JUDGMENT GOVERDHAN BARDHAR, J. 1. This criminal appeal has been filed under section 374 Cr.P.C. against the judgment and order of conviction dated 30.03.2011 passed by the Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur in Sessions Case No. 67/2009, whereby the accused appellant was convicted and sentenced for the offences under Sections 302,363,365 and 201 IPC as under: Under section 302 IPC Life imprisonment and a fine of Rs. 5000/-, in default of payment of fine, to further undergo six months simple imprisonment. Under Section 363 IPC Five years simple imprisonment and a fine of Rs. 2000/-, in default of payment of fine, to further undergo one month simple imprisonment. Under Section 365 IPC Five Years simple imprisonment and a fine of Rs. 2000/-, in default of payment of fine, to further undergo one month simple imprisonment. Under section 201 IPC Five years simple imprisonment and a fine of Rs. 2000/-, in default of fine, to further undergo one month simple imprisonment. 2. Brief facts of the case are that a written report (Ex. P/8) was submitted by Ajay Kumar Agarwal resident of 3- Laxmi Nagar, Niwaru Road, Jhotwara to the SHO, Police Station Jhotwara, interalia alleging therein that on 22.05.2009, his son-Nanu, aged about 3 years was missing since 6 PM. He was wearing orange and red colour clothes. The police, on that basis, registered a missing person report No. 18/2009 and entrusted the investigation to Pooran Singh, Sub-Inspector of Police Station Jhotwara. As the missing child could not be traced out, the complainant Ajay Kumar Agarwal again submitted a written report on 23.05.2009 stating that his missing child has not been found despite all efforts and it appears that he might have been kidnapped by someone. Upon receiving the above written report, an FIR No. 246/2009 was registered for offence under Section 363 IPC. During investigation, at around 12:10 p.m. a telephonic call was received from one Shyam Lal who informed that a body of a child aged 2-3 years was lying in a house under construction in the RIICO industrial area, Salasar Vatika. On this information, investigating officer reached at the spot and informed the complainant about the dead body, which was identified by complainant Ajay Kumar Agarwal as body of his son Nanu @ Nitin. After identification of body offence of murder was added against unknown person. On this information, investigating officer reached at the spot and informed the complainant about the dead body, which was identified by complainant Ajay Kumar Agarwal as body of his son Nanu @ Nitin. After identification of body offence of murder was added against unknown person. Post mortem of dead body was conducted by a medical board on 23.05.2009. During investigation, the statements of complainant Ajay Kumar Agarwal (PW26), Jagdish Prasad (PW3), Sita Devi (PW2), Sunil Kumar Sharma(PW1), Shyam Lal (PW13), Gyan Chand Soni(PW9), Brisjkishore (PW8) and Gopal Lal (PW30) were recorded. On 23/5/2009 at 8.05 PM appellant Mahendra @ Mali was arrested from his house. After completion of investigation, charge sheet was submitted against the accused appellant for offence under Sections 302, 365, 366 and 201 IPC. The trial court after hearing learned counsel for the parties framed charges under section 302,363,365 and 201 IPC against the accused appellant. He denied the charges and claimed trial. Prosecution in support of its case examined as many as 34 witnesses and exhibited 48 documents and in defence, the accused appellant examined 3 witnesses and exhibited 6 documents. 3. Learned trial court, after consideration of the entire evidence and the submissions of the learned counsel for the parties convicted and sentenced the accused appellant as stated above. 4. Mr. RN Mathur Sr. Advocate, learned counsel for the accused appellant has submitted that the trial court erred in convicting the appellant on the evidence of last seen given by PW1 Sunil Kumar Sharma and PW-11 Rajkamal Sharma. Dilip Kumar who is owner of Madhu Fancy Store where PW-1 Sunil Kumar Sharma was said to have been sitting when appellant was said to have been carrying the deceased Nanu was the person who could have very well verified the correctness of the statement of Sunil Kumar. Smt. Neelam mother of the child (PW-5) in her statement categorically stated that at about 6:15 pm accused brought back Nanu from the house of uncle of the deceased and thereafter she gave juice to the deceased child. This fact indicates that accused and deceased were in company till 6:15 p.m. and the accused appellant brought child back to his home from the house of uncle of the deceased. Thereafter, mother of the child gave juice to the child. This fact indicates that accused and deceased were in company till 6:15 p.m. and the accused appellant brought child back to his home from the house of uncle of the deceased. Thereafter, mother of the child gave juice to the child. Statement of PW-1 Sunil Kumar Sharma becomes unreliable as there was neither any occasion to sit at the shop nor the shopkeeper verified that the above witness was sitting at his shop. Similarly PW-11 Raj Kamal Sharma is one of last seen witness, who has not stated truth as he stated that at about 6:45 pm., accused was carrying deceased child. He has stated that he talked with the accused who was in company of the deceased child, but did not state that why had he gone to Sardarji Ka Farm. The entire evidence of Rajkamal Sharma is contradictory and unreliable . 