JUDGMENT : Biren Vaishnav, J. 1. The sole accused has filed this appeal challenging his conviction under sections 302, 397 and 203 of the Indian Penal Code and section 135 of the Bombay Police Act rendered by learned Additional Sessions Judge, Morbi, by his judgment dated 22.3.2010 in Sessions Case No. 24/2008. Case of the prosecution is that the accused Pravinbhai Panchabhai Vaghela was employed as a cleaner with the truck bearing registration No. G.J.12.Y.5814. The driver of the truck was Vinodbhai Patubhai Solanki Devipujak. According to the prosecution on 23.3.2008 at 2:30 am, the accused carried out the murder of driver Vinodbhai Patubhai Solanki near Raviraj cross roads by inflicting indiscriminate blows with knife in the stomach and hands of deceased Vinodbhai the driver. He was charged with offence punishable under section 302 of the IPC. Further, it was imputed that the cleaner the accused had robbed the driver of Rs. 9000/- cash that he was carrying. Therefore, he was also charged under section 397 of the IPC. Accused was further charged with offence under section 203 of the IPC on account of the fact that though having carried the act of murdering the driver, he proceeded to lodge the FIR informing the police that both he and the driver were robbed by four unknown persons who had come in a utility vehicle. 2. Navdhanbhai Vasanbhai Aahir, Prosecution Witness No. 3, the owner of the truck, was examined at exh. 32. According to this witness, he is the owner of Gurukrupa transport company at Kutch-Bhuj. He owned the truck bearing registration No. G.J.12.Y.5814. Vinodbhai Patubhai Devipujak, the deceased, was a driver who was employed by him. Accused Pravinbhai Panchabhai was the cleaner attached to the truck. He identified the accused Pravinbhai Panchabhai who was present in the Court. According to this witness on 22.3.2008, driver Vinodbhai Patubhai Devipujak and cleaner Pravinbhai Panchabhai were proceeding from Sanghi cement company at Abdasa to Bhavnagar with the cement. In the evening at 8, Vinodbhai the driver called him up informing him that the truck had arrived and, therefore, the manager should be sent. Makanjibhai Kanjibhai, the manager was sent to Gujarat Petrol pump. He was sent at 8 in the evening with the cash amount of Rs. 9000/-. In the evening at 8, Vinodbhai the driver called him up informing him that the truck had arrived and, therefore, the manager should be sent. Makanjibhai Kanjibhai, the manager was sent to Gujarat Petrol pump. He was sent at 8 in the evening with the cash amount of Rs. 9000/-. According to this witness on 23.3.2008, at 6 in the morning, he received a call from Pravinbhai Panchabhai informing him that four persons in the utility vehicle had intercepted their truck near the Raviraj cross roads and robbed them of the cash and then killed the driver. According to this witness, he along with the manager and his accountant proceeded to Lajai cross roads near Tankara. Pravin was sitting inside the truck and the driver's body was on the back seat. There were injuries on the head and stomach of the driver. The Tankara police station was informed telephonically and the police arrived half an hour later. The parents of the deceased driver were informed and Pravin thereafter, lodged the complaint. Pravin had not sustained any injuries. This witness further testified that after the police recorded his statement on the next day, he came to know through the newspaper that it was the cleaner who had killed the driver. This witness was cross examined. However, nothing substantial has been revealed from his cross examination. 3. Makanjibhai Kanjibhai, Prosecution Witness No. 4, was examined at exh 33. He was the manager of the transport company where the accused and deceased were employed. According to this witness, the incident occurred on 23.3.2008 at Morbi near Raviraj cross roads. He received a call from his employer on 23.3.2008 at around 6 in the morning. Prior thereto on 22.3.2008, at 8 in the evening, according to this witness, on a call from his employer, he had gone to give cash to the driver. He had carried around Rs. 10,000/- with him. On 22.3.2008 at 8 in the evening at the Gujarat Petrol pump, he had handed over the cash amount of Rs. 9000/- to the driver. Both the driver and cleaner were then together. On 23.3.2008, according to this witness, when his employer called at 6 in the morning, he went home and he along with Mehtaji Shamji had gone to Tankara cross roads near Lajai. The truck was parked at Raviraj cross roads and the cleaner Pravin was sitting