby he was sentenced to life imprisonment with fine of Rs. 5,000/-, in default whereof he was to further undergo six months' additional rigorous imprisonment. accused-appellant has also been convicted for offence under section 201 IPC and sentenced to rigorous imprisonment of one year with fine of Rs. 1,000/- in default whereof, he was to further undergo one month's additional rigorous imprisonment. 2. Facts of the case are that one Ramesh Chand Arora (PW.l) submitted a written report (Exhibit P-7) to S.H.O., Police Station Shivaji Park, Alwar on 12.4.2007 that his daughter Seema was married to the appellant Anil @ Khem Chand Khatri about 13 years ago. Accused-appellant used to subject his daughter to beating and harassment. One son and one daughter were born out of their wedlock, who telephonically informed the informant at 3.30 P.M. on 12.4.2007 that Seema was lying in a pool of blood below the cot in the house and was not responding to their calls and that their father had gone to office. Thereupon, the complainant and his wife immediately started from Jaipur by train and reached Alwar at 8.00 P.M. When they reached the house of the accused-appellant at 2/281, NEB Extension. Alwar, they found their daughter Seema lying dead. The complainant expressed doubt that his daughter must have been murdered by his son-in-law (appellant) and action may be taken against him. 3. On receipt of aforesaid written-report, the police registered regular FIR No. 117/2007 (Exh.P/18) for offences under Sections 302/201 IPC and commenced investigation. On completion of investigation, the police Filed charge sheet against the accused-appellant for the aforesaid offences on 11.5.2007. The case was committed to the Court of Sessions. Charges for the aforesaid offences were framed against the accused-appellant by the trial Court which he denied and claimed to be tried. The prosecution, in support of its case, produced 16 witnesses and exhibited 81 documents. The case was committed to the Court of Sessions. Charges for the aforesaid offences were framed against the accused-appellant by the trial Court which he denied and claimed to be tried. The prosecution, in support of its case, produced 16 witnesses and exhibited 81 documents. All the circumstances emerging from oral as well as documentary evidence against the accused-appellant were put to him during his examination under Section 313 Cr.P.C. The accused-appellant denied the allegation and stated that his father-in-law has falsely implicated him with a view to grab his property and also taken the custody of his children and he was innocent. Defence did not produce any witness, but exhibited two documents. Upon completion of trial, the trial Court vide impugned judgment and order convicted and sentenced the accused-appellant in the manner as indicated herein above. Hence, this appeal. 4. We have heard Mr. Rinesh Gupta, learned counsel for the appellant; Ms. Sonia Shandilya, learned Public Prosecutor and Mr. Javed Mohd. Khan, learned counsel appearing on behalf of Mr. Ali Mohd. Khan, learned counsel for the complainant. 5. Mr. Rinesh Gupta, learned counsel for the accused-appellant argued that there is no eye witness to the incident and the prosecution case hinges entirely on circumstantial evidence. The prosecution was, therefore, under obligation to prove each of the circumstances against the accused by producing cogent and reliable evidence. Such circumstances when joined together, should form a chain so complete as to rule out every possibility of innocence of the accused. The trial court in the present case has convicted the accused only on the basis of suspicion and observed that since the accused-appellant doubted character of his wife and for this reason, they used to quarrel with each other, the accused-appellant must have murdered his wife. Learned counsel argued that accused-appellant was working as Compounder at Government Ayurvedic Dispensary, Village Baleta and that on the day of incident, i.e. 12.4.2007, he had gone to the dispensary. When he to received telephonic call from his son and daughter about the incident, which took place with the deceased, he immediately started for Alwar with Om Prakash (PW.3). Om Prakash (PW. 3) has stated that telephonic call was received by the appellant at around 2.30 P.M. and thereafter, the appellant requested this witness to drop him at Alwar on his vehicle. Om Prakash (PW. 3) has stated that telephonic call was received by the appellant at around 2.30 P.M. and thereafter, the appellant requested this witness to drop him at Alwar on his vehicle. He came to Alwar 15 with accused-appellant and when they reached house of the appellant, the police was already present there. This witness was made an attesting witness to recovery of blood stained vest of the appellant (Exhibit P.11), but in the court statement, he stated that no such memo was made in his presence and his