JUDGMENT : K.S. Jhaveri, J. 1. The appellant - original accused has, by way of this appeal, challenged his conviction and sentence dated 27.07.2011 in Sessions Case No. 38 of 2009 by the 2nd Additional Sessions Judge, Mehsana Camp at Visnagar for offence punishable under sections 302 and 498(A) of Indian Penal Code whereby the appellant was sentenced to life imprisonment under Section 302 of Indian Penal Code and was also sentenced to rigorous imprisonment for two years and was ordered to pay fine of Rs. 5,000/-, in default, imprisonment for three months. The sentences were ordered to run concurrently. 2. The case of the prosecution as emanating from the records is as under: 2.1 The deceased was married to the accused but there were frequent quarrels between them as the accused was in an extra marital affair with a lady named Kunjal Kansara. The deceased was frequently mentally and physically assaulted due to the same. On 02.01.2009, at around 04.00 pm, the deceased was taken to Taranga Temple, near Koti Shila for outing and thereafter while she was seated on a rock, the accused pushed her from behind as a result of which she fell into the cliff and died. A complaint in respect of this incident came to be lodged by Ramanlal Patel (PW No. 1) with Satlasana Police Station. In pursuance of this complaint, FIR vide Satlasana Police Station I-CR No. 4 of 2009 came to be registered. 2.2 Investigation was carried out and necessary panchnamas were drawn. Thereafter, charge sheet was filed against the present appellant. The offence committed by the appellant was exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Mehsana Camp at Visnagar under Section 209 of the Code, where it was registered as Sessions Case No. 38 of 2009. Charge vide Ex. 15 came to be framed against the appellant. He pleaded not guilty and claimed to be tried. Therefore, the learned Magistrate committed the case to the Sessions Court at Mehsana Camp at Visnagar under Section 209 of the Code, where it was registered as Sessions Case No. 38 of 2009. Charge vide Ex. 15 came to be framed against the appellant. He pleaded not guilty and claimed to be tried. 2.3 During the course of trial, the prosecution examined following ocular evidences which have been read before us by learned advocates for both the sides: P.W. No. Name of Witness Exhibit No. 1 Ramanbhai Patel 21 2 Manjulika Barot 24 3 Patel Chaulaben 29 4 Jitendrakumar Patel 30 5 Savitaben Patel 31 6 Varsangji Thakore 45 7 Kunjalben Kansara 48 8 Patel Montukumar Sureshbhai 49 9 Laljibhai Baranda 50 10 Kanuji Mafaji Chavda 53 11 Baldevbhai Desai 59 12 Nai Maheshkumar Ranchhodbhai 70 13 Munnabhai @ Yagnesh Vaidya 79 14 Khimjibhai Baranda 89 15 Meghrajbhai Harsh 94 2.4 The prosecution has also relied upon certain documentary evidence such as complaint at Ex. 22, inquest panchnama at Ex. 32, Mobile FSL Van report at Ex. 34, arrest panchnama at Ex. 37, scene of offence panchnama at Ex. 46, cause of death certificate at Ex. 26, P.M. Report at Ex. 25, FSL report at Ex. 41-42, Serological report at Ex. 43, mobile call details at Ex. 96, video tape at Ex. 81 etc. 2.5 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C. wherein the appellant - accused claimed that a false case is foisted upon him and that the deceased had died an accidental death and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant of the charges leveled against him by impugned judgement and order. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal. 3. Mr. B.C. Dave, learned advocate appearing for the appellant has vehemently contended that the entire case is based on circumstantial evidence in absence of any eye witness. He submitted that important witnesses being P.W. 7 - Kunjalben Kansara (Ex. 48) and P.W. 8 - Patel Montukumar Sureshbhai (Ex. 49) have turned hostile and that the other circumstantial evidences against the appellant are too weak to sustain conviction as recorded against the appellant - accused. He submitted that important witnesses being P.W. 7 - Kunjalben Kansara (Ex. 48) and P.W. 8 - Patel Montukumar Sureshbhai (Ex. 49) have turned hostile and that the other circumstantial evidences against the appellant are too weak to sustain conviction as recorded against the appellant - accused. He submitted that therefore it is in the interest of justice that the appeal may be accepted and the appellant may be acquitted of the charges levelled against him. He submitted that the trial court has not appreciated the facts, evidence and circumstances of the case in its true perspective which has ended in miscarriage of justice. He submitted that the trial court has erred in holding that the prosecution has proved its case beyond reasonable doubt against the present appellant. 3.1 Mr. Dave submitted that the case is based on circumstantial evidence other than the evidence of the complainant. He submitted that there are number of inherent infirmities in the prosecution evidence and that in these circumstances the trial court has erred in convicting the appellant under section 302 of Indian Penal Code. He submitted that the medical evidence also does not support the case of the prosecution. He submitted that looking to the conduct of the accused in approaching the Manager of the Dharamshala for help after the deceased had fallen down and bringing him to save her, the trial court ought to have atleast granted him benefit of doubt. He submitted that, therefore, the appellant - accused deserves to be acquitted by atleast granting benefit of doubt. 4. Ms. C.M. Shah, learned APP appearing for the respondent - State has strongly supported the impugned judgment and order passed by the trial court and submitted that the same does not call for any interference by this Court. She has submitted that the prosecution has proved the case against the present appellant beyond doubt. 