in the truck. Both the driver and cleaner were then together. On 23.3.2008, according to this witness, when his employer called at 6 in the morning, he went home and he along with Mehtaji Shamji had gone to Tankara cross roads near Lajai. The truck was parked at Raviraj cross roads and the cleaner Pravin was sitting in the truck. Driver's body was also lying in the truck. When questioned about the incident, Pravin informed them that four persons had come in the utility vehicle and they had intercepted the truck and robbed them of the cash that they were carrying. Pravin had not sustained any injuries. His employer thereafter informed the Tankara police station, Pravin then lodged the FIR. 07.03.2017 This witness was cross examined but nothing substantial turns out in his cross examination. 4. Rajesh Bijalbhai Aahir, Prosecution Witness No. 7, who is the owner of cutlery shop and had sold the knife to the accused was examined at exh. 36. This witness in his testimony states that one person had come and purchased two knives. This witness however, could not identify the accused. In his cross examination, it has come on record that this witness was not presented for test identification parade so as to identify the accused. 5. Kishor Prabhatbhai Dangar, Prosecution Witness No. 8 who is examined at exh. 42 is the panch witness to the panchnama of the cabin of the truck. Panchnama is produced at exh. 43. A perusal of the panchnama reveals that bloodstains were found in the cabin and on the back seat. 6. Ashokbhai Najabhai, Prosecution Witness No. 10, exh. 46, is the panch witness to discovery panchnama exh. 47. This witness has supported the panchnama. According to the panchnama, the accused led the police party to a place near the bus-stand and from a heap of sand near the wall, hundred rupee denomination notes were found. A hundred rupee note was stained with blood. 7. Discovery panchnama by which the accused led the police party to discover the knife used for the offence is at exh. 50. 8. Premjibhai Ramjibhai, Prosecution Witness No. 11, exh. 49, however, though has turned hostile, did admit his signatures on the panchnama. 9. The Executive Magistrate, Ramabhai Dhanabhai Parmar, who carried out test identification parade has been examined as Prosecution Witness No. 14 at exh. 54. 50. 8. Premjibhai Ramjibhai, Prosecution Witness No. 11, exh. 49, however, though has turned hostile, did admit his signatures on the panchnama. 9. The Executive Magistrate, Ramabhai Dhanabhai Parmar, who carried out test identification parade has been examined as Prosecution Witness No. 14 at exh. 54. On reading the evidence of this witness, it comes out that test identification parade was carried on 27.3.2008 at 4 in the evening. It may at this stage be noted that test identification parade of the accused at the hands of Prosecution Witness No. 2 Dungarbhai Veljibhai Patel, the watchman, is not of much significance in view of the fact that it has come on record through the testimony of this witness that he has seen the accused on previous day at the police station. 10. Investigating officer Jayantilal Jethabhai Chaudhary, Prosecution Witness No. 16 has been examined at exh. 61. The defence has tried to point out the flaw in the investigation by indicating that in the cross examination it has come out that the police officer Hemandrasinh who recorded the complaint has not been examined during the course of investigation. 11. Tansukhbhai Nathalal Ashra, Prosecution Witness No. 17, the Scientific Officer, was examined at exh. 79. On perusal of his examination-in-chief, it is revealed that bloodstains were found in the cabin of the truck on the footrest and on the back seat of the cabin. The handle of the knife was found from the floor of the truck which was bloodstained. No bloodstains were found on driver's seat. Slippers of the driver were found at the place where they should have been. On the examination of the body of the victim, according to this witness, the injuries were as a result of knife blows. Injuries could have been sustained only as a result of use of a single weapon being used. He also found injuries on the hand of the accused which raised suspicion. 12. Based on this evidence, learned Sessions Judge, convicted the accused for the offence under sections 302, 397 and 203 of the Indian Penal Code and section 135 of the Bombay Police Act. 13. Evidently there is no eyewitness to the incident and, therefore, the entire case of the prosecution is based on circumstantial evidence. 