5. Apart from last seen evidence, there is no other evidence against accused to complete the chain of circumstance and it is nothing to prove guilt of committing murder of the deceased child. 6. Learned counsel further submitted that the trial court erred in attributing the motive of murder of a child, who was in near relation. On account of communicating in harsh word, the complainant Ajay Kumar Agarwal, mother of the deceased, father and mother of the complainant, none of them has stated about the rented shop when and whose shop was taken on rent to establish the accused in profession. The place from where body of the deceased was found is approximately one and half KM. from the house of the deceased which was under construction but no evidence was led that no worker used to live. The trial court did not appreciate that Mahendra Agarwal himself was searching the child and as per DW-2 Suresh Kumar on request of Ajay Kumar, Mahendra Kumar @ Mali was sent to the house of complainant for searching the child. Prahlad (PW10) has categorically stated that the report was prepared in the office of Deputy Superintendent of Police and not on the sport. Hence, the trial court has committed illegality in convicting the accused appellant. 7. Learned Public Prosecutor has opposed the submissions advanced by learned counsel for the accused appellant and submitted that the trial court has rightly convicted and sentenced the accused appellant. 8. Hence, the trial court has committed illegality in convicting the accused appellant. 7. Learned Public Prosecutor has opposed the submissions advanced by learned counsel for the accused appellant and submitted that the trial court has rightly convicted and sentenced the accused appellant. 8. Heard learned counsel for the parties and perused the relevant material placed before us. 9. Pw/24 Pooran Singh deposed that he was posted as Sub Inspector, Police Station, Jhotwara on 22/05/2009. On that day, at about 8:40 PM he received a missing person report Ex.P/8 from complainant Ajay Kumar Agarwal. On that, he accompanied with complainant and recorded his statement Ex. P/38 and started investigation. When Nanu @ Nitin was not traced out, a written report was again submitted by the complainant on 23/5/2009, upon which, an FIR No.246/2009 was registered for the offence under sections 363 and 365 IPC. During investigation, he recorded statements of Jagdish Prasad (PW3),Smt. Neelam Agarwal (PW5), Smt. Sitadevi (PW2), Rajkamal Sharma(PW11), Sunil Kumar Sharma (PW1), Shyam Lal Saini (PW13) and Bharat Singh (PW18). He further deposed that on 23/05/2009 at about 12:10 PM, he received a telephonic call by which he was informed that at Salasar Vatika in a plot which was under construction, a corpse of child around 2-3 years was lying there. On receiving this information, he along with constable Balram reached at the place of occurrence where already a large number of people were there. The corpse was covered with three sacks of cement and upon which some stones were also there. He further deposed that on interrogation, the accused appellant confessed his guilt and he was arrested on the 23/05/2009. His arrest memo is ExP3 on which E to F are his signatures and G to H are the signatures of the accused and A to B and C to D are the signatures of the witnesses. Upon information given under section 27 of the Evidence Act, at the instance of the accused appellant, his clothes were recovered which were worn by him at the time of killing the child. Accused appellant disclosed about the place of occurrence where the deceased Nitin was killed and he also informed about the chappals which the deceased wore, which is Ex. P/16.During investigation, on 24/5/2009 pants and shirt of accused appellant were recovered which is Ex.P32. Accused appellant disclosed about the place of occurrence where the deceased Nitin was killed and he also informed about the chappals which the deceased wore, which is Ex. P/16.During investigation, on 24/5/2009 pants and shirt of accused appellant were recovered which is Ex.P32. Blood smeared soil, stones, simple soil, three plastic sacks shirt, nikar, pants and shirt of accused were sent to Forensic Science Laboratory and FSL reports are Ex.P/41, Ex.42 and P/46 which indicate that human blood was present on the blood smeared soil, three pieces of stones, simple soil, three plastic sacks, shirt of the deceased and shirt recovered at the instance of the accused. In cross examination, he deposed that the accused appellant has accepted that he had brought back the child to the house of complainant but after that he again took the child for playing outside. 