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2018 DIGILAW 373 (ALL)

MONTU @ PRASHANT v. STATE OF U. P.

2018-02-09

KRISHNA PRATAP SINGH, SHASHI KANT GUPTA

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JUDGMENT : Krishna Pratap Singh, J. 1. After being convicted and sentenced in ST No. 687 of 2011 arising out of Case Crime No. 129 of 2011, under section 302 read with section 34 IPC, Police station Nakud, district Saharanpur by the learned Additional Sessions Judge (Ex-cadre-2) Saharanpur vide judgement and order dated 30.5.2013, the accused appellant Montu alias Prashant filed Criminal Appeal No. 2564 of 2013 and accused appellant Smt. Maya Devi filed Criminal Jail Appeal No. 5107 of 2013. 2. By the impugned judgement and order Additional Sessions Judge has convicted and sentenced the accused appellants to life imprisonment under section 302 read with section 34 IPC and a fine of Rs. 10,000/- each and in default of payment of fine, the appellants were further directed to undergo one year's simple imprisonment each. However, by the same order, the learned Additional Sessions Judge has acquitted the co-accused Bhagat Singh of the charges levelled against him. 3. Since both the aforecaptioned criminal appeals have been filed against a judgement and order dated 30.5.2013 passed by the Additional Sessions Judge (Ex-cadre-2), Saharanpur in ST No. 687 of 2011, under section 302 IPC read with section 34 IPC, police station Nakud, district Saharanpur, both the appeals have been heard together and are being disposed of by means of this common judgement. 4. In short compass, the facts of the case are that on 28.2.2011, a written report was given by the complainant of the case Sushil Kumar Kashyap, son of Rahtu Singh, resident of village Tigri Ramgarh, police station Nakud, district Saharanpur to the effect that his son Deepak, aged 12 years had gone to Shiv Saraswati Public Junior High School, Tigri Ramgarh and returned at about 11 noon. After some time he has left the home. At about 4.00 PM, when Smt. Jaswati, wife of Pradeep Kashyap and Km. Pinki, daughter of Gopal Kashyap had gone to their sugarcane field to attend the call of nature, they saw a dead body of a child. They told about the dead body to Mukesh Kumar and Pintu, the teachers of the school which was situated near the place of incident, who recognized the dead body to be that of Deepak and information thereof was conveyed to the informant and his family members. They told about the dead body to Mukesh Kumar and Pintu, the teachers of the school which was situated near the place of incident, who recognized the dead body to be that of Deepak and information thereof was conveyed to the informant and his family members. The dead body of Deepak was brought home by his brother Babli and his wife Smt. Munni with the assistance of the villagers. When he reached the home, he saw that there were serious injuries on the person of Deepak on back of neck, right side of face, front side of ear, on the neck, back side of left ear and on the head, due to which Deepak, the deceased died. 5. On the basis of the aforesaid report a case was registered at Case Crime No. 129 of 2011, under section 302 IPC, at police station Nakud, district Saharanpur against unknown person. 6. After the registration of the case, the investigation of the case was started by Station Officer Bulaki Ram Verma, PW-7, who visited the place of occurrence on 01.3.2011 and on the pointing out of the complainant, prepared site plan, Ext. Ka 10. He also recorded the statement of Omwati, PW-4 and Rahtu Singh and collected the plain and blood stained earth from the place of occurrence. He also recovered a Daranti ( a kind of sickle), a cap and chunni ( a piece of cloth )from the place of occurrence and recovery memo Ext. Ka-4 was prepared. On 20.3.2011 he recorded the statement of scriber of FIR Madan Pal and witnesses of inquest report, Vikram, Ved Pal, Babli, Shiv Kumar and Jag Pal. The investigating officer also interrogated accused appellant Smt. Maya Devi, who confessed her guilt and on her pointing out bloodstained clothes, bloodstained axe were recovered from the loft Taand of her house and recovery memo Ext. Ka-2 was prepared. On 03.3.2011, the investigating officer arrested Bharat and Montu, who were the co-accused of the crime and recorded their statement. Co-accused Prince had surrendered in the Court on 19.3.2011. The investigating officer took the accused Prince on police custody on remand and on his pointing out one knife was recovered. He also prepared the recovery memo of the knife Ext. Ka-12. After completing the investigatory formalities, on the basis of sufficient evidence, charge sheet Ext. Ka-11 was submitted. The Forensic Science Laboratory Report is Ext. Ka-14. 7. The investigating officer took the accused Prince on police custody on remand and on his pointing out one knife was recovered. He also prepared the recovery memo of the knife Ext. Ka-12. After completing the investigatory formalities, on the basis of sufficient evidence, charge sheet Ext. Ka-11 was submitted. The Forensic Science Laboratory Report is Ext. Ka-14. 