12. Based on this evidence, learned Sessions Judge, convicted the accused for the offence under sections 302, 397 and 203 of the Indian Penal Code and section 135 of the Bombay Police Act. 13. Evidently there is no eyewitness to the incident and, therefore, the entire case of the prosecution is based on circumstantial evidence. If so, all circumstances put together and all links in the chain must lead to an inevitable conclusion of the guilt of the accused. It is in light of this nature of evidence that we need to assess the evidence on record to come to a particular conclusion. 14. Navdhanbhai Vasanbhai Aahir, Prosecution Witness No. 3 is the owner of transport company to whom the truck in question belonged. This witness in his testimony confirms that deceased Vinodbhai and the accused Pravin were engaged with the truck as driver and cleaner respectively. On the date of the incident, i.e. on 22.3.2008, the truck was going from Abdasa to Bhavnagar carrying the consignment of cement from Sanghi cement company. On 22.3.2008, this witness states that he received a call at 8 pm from the driver Vishnu asking for cash in order to refuel the truck. According to him, he was at the Gujarat Petrol pump. This witness further states that on a call being so received, he sent his manager Makanji Prosecution Witness No. 4 to the petrol pump with the cash amount. Makanji also confirms that pursuant to the call that he received from his employer and on being so instructed, he carried Rs. 10,000/- in cash and went to the Gujarat petrol pump at Ratnal in the evening at 8. He handed over Rs. 9000/- to the driver. At that point of time, both the driver and the cleaner were together. On further reading of testimony of both the witnesses Navdhanbhai Vasanbhai Aahir, Prosecution Witness No. 3 and that of Makanjibhai Kanjibhai, Prosecution Witness No. 4, it further comes out that on 23.3.2008 at 6 in the morning Pravin called them up and informed them that four persons had approached in a utility vehicle and robbed them of the cash of Rs. 9000/- and killed the driver. On receiving such call both Navdhanbhai and Makanjibhai together with their accountant went to Lajai vadi where they found the truck. 9000/- and killed the driver. On receiving such call both Navdhanbhai and Makanjibhai together with their accountant went to Lajai vadi where they found the truck. Pravin was sitting in the truck and body of Vinodbhai was lying on the back seat with stab wounds. The police were summoned. Pravin lodged the police complaint. 15. At this stage, we may assess the testimony of Prosecution Witness No. 2 Dungarbhai Veljibhai Patel who though has turned hostile in examination-in-chief did indicate that he was working as a watchman at Bhagyalakshmi hotel at Raviraj cross roads. On 22.3.2008, at around 10:30 to 11 in the night, he saw the truck in question with two persons, the driver and the cleaner. They requested that they be permitted to park the truck so that they can rest. He permitted them to do so. At early hours around 2:30 to 3 on 23rd the truck left. He saw the cleaner and he knew him. On being asked he named the cleaner as Pravinbhai Panchabhai. 16. In context of this evidence, we need to read the FIR lodged by the accused Pravin on 23.3.2008. In the FIR that he filed, he stated that after refilling of fuel on 22.3.2008, at 8:00 pm, they left for Maliya. While they were sleeping in the truck after having food at 11:30 at a food joint, at around 2:30 or 3:00 on 23rd early morning, near Morbi he heard shouts of the driver. He found that the driver in the cabin was being attacked by three persons and they were attacking him with knives. He raised an alarm as a result of which the three got down from the cabin and boarded the utility vehicle parked at a distance and ran away. He took to the wheels of the truck and tried to follow them. Since the driver was injured, he thought of shifting him to the hospital and he inquired about a nearby hospital from a police person whom he met on the way. According to the version in the FIR, in a hurry to locate the hospital, through oversight, he took Rajkot road. He tried to contact his employer through the mobile phone of the driver but he could not connect him. According to the version in the FIR, in a hurry to locate the hospital, through oversight, he took Rajkot road. He tried to contact his employer through the mobile phone of the driver but he could not connect him. It was only at 6 in the morning that he found a shop and from the land-line number of the shop, he contacted his employer and informed that the driver had been done to death and they had been robbed of cash of Rs. 9000/-. In the statement recorded under section 313 of the Code of Criminal Procedure, accused has clearly disowned the version in the FIR inasmuch as he has denied the fact that he was employed or engaged as a cleaner and even that the incident in question did not occur. 