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2017 DIGILAW 1287 (MP)

Bhagwan Singh v. State of M. P.

2017-12-21

ANAND PATHAK, G.S.AHLUWALIA

body2017
JUDGMENT Ahluwalia, J. -- 1. This Criminal Appeal under section 374 of CrPC has been filed against the judgment and sentence dated 18.5.2010 passed by Additional Sessions Judge, Sevada, Distt. Datia in Sessions Trial No. 67/2006, by which the appellant has been convicted under sections 302 and 201 of IPC and has been sentenced to undergo the life imprisonment and a fine of Rs. 10,000/- and rigorous imprisonment of 2 years and a fine of Rs.1,000/- with default imprisonment respectively. 2. The necessary facts for the disposal of the present appeal in short are that on 26.3.2006, an information was given by Kamal Kishore to police that his younger brother, aged about 20 years, is residing along his maternal aunt Kishori in village Ramdeva. At about 7 in the morning, Charan Singh, his cousin brother came to his village Ramgada and enquired that whether Ramkumar has come or not? When he replied that Ramkumar has not come, then he insisted that he should come to village Ramdeva. He came to Ramdeva, where he was informed by Kishori, that the whereabouts of Ramkumar are not known. Yesterday at about 8 P.M., the son of Bhagwan Singh had taken him with him and from thereafter, he has not come back. Then he, his uncle Badam Singh, Ram Singh, Lakhan, Ramdas all went to the house of Bhagwan Singh and found that no body was there in the house of Bhagwan Singh. Fire was burning near his house. Blood was lying on the roof of the house of Bhagwan Singh, therefore, he got suspicious. He found a bone in the fire therefore, it appears that the dead body of his brother is burning. Therefore, he lodged the report. On the basis of the report, the police started inquest enquiry. During enquiry, it was found that it is a case of murder, therefore, FIR was registered under sections 302 and 201 of IPC During investigation, spot map was prepared, blood stained and plain earth was seized, remains of burnt bones and ash were seized, a calculator from the spot was seized, broken piece of bangles were seized. Senior Scientific Officer, scene of crime, inspected the spot and prepared a report. Blood stained underwear and baniyan of the accused were seized. Senior Scientific Officer, scene of crime, inspected the spot and prepared a report. Blood stained underwear and baniyan of the accused were seized. The statements of witnesses were recorded and after completing the investigation, the police filed a charge sheet against the appellant and Kallu, Chandra Prakash, Siyasharan, and Sheela for offence under sections 302 and 201 of IPC. 3. The trial Court by order dated 8.8.2006, framed charges under sections 302 and 201 of IPC. 4. The accused persons, abjured their guilt and pleaded not guilty. 5. The prosecution, in order to prove its case, examined Ratiram (PW1), Sukhlal (PW2), Kamal Kishor (PW3), Komal Singh (PW4), Mukesh (PW5), Smt. Kishori (PW6), Ram Singh (PW7), Ramadhar (PW8), Dr.K.K. Asthana (PW9), Rajesh Kumar (PW10), V.K. Parashar (PW11), Chandan Singh (PW12), Malkhan Singh (PW13) and Dr. R.P. Soni (PW14). The accused persons, and the appellant did not examine any witness. 6. The trial Court by judgment and sentence dated 18.5.2010, passed in S.T. No.67/2006, acquitted co-accused Kallu, Chandra Prakash, Siyasharan, and Sheela and convicted the appellant for offence under sections 302,201 of IPC and sentenced to undergo the life imprisonment and a fine of Rs.10,000/- and rigorous imprisonment of 2 years and a fine of Rs.1,000/- with default imprisonment respectively. 7. The State has not filed an appeal against the acquittal of co-accused Kallu, Chandra Prakash, Siyasharan and Sheela. 8. Challenging the conviction recorded by the trial Court, the counsel for the appellant submitted that on the basis of the same evidence, the trial Court has acquitted the coaccused persons, thus, it is clear that the evidence of the witnesses was not found reliable. There is no admissible evidence available on record. The case is based on circumstantial evidence and the chain of circumstances is not complete. The dead body of the deceased could not be identified, therefore, it cannot be said that Ramkumar has been killed. The prosecution has not proved any motive in the present case. In the alternative, it is submitted by the counsel for the appellant, that conviction of the appellant may be converted into section 304 Part I of IPC. 9. Per contra, it is submitted by the counsel for the State that the State has proved the chain of circumstances beyond reasonable doubt. In the alternative, it is submitted by the counsel for the appellant, that conviction of the appellant may be converted into section 304 Part I of IPC. 9. Per contra, it is submitted by the counsel for the State that the State has proved the chain of circumstances beyond reasonable doubt. The trial Court, after removing the grain from chaff, has convicted the appellant, thus, it cannot be said that the evidence of the witnesses is not reliable. 10. Heard the learned counsel for the parties. 11. The prosecution case is based on circumstantial evidence, and the prosecution has relied upon the following circumstances : (a) Extra judicial confession of the appellant. (b) Last seen together. (c) A human dead body was found burning near the house of the appellant. (d) The appellant was seen for the last time, sitting by the side of the burning pyre. (e) A pool of human blood was found on the roof of the house of the appellant. (f) Three broken pieces of flagstone with blood stains were found on the roof of the house of Bhagwan Singh and on joining, it was found that the broken pieces were of single flagstone. (g) Two broken legs of a bed with blood stains were found on the roof of the house of the appellant. (h) On the boundary wall of the roof of the house of the appellant, blood stains were found which were going downwards, indicating that the dead body was thrown from the said place. (i) Blood was found on the ground, which indicates the place, where the dead body must have fallen.’’ (j) The trails of blood were found and the marks of dragging the dead body, going upto the pyre,were found on the ground,. (k) Cow-dung cake were found burning and burnt human bones were found in the pyre. (l) The serology report, shows that the burnt bones were of a boy aged about 20-22 years. (m) A buckle of belt and Kada were found from the ashes. (n) After the incident, the appellant had absconded (o) Motive for committing offence. 12. Before considering the circumstances, sought to be proved by the prosecution against the appellant, it would be apposite to consider the law relating to proving the case on the basis of circumstantial evidence. 13. (m) A buckle of belt and Kada were found from the ashes. (n) After the incident, the appellant had absconded (o) Motive for committing offence. 12. Before considering the circumstances, sought to be proved by the prosecution against the appellant, it would be apposite to consider the law relating to proving the case on the basis of circumstantial evidence. 13. The Supreme Court in the case of Dharamdeo Yadav v. State of U.P., reported in (2014)5 SCC 509 , has held as under : "15. We have no eyewitness version in the instant case and the entire case rests upon the circumstantial evidence. Circumstantial evidence is evidence of relevant facts from which, one can, by process of reasoning, infer about the existence of facts in issue or factum probandum. In Hanumant Govind Nargundkar v. State of M.P. [ AIR 1952 SC 343 ], this Court held as follows : (AIR pp. 345-46, para 10) “10. … 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 in the first instance be fully established and all the facts so established should be 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.” Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, the accused may be convicted on the basis of such circumstantial evidence. 14. The Supreme Court in the case of Sunil Clifford Daniel v. State of Punjab, reported in (2012)11 SCC 205 , has held as under : "29. In Sharad Birdhichand Sarda v. State of Maharashtra [ (1984)4 SCC 116 ] it was held by this Court that the onus is on the prosecution to prove that the chain is complete and that falsity or untenability of the defence set up by the accused cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are: (SCC p. 185, para 153) “(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.” Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion however grave it may be, can never be treated as a substitute for proof. Undoubtedly, suspicion however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the Court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.’’ 15. The Supreme Court in the case of Pudhu Raju v. State, reported in (2012)11 SCC 196 , has held as under : "15. In a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance by way of reliable and clinching evidence, and the circumstances so proved, must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the Court must take utmost precaution whilst finding an accused guilty solely on the basis of the circumstances proved before it.’’ 16. The Supreme Court in the case of Satish Nirankari v. State of Rajasthan, reported in (2017)8 SCC 497 has held as under : "29. It is now well established, by a catena of judgments of this Court, that circumstantial evidence of the following character needs to be fully established : (i) Circumstances should be fully proved. (ii) Circumstances should be conclusive in nature. (iii) All the facts established should be consistent only with the hypothesis of guilt. (iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State of U.P. v. Ravindra Prakash Mittal; Chandrakant Chimanlal Desai v. State of Gujarat). It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person. 30. The following tests laid down in Padala Veera Reddy v. State of A.P. also need to be kept in mind : (SCC pp.710-11, para 10) “10. 30. The following tests laid down in Padala Veera Reddy v. State of A.P. also need to be kept in mind : (SCC pp.710-11, para 10) “10. (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 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.” 31. Sir Alfred Wills in his 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; and (5) if there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” 17. We shall now consider each and every circumstance against the appellant, to find out that whether the prosecution has succeeded in establishing the guilt of the appellant or not? 18. The important question for determination is that whether any human dead body was burnt ? 19. Burnt bones were seized from the pyre by seizure memo Ex.P-7, Kamal Kishore (PW3) and V.K. Parashar (PW11) have stated that the burnt bones of human being, were seized from the pyre vide seizure memo Ex.P-7. 20. The burnt bones were sent to F.S.L. Gwalior for obtaining serology report. 19. Burnt bones were seized from the pyre by seizure memo Ex.P-7, Kamal Kishore (PW3) and V.K. Parashar (PW11) have stated that the burnt bones of human being, were seized from the pyre vide seizure memo Ex.P-7. 20. The burnt bones were sent to F.S.L. Gwalior for obtaining serology report. The serology report, Ex.P-17 has been proved by V.K. Parashar (PW11). According to this witness, the burnt bones were sent to the F.S.L. Gwalior and the Serology Report is Ex.P-17. According to this report, “Bones appeared to be of human being and burn in abundant amount of air on high temperature. The bones were referred to Medicological Department for histological examination of long bones. 21. Dr. R.P.Soni (PW14), the Senior Forensic Specialist, Medico legal Institute, Gandhi Medical College, Bhopal, has stated that on opening the packet, it contained 300 gms. of bones and after examining the same, gave his following report : Opinion (a) Bones are of human in origin (b) Bones belongs to same individual (c) Sex is male (d) Age 20 to 25 years (e) Cause of death remains open as no injury found on the available bones. Note: Bones are not suitable for Histopathological examination as the bones are brittle. The report is Ex.P-18. In cross-examination, it was admitted by this witness that the entire skull bones were not available. 22. Thus, it is clear that the dead body of a human being who was male and in between the age of 20-25 years was burnt near the house of the appellant Bhagwan Singh. It is not out of place to mention here that the place where pyre was found is not a cremation ground and it is an agricultural field, situated adjoining to the house of the appellant Bhagwan Singh. 