signatures were obtained on blank papers by the police. This witness was declared hostile by the prosecution. Learned counsel argued that if the accused-appellant had any blood stains on his vest, he would have certainly not gone to dispensary because there was no reason for him to continue to wear a vest with blood stains, which would immediately get notices when he would confront the police. Even Rajendra Tiwari (PW.4), another motbir witness of recovery of vest of the accused-appellant, has stated that said recovery was not made in his presence and has also not supported the case of the prosecution. He too was declared hostile. Apart from vest, alleged recovery of hammer at the instance of the accused-appellant also could not be relied because its attesting witness Ramotar (PW. 9) in his cross-examination stated that he was made to sign memo of recovery of hammer (Exhibit P.9) and memo of recovery of vest of the accused-appellant (Exhibit P.11) in the police station. Lokesh Sahagal (PW.10) attesting witness to both the aforesaid memos also not supported case of the prosecution and was declared hostile. 6. Mr. Rinesh Gupta, learned counsel argued that the trial court wrongly relied the statement of B.N. Mishra (PW. 5) that accused reached dispensary at 10.30 A.M. on the day of incident, i.e. 12.4.2007, though timings of dispensary were 8.00 A.M. to 12.00 P.M. in the morning and 5.00 P.M. to 7.00 P.M. in the evening. This circumstance also cannot be read against the accused because he in his examination under Section 313 Cr.P.C. categorically explained that on that day, he had gone to school of his children to purchase their text books and note books and, therefore, he reached the dispensary late. Learned counsel submitted that no reliance could have been placed even on the statement of Dharmesh (PW. Learned counsel submitted that no reliance could have been placed even on the statement of Dharmesh (PW. 7), son of the appellant, who had come from custody of parents of the deceased. Since he was staying with them, he was tutored by them. 7. It is argued that Vinodi Lal (PW.13) admitted that there was no entry in the Malkhana Register about time of depositing the samples in the Malkhana, Seal put by S.H.O. at Serial No. 1 to 5 at Page No. 335 of the Malkhana Register does not contain his signatures. No entry of timing of handling of articles to Bhuto Ram Constable for depositing the same in Forensic Science Laboratory was made. Timing of depositing seized articles has not been entered in Malkhana Register as stated by Vinodi Lal (PW. 13) and seal of the SHO in Malkhana Register at entry No. 335 does not contain his signatures, which raises doubt about the fact that whether sealed articles were maintained as they existed. It is argued that police has miserably failed to prove the motive in the present case. In a case of circumstantial evidence, motive assumes significance particularly, when there is no circumstance proved by the evidence. Therefore, conviction of the accused-appellant could not have been recorded by the trial Court solely on the basis of recovery. 8. Learned counsel for the accused-appellant referred to statement of Jai Shankar Badgurgar (PW. 16), investigating officer, who has made a vague statement that he learnt from the neighbours that the accused used to quarrel with his wife. No such neighbour has either been named or produced by him. Learned counsel referred to para 19 of the impugned judgment and argued that the trial court has proceeded only on the basis of surmises and conjectures. The prosecution has failed to prove distance between the Village Baleta and house of the appellant. The prosecution has also failed to prove duration and time of death of the deceased. The possibility of the appellant reaching office late and eventually returning back on receiving telephonic call from his children could not be denied. Investigating Officer Jai Shankar Badgurjar (PW.16), in cross examination has stated that there was no blood on iron hammer, which had a crack. 9. Learned counsel argued that chain of circumstances against the accused-appellant has several missing links and in these circumstances, the appellant is entitled to benefit of doubt. Investigating Officer Jai Shankar Badgurjar (PW.16), in cross examination has stated that there was no blood on iron hammer, which had a crack. 9. Learned counsel argued that chain of circumstances against the accused-appellant has several missing links and in these circumstances, the appellant is entitled to benefit of doubt. Learned counsel in support of his arguments relied upon the judgment of the Supreme Court in Narsinbhai Haribhai Prajapati etc. v. Chhatrasinh & Others, AIR 1977 SC 1753 ; State of Rajasthan v. Smt. Kamla, AIR 1991 SC 967 ; Inderjit Singh & Another v. State of Punjab, AIR 1991 SC 1674 ; Siddaiah Alias Sundi v. State of Karnataka, (2003) 10 SCC 224 ; State of Goa v. Sanjay Thakran & Another and Subhash Chandra Nanda v. Sanjay Thakran & Another; AIR 2007 SC (Supp) 61. 