17. In light of these facts when the evidence of Navdhanbhai Vasanbhai Aahir Prosecution Witness No. 3 and the manager Makanjibhai Kanjibhai Prosecution Witness No. 4 is assessed, it is an undisputed conclusion that both the victim Vinodbhai and the accused Pravin were engaged as the driver and the cleaner respectively and that they were together on 22.3.2008 at the petrol pump when the cash amount of Rs. 9000/- was handed over by Makanjibhai to the driver; that the cash was in the possession of the driver was in the exclusive knowledge of the accused Pravin. Both Pravin and the driver were last seen together as is evident from the statement of Prosecution Witness No. 2 Dungarbhai Veljibhai Patel, the watchman, who had permitted them to park the truck and rest for a while at Bhagyalakshmi hotel at Raviraj cross roads. 18. If the version of the accused is examined in light of these evidence on record, it becomes evident that the version as was narrated by the complainant ought not to be believed. According to the complainant, while he was asleep, three persons attacked the deceased driver Vinodbhai. On hearing the shouts of the driver, he got up. Thereupon, the three so-called assailants ran away from the scene of the incident. He took the wheels of the truck, drove the truck to some distance, found a policeman, inquired about a hospital from him and through oversight took the Rajkot highway road. The mobile phone could not be used to inform the employer because he could not connect the employer's phone. He took the wheels of the truck, drove the truck to some distance, found a policeman, inquired about a hospital from him and through oversight took the Rajkot highway road. The mobile phone could not be used to inform the employer because he could not connect the employer's phone. It was only four hours after the alleged robbery that at 6 in the morning did he contact his employer and informed him that they had been robbed of amount of Rs. 9000/- and that the driver had been done to death. The conduct of this accused in explaining the incident is highly suspicious in view of the fact that though he found a policeman on the way immediately after the so-called incident, he did not think it fit to stop and inform the policeman. He only called up his employer four hours after the incident happened at 6 am in the morning through a land-line evidently when he had a mobile which could have been used by him to contact and pass on the information. When this story is examined in context of the provisions of Section 8 of the Evidence Act the conduct explained in the FIR has a close nexus with the offence. The statements therefore become admissible against him. He was the only person who had the knowledge that his employer had handed over cash to the Driver. Motive therefore was strong. The accused/complainant in his statements under Section 313 of the Criminal Procedure Code failed to discharge this burden as the only thing he stated was that he denied the employment as a cleaner completely. Nothing further was stated to come over his conduct and therefore in context of the act committed and in absence of any denial such conduct becomes admissible as a circumstance against the complainant/accused. 19. Further in light of the corroborative evidence that has been produced on record in terms of discovery panchama at exh. 47 and exh. 50 by which Rs. 9000/- cash was recovered and particularly one bloodstained note of Rs. 19. Further in light of the corroborative evidence that has been produced on record in terms of discovery panchama at exh. 47 and exh. 50 by which Rs. 9000/- cash was recovered and particularly one bloodstained note of Rs. 100/- denomination was also recovered and the knife used by the accused was recovered together with the scientific evidence of the FSL which confirms that the blood group on the knife and the note matched with that of the deceased, an inescapable conclusion can be reached that the version as narrated in the FIR in context of the evidence on record cannot be believed. 