4.1 Ms. Shah submitted that it is true that some of the witnesses, more particularly, P.W. 7 & P.W. 8 have turned hostile, however, hostility of those witnesses does in no way harm the prosecution case. She submitted that infact P.W. 7 & P.W. 8 have partly supported the prosecution case. Ms. 4.1 Ms. Shah submitted that it is true that some of the witnesses, more particularly, P.W. 7 & P.W. 8 have turned hostile, however, hostility of those witnesses does in no way harm the prosecution case. She submitted that infact P.W. 7 & P.W. 8 have partly supported the prosecution case. Ms. Shah has also drawn the attention of this Court to the complaint, evidence of the complainant - father of deceased who has been examined as P.W. 1, evidence of sister of deceased who has been examined as P.W. 3 and other relatives and submitted that it is clear that the deceased used to be mentally and physically harassed by the accused as he was in an extra marital affair with P.W. 7. 4.2 Ms. Shah has further drawn the attention of this Court to the injuries sustained by the deceased which are described in column No. 17 of post mortem report coupled with the evidence of doctor and submitted that it is borne out that there were no abrasions on the body of the deceased which is not possible in case of an accidental fall. She submitted that from the evidence of the doctor, it is borne out that this is clearly a case of culpable homicide amounting to murder and therefore the conviction of the appellants is just and proper. 5. Heard learned advocates for both the sides and perused the records of the case, more particularly the documentary as well as ocular evidence. The circumstances which were pressed into service by the prosecution are as follows: (I) Deceased Tejal was married to accused and she died within a year of marriage; (II) Deceased Tejal was ill-treated by the accused as he was having an illicit relation with P.W. 7 - Kunjal Kansara; (III) Deceased Tejal was last seen with the accused at the scene of offence; (IV) The medical evidence strongly supports the case of the prosecution. 5.1 At the outset it shall be relevant to note that 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. It is trite that all the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. 5.2 As per the latest decision of the Apex Court, we have appreciated, re-appreciated and re-evaluated the evidence led before the trial court in its entirety but we are unable to persuade ourselves to take a different view than the one taken by the trial court. P.W. 1 - Ramanbhai Patel who is the complainant in the present case and from the evidence of this witness it is borne out that the deceased was subjected to mental and physical cruelty by the accused. It is borne out that the accused was into an extra marital relationship with another lady named Kunjal Kansara and therefore the deceased was meted out with the said cruelty. He has stated that on one occasion, deceased had come home and thereafter the accused had come and taken the deceased to his house after accepting his guilt and after assuring the deceased's family members that he shall mend his ways. This witness has further stated that the deceased did not have any disease of giddiness. 5.3 P.W. 3 - Patel Chaulaben is the sister of deceased. This witness has also supported the case of the prosecution. From the evidence of this witness also it is borne out that the deceased was subjected to mental and physical harassment by the accused. This witness has stated that the accused wanted to marry P.W. 7 - Kunjalben and therefore he used to harass the deceased. This witness has further stated that during Diwali festival when the deceased had visited her matrimonial house, she had narrated the ill-treatment meted out to her. 5.4 P.W. 5 - Savitaben Ramanbhai is the mother of the deceased and this witness has also supported the case of the prosecution. No variations or discrepancies have been found in the evidence of these three witnesses. 5.5 P.W. 7 - Kunjal Kansara is an important witness and she has been examined at Ex. 48. This witness has totally denied that she was into an illicit relation with the accused. No variations or discrepancies have been found in the evidence of these three witnesses. 5.5 P.W. 7 - Kunjal Kansara is an important witness and she has been examined at Ex. 48. This witness has totally denied that she was into an illicit relation with the accused. However, the fact that this witness knew the accused and P.W. 8 - Montukumar whom she had considered Rakhi brother is clear as this witness has admitted in her cross examination that she was given the accused's invitation card and that she had attended the wedding. 5.6 Similarly, P.W. 8 - Montukumar Patel who is a close friend of the accused has been examined vide Ex. 49. From the evidence of this witness it is borne out that he used to consider P.W. 7 as his sister. This witness has stated that he was informed about the incident by the accused on telephone. Thereafter, this witness as well as his boss went to the scene of offence and remained there with the accused overnight. This witness has admitted in his cross examination that he knew Kunjal and that she used to come to the book stall where the accused and this witness used to work. This witness has admitted that both the accused and P.W. 7 knew each other. From the conjoint reading of the evidence of P.W. 7 & P.W. 8, it is clear that the accused as well as P.W. 7 - Kunjal studied in the same school atleast from class 10 to 12. It appears that P.W. 7 has tried to misguide the court by way of her deposition. 6. The trial court has also considered the video recording carried out at the scene of offence which has been supported by P.W. 12 who has recorded the video as well as P.W. 13 who has made a C.D. out of the said recording. It appears that the accused has demonstrated in the video as to how he had pushed the deceased into the cliff. The trial court has observed that from the video recording it can also be seen that there was a distance of atleast five to six foot between the place they were sitting and the cliff. It appears that the accused has demonstrated in the video as to how he had pushed the deceased into the cliff. The trial court has observed that from the video recording it can also be seen that there was a distance of atleast five to six foot between the place they were sitting and the cliff. From the entire video recording, the trial court has observed that the story of accidental death pursuant to giddiness and/or dizziness of deceased and her falling down is not plausible and credible. The trial court has rightly not believed the story put forward by the accused. 