23. Extra Judicial Confession. 24. Ratiram (PW1) has stated that he and Komal Singh were coming back to their house from Sitapur. They met with the appellant Bhagwan Singh near the village Chhekuri. It was about 11-12 P.M. The appellant Bhagwan Singh, made an extra judicial confession to the effect, that he has killed Ramkumar Jatav. He also informed that as Ramkumar, used to create problems in his house, therefore, he has killed him. This witness was cross-examined in detail. They met with the appellant Bhagwan Singh near the village Chhekuri. It was about 11-12 P.M. The appellant Bhagwan Singh, made an extra judicial confession to the effect, that he has killed Ramkumar Jatav. He also informed that as Ramkumar, used to create problems in his house, therefore, he has killed him. This witness was cross-examined in detail. In crossexamination, this witness, denied that he had informed the police that the appellant had informed that since, Ramkumar had illicit relations with his wife, and he had seen them in a compromising position, therefore, he has killed him. The case diary statement of this witness was recorded on 2.4.2006, whereas the appellant was arrested on 4.4.2006. Thus, it is clear that the appellant Bhagwan Singh had voluntarily made an extra judicial confession before Ratiram (PW1). 25. The Supreme Court in the case of Ram Singh v. State of U.P., Reported in 1962 Supp (2) SCR 203 has held as under : "14. .... Extra-judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in circumstances which tend to support his statement, should not be believed.’’ 26. The Supreme Court in the case of Sahib Hussain v. State of Rajasthan, reported in [ (2013)9 SCC 778 ], has held as under : "15. The prosecution heavily relied on the extra-judicial confession. The extra-judicial confession, though a weak type of evidence, can form the basis for conviction if the confession made by the accused is voluntary, true and trustworthy. In other words, if it inspires the confidence, it can be acted upon....’’ 27. The Supreme Court in the case of Vijay Shankar v. State of Haryana, reported in [ (2015)12 SCC 644 ], has held as under : "18. Principles in respect of evidentiary value and reliability of extra-judicial confession have been summarised by this Court in Sahadevan v. State of T.N., which reads as under: (SCC pp. 412-13, para 16) “(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. 412-13, para 16) “(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 19. Extra-judicial confession is a weak piece of evidence and the Courts are to view it with greater care and caution. For an extra-judicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities..........’’ 28. Last seen together. 29. Kishori (PW6) has stated in her Court evidence, that Ramkumar was staying with her. Bhagwan Singh came to her house, and took the deceased Ramkumar with him, on the pretext of harvesting the crop. However, in the case diary statement, Kishori (PW6) had stated that Pushpendra, the son of Bhagwan Singh had come to call the deceased. A specific suggestion was given in cross-examination, that whether Pushpendra had come to call the deceased or not, then it was denied by this witness. An attention of this witness was drawn towards her case diary statement, and she replied that She cannot say as to how it is mentioned in her case diary statement that Pushpendra, son of the appellant had come to call the deceased on the pretext that the appellant is calling. Further, in cross-examination, this witness once again re-iterated that in fact, it was the appellant who had taken the deceased with him, on the pretext of cutting the crop. However, the attention of the witness, towards this omission in her case diary statement was not drawn. The Supreme Court in the case of Karan Singh v. State of M.P., reported in (2003)12 SCC 587 , has held as under : "5. However, the attention of the witness, towards this omission in her case diary statement was not drawn. The Supreme Court in the case of Karan Singh v. State of M.P., reported in (2003)12 SCC 587 , has held as under : "5. When a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement it does not amount to any admission and if it is proved that he had given such a statement the attention of the witness must be drawn to that statement. section 145 of the Evidence Act is clear on this aspect. The object is to give the witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute. .........’’ 30. The Supreme Court in the case Rajendra Singh v. State of Bihar, reported in (2000)4 SCC 298 , has held as under : "6. So far as the second contention of Mr Mishra is concerned, it is no doubt true that on 4.7.1977 Satyanarain who has been examined as (PW8) in the course of trial had been examined by a Magistrate as he had been seriously injured and that statement has been exhibited as Exhibit B and in fact the Magistrate who had recorded the statement has been examined by the defence as DW1. This statement of Satyanarain recorded by the Magistrate may be a former statement by Satyanarain relating to the same fact at about a time when the fight took place and when the said Satyanarain was examined as (PW8) during trial it would be open for a party to make use of the former statement for such purpose as the law provides. But if the witness during trial is intended to be contradicted by his former statement then his attention has to be drawn to those parts of the statement which are required to be used for the purpose of contradicting him before the said statement in question can be proved as provided under section 145 of the Evidence Act. But if the witness during trial is intended to be contradicted by his former statement then his attention has to be drawn to those parts of the statement which are required to be used for the purpose of contradicting him before the said statement in question can be proved as provided under section 145 of the Evidence Act. Mr Mishra, learned Senior Counsel appearing for the appellant relying upon the decision of this Court in Bhagwan Singh v. State of Punjab contended before us that if there has been substantial compliance with section 145 of the Evidence Act and if the necessary particulars of the former statement