10. Per contra, Ms. Sonia Shandilya, learned Public Prosecutor opposed the appeal and argued that both Ramesh Chand Arora (PW. 1), father of the deceased and Smt. Krishna Arora (PW. 2), mother of the deceased have consistently stated that deceased used to complain them about misbehavior of the accused and therefore, when they saw dead body of the deceased, they immediately knew that it was handy work of none other than the accused-appellant. It is argued Dharmesh (PW. 7) has categorically proved that when he and his younger sister left for the school around 7.30 A.M. his father (accused-appellant) and mother (deceased) both were at home and when they returned from the school around 2.30 P.M., main gate of their house was open from outside and on entering the house, they found the deceased lying in a pool of blood below the cot. This witness has admitted that his parents used to quarrel with each other. His father used to object to his mother going to roof and also going outside the main gate of their house. His father used to consume liquor and also 'gutkha'. On the day of incident also, when he awake up in the morning, he saw his parents quarreling with each other. Learned Public Prosecutor argued that in view of provisions of Section 106 of the Evidence Act, burden lies on the accused-appellant to explain all these circumstances and presumption should be raised against the accused-appellant. On the day of incident also, when he awake up in the morning, he saw his parents quarreling with each other. Learned Public Prosecutor argued that in view of provisions of Section 106 of the Evidence Act, burden lies on the accused-appellant to explain all these circumstances and presumption should be raised against the accused-appellant. In support of this argument, learned Public Prosecutor has placed reliance upon the judgment of the Supreme Court in Prakash v. State of Karnataka, (2014) 12 SCC 133 . 11. Learned Public Prosecutor further argued that B.N. Mishra (PW. 5), District Ayurved Chikitsak of Village Baleta where the accused-appellant was serving as Compounder has also stated that timings of the dispensary were 8.00 A.M. to 12.00 P.M. in the morning, but the accused-appellant reached dispensary on the day of incident around 10.30 P.M. This witness has proved Attendance Register (Exhibit P. 13) on which attendance has been marked by the accused at 10.30 A.M. Photostat copy of which has been produced on record as Exhibit P.13A. Thus, he was late. The accused-appellant has sought to explain this by stating that he had to purchase text books and note books of the children and he went to school of his children to purchase such books around 9.30 A.M. on that day. No proof has been produced by the accused-appellant to substantiate this explanation. No question was put to Dharmesh (PW.7) during his cross-examination in this behalf by the defence. Testimony of child witness if it is corroborated other evidence can form basis of conviction of accused. Reliance in this connection has been placed by the learned Public Prosecutor on the judgment of the Supreme Court in Kiriti Pal v. State of West Bengal, (2015) 11 SCC 178 . The accused-appellant has not given any explanation with regard to recovery of blood stained vest and blood stained vest and blood stained hammer. Learned Public Prosecutor referred to FSL Report (Exhibit P-81) and argued that presence of human blood not only on the clothes of the deceased, bed sheet and pillow cover and from the place of incident has been proved, but it has also been proved that except bed sheet, other articles were found to contain human blood of A Group. At the same time, human blood of A group has also been found on the vest of the accused and hammer recovered at his instance. At the same time, human blood of A group has also been found on the vest of the accused and hammer recovered at his instance. It is, therefore, prayed that the appeal may be dismissed and impugned judgment and other passed by the trial Court may be affirmed. 12. We have given our anxious consideration to rival submissions and carefully perused the material on record as well as decisions cited by learned counsel for the parties. In order to test the correctness of findings recorded by the learned trial Court, we would briefly analyse evidence of the prosecution witnesses to satisfy ourselves whether or not conviction of the accused-appellant has been rightly recorded by the trial Court. 