7. In this regard, it shall also be relevant to go through the medical evidence. The prosecution has examined P.W. 2 - Dr. Manjulika Rajkishore Barot at Ex. 24. This witness has stated that cause of death was shock due to cardio respiratory arrest due to intraperitoneal haemorrhage due to massive injury to spleen, liver and left lung with associated head and face injury with multiple fractures of multiple bones of body. This witness has admitted in the cross examination that if a person looks down from considerable height, he/she may feel dizzy. She has stated that it depends from person to person and that it is not necessary that every person gets the feeling of vertigo. The trial court has observed that going by the recording of the scene of offence it is clear that there is no such provision to look down from the place where the accused and deceased were sitting. The trial court has observed that even if the deceased felt dizzy and if they were sitting near to the opening of the cliff with her husband sitting beside her and if she complained of dizziness, her husband would have held her hand and taken her to a much safer place. 8. The prosecution has also explained the motive behind the alleged offence. The mobile call details of the accused from which it is borne out that he was in constant touch with P.W. 7 is also borne out. It is also worthwhile to note that the accused had taken the deceased to Taranga temple which is not a sought after tourist attraction. The said place is around 50 - 60 km from Visnagar where the deceased and accused used to reside. It is also worthwhile to note that the accused had taken the deceased to Taranga temple which is not a sought after tourist attraction. The said place is around 50 - 60 km from Visnagar where the deceased and accused used to reside. Moreover, the said temple is a Jain temple whereas neither the deceased nor the accused belonged to Jain community. Moreover, the said place is not frequented by many visitors and is quite a lonely place. The accused has not come forth with a plausible explanation as to why he chose the said place for going out with his wife in the afternoon. The accused seems to have taken her near to the cliff and as per his say they both were sitting on a rock. From the evidence on record it is clear that there was no chance of the deceased developing a condition of vertigo from the place they were sitting as the beginning of the cliff was at quite a distance from the rock where the accused has stated that they were sitting. Therefore, considering the entire evidence on record, the trial court has rightly convicted the accused of the charges levelled against him. 9. In the present case, considering the evidence of witnesses as well as the medical evidence, we are of the opinion that the prosecution has proved the fact that the deceased died a homicidal death beyond reasonable doubt. Learned advocate for the appellant is not in a position to point out any cogent evidence or circumstance so as to enable this Court to take a view contrary to the one taken by the trial court. 10. Moreover, when a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character. The accused in the present case is not in a position to account for the disappearance of the deceased. The video recording as well as the panchnama of scene of offence does not support the story of the accused. The illicit relation between the accused and P.W. 7 is also borne out from the evidence on record and therefore the motive of doing away with the deceased is proved by the prosecution. The video recording as well as the panchnama of scene of offence does not support the story of the accused. The illicit relation between the accused and P.W. 7 is also borne out from the evidence on record and therefore the motive of doing away with the deceased is proved by the prosecution. The trial court has considering all these facts convicted the accused under section 302 of Indian Penal Code which is just and proper. We, therefore, do not see any reason for interference in the appeal. 11. In a recent decision of the Apex Court in the case of Bhaikon @ Bakul Borah v. State of Assam reported in JT 2013 (10) SC 373 has held as under: "15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide Life Convict @ Khoka Prasanta Sen v. B.K. Srivastava & Ors., (2013) 3 SCC 425 , Mohinder Singh v. State of Punjab, (2013) 3 SCC 294 , Sangeet and Anr. v. State of Haryana, (2013) 2 SCC 452 , Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 , Chhote Lal v. State of Madhya Pradesh, (2011) 8 SCR 239, Mulla and Another v. State of Uttar Pradesh, (2010) 3 SCC 508, Maru Ram v. Union of India & Ors., (1981) 1 SCC 107 , State of Madhya Pradesh v. Ratan Singh & Others, (1976) 3 SCC 470 and Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 ]. 16. In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case." 12. Accordingly, appeal is hereby dismissed. The judgement and order dated 27.07.2011 in Sessions Case No. 38 of 2009 passed by the 2nd Additional Sessions Judge, Mehsana Camp at Visnagar is confirmed. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case." 12. Accordingly, appeal is hereby dismissed. The judgement and order dated 27.07.2011 in Sessions Case No. 38 of 2009 passed by the 2nd Additional Sessions Judge, Mehsana Camp at Visnagar is confirmed. However, life imprisonment as awarded by the trial court would not be till last breath and the case of the appellant may be reviewed by the appropriate authority considering the decision of Apex Court in the case of Bhaikon @ Bakul Borah (supra). The period of sentence already undergone shall be considered for remission and set off in accordance with law. R & P to be sent back forthwith.