20. The Scientific Officer Tansukhbhai Nathalal Ashra, Prosecution Witness No. 17 has also categorically in his evidence stated that on the examination of the body of the victim, it becomes apparent that the injuries caused were as a result of a single weapon used. From the examination of the cabin of the truck as well as the slippers of the driver which were found at the place where they should have been, the theory putforth by the accused that more than one person or at-least three of them entered the truck's cabin and attacked the victim stands discounted by this evidence. 21. That the accused had a motive to rob the driver of the cash in hand also stands substantiated in view of the fact that it was in exclusive knowledge of the accused that driver was in possession of the cash. This is evident from the testimony of Navdhanbhai Vasanbhai Aahir Prosecution Witness No. 3 and the manager Makanjibhai Kanjibhai Prosecution Witness No. 4 who have testified that cash was handed over to the driver and at that point of time the cleaner was present. Obviously, therefore, except the cleaner nobody else was in the knowledge of the fact that they were carrying cash of Rs. 9000/-. 22. Counsel for the defence has tried to discount the evidence of discovery panchnama exh. 50 pursuant to which knife has been recovered by stating that if the time as noted in the discovery panchnama is compared with the time of the test identification parade carried out, the time coincides. According to the counsel for the defence therefore, the witness was present to carry out the discovery cannot be believed. 50 pursuant to which knife has been recovered by stating that if the time as noted in the discovery panchnama is compared with the time of the test identification parade carried out, the time coincides. According to the counsel for the defence therefore, the witness was present to carry out the discovery cannot be believed. Upon closely examining this argument of the learned counsel for the defence, though the times of carrying out panchnamas could overlap inasmuch as the exercise of writing the panchnama in question would so to save the overlap, however it is evident from reading the testimony of the Executive Magistrate who carried out the test identification parade that such test identification parade was held at 16 hours in the evening whereas the panchanama pursuant to which discovery was made at exh. 50 at 17:15 hours in the evening. Further as is evident from the testimony of the Scientific Officer Tansukhbhai Nathalal Ashra, Prosecution Witness No. 17, he found the injury on the left hand of the accused which the accused could not explain. 23. All these circumstances put together clearly prove that both the driver and the cleaner were in each others company on 22.3.2008; that the cash amount of Rs. 9000/- was handed over by the manager Makanjibhai Kanjibhai Prosecution Witness No. 4 under the instructions of his employer Navdhanbhai Vasanbhai Aahir Prosecution Witness No. 3 in presence of the cleaner and subsequently, the watchman Prosecution Witness No. 2 Dungarbhai Veljibhai Patel had seen the two in the truck. All these put together establish the fact that both the driver victim and the cleaner -the accused were together; that the accused was in the exclusive knowledge of the fact that the driver was carrying cash of Rs. 9000/-. The motive to rob the driver of such cash was strong enough. The corroborative evidence of the discoveries carried out and the scientific evidence in terms of FSL report together with the testimony of Scientific Officer Prosecution Witness No. 17 established a link in the chain inasmuch as that from the examination of the cabin of the truck it was revealed that the attack was carried out by a single weapon by one person. The bloodstains found on the notes and knife and the note matched with that of the deceased. 24. The bloodstains found on the notes and knife and the note matched with that of the deceased. 24. Taking into consideration all these circumstances and the evidence on record, the only conclusion that can be reached is that it was the accused motivated with the fact that he wanted to rob the driver of the cash, carried out the act of murdering the driver and robbing of the cash and thereafter, putting forth a false theory of having been robbed at the hands of others. Learned trial Judge also has come to the conclusion that the evidence on record substantiates the case of the defence for which the accused have been charged. On independent assessment of the evidence, we find no reason to differ with the view taken by the learned Sessions Judge. 25. The Criminal Appeal stands dismissed. R&P may be transmitted back to the concerned trial Court. Appeal Dismissed