13. Ramesh Chand (PW.l), informant, father of the deceased has stated that accused-appellant used to quarrel with his daughter after marriage. His daughter would often complaint to them about behaviour of the accused, but then they always tried to mediate between both husband and wife. On 12.4.2007, he received phone call from his grandson around 3.15 P.M. in the afternoon that the deceased was lying in a pool of blood under the cot and was not responding to their calls. He and his wife Smt. Krishna (PW.2) reached Alwar by train around 8.00 P.M. When they want to house of the appellant, they found dead body of their daughter. This witness further stated that deceased and two children were with them at Jaipur about 15 days ago and in between appellant also came once to meet them at Jaipur. At that time also, deceased complained to her mother that the appellant used to harass her and she was fade up with the harassment at the hands of the appellant, but his wife tried to pacify her and then sent her back to her house. This witness has also proved recovery of hammer at the instance of the accused vide Exhibit P.9; memo of site plan of recovery (Exh.P/10) and recovery of blood stained vest of the appellant (Exh.P/11). In cross-examination, he stated that they did not lodge any report about quarrel and beating of the deceased by the appellant because they did not want to spoil their matrimonial house. In cross-examination, he stated that they did not lodge any report about quarrel and beating of the deceased by the appellant because they did not want to spoil their matrimonial house. Smt. Krishna Arora (PW.2), mother of the deceased, has also given similar statement that the accused-appellant used to subject her daughter to beating and harassment and when she (this witness) used to complain of this to accused, he apologized and promised not to repeat so in future. 14. Om Prakash (PW.3) was also attesting witness to the recovery of vest of the deceased as also inquest report, in addition of Ramesh Chand (PW.l). Om Prakash also gave life to the accused from the village Baleta to Alwar, but he has not supported the aforesaid memos. When a pertinent question was put to him that did he ever in the past signed papers on required by police, he stated that he was working with a leading newspaper Dainik Bhaskar for last three years and that he never, in the past, signed any blank papers at the askance of the police. Rajendra Tiwari (PW.4), who was neighbour of the appellant and attesting witness to recovery' of vest (Exhibit P.11) did not support the same by stating that police obtained his signatures on five papers. Despite all this, recovery of vest has to be taken as proved on the basis of statement of Ramesh Chand Arora (PW. 1) and the investigating officer (PW. 16) Jai Shankar Badgurjar and therefore, statement of this witness does not cause any significant dent to the prosecution case. 15. B.M. Mishra (P.W. 5) has proved that timings of the dispensary' where the accused-appellant was working as Compounder were 8.00 A.M. to 12.00 P.M. in the morning and 5.00 P.M. to 7.00 P.M. in the evening. He has proved attendance register (Exhibit P. 13) and its Photostat copy (Exhibit P. 13A) and also stated that accused came to dispensary' at 10.30 A.M. on 12.4.2007. Heera Lal (PW.6), who was owner of grocery shop as well as STD/PCO booth where from Dharmesh (PW. 7) and his younger sister made telephonic call to the accused-appellant and grandfather ('nana') Ramesh Chand Arora (PW. 1) though did not support prosecution case, but he stated this much that two children came to his STD/PCO around 2.30 P.M. 3.00 P.M. and made telephone call but he could not tell what they conveyed on telephone. 7) and his younger sister made telephonic call to the accused-appellant and grandfather ('nana') Ramesh Chand Arora (PW. 1) though did not support prosecution case, but he stated this much that two children came to his STD/PCO around 2.30 P.M. 3.00 P.M. and made telephone call but he could not tell what they conveyed on telephone. 16. Dharmesh (PW. 7) is the star witness of the prosecution. He categorically stated that he and his younger sister Dipika went to school around 7.30 A.M. on 12.4.2007 and at that time his mother and father were present at house. When they returned back around 2.30 P.M., main gate of their house was found open. When they entered the house, they found that their mother was lying in a pool of blood below the cot and there was blood all around. She was not responding to their calls. They were frightened and went to STD/PCO booth and called their father as also grandfather (nana) and aunt (Mausi). This witness has candidly stated that their father and mother used to quarrel several times. Father used to forbid his mother from going upstairs on the roof and also forbade her going out of the house. His father used to consume liquor and also 'gutkha'. They had returned from Jaipur only a day before the incident and when they were coming to their house in the auto rickshaw, at that time also accused-appellant was quarreling with his mother. When he wake up in the morning of the fateful day, he saw his father quarreling with his mother. In cross-examination, this witness was asked to explain why he did not say so in his police