has been put to the witness in cross-examination then notwithstanding the fact that the provisions of section 145 of the Evidence Act is not complied with in letter i.e. by not drawing the attention of the witness to that part of the former statement yet the statement could be utilised and the veracity of the witness could be impeached. According to Mr Mishra the former statement of PW 8 which has been exhibited as Exhibit B was to the effect that Kameshwar was assaulted with a bhala by Rajender and Surender and he did not see whether any other person had been assaulted or not, whereas in the course of trial the substantive evidence of the witness is that it is Rajender and Triloki who assaulted the deceased and, therefore, it belies the entire prosecution case. The question of contradicting evidence and the requirements of compliance with section 145 of the Evidence Act has been considered by this Court in the Constitution Bench decision in the case of Tahsildar Singh v. State of U.P. The Court in the aforesaid case was examining the question as to when an omission in the former statement can be held to be a contradiction and it has also been indicated as to how a witness can be contradicted in respect of his former statement by drawing particular attention to that portionof the former statement. This question has been recently considered in the case of Binay Kumar Singh v. State of Bihar and the Court has taken note of the earlier decision in Bhagwan Singh and explained away the same with the observation that on the facts of that case there cannot be a dispute with the proposition laid down therein. This question has been recently considered in the case of Binay Kumar Singh v. State of Bihar and the Court has taken note of the earlier decision in Bhagwan Singh and explained away the same with the observation that on the facts of that case there cannot be a dispute with the proposition laid down therein. But in elaborating the second limb of section 145 of the Evidence Act it was held that if it is intended to contradict him by the writing his attention must be called to those parts of it which are to be used for the purpose for contradicting him. It has been further held that if the witness disowns to have made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the crossexaminer proceeds to comply with the procedure prescribed in the second limb of section 145 of the Evidence Act. Bearing in mind the aforesaid proposition and on scrutinising the evidence of DW1, we find that the Magistrate who is supposed to have exhibited the document in his crossexamination categorically admitted that there was neither any signature nor seal of either the Chief Judicial Magistrate or his office on the statement, Exhibit B. If according to the Magistrate on recording the statement of Satyanarain he had sent the same to the Chief Judicial Magistrate, it is inconceivable as to how the document would not bear the signature or seal of either the Chief Judicial Magistrate or his office. The Magistrate in his examination-in-chief also does not state as to who identified Satyanarain in the hospital before recording his statement. It is under these circumstances that it is difficult to hold that Exhibit B has been legally proved to be the former statement of Satyanarain who has been examined as (PW8). Then again on a scrutiny of the evidence (PW8) it is crystal clear that the witness has not been confronted with that part of his alleged former statement by which the defence wants him to be contradicted. The witness has merely been asked as to whether he stated before the Magistrate that accused Surender had assaulted Kameshwar to which he had replied he does not recall as to what he stated before the Magistrate. The witness has merely been asked as to whether he stated before the Magistrate that accused Surender had assaulted Kameshwar to which he had replied he does not recall as to what he stated before the Magistrate. In this state of affairs it is difficult for us to hold that the provisions of section 145 of the Evidence Act have been complied with in the case in hand. Then again, so far as accused Rajender is concerned, there has been no variance in his so-called former statement, Exhibit B and his statement in the Court when he was examined as (PW8) clearly asserting that Rajender assaulted the deceased Kameshwar by means of a bhala. In the aforesaid premises, we are unable to accept the second submission of Mr Mishra and the same accordingly stands rejected.’’ 31. Thus, it is clear that in order to take advantage of omission in the previous statement, the attention of the witness has to be drawn to the said part of the previous statement, thereby giving an opportunity to the witness, to explain the omission. The submission made by the counsel for the appellant that by drawing the attention of the witness, to her previous statement where she had stated, “that it was Pushpendra who had come to call Ramkumar”, the appellant has substantially complied with the provisions of section 145 of Evidence Act, and, therefore, the evidence of Kishori (PW6) with regard to last seen together should be discarded in the light of omission, cannot be accepted for the simple reason, that the witness was not confronted with omission in her previous statement in the form of case diary statement recorded under section 161 of CrPC.The attention of the witness, to the omission in her case diary statement, that the appellant Bhagwan Singh had come to her house and had taken the deceased with him, on the pretext of cutting crops, was not drawn. Thus, the evidence of Kishori (PW6) with regard to last seen together cannot be ignored. 32. A human dead body was found burning near the house of the appellant. 33. Mukesh (PW5), Kishori (PW6), Ram Singh (PW7), have specifically stated that a funeral pyre was found near the house of the appellant and a dead body was burning. Thus, the evidence of Kishori (PW6) with regard to last seen together cannot be ignored. 32. A human dead body was found burning near the house of the appellant. 