Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 699 (GUJ)

MUKESHBHAI DESAIBHAI RATHOD v. STATE OF GUJARAT

2018-05-09

A.S.SUPEHIA, HARSHA DEVANI

body2018
JUDGMENT/ORDER : A.S. Supehia, J. By Way Of This Appeal, Filed Under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"), the appellant accused has challenged the judgment and order of conviction dated 20.06.2011, passed by learned Principal Sessions Judge, Bharuch, (hereinafter referred to as the "trial court"), rendered in Sessions Case No. 4 of 2010, whereby the trial court convicted the appellant accused under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") and is sentenced to undergo imprisonment for life and a fine of Rs.5,000/- and in default, one month simple imprisonment. 2. The Prosecution Case As Per The Charge Exh.5 Is that the marriage of the present accused was solemnized with deceased Shakuben (daughter of the complainant) before 10 Years. After the marriage, the deceased started residing at Village: Dahej with her husband accused. After the marriage, the accused used to frequently beat his wife deceased Shakuben and quarreled with her upon suspecting her character of having illicit relationship. As the deceased Shakuben could not tolerate the same, four months prior to the day of the incident; she went to her father's house at Village: Suwa. After, one month prior to the day of the incident, the accused also went to his father-in-law’s house and used to stay there with him and his wife deceased Shakuben, where also he frequently quarreled with his wife and threatened to kill her for the same reason. On 12.06.2009, at about 02.00 p.m., the accused, while carrying an axe, went with his wife deceased Shakuben to fetch wood. The accused inflicted blows of axe on the head and chest etc. on his wife and committed her murder, and thereby, committed offence under Section 302 IPC. 3. Upon Registering The Offences Under Section 302 of the IPC against the accused, the investigating officer has carried out the investigation and after following the due procedure of law, a charge-sheet came to be filed before the learned 2nd Additional Civil Judge, Bharuch. Since, the case was exclusively triable by the court of Sessions, after providing papers under section 173(4) of the Code to the accused, the same was committed to the Sessions Court under section 209 of the Code. The same was registered as Sessions Case No. 4 of 2010. The charges vide Exh.5 under sections 320 of the IPC was framed. Since, the case was exclusively triable by the court of Sessions, after providing papers under section 173(4) of the Code to the accused, the same was committed to the Sessions Court under section 209 of the Code. The same was registered as Sessions Case No. 4 of 2010. The charges vide Exh.5 under sections 320 of the IPC was framed. The charge was read over to the accused appellant toto pleaded not guilty to the charges and claimed to be tried. 4. At The Time Of Trial, In Order To Bring Home The charges leveled against the original accused, the prosecution examined 8 witnesses as well as produced 12 documentary evidences. 5. At The End Of The Trial And After Recording The statements of the accused under section 313 of the Code and hearing the arguments on behalf of the prosecution and the defence, the trial court passed the judgment and order as above. 6. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the trial court, the appellant accused has preferred the present Criminal Appeal. 7. Mr. Manraj A. Barot, The Learned Advocate For The appellant accused has submitted that the present case is of circumstantial evidence since there is no eyewitness. He has submitted that the trial court has placed reliance on the testimonies of three witnesses i.e. PW2 Complainant Ambubhai Chaganbhai, PW3 Ishwarbhai Chaganbhai Gohil and PW4 Chimanbhai Laxmanbhai Gohil for convicting the present appellant. He has submitted that as per the testimonies of these witnesses as well as the testimonies of the PW6 P.S.O. Rameshchandra Mahashankar Pandya and PW7 Investigating Officer Shri Nathalal Vallabhbhai Kathiriya, the exact time of the information given by the complainant or calling the police does not come out. He has submitted that there is also discrepancy in the timing of arrival by the police. It is also submitted by him that no blood stains were found from the clothes of the accused and hence, it cannot be believed that the blows were inflicted by the accused, and if such severe blows are inflicted by the accused, then the clothes of the accused would have been stained with blood. He has also submitted that the defence had examined defence witness PW1 Natwarsinh Fatehsinh Rana at Exh.34. He has also submitted that the defence had examined defence witness PW1 Natwarsinh Fatehsinh Rana at Exh.34. In his evidence, he has deposed that on the day of the incident i.e. on 12.06.2009, the accused was present at his village Dahej. He has stated that the accused had taken the plea of alibi and the trial court has failed to appreciate the same. He also submitted that the trial court has failed to appreciate the evidence in its true perspective and hence, the findings arrived at by the trial