statement (Exhibit D-2), this witness rather stated that when his father used to quarrel with mother, he also used to subject her to beating by stick and when he and his sister intervened, his father used to beat them as well. In cross-examination, he reiterated that his father put restrictions on movement of his mother and did not permit her to go to roof of the house and out of main gate of the house. In cross-examination, he reiterated that his father put restrictions on movement of his mother and did not permit her to go to roof of the house and out of main gate of the house. When a specific query was put to this witness that whether he was making such statement on being tutored by his grandfather (nana) and their advocate, this witness categorically stated that whatever he was advocate, this witness categorically stated that whatever he was speaking, was based on his personal knowledge. 17. Ramotar (PW.9) is attesting witness to the recovery of clothes of the deceased vide Exhibit P.3 and also recovery of vest of the accused vide Exhibit P.11. Lokesh Sahagal (PW. 10) is also attesting witness to the recovery memo of clothes of the deceased (Exhibit P.3), who has stated that 'salwar' and 'kurta' of the deceased were shown to him by the police, but denied that pillow, bed sheet or hammer were recovered in his presence. This witness was declared hostile. In cross-examination, he admitted that accused-appellant was his cousin, being son of paternal uncle. 18. Kuldeep (PW. 11) has proved photograph of the place of incident (Exhibit P.l7 to 33) and his report (Exhibit P.34) submitted to investigating officer. Hitesh Saini (PW. 12) is also photographer, who has proved 21 photographs of the place of incident (Exhibit P.35 to 55) and their negatives (Exhibit P. 56 to 76). Vinodi Lal (PW. 13), Malkhana In-charge of Police Station Shivaji Park, Alwar has stated that S.H.O., Jai Shankar deposited five Park, Alwar has stated that S.H.O., Jai Shankar deposited five sealed packets in the malkhana, which were entered at Serial No. 335 of the Malkhana Register. He also proved Malkhana Register (Exhibit P. 17) and its copy (Exhibit P. 17A). Kanhaiya Lal (PW. 14), ASI of Police Station Shivaji Park, Alwar stated that written report (Exhibit P.7) was sent to him by S.H.O., Police Station Shivaji Park, Alwar for its registration. Bhattram (PW. 15) has proved that he went to 40 Forensic Science Laboratory with five packets in sealed condition and deposited them, receipt whereof was Exhibit P. 77. 19. Dr. Phool Chand Choudhary (PW. 8) Medical Jurist of General Hospital, Alwar has proved Post Mortem Report of the deceased (Exhibit P. 16), according to which, the deceased sustained following four injuries :- "1. Lacerated wound in forehead at centre of size 1x1/2x1/4 cm (bone deep). 19. Dr. Phool Chand Choudhary (PW. 8) Medical Jurist of General Hospital, Alwar has proved Post Mortem Report of the deceased (Exhibit P. 16), according to which, the deceased sustained following four injuries :- "1. Lacerated wound in forehead at centre of size 1x1/2x1/4 cm (bone deep). 2. Lacerated wound in mid parietal region on post side of size 4½ x 3 x ¼ cm (bone deep). 3. Lacerated wound on left parietal region of size 3x2x1/4 cm (bone deep). 4. Lacerated wound on Right frontal region of size 3½ x 1 x ¼ cm (bone deep)." 20. Cause of death given in the post Mortem Report (Exhibit P. 16) was head injuries which were opined to be sufficient in the ordinary course of nature to cause death. 21. Jai Shankar Badgurjar, S.H.O. Police Station Shivaji Park, Alwar, (PW. 16). investigating officer has proved all the stages of the investigation one by one. In the cross-examination, investigating officer has incidentally stated that iron hammer did not have any blood, but this would not make any difference because in the very next sentence he stated that this hammer had a crack but there were blood stains in the wooden handle of the hammer. Besides, FSL Report (Exhibit P.81) categorically proves presence of blood of human origin 15 of A Group on the hammer. 22. The evidence in the present case clearly proves following circumstances against the accused-appellant: (i) That quarrel used to take place between the appellant-husband and deceased-wife and the appellant sometimes used to subject her to beating. (ii) That the accused forbade the deceased from going to roof top and also going out of the house and put restrictions on her movement. (iii) That the accused and his wife Seema were alone in the house when the children left for school on the day of incident at 7.30 A.M. (iv) That the accused and the deceased were seen quarreling with each other in the morning of the fateful day as proved by Dharmesh (PW. 7). (v) That the accused reached dispensary at 10.30 A.M. instead of 8.00 A.M. on the day of incident as proved by the attendance register of the dispensary. (vi) That on receiving the phone call from his children accused pretended to be innocent and reached his house with Om Prakash (PW.3). 