33. Mukesh (PW5), Kishori (PW6), Ram Singh (PW7), have specifically stated that a funeral pyre was found near the house of the appellant and a dead body was burning. A spot map Ex.P-6 was prepared by V.K. Parashar (PW11) in the presence of Kamal Kishor (PW3) and the pyre was found quite nearer to the house of the appellant Bhagwan Singh. Panchnama of pyre, Ex.P-8 was prepared by V.K. Parashar (PW11) in the presence of Ram Singh (PW4). The ashes were checked and bones were found which were seized vide seizure memo Ex.P-7. Kamal Kishore (PW3) is the seizure witness, who has proved the seizure of bones from the pyre. As already mentioned in the previous paragraph that as per report, Ex.P-18 given by Dr. R.P. Soni (PW14), the Senior Forensic Specialist, the burnt bones were of a human being and were of one individual and the age of the deceased was in between 20-25 years. Thus, it is clear that a human dead body was burnt, quite nearer to the house of appellant Bhagwan Singh. 34. The appellant was seen for the last time, standing by the side of the burning pyre. 35. Ram Singh (PW7) has stated that in the morning, while he was going to answer the call of the nature, he had seen the appellant standing by the side of the place, where fire was burning. He returned back around 5:30 in the morning and at that time, the appellant was not there. This witness was cross examined in detail, however, nothing could be elicited from the evidence, which may make his above mentioned evidence, unreliable. Thus, it is clear that in the morning, the appellant was standing by the side of the pyre and thereafter, he went missing. 36. A Pool of human blood was found on the roof of the house of the appellant. Three broken pieces of flagstone with blood stains were found on the roof of the house of Bhagwan Singh and on joining, it was found that the broken pieces were of single flagstone. Two broken legs of a bed with blood stains were found on the roof of the house of the appellant. Three broken pieces of flagstone with blood stains were found on the roof of the house of Bhagwan Singh and on joining, it was found that the broken pieces were of single flagstone. Two broken legs of a bed with blood stains were found on the roof of the house of the appellant. On the boundary wall of the roof of the house of the appellant, blood stains were found which were going downwards, indicating that the dead body was thrown, on the ground, from the said place. Blood was found on the ground, which indicates the place, where the dead body had fallen. The trails of blood were found and the marks of dragging the dead body were found on the ground, going upto the pyre. Cow-dung cake were found burning and burnt human bones were found in the pyre. The serology report, shows that the burnt bones were of a boy aged about 20-22 years. A buckle of belt and Kada were found from the ashes. 37. Since, all the above mentioned circumstances are inter connected, therefore, they shall be considered jointly. Dr. K.K. Asthana (PW9), had inspected the spot and had given his report which is Ex.-12. On spot inspection, following situation/articles were found : (a) Two beds were found on the roof of the house of the appellant and both the planks of a bed were found broken. (b) A pool of blood was found on the roof and blood showers were found. One calculator was also found and a broken piece of flagstone was found near the pool of blood. (c) Broken pieces of flagstone were found and on joining the same, they were found to be a part of one flagstone. Two broken bricks were also found. (d) From the roof of the house of the appellant, the blood showers were found in front of the door. (e) Loose bricks were found on the window situated on the right side of the room and broken pieces of bangles were found in the room. (f) On the other side of the roof, the blood showers were found which were caused due to throwing of the dead body on the ground. Similarly, blood was found on the ground and marks of dragging the dead body upto the place of pyre were found. (g) Funeral pyre of about 15 ft.s was found. (f) On the other side of the roof, the blood showers were found which were caused due to throwing of the dead body on the ground. Similarly, blood was found on the ground and marks of dragging the dead body upto the place of pyre were found. (g) Funeral pyre of about 15 ft.s was found. (h) The remains of burnt bones were taken out from the pyre and one Kada and buckle of belt were also found in the pyre.’’ After conducting the spot inspection, this witness came to a conclusion that some one was killed on the roof of the house of the appellant after some struggle and his dead body was thrown from the roof on the ground and thereafter it was burnt. The photographs of the place were also taken which are the part of the police case diary. In cross examination, it was stated by this witness that the kada and the buckle of the belt were identified by the relatives of the deceased. 38. After the incident, the appellant had absconded. 39. It is clear from the record that Bhagwan Singh left the place of occurrence immediately after the incident. Ram Singh (PW7) has stated that when he was going to answer the call of the nature, he had seen the appellant standing near the burning pyre, but when he came back at around 5:30 in the morning, the appellant Bhagwan Singh was not there. Thus, it is clear that after noticing that the villagers have started going to answer the call of the nature, the appellant left the place of occurrence. Merely because a person has absconded, may not be a sufficient circumstance, to hold a person guilty, but if the conduct of the appellant is considered in the light of the surrounding circumstance, then absconsion of the appellant, immediately after the incident, would assume importance. 