7. Post-mortem examination on the dead body of the deceased Deepak was performed by Dr. Narendra Kumar, PW-6 on 01.3.2011 at about 3.30 PM. The dead body was brought to the doctor by Constable 112 Ved Pal Singh and Constable 1573 Harendra Singh along with police papers and duly sealed body. Doctor compared the seal, which was found correct. The age of the deceased was found about 12 years. He was of average built. Rigor mortis was passing on upper limb and present in lower limb. Clotted blood was present on the face and skull. 8. Doctor Narendra Kumar found the following ante-mortem injuries on the body of the deceased: 1. Incised wound 10.06 cm x 2.0 cm x bone deep on right side of face, on vertical position in front of right ear and extending up to temporal region of skull. 2. Incised wound 4 cm x 2 cm x bone deep on left side of skull, 1.5 cm back to the left ear. 3. Incised wound 10 cm x 4 cm x bone deep on back of neck and upper most part of neck in horizon places on right side 5 cm medieval to ear and on left side 2 cm medieval to left year, 3 cm above to the vertebrae. All soft tissues, muscles blood vessels and spinal cords are cut. 4. Incised wound 3 cm x 2 cm bone deep on dorsum of left hand and on index and middle finger and bone below the wound was also cut. 9. On internal examination doctor found that right and left temporal bone of skull was cut, C1 and C2 bones of the neck were also cut. Spinal cord was also cut below the wound. 10. The cause of death of the deceased was shock and hemorrhage due to ante-mortem injuries. The post-mortem report of the deceased is Ext. Ka-9. 11. On the strength of the submitted charge sheet the accused appellants were summoned. Spinal cord was also cut below the wound. 10. The cause of death of the deceased was shock and hemorrhage due to ante-mortem injuries. The post-mortem report of the deceased is Ext. Ka-9. 11. On the strength of the submitted charge sheet the accused appellants were summoned. Since the disclosed offences were exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions where it was registered as ST No. 687 of 2011 (State Vs. Smt. Maya Devi and others).The aforesaid Sessions trial was transferred to the Additional Sessions Judge, Ex-cadre-2, Saharanpur for trial. 12. Learned Additional Sessions Judge charged the accused-appellants with the offences under section 302 IPC read with section 34 IPC on 30.1.2012. The charges after being read over and explained to all the accused, they pleaded not guilty and claimed to be tried and consequently sessions trial procedure was restored to establish their guilt. 13. In order to prove its case, the prosecution has examined complaint Sushil, PW-1, Babli, PW-2, Rajveer, PW-3 and Omwati, PW-4 as witnesses of fact. SI Rajveer Singh, PW 5 is the formal witness who prepared inquest memo Ext-Ka-3 of deceased Deepak and other relevant papers, i.e. challan lash, photo lash letter to RI and letter to CMO were also prepared by him, which are Exts. Ka-5 to Ka-8. Dr. Narendra Kumar, PW 6 is also formal witness who conducted the post-mortem examination of the deceased Deepak, Investigating officer SO Bulaki Ram Verma, PW 7 has conducted the investigation of the case and submitted the charge sheet against the accused-appellants. Constable Shakeel Ahmad, PW-8 is also formal witness, who has prepared chik report Ext. Ka-15 and GD of the case Ext. ka-16. 14. Accused-appellant Smt. Maya Devi in her statement under section 313 Cr.P.C. has completely denied the prosecution case and stated that she had been falsely implicated in this case due to some family dispute. She has further stated that she had not given any statement to the police and that she had not confessed the guilt. 15. Accused-appellant Montu alias Prashant has also totally denied the case of the prosecution and stated that he does not live in village Nakud. He does sewing work. He has no relation to the co-accused Prince. During checking of vehicles police party has apprehended him near bus stand where he was going on his motorcycle. 15. Accused-appellant Montu alias Prashant has also totally denied the case of the prosecution and stated that he does not live in village Nakud. He does sewing work. He has no relation to the co-accused Prince. During checking of vehicles police party has apprehended him near bus stand where he was going on his motorcycle. There was altercation with the police, due to which he was falsely implicated in this case. 16. However, accused-appellants have not examined any witness in defence. 17. The trial court after hearing the learned counsel for the parties has convicted and sentenced the accused-appellants as indicated herein above. Aggrieved, the appellants have come up in appeal. 18. Heard Shri Vikas Sharma, learned counsel for the appellant in Criminal Appeal No. 2564 of 2013 and Shri Mukhtar Alam, learned Amicus Curiae appearing for the appellant in Jail Appeal No. 5107 of 2013 and Shri Ajit Ray, learned Additional Government Advocate representing the State in both the appeals. 