7). (v) That the accused reached dispensary at 10.30 A.M. instead of 8.00 A.M. on the day of incident as proved by the attendance register of the dispensary. (vi) That on receiving the phone call from his children accused pretended to be innocent and reached his house with Om Prakash (PW.3). (vii) That the accused on reaching his house, could not withstand interrogation of the police and on the same day, gave information under Section 27 of the Evidence Act as to the weapon of offence, i.e. hammer, which was recovered from store of his house. (viii) That the wooden handle of the hammer recovered at the instance of accused was found to contain human blood of A group, which was also the blood group of deceased as proved from FSL Report (Ehibit P-81). (ix) That the accused was arrested on the date of incident and the vest (Baniyan) he was wearing was recovered, which was also containing blood of human origin of A Group. (x) That the accused failed to give any explanation to any of the above incriminating circumstances. 23. The Supreme Court in Narsinbhai Haribhai Prajapati etc. (supra) did not approve conviction of the accused only because of presence of motive and recovery of blood stained clothes and the weapon because the Court found evidence of eye witness totally unacceptable. This judgment, therefore, in the facts of that case does not help to the appellant. Judgment of the Supreme Court in State of Rajasthan v. Smt. Kamla (supra) was also rendered on the facts of that case because the Supreme Court concluded that circumstances were not sufficient to convict accused when possibility of deceased receiving fatal injury by fall cannot be rules out. Recovery of ornaments and weapon of crime at the instance of accused were not found proved beyond suspicion. Such are not the facts of the present case and therefore, this judgment also does not render any assistance to the appellant. In Inderjit Singh & Another (supra), the Supreme Court also did not approve conviction of the appellant because no enmity between accused and deceased was established on the basis of sole evidence of circumstances that he was last seen in the company of accused and there was no direct evidence to connect the accused with the crime. 24. In Siddaiah Alias Sundi (supra), accused-husband was charged with murder of his wife by strangulation. 24. In Siddaiah Alias Sundi (supra), accused-husband was charged with murder of his wife by strangulation. Neighbours in that case were not stating about appellant quarreling with his wife at the time of incident. Presence of three prosecution witnesses at the time of incident and recovery of nylon rope used in crime at the instance of appellant were held to be doubtful by the High Court. Even then, the High Court upheld the appellant guilty on the basis of circumstantial evidence that the appellant was a drunkard and he used to frequently quarrel with his wife and he admitted his presence at the time of incident and thereafter absconded. But, the Supreme Court held that these circumstances were not proved beyond reasonable doubt. 25. In the present case the circumstances as we have narrated above conclusively and unerringly towards the guilt of the accused and rule out every' hypothesis that may be compatible to the innocence. Judgment in State of Goa v. Sanjay Thakran & Another (supra) was also rendered by the Supreme Court on its own facts and chain of circumstances sought to be proved against the accused therein was having very' missing links. Therefore, all the aforesaid precedents are distinguishable on facts. 26. In the present case, despite circumstance narrated by son of the appellant Dharmesh (PW. 7) with regard to his frequently quarreling with wife and subjecting her to beating also and that he was lastly in the company of his wife in the house at 7.30 A.M. and that on the previous day when they were returning from Jaipur he was quarreling with his wife in the auto rickshaw and to also on the morning of the day of incident he also quarreled with his wife and these circumstances were put to the accused-appellant under Section 313 Cr.P.C., but the accused could not give any explanation thereabout. The circumstance that timing of the dispensary was 8.00 A.M. to 12.00 P.M. in the morning and he reached dispensary' on the fateful day at 10.30 A.M. as stated by B.M. Mishra (P.W. 5) was also put to him, but the accused-appellant failed to give any explanation. Circumstances of recovery of blood stained vest and blood stained hammer were also put to him, even then the accused-appellant failed to give any explanation. Circumstances of recovery of blood stained vest and blood stained hammer were also put to him, even then the accused-appellant failed to give any explanation. In this connection, we may refer to judgment of in the Supreme Court in Phula Singh v. State of Himachal Pradesh, (2014) 4 SCC 9 wherein it was held that the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. Submission that the prosecution has to establish each and every fact and accused has a right only to maintain silence was rejected by the Supreme Court. 