40. The Supreme Court in the case of Kundula Bala Subrahmanyam v. State of A.P., reported in (1993)2 SCC 684 , has held as under : "23. A closer link with the conduct of the appellants both at the time of the occurrence and immediately thereafter is also the circumstance relating to their absconding. Md. 40. The Supreme Court in the case of Kundula Bala Subrahmanyam v. State of A.P., reported in (1993)2 SCC 684 , has held as under : "23. A closer link with the conduct of the appellants both at the time of the occurrence and immediately thereafter is also the circumstance relating to their absconding. Md. Baduruddin (PW15), the investigating officer, deposed that he had taken up the investigation of the case and having examined PWS 1-4 had caused search to be made for the accused but they were not found in the village and despite search, they could not be traced. Appellant 1 surrendered before the Court on November 10, 1981 while appellant 2 surrendered in the Court on December 7, 1981. No explanation, worth the name, much less a satisfactory explanation has been furnished by the appellants about their absence from the village till they surrendered in the Court in the face of such a gruesome ‘tragedy’. Indeed, absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in a criminal case and arrested by the police, but coupled with the other circumstances which we have discussed above, the absconding of the appellants assumes importance and significance. The prosecution has successfully established this circumstance also to connect the appellants with the crime.’’ 41. The Supreme Court in the case of Mangat Rai v. State of Punjab, reported in [ (1997)7 SCC 507 ], has held as under : "8. On the other hand learned counsel for the respondent submitted that both the Courts below have concurrently held on appreciation of relevant evidence that it was the appellant and no one else who could commit the murder of his wife. That she had died at his own residence. That he was having his other clinic only one kilometre away from his residence and it was very easy for him to go to his clinic at the relevant time after liquidating the deceased. That she had died at his own residence. That he was having his other clinic only one kilometre away from his residence and it was very easy for him to go to his clinic at the relevant time after liquidating the deceased. That the theory of suicide by the deceased was patently false as the ligature mark was found to be post-mortem by the doctors and it is impossible to even allege that a dead person would hang herself and, therefore, it was a false case tried to be made to mislead the investigating agency and precisely for that reason the appellant rushed to the police authorities and gave a wrong version about the incident. That as the appellant resided with the deceased at the relevant time in his residential house where his wife met her untimely death, the inference drawn by both the Courts below against the appellant that it was he and no one else who had committed the murder of his wife, can be said to be well justified on record of the case. That his earlier conduct of harassing the deceased and nagging her in connection with the dowry demand, his conduct of not even visiting his in-laws’ house when he was blessed with a son and his subsequent conduct of giving false version of the incident before the police and not intimating his in-laws on the date of the incident itself and subsequently his absconding from the place of occurrence are all pointers to his guilty mind and, therefore, his appeal deserves to be dismissed.’’ 42. Thus, merely a person has absconded after the incident, may not be indicative of his guilty mind, but when this circumstance is considered in the light of the surrounding circumstances, then the absconsion of the appellant, immediately after the incident, would assume importance and would be a strong circumstance, indicating the guilty mind. 43. Recovery of blood stained baniyan and underwear from the body of the appellant. 44. Ratiram (PW1) and V.K. Parashar (PW11) have stated that a blood stained baniyan and underwear was seized from the possession of the appellant by seizure memo Ex.P-2. As per the report of the F.S.L.Gwalior, Ex.P-15, blood was found on the underwear of the appellant. 45. Motive 46. 44. Ratiram (PW1) and V.K. Parashar (PW11) have stated that a blood stained baniyan and underwear was seized from the possession of the appellant by seizure memo Ex.P-2. As per the report of the F.S.L.Gwalior, Ex.P-15, blood was found on the underwear of the appellant. 45. Motive 46. It is submitted by the counsel for the appellant that the prosecution has failed to prove any motive on the part of the appellant to commit the offence. Where the case is based on circumstantial evidence, motive plays and important role, therefore, in absence of any motive, the chain of circumstance is not complete. 47. The submission made by the counsel for the appellant cannot be accepted and hence, rejected. Absence of motive, by itself cannot be a ground to reject the prosecution case, although the presence of motive would assume importance in a case, which is based on circumstantial evidence. The Supreme Court in the case of Praful Sudhakar Parab v. State of Maharashtra, reported in (2016)12 SCC 783 , has held as under : "25. One of the submissions which has been raised by the learned Amicus Curiae is that the prosecution failed to prove any motive. It is contended that the evidence which was led including the recovery of bunch of keys from guardroom was with a view to point out that he wanted to commit theft of the cash lying in the office but no evidence was led by the prosecution to prove that how much cash was there in the pay office. 26. Motive for committing a crime is something which is hidden in the mind of the accused and it has been held by this Court that it is an impossible task for the prosecution to prove what precisely have impelled the murderer to kill a particular person. This Court in Ravinder Kumar v. State of Punjab, has laid down following in para 18 : (SCC pp. 697-98) “18. … It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of H.P. v. Jeet Singh : (SCC p.380, para 33) ‘33. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of H.P. v. Jeet Singh : (SCC p.380, para 33) ‘33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.’” 27. Further in Paramjeet Singh v. State of Uttarakhand, this Court held that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence there of cannot be a ground to reject the prosecution case. Following was stated in para 54: (SCC p.457) “54. So far as the issue of motive is concerned, the case is squarely covered by the judgment of this Court in Suresh Chandra Bahri. Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide: State of Gujarat v. Anirudhsing)” (Emphasis in original) 28. The High Court while considering the motive has made following observations at p.46: (Praful Sudhakar case, SCC OnLine Bom para 70) “70. (Vide: State of Gujarat v. Anirudhsing)” (Emphasis in original) 28. The High Court while considering the motive has made following observations at p.46: (Praful Sudhakar case, SCC OnLine Bom para 70) “70. Although prosecution is not very certain about the motive, upon taking into consideration the evidence of (PW4) and (PW6), a faint probability is created, regarding intentions of the accused to lay hands on the cash which could have been in possession of the victim, as against the initial story that the accused was enraged against the victim, because the victim used to tease him on the point of his marriage with a bar girl Helen Fernandes. Motive is a mental state, which is always locked in the inner compartment of the brain of the accused and inability of the prosecution to establish the motive need not necessarily cause entire failure of prosecution. We fully endorse the above view taken by the High Court and do not find any substance in the above ground.’’ 48. The Supreme Court in the case of Vivek Kara v. State of Rajasthan, reported in (2014)12 SCC 439 , has held as under : "6. We have considered the submissions of the learned counsel for the parties and we agree with the learned counsel for the appellant that from the evidence of (PW11) one could not hold that the appellant had committed the murder of the deceased to take revenge on his uncle (PW11), who had not given him Rs. 80,000/- kept in the fixed deposit. We are, however, of the opinion that where prosecution relies on circumstantial evidence only, motive is a relevant fact and can be taken into consideration under section 8 of the Evidence Act, 1872 but where the chain of other circumstances establishes beyond reasonable doubt that it is the accused and the accused alone who has committed the offence, and this is one such case, the Court cannot hold that in the absence of motive of the accused being established by the prosecution, the accused cannot be held guilty of the offence. In Ujjagar Singh v. State of Punjab this Court observed : (SCC p.99, para 17) “17. In Ujjagar Singh v. State of Punjab this Court observed : (SCC p.99, para 17) “17. … It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliché) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.” 49. The Supreme Court in the case of Sanaullah Khan v. State of Bihar, reported in (2013)3 SCC 52 , has held as under : "18. ...Where other circumstances lead to the only hypothesis that the accused has committed the offence, the Court cannot acquit the accused of the offence merely because the motive for committing the offence has not been established in the case’’ 50. In the present case, Ratiram (PW1) has stated that the appellant had made an extra judicial confession and had stated that as the deceased used to create problems in his house, therefore, he has killed him. What type of problems were being created by the appellant, have not been proved by the prosecution. Thus, the motive attributed to the appellant for committing offence, may not be very strong, however, even assuming that the prosecution has failed to prove, even then on the basis of the other circumstances, the appellant can be convicted. 51. It is submitted by the counsel for the appellant, that since, the witnesses have been disbelieved for the remaining accused persons and therefore, they have been acquitted, thus, it is clear that the evidence of the witnesses is not trustworthy and therefore, they be disbelieved in toto. The submissions made by the Counsel for the appellant, cannot be accepted and hence, rejected. 52. The Supreme Court in the case of Paulmeli v. State of T.N. reported in (2014)5 SCC (Cri) 573 has held as under : "23.The learned counsel for the appellants submits that in case, on the basis of the same evidence,15 accused persons had been acquitted, the appellants could not have been convicted. We do not find any force in such a submission for the reason that there may be some exaggeration in depositions of the prosecution witnesses. The Courts below had not accepted the evidence to that extent and have given benefit of doubt. 24. We do not find any force in such a submission for the reason that there may be some exaggeration in depositions of the prosecution witnesses. The Courts below had not accepted the evidence to that extent and have given benefit of doubt. 24. In Balaka Singh v. State of Punjab, this Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of M.P. and held as under: (Balaka Singh case, SCC p.517, para 8) “8. … the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.” 25. In Sukhdev Yadav v. State of Bihar, this Court held as under : (SCC p.90, para 3) “3. It is indeed necessary, however, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment —sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account.” 26. A similar view has been reiterated in Appabhai v. State of Gujarat, wherein this Court has cautioned the Courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. However, the Courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. 27. However, the Courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. 27. In Sucha Singh v. State of Punjab, this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the Court to separate grain from the chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that the administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, truth is the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the Court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.’’ 53. The Supreme Court in the case of Krishna Mochi v. State of Bihar, reported in [ (2002)6 SCC 81 ] has held as under : "51. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence, prayer is to apply the principle of falsus in uno, falsus in omnibus. This plea is clearly untenable. Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence”. (See Nisar Ali v. State of U.P.) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went,was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab.) The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v.State of M.P. and Ugar Ahir v. State of Bihar.) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. and Balaka Singh v. State of Punjab.) As observed by this Court in State of Rajasthan v. Kalki normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. Accusations have been established against the accused-appellants in the case at hand.’’ 54. Since the maxim falsus in uno, falsus in omnibus has no application, therefore, the Courts must try to remove the chaff from the grain and therefore, the submission made by the counsel for the appellant that since, the evidence of the witnesses in respect of some of the accused persons has been disbelieved, therefore their evidence should be discarded in toto, cannot be accepted. 55. It is next contended by the counsel for the appellant that the prosecution has failed to prove that Ramkumar has been killed because his dead body could not be recovered, and the prosecution has not produced the DNA Report to show that the blood or the bones were that of the deceased Ram Kumar. 55. It is next contended by the counsel for the appellant that the prosecution has failed to prove that Ramkumar has been killed because his dead body could not be recovered, and the prosecution has not produced the DNA Report to show that the blood or the bones were that of the deceased Ram Kumar. In nutshell, the contention of the counsel for the appellant is that since, the prosecution has failed to prove that Ramkumar was killed and burnt, therefore, the appellant cannot be held guilty of committing murder of Ramkumar. The submission made by the counsel for the appellant cannot be accepted and hence, rejected. Even if the dead body of the deceased is not recovered, but if the prosecution proves beyond reasonable doubt, that the victim has been done to death, then the accused can be held guilty of committing murder of the deceased. The Supreme Court in the case of Rishipal v. State of Uttarakhand, reported in (2013)12 SCC 551 , has held as under : "10. Coming next to the question whether the prosecution has brought home the charge of murder levelled against the appellant, we must at the outset point out that the case is entirely based on circumstantial evidence. No direct evidence has been adduced to prove that Abdul Mabood, whose corpus delicti has not been recovered, was done to death, nor any evidence adduced to show where and when the same was disposed of by the appellant assuming that he had committed the crime alleged against him. The legal position regarding production of corpus delicti is well settled by a long line of decisions of this Court. We may briefly refer to some of those cases. 11. In Rama Nand v. State of H.P. this Court summed up the legal position on the subject as: (SCC pp. 522-23, paras 27-28) “27. … In other words, we would take it that the corpus delicti i.e. the dead body of the victim was not found in this case. But even on that assumption, the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability, she had been murdered by Rama Nand, appellant? … In other words, we would take it that the corpus delicti i.e. the dead body of the victim was not found in this case. But even on that assumption, the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability, she had been murdered by Rama Nand, appellant? It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused ‘caused the death’* of the person alleged to have been killed. 28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. ‘I would never convict’, said Sir Mathew Hale, ‘a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead’. This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old ‘body’ doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale’s enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. In the context of our law, Sir Hale’s enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. ‘homicidal death’ is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under section 3, Evidence Act, a fact is said to be ‘proved’, if the Court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned.” (Emphasis supplied) To the same effect is the decision in Ram Chandra v. State of U.P. where this Court said : (AIR p. 387, para 6) “6. … It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable.” 56. In the present case, it has been proved beyond reasonable doubt, that Ramkumar has been killed and his dead body has been burnt. 57. Considering the circumstances, which have been proved by the prosecution against the appellant, this Court is of the considered opinion that the cumulative effect circumstances, proved against the appellant, leads to only one conclusion that the appellant has committed murder of Ramkumar. 57. Considering the circumstances, which have been proved by the prosecution against the appellant, this Court is of the considered opinion that the cumulative effect circumstances, proved against the appellant, leads to only one conclusion that the appellant has committed murder of Ramkumar. The appellant has made an Extra Judicial Confession and was seen for the last time in the company of the deceased as the deceased was called from the house of Kishori (PW6) and after some struggle on the roof of the house of the appellant, the deceased Ramkumar was killed and his dead body was thrown on the ground from the roof and the dead body was burnt near the house of the appellant itself. 58. It is submitted by the counsel for the appellant that even if the entire allegations are accepted, then it would be clear that the act of the appellant would come within the scope of Exception 4 to section 300 of IPC and his conviction may be converted to section 304 Part I of IPC. The submission made by the counsel for the appellant cannot be accepted, for the simple reason, that there is nothing on record to show that there was no premeditation or the incident took place because of any sudden or grave provocation and in a heat of passion and the accused has not taken undue advantage of the situation. The manner in which the offence has been committed, would certainly fall within section 300 of IPC and accordingly, the appellant is held guilty of offence under section 302 of IPC for committing murder of Ramkumar and by burning the dead body of Ramkumar, the appellant has caused the disappearance of evidence of offence and thus committed offence under section 201 of IPC. 59. Accordingly, the judgment and sentence dated 18.5.2010 passed by Additional Sessions Judge, Sevada, Distt. Datia in Sessions Trial No. 67/2006 is hereby affirmed. 60. The appellant is in jail. 61. The appeal fails and is hereby dismissed.