10. Dr. Vijay Kumar Sharma (PW/7) one of the members of the medical board who conducted the post mortem of deceased Nitin @ Nanu deposed that cause of death of the deceased Nanu was asphyxia due to suffocation as a result of mechanical pressure over nose and mouth which was sufficient to cause death in ordinary course of nature. 11. Mobile Forensic Team visited the spot on 23/5/2009 pertaining to murder of deceased Nanu and the FSL report is EX.P/17 which reveals that upper half portion of the boy was kept under three big stones and plastic bags and it was concluded that from the available evidence, the possibility of struggle before the incident is indicated. 12. Pw/26 Ajay Kumar Agrawal deposed that his child Nanu was accustomed to go outside only with his nephew Mahendra @ Mali who used to come to his house regularly and on 22/5/2009, he, his wife, son Nanu and the accused appellant were at home at about 6 PM and outside the home, his child was playing with Mahendra @ Mali. Thereafter he came to know that his son was not at home. He made a telephonic call to accused appellant but he did not respond. Then he again called Mahendra, to know whereabouts of the child he told that he had dropped the child with his grand maternal father. Thereafter he came to know that his son was not at home. He made a telephonic call to accused appellant but he did not respond. Then he again called Mahendra, to know whereabouts of the child he told that he had dropped the child with his grand maternal father. After that whole family looked for the child, PW-26 further deposed that he doubted the accused appellant of abducting the child as accused was having an unnatural and suspicious behavior but not disclosing any clue about the whereabouts of the missing child. 13. The prosecution founded its case on circumstantial evidence, therefore, we have to examine whether the circumstances from which an inference of guilt is sought to be drawn, have been cogently and firmly established and the circumstances are of a definite tendency unerringly pointing towards the guilt of the appellant; the circumstances, taken cumulatively, 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 appellant and none else. 14. Pw-1 Sunil Kumar Sharma deposed that he knew the family members of complainant Ajay Kumar as also his nephew(bhanja) accused Mahendra Agarwal @ Mali. On 22.05.2009, in the evening at about 6:45 p.m. near his house he was sitting at Madhu Fancy Store. He saw accused appellant Mahendra Agarwal @ Malli who was carrying Nittin @ Nanu in the direction towards the 'Sardar Ji Ka Farm'. When he asked the accused appellant he replied that he was carrying Nitin for joy and giving something to eat to make happy, and thereafter, he had taken the child towards the 'Sardar Ji Ka Farm'. After that, he came to know that Nanu @ Nitin was killed and his corpse was found near the farm house of Sardar at Salasar Vatika. In cross-examination, he deposed that on 23.05.2009 after having known that the child of complainant had been abducted by some one,he went to the house of complainant at about 8:00 AM where he told to the wife of complainant Smt. Neelam Agarwal that on 22.05.2009 when he was sitting at Madhu Fancy Store he saw accused appellant carrying Nitin @ Nanu with him. 15. 15. Pw11 Raj Kamal Sharma another last seen witness deposed that on 22/05/2009, in the evening he was going from his house to Dadi ka Phathak, at about 6:45 p.m. in front of the field of Sardar ji near Salasar Vatika, accused appellant was going with son of Ajay. When he asked him to accompany, accused appellant refused by saying, uncle he brought Nitin @ Nanu for outing and joy. 16. Jagdish Prasad (PW3) deposed that on 22/5/2009, accused appellant came to his house at about 2-2.30 PM and he took Nanu to temple. Smt. Neelam Agarwal deposed that house of his sister in law (Devrani) was also in the same locality at some distance and when she and her Devrani were talking with each other, accused appellant Mali @ Mahendra asked that he was taking Nanu to her house and then she returned at about 6-6:15 PM and gave juice to Nanu. After that Nanu was playing with accused appellant. It shows that the accused appellant was present in the house of his maternal uncle on 22/5/2009 at about 6 PM and the accused and deceased were last seen together. 