court can be said to be perverse. Hence, the appellant is required to be acquitted from the offence, for which he has been charged. Reliance is placed by him on the judgment rendered by the Hon'ble Apex Court in the case of Kuna @ Sanjaya Behra versus State of Odisha, (2017) AIR(SC) 5364 in support of his case. 8. Per Contra, Mr. L.B. Dabhi, learned Additional Public Prosecutor for the respondent State has supported the judgment passed by the trial court. He has submitted that the last seen theory has been established in the present case, as the accused was lastly seen by the witnesses with the deceased and the onus lies on the accused to explain the same. He has submitted that the conduct of the accused is enough to prove the guilt against him, as he was not found after the day of the incident. He has submitted that the accused was arrested after 6 days. Neither he had inquired about his wife nor he had come to the Village: Suwa where he was lastly residing with his wife. He has also submitted that there is no discrepancy in the time of recording of the F.I.R. He has submitted that as per the station diary produced at Exh.24, it reflects that the F.I.R. was lodged on 13.06.2009, at about 4 O'clock in the morning. He has submitted that as per the deposition of PW2 Complainant, they called the police at night and it is specifically stated by PW2 that police had arrived at about 4 hours in the morning and recorded his complaint. Hence, there is no ambiguity in recording the complaint. He has also submitted that as postmortem of the deceased was initiated on 13.06.2009, at about 10.25 hours in the morning by PW8 Binoykumar Taraknath Sharma. Hence, there is no ambiguity in recording the complaint. He has also submitted that as postmortem of the deceased was initiated on 13.06.2009, at about 10.25 hours in the morning by PW8 Binoykumar Taraknath Sharma. The Doctor has opined that the death of the deceased had occurred between 12:24 hours. Hence, the same corroborates with the version of the witnesses that the deceased was last seen with the accused in the afternoon. 9. Mr. Dabhi, learned Additional Public Prosecutor for the respondent State vehemently submitted that the judgment and order recorded by the trial court deserves to be confirmed, as there are relevant depositions of the complainant, other witnesses (who lastly saw the accused with the deceased), medical witnesses and material available on the record, which have supported the case of the prosecution. Reliance is placed by him on the testimony of PW2 Complainant and Father of the deceased Shakuben Ambubhai Chaganbhai, PW3 Ishwarbhai Chaganbhai Gohil and PW4 Chimanbhai Laxmanbhai Gohil, PW6 PSO Rameshchandra Mahashankar Pandya, PW7 Investigating Officer Nathabhai Vallabhbhai Katheriya and PW8 Dr. Binoykumar Taraknath Sharma, who has performed the postmortem of the deceased, for proving the case of the prosecution that the murder of the deceased Shakuben was committed by her husband the present accused by inflicting axe blows. He has supported the judgment of the trial court by contending that the incident had taken place due to suspicion of the accused upon the character of his wife deceased Shakuben of having illicit relationship, and it is established on record that the present accused doubted the character of his wife deceased Shakuben, which was the motive of the offence. Therefore, the trial court has rightly passed the judgment and order of conviction against present appellant accused. 10. In View Of The Aforesaid Submissions, Mr. Dabhi, learned Additional Public Prosecutor for the respondent State supported the judgment and order of the trial court and has submitted that the same was passed after appreciating the evidence adduced on record by the prosecution and hence, no interference is called for by this court. He has therefore, urged that the criminal appeal is required to be dismissed and the impugned judgment and order passed by the trial court is required to be confirmed. 11. We have given our thoughtful consideration to the arguments of the learned advocate for the appellant accused and the learned Additional Public Prosecutor for the respondent State. He has therefore, urged that the criminal appeal is required to be dismissed and the impugned judgment and order passed by the trial court is required to be confirmed. 11. We have given our thoughtful consideration to the arguments of the learned advocate for the appellant accused and the learned Additional Public Prosecutor for the respondent State. We have also perused the evidence established during the trial proceedings with their assistance. 12. The Fulcrum Of The Prosecution Case Is The Last seen together theory, which has been established from the testimonies of the three witnesses i.e. PW2 Complainant Father of the deceased Shakuben Ambubhai Chaganbhai, PW3 Ishwarbhai Chaganbhai Gohil and PW4 Chimanbhai Laxmanbhai Gohil. In order to appreciate the rival contentions, it will be necessary to have a closer look at the testimonies of the witnesses in order to ascertain the sanctity of the last seen together theory. 