19. Learned counsel for the accused-appellant Montu alias Prashant submitted that the accused-appellant is innocent and has been falsely implicated in the present case. It is further submitted that evidence of none of the facts witnesses namely Rajveer, PW-3 and Omwati, PW-4, who are the witnesses of last seen is trustworthy and reliable nor their testimonies are convincing and confidence inspiring. It is also submitted by the learned counsel for the appellants that Rajveer, PW-3 and Omwati, PW-4 are planted and tutored witnesses and they have never seen the deceased in the company company of the accused appellants. It is argued that entire prosecution story is cooked up and fabricated. It has further argued that it is a case of circumstantial evidence and no one has seen the accused-appellants committing the crime. It is also argued that circumstances shown by the prosecution in the present case do not complete the chain and the court below has erred in holding the appellants guilty of the charge of murder. 20. Learned Amicus Curiae for the accused Maya Devi has submitted that from the report of the Forensic Science Laboratory it is not established that blood found on clothes and axe was of the deceased. It was also submitted that blood group of the deceased and blood found on clothes and axe were not mentioned in the report. 20. Learned Amicus Curiae for the accused Maya Devi has submitted that from the report of the Forensic Science Laboratory it is not established that blood found on clothes and axe was of the deceased. It was also submitted that blood group of the deceased and blood found on clothes and axe were not mentioned in the report. On the basis of these submissions, it was submitted that the conviction and sentence awarded to the accused-appellants are wholly illegal, so the appeal is liable to be allowed and accused may be acquitted of all the charges and be set at liberty. 21. To the contrary, learned Additional Government Advocate has submitted that the circumstances brought on record by the prosecution indicate that the deceased was taken away by the accused-appellant Smt. Maya Devi and subsequently murdered with the help of other co-accused persons. It was further submitted that dead body was found in the filed of sugarcane and no body had seen the occurrence, therefore, it is not a case of eye witness account, but the prosecution has successfully brought on record the motive and last seen evidence against accused-appellants and the weapon used in the commission of present crime was also recovered at the instance of the accused Smt. Maya Devi, therefore, the charge of murder has been established beyond any shadow of reasonable doubt. It was also submitted that appeals of the appellants are without merit and deserve to be dismissed. 22. Before, we proceed to analyze the evidence on record, in order to appreciate the submissions advanced by the learned counsel for the parties, it would be proper to narrate, in brief the statements given by the prosecution witnesses in their examination-in-chief. 23. Complainant Sushil, PW-1 is father of the deceased and appellant Maya Devi is the step mother of the deceased. He deposed that on 28.2.2011 his son Deepak aged 12 years had gone to school and returned back at about 11.00 AM, because school went off half day. He got the information at 4.00 PM when he was at his shop asking him to come home at the earliest. His brother Babli had made him telephonic call. He came back home at 4.15 PM. On coming back home, he saw that dead body of his son was lying in the house of his brother Babli. He got the information at 4.00 PM when he was at his shop asking him to come home at the earliest. His brother Babli had made him telephonic call. He came back home at 4.15 PM. On coming back home, he saw that dead body of his son was lying in the house of his brother Babli. There were deep wounds on the back of the neck and near the left ear. The dead body was found in the field of Pradeep. His brother took the dead body from there. Jaswati and Pinki, who had gone to the field to attend the call of nature, saw the dead body and told about that to one Mukesh, a teacher in the nearby school. Pintu, who was present there was also told about the dead body. He had got the FIR written on his dictation by Vinod Pradhan and after putting his signature on it, handed over the same at the police station. He further deposed that after the registration of the FIR, police visited the village. Police personnel did not bring anyone to village. Police took into possession axe and bloodstained clothes from Maya Devi in his presence and made relevant entries. The witness also proved the recovery memo of axe, which was used in the commission of crime and clothes as Ext. Ka-2. He also deposed that statement of Maya Devi was recorded by the police, wherein Maya Devi has mentioned that she had gone to Bharat Singh three months ago, who told him to sacrifice Deepak and that he will perform Pooja from his flesh and thereafter her child born will be alive. He further deposed that Maya Devi had told the police that her nephew (Bhanja) Prince and Montu took Deepak to sugarcane field. Montu was standing outside. Maya Devi caught hold hand of the deceased, thereupon Prince attacked on the neck of the deceased with axe. This witness also deposed that witnesses have stated before him that they saw Deepak and Maya Devi going towards the school. 