17. In State of U.P. v. Satish, (2005) 3 SCC 114 , their Lordships of Supreme Court had occasion to consider "last seen theory" and it was indicated as under: (Para 22) "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In Ramreddy Rajesh Khanna Reddy v. State of A.P, (2006) 10 SCC 172 , the Apex Court held that last seen theory comes into play where the time-gap between the point of time when the accused and the .deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In Mohibur Rahman v. State of Assam, (2002) 6 SCC 715 the Apex Court held as under: "The circumstances of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach in irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide." 18. In the case in hand, deceased was about 3 years old child, unless someone take him out of home, it was not possible to go out alone and cover the distance of about 1 Kms of the place of occurrence. 19. Jagdish Prasad (PW3) deposed that his son Ajay used to counsel the accused appellant to find out some work as he had no work to do. But the accused appellant took it as insult. He further deposed that when his grand son was not traced out then he told his son to make a telephonic call to accused appellant, then the accused appellant after receiving the call, came in a frightened mood and told that he had left Nanu and after that they all involved in searching the child. 20. Smt. Neelam Agarwal (PW5) mother of the deceased deposed that her husband owned a shop of building material and a showroom named as Nitin Enterprises. 20. Smt. Neelam Agarwal (PW5) mother of the deceased deposed that her husband owned a shop of building material and a showroom named as Nitin Enterprises. She also deposed that Nitin is the only child born out of their wedlock after seven years of their marriage, accused appellant told her maternal grand mother that It shows disgruntled attitude towards her maternal uncle. She in her statement recorded under section 161 Cr.P.C stated that Nitin @ Nanu was her only child and she was blessed with Nitin after seven years of her marriage and prior to the birth of Nitin the accused and his brother were under hope that they would get all the family business. The motive is something which prompts a person to form an opinion or intention to do certain illegal act with a view to achieve the intention. It clearly appears that accused Mahendra Agarwal had strong motive to do away with deceased Nitin @ Nanu to achieve his obvious desire. 21. In the case Ganeshlal vs State of Maharashtra, (1992) 3 SCC 106 , it has been observed: "The evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence. But in circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction. 22. The prosecution witnesses are in near relation of the accused as they are maternal grandfather, maternal grandmother and maternal uncle and there is no question to rope the accused appellant in a false case. 23. Ex. P/41 is FSL report which reveals that human blood was found on the shirt of the deceased-Nanu and the shirt of the accused appellant which was recovered at his instance and the accused appellant did not give any explanation in his statement recorded under Section 313 Cr.P.C. 24. 23. Ex. P/41 is FSL report which reveals that human blood was found on the shirt of the deceased-Nanu and the shirt of the accused appellant which was recovered at his instance and the accused appellant did not give any explanation in his statement recorded under Section 313 Cr.P.C. 24. It is pertinent to note that the appellant in his statement recorded under Section 313 of Cr.P.C., took the defence that he used to go to the house of maternal uncle regularly and returned back after playing with the child and complainant is his maternal uncle. In the evening at about 6 PM, he returned after dropping the child at the shop. Maternal grand father was reading the newspaper and returned after informing that he dropped the child in the house, therefore, the defence taken by the appellant in statement under Section 313 of CrPC is afterthought. 25. In Munna Kumar Upadhyaya @ Munna Vs. State of Andhara Pradesh, (2012) 6 SCC 174 , Hon'ble Apex Court has held that statement under Section 313 of Cr.P.C. is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly, to use denials of established facts as incriminating evidence against him. If the accused gave incorrect or false answers during the course of his statement under Section 313 of Cr.P.C., the Court can draw adverse inference against him. 26. From the facts established, we find that the circumstances so established are consistent only with the guilt of appellant and none else. The evidence produced by the prosecution is cogent and reliable and the prosecution has successfully proved the charge of Sections 302, 363, 365 and 201 of IPC against the accused-appellant beyond reasonable doubt. The learned trial court has looked into every material aspect of the matter and was fully justified in convicting the appellants. 27. For above said reasons, we find no merit in this appeal and it is accordingly dismissed. Conviction and sentence of accused appellant is maintained.