27. The Supreme Court in the case of Ashok Kumar v. State of Haryana ( AIR 2010 SC 2839 = 2010(4) RLW 2865 (SC) has explained the scope of Section 313 of Cr.P.C. considering the dual purpose and observed in para 23 as under:- "Let us examine the essential features of this Section and the principles of law as enunciated by judgments of this Court, which are the guiding factor for proper application and the consequences which shall flow from the provisions of Section 313 of the Cr.P.C. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.P.C. is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused-makes without fear or right of the other party to cross-examine him. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused-makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary' purpose is to establish a direct dialogue between the Court and the accused and to pul every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused, it can be taken into consideration in any, enquiry or trial but still it is not strictly an evidence in the case. The provisions of Section 313(4) of the Cr.P.C. explicitly provides that the answers given by the accused may be taken into consideration in such enquiry' or trial and put in as evidence for or against the accused in any other enquiry or trial for any other offence for which, such answers may tend to show he has committed. In other words, the use of a statement under Section 313 of Cr.P.C. as an evidence is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the Statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. The Courts may rely on a portion of the Statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that courts have declared in the pronouncements is that conviction of the accused can not be based merely on the statement made under Section 313 of the Cr.P.C. as it can not be regarded as a substantive piece of evidence." 28. The said position has also been reiterated in the case of Sanatan Narkar and Anr. v. State of West Bengal ( AIR 2010 SC 3570 ). Further, the Supreme Court in case of Shankar Lal Gyarsi Lal Dixit v. State of Maharashtra ( AIR 1981 SC 765 ) also held that- "Falsity of defence cannot take place of proof of facts which prosecution has to establish in order to succeed, however, a false plea by defence can be considered as an additional circumstances, if other circumstances point unfailingly to the guilt of the accused." 29. The Supreme Court in State of Rajasthan v. Chandgi Ram & Others, (2014) 14 SCC 596 held that evidence of a child must reveal that he was able to discern between right and wrong, whether he fully understood the implications of what he was saying. Deposition of a child witness may require corroboration, but in case his deposition inspires confidence and there is no embellishment or improvement therein, court may rely upon his evidence. An inference as to whether child has been tutored or not, can be drawn from contents of his deposition. 30. In Kiriti Pal (supra) it was held by the Supreme Court that the theory of "last seen alive" comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead was so small, the possibility of any other person committing the murder becomes impossible. Where the person who is last found in the company of another who is dead or missing, the person with whom he was last found alive has to explain the circumstances as to how and where and in what manner he parted company with the deceased. Where the person who is last found in the company of another who is dead or missing, the person with whom he was last found alive has to explain the circumstances as to how and where and in what manner he parted company with the deceased. It was further held by the Supreme Court that it is true that motive is an important factor, but that does not mean that in all cases of circumstantial evidence if prosecution is unable to prove motive satisfactorily, prosecution must fail. In that case, prosecution has not adduced evidence as to the motive. However, the Supreme Court held that it is a matter of common knowledge that murders are committed without any preeminent motive. It is well established that mere fact that prosecution has failed to translate mental disposition of accused into evidence, does not mean that no such mental condition existed in the mind of the accused. 31. In view of above discussion, we do not find any illegality or infirmity in the judgment and order passed by the trial court. Conviction and sentence awarded to the accused-appellant by the trial Court for offences under Sections 302 and 201 IPC is affirmed. Appeal is dismissed.