24. Babli-PW-2 is the real brother of the complainant Sushil-PW-1. He deposed that the incident took place on 28.2.2011. The name of the deceased was Deepak. On that date the deceased went to school at 8.00 AM and returned at 11.30 AM. 24. Babli-PW-2 is the real brother of the complainant Sushil-PW-1. He deposed that the incident took place on 28.2.2011. The name of the deceased was Deepak. On that date the deceased went to school at 8.00 AM and returned at 11.30 AM. At about 3.30 PM when he was cutting the grass at his house, then Jaswati, sister of Pradeep and his niece Pinki came to his house and told him that Deepak is lying dead in the field. After hearing the news he was shocked. Thereafter, he along with his wife Munni Devi and about 10-20 other persons went to the place of occurrence and saw that the dead body of the deceased was lying there. His neck was cut. There were injuries of axe on the neck. When he was standing there seeing the dead body, Vinod Pradhan and Mukesh told him to pick up the deceased. Thereafter he took the deceased to his house and informed his brother Sushil about the incident. Thereafter, his brother has arrived. After one hour, he along with his brother went to the police station and lodge the report scribed by Vinod Pradhan. Thereafter police came to his house and after making necessary enquiries, got the dead body sealed. Thereafter police inspected the spot and recovered Daranti, one cap, one Chunni (a piece of cloth) and also collected bloodstained and plain earth from the spot and made memo, which he proved as Ext. Ka-4. This witness further deposed that on 02.3.2011 when the dead body was brought home at 11.00 AM and all the ladies of the village were present, then Omwati, daughter of Dhani Ram told that on the date of incident at about 1.00 PM, Maya Devi and Deepak were standing at the road. Thereafter, he also told the police that his daughter had also told him that she saw the deceased going along with Maya Devi towards the sugarcane filed. Thereafter, on enquiry by the police, Maya Devi revealed that she has given birth to 4-5 children, but all of them died. She went to Bharat Singh along with Deepak in the month of November. Bharat Singh asked her to sacrifice her elder son and also asked her to bring a piece of flesh so that Pooja can be performed with perfection and only thereafter her child to be born will survive. She went to Bharat Singh along with Deepak in the month of November. Bharat Singh asked her to sacrifice her elder son and also asked her to bring a piece of flesh so that Pooja can be performed with perfection and only thereafter her child to be born will survive. This witness further deposed that Maya Devi also deposed that she caught hold of the hand of the deceased, whereas Prince has assaulted the deceased. Maya Devi also stated before him that the piece of flesh was taken out from the body of the deceased by Prince. PW-2 Babli also deposed that Maya Devi has handed over the bloodstained clothes and bloodstained axe to the police. 25. PW-3 Rajveer has deposed in his examination-in-chief that on 28.2.2011, when was was going to his sister's house, which was situated at Patiyala, he saw that on the road accused Smt. Maya Devi and deceased Deepak were going on foot. When they reached near the sugarcane field of Pradeep, they entered into the sugarcane field of Pradeep. He also saw the co-accused Prince and Montu standing at some distance. Later on, he came to know that Deepak was murdered. 26. PW-4 Om Wati has deposed in her examination-in-chief that on the date of incident she saw the deceased standing along with Maya Devi. Deepak was having Daranti and chunni (a piece of cloth). Thereafter she left for her home. Later on, she came to know that Deepak has been murdered. 27. The evidence of PW-5 SI Rajveer Singh, who conducted the inquest on the body of the deceased Deepak on 28.2.2011 and prepared relevant papers, PW-6, Dr. Narendra Kumar, who has conducted the post-mortem examination on the body of the deceased, PW-7, SO Bulaki Ram Verma, who has conducted the investigation in the case and submitted the charge sheet and PW-8 Constable Shakeel Ahmad, who prepared the Chik FIR and made necessary GD entries, has already been discussed above. 28. The case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete forming a chain and there should be no gap left in the chain of evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete forming a chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally in consistent with his evidence. It has been consistently laid down by the Hon'ble Apex Court that where a case rests on circumstantial evidence, the inference of the guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or guilt of any other person. 29. In Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR (1984) (SC) 1622, the Hon'ble Apex Court has held that; (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (ii) 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. (iii) The circumstances should be of conclusive nature and tendency (iv) They should exclude every possible hypothesis except the one to be proved and, (v) 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. 30. In State of U.P. Vs. Ashok Kumar Srivastava, (1992) Crl. L.J. 1104 wherein it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in the favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 31. It was also pointed out that the circumstances relied upon must be found to have fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 31. Hon'ble Supreme Court in the case of Majenderan Langeswaran v. State (NCT of Delhi) and another, reported in (2013) 7 SCC 192 , have held that onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court and all the circumstances must lead to the conclusion that accused is the only one who has committed crime and none else. The Court held thus: "3. On 30th November, 1996, an altercation is stated to have taken place between the accused and the deceased L. Shivaraman. As the accused had sustained some cut injuries on his hands, he reported the matter to the officials. On 1st December, 1996 when the ship was on high seas, the appellant took off from his duty as helmsman on the ground of pain in his hands due to cut injuries and another helmsman Baria was asked to do the duty as replacement. As the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault. At about 1510 hours, the accused allegedly approached IInd Officer Kalyan Singh (PW-6) with a blood-stained knife in his hand and his hands smearing in blood and is alleged to have confessed before him that he had killed L. Shivaraman. On being asked by Kalyan Singh (PW-6), the appellant handed over the blood-stained knife to him which he placed in a cloth piece without touching the same. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. On being so directed by the Captain of the ship (PW-5), Kalyan Singh (PW-6) got the body of the deceased cleaned up for being preserved in the fish room with the help of Manjeet Singh Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18) took photographs. The blood-stained knife was kept in the safe custody of PW-5. The accused was then apprehended, tied and disarmed before being shifted to the hospital on board. Since the ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996. 16. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court." 32. In the case of Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 , Hon'ble Apex Court observed as under: "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. ...." 33. In the case of Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706, Hon'ble Apex Court opined as under: "10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (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. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351 )" 34. In the case of C. Chenga Reddy & Ors. v. State of A.P., (1996) 10 SCC 193 , Hon'ble Apex Court while considering a case of conviction based on the circumstantial evidence, held as under: "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence." 35. In the case of Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 , Hon'ble Apex Court again considered the case of conviction based on circumstantial evidence and held as under: "26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603 )." 36. In the case of Sattatiya v. State of Maharashtra, (2008) 3 SCC 210 , Hon'ble Apex Court held as under: "10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." This Court further observed in the aforesaid decision that: "17. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." This Court further observed in the aforesaid decision that: "17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court--Bharat v. State of M.P., (2003) 3 SCC 106 . " 37. In the case of State of Goa v. Pandurang Mohite, (2008) 16 SCC 714 , Hon'ble Apex Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 38. In the light of the above pronouncements of Hon'ble Apex Court, we shall now consider whether in the present case, the prosecution succeeded in establishing the chain of the circumstances leading to an inescapable conclusion that the accused-appellants had committed the crime. In the present case, the prosecution, in order to prove its case mainly relied on the following circumstances: (1) The death of the deceased Deepak was homicidal in nature. (2) Deceased Deepak was last seen with the accused appellant Smt. Maya Devi near the sugarcane field of Pradeep. (3) Accused-appellant Montu alias Prashant was also seen standing with the co- accused Prince near the field of sugarcane at some distance . (4) Recovery of his bloodstained clothes and axe on the pointing out of the accused appellant Smt. Maya Devi from her house. 39. (3) Accused-appellant Montu alias Prashant was also seen standing with the co- accused Prince near the field of sugarcane at some distance . (4) Recovery of his bloodstained clothes and axe on the pointing out of the accused appellant Smt. Maya Devi from her house. 39. The autopsy on the body of the deceased was conducted by Dr. Narendra Kumar, PW-6. According to him following injuries were found on the dead body: "1. Incised wound 10.06 cm x 2.0 cm x bone deep on right side of face, on vertical position in front of right ear and extending up to temporal region of skull. 2. Incised wound 4 cm x 2 cm x bone deep on left side of skull, 1.5 cm back to the left ear. 3. Incised wound 10 cm x 4 cm x bone deep on back of neck and upper most part of neck in horizon places on right side 5 cm medieval to ear and on left side 2 cm medieval to left year, 3 cm above to the vertebrae. All soft tissues, muscles blood vessels and spinal cords are cut. 4. Incised wound 3 cm x 2 cm bone deep on dorsum of left hand and on index and middle finger and bone below the wound was also cut." 40. On the basis of the ante-mortem injuries of the deceased, it has been opined by the doctor that the cause of death of the deceased Deepak was due to ante-mortem injuries. According to the medical evidence, it is clear that deceased Deepak suffered a homicidal death. 41. So far as the last seen evidence is concerned, Omwati, Pw-4 deposed that she knew the accused Smt. Maya Devi. She also knew the deceased Deepak who was the son of Sushil, PW-1. She further deposed that around one and half year ago at about 12.45 PM, she had seen Deepak standing along with Smt. Maya Devi before her house. Deepak was holding Daranti (sickle) and chunni (a piece of cloth) in his hand. Thereafter, she went into her house. Later on, she came to know that Deepak was murdered. Rajveer, PW-3 deposed that he had seen Deepak and accused Smt. Maya Devi entering into the sugarcane field of Pradeep. Thereafter, he came to know that Deepak was murdered. Deepak was holding Daranti (sickle) and chunni (a piece of cloth) in his hand. Thereafter, she went into her house. Later on, she came to know that Deepak was murdered. Rajveer, PW-3 deposed that he had seen Deepak and accused Smt. Maya Devi entering into the sugarcane field of Pradeep. Thereafter, he came to know that Deepak was murdered. Evidence of Rajveer, PW-3 coupled with evidence of Omwati, PW-4 clearly establishes that accused Smt. Maya Devi was last seen with the deceased but the accused Maya Devi has not offered any plausible and cogent explanation as to what has happened to Deepak. 42. In spite of scorching cross-examination, Rajveer, PW-3 and Omwati, PW-4 remained consistent throughout their cross examination. In this way, the prosecution has succeeded in establishing the facts by definite evidence that the deceased was last seen alive in the company of the accused Smt. Maya Devi. A reasonable inference could be drawn against the accused and onus can be shifted on accused Smt. Maya Devi under Section 106 of the Evidence Act. It is noteworthy that accused Smt. Maya Devi is the step mother of the deceased. At the time of incident deceased was only 12 years of age and was living with her. Thus, if Maya Devi is last seen with the deceased, she must offer a plausible explanation as to how and when she parted the company. Smt. Maya Devi must furnish an explanation which appears to the Court to be probable and satisfactory. If she does not do so, it must be held that she has not discharged her burden. A perusal of the record shows that she has failed to offer the explanation on the basis of facts which were within her special knowledge. So, she has failed to discharge the burden which was cast upon her under section 106 of the Evidence Act. 43. The present case is rest on circumstantial evidence. If the accused Smt. Maya Devi fails to offer a reasonable explanation in discharge of the burden placed on her, that itself provides an additional link in the chain of circumstances proved against her. Section 106 of the Evidence Act does not shift the burden of proof in criminal trial, which is always upon the prosecution. If the accused Smt. Maya Devi fails to offer a reasonable explanation in discharge of the burden placed on her, that itself provides an additional link in the chain of circumstances proved against her. Section 106 of the Evidence Act does not shift the burden of proof in criminal trial, which is always upon the prosecution. It lays down rule that when accused does not throw any light upon facts which are specially within her knowledge and which could not support any hypothesis compatible with her innocence, the Court can consider her failure to adduce any explanation as an additional link which completes the chain from the facts and evidence. 44. We also find the other corroborative piece of evidence corroborating last seen theory. Complainant PW-1, who is the husband of the accused-appellant Smt. Maya Devi deposed that on his presence the police took into custody from his house the axe and bloodstained clothes given to them by accused Maya Devi and police had completed its paper formalities in his presence. He has also proved the recovery memo as Ext. Ka-2. 45. According to the report of Forensic Science Laboratory, Agra, which is Ext. Ka-12, human blood was found on the aforesaid articles. Babli, PW-2, who is the real brother of the complainant Sushil PW-1 has also supported the prosecution version and deposed that the accused Maya Devi in his presence gave bloodstained clothes and bloodstained axe kept at the loft (Taand) of her house to police personnel. He has also identified his signature on recovery memo Ext. ka-2 and proved it. 46. According to the statements of complainant Sushil PW-1 and Babli, PW-2, motive for murder of Deepak was to ensure the survival of children of the accused Smt. Maya Devi. Sushil PW-1 has stated that police recorded the statement of Maya Devi in his presence. In her statement Maya Devi had stated that three months ago, she had gone to meet Bharat Singh (co-accused of the case). Bharat Singh had suggested her to sacrifice Deepak (Deceased), to make an offering of his flesh so as to ensure survival of her child. PW-2 Babli has stated that her daughter had also seen Maya Devi and Deepak going towards the sugarcane field on the day of occurrence. When police started interrogating Maya Devi, she told them that she had given birth to 4-5 infants, but none of them survived. PW-2 Babli has stated that her daughter had also seen Maya Devi and Deepak going towards the sugarcane field on the day of occurrence. When police started interrogating Maya Devi, she told them that she had given birth to 4-5 infants, but none of them survived. He has further stated that Maya Devi stated that taking along Deepak, she had gone to Bharat Singh in November. Bharat Singh had stated her to give sacrifice of eldest child (Jyestha bachha) and he had also told her to bring a piece of flesh with her so that Pooja can be performed with perfection. Thereafter her child will survive. Thus, the motive of the murder of the deceased Deepak was to ensure the survival of children of accused Smt. Maya Devi. In spite of scorching cross-examination on this fact, Sushil PW-1 and Babli PW-2 remained consistent throughout their cross-examination. We find no reason to discard their testimony and to take a different view. Thus the prosecution has proved its case on motive also. It will be a corroborative piece of evidence lending assurance to the prosecution case. 47. So far as accused Montu alias Prashant is concerned, PW-3 Rajveer has stated that on the date of incident he had seen the accused Montu alias Prashant and Prince standing at some distance near the place of occurrence. There is nothing on record to show that deceased Deepak was last seen alive in the company of the accused appellant Montu alias Prashant. Undoubtedly the "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The last seen theory holds to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by the Hon'ble Apex Court that it is not prudent to base the conviction solely on last seen theory. Last seen theory should be applied taking into consideration the case of the persecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. Accused Montu alias Prashant has no motive to commit the murder of the deceased Deepak. He is the resident of another village. Last seen theory should be applied taking into consideration the case of the persecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. Accused Montu alias Prashant has no motive to commit the murder of the deceased Deepak. He is the resident of another village. Neither the weapon of murder nor any other material was recovered from the possession of the accused-appellant Montu alias Prashant. We have seen that entire prosecution case rests on circumstantial evidence, therefore, in such cases motive undoubtedly plays an important part to tilt the scale against the accused. 48. In the present case prosecution has failed to prove sufficient motive for the murder of Deepak, who was the son of the complainant Sushil, PW-1 and the circumstances relied upon by the prosecution is not conclusive of the guilt of accused Montu alias Prashant. 49. In view of what has been indicated herein above, we are of the view that the prosecution has proved its case beyond reasonable doubt against accused-appellant Maya Devi. We are further of the view that prosecution has failed to prove its case against accused Montu alias Prashant. 50. Accordingly, Criminal Appeal No. 2564 of 2013 filed by accused Montu alias Prashant is allowed. He is stated to be in jail. He shall be released from jail forthwith unless wanted in connection with any other case. 51. Jail Appeal No. 5107 of 2013 filed by the accused-appellant Maya Devi is dismissed. She is stated to be in jail. She shall remain in jail to serve out the remaining sentence awarded by the trial court. 52. Office is directed to send a copy of this order to the court concerned for compliance and compliance report be submitted to this Court within two months.