13. Pw2, Ambubhai Chaganbhai has been examined at Exh.17. His evidence reveals, that he has stated that the marriage of his daughter-Shakuben was solemnized with the present accused Mukesh before 10 years, and she used to stay at village: Dahej along with him. He has submitted that Mukesh used to frequently quarrel with his daughter, due to suspicion upon her character of having illicit relationship, and because of that, he used to beat her. He has also deposed that due to frequent quarrels, his daughter came to his house four months prior to the day of the incident, at that time, his son in law Mukesh used to stay at village: Dahej and after a period of one or two months, he came to his home and used to stay with him and his daughter. At his home also, his son in law Mukesh used to frequently quarrel with his daughter. He has also deposed that he used to repeatedly persuade his son-in-law, but he did not comprehend. He also talked about the quarrels to Ishwarbhai and Sarpanch Chimanbhai. They also tried to persuade Mukesh, but he did not appreciate. He also deposed that on the day of the incident, his daughter along with his son-in-law, at about 02.00 hours in the afternoon, went near the river bank to collect some wood by leaving their children at home. Mukesh carried an axe, and they did not return after evening hours. He also deposed that on the day of the incident, his daughter along with his son-in-law, at about 02.00 hours in the afternoon, went near the river bank to collect some wood by leaving their children at home. Mukesh carried an axe, and they did not return after evening hours. He has stated that after waiting for them, they tried to search them. He was accompanied by Soma Girdhar, Raju and Raman. At that time, Soma Girdhar informed that at the river bank, near the crematorium, the dead-body of his daughter was lying and accordingly, he went at the spot where he saw the dead-body of his daughter. The dried blood was found on her chest. Her one hand was eaten up by the animals. He has also deposed that there were injuries on the dead-body of her daughter i.e. two injuries near her shoulder and one injury on her head. He further deposed that at about 04.00 hours in the morning, they lodged the complaint, at that time also, his son-in-law had not returned to home. He has identified the muddamal article no.3 axe and has also identified the accused in the courtroom. In his cross-examination, the PW2 has reiterated what he deposed in his examination in chief. In his cross-examination, he has stated that he was married thrice. He has stated that his son-in-law used to work at the salt pan which was of one Mayur Sheth. It is elicited in his cross-examination that his son in law used to suspect upon the character of his daughter of having illicit relationship. He has also stated that no complaint was lodged by his daughter to that effect. On a suggestion put by him, he has specifically denied that Mukesh was not present at Suwa Village on the day of incident. It is also denied by him that Mukesh had gone to saltpan for doing the labour work. He has also emphasized that the incident with his daughter had occurred at an isolated place. He has also deposed that the axe, which is identified by him, was his axe which was new. He also denied the suggestion that on the day of the incident, his son-in-law was not staying at his home and he was staying at Village: Dahej. He has also deposed that the axe, which is identified by him, was his axe which was new. He also denied the suggestion that on the day of the incident, his son-in-law was not staying at his home and he was staying at Village: Dahej. From the deposition of the present witness, it emerges that he had seen the deceased with the accused on the day of the incident when both the deceased and accused had gone for fetching wood. It also comes out from his deposition that the accused used to suspect the character of the deceased of having an illicit relationship. There was also frequent quarrel on that aspect. No contradictions or omissions are brought out in his testimony. He has established himself as a credible witness. 14. PW 3 Ishwarbhai Chaganbhai Gohil, who is a member of Taluka Panchayat, Vaghra, has been examined at Exh.3. In his deposition, he has stated that the marriage of Shaku, who is the daughter of Ambubhai, had taken place before 10 years, and Ambubhai used to occasionally talk about his in laws. Ambubhai used to tell that his son-in-law was frequently beating his daughter by wrongly suspecting her, and hence he has said to him that he was going to take his daughter at his home and accordingly, he had brought her to his house. After a lapse of three months, his son in law also came to his house. Mukesh used to frequently quarrel with Ambubhai and his daughter. When Ambubhai informed about the same to them, both of them, he and Sarpanch Chimanbhai jointly informed Mukesh not to indulge in such conduct so that his life may not get ruined, but he did not comprehend. 15. It is also further deposed that on the day of the incident, at about 2.30 to 3.00 O'clock in the afternoon, he and Sarpanch Chimanbhai had gone to see the road which was being constructed from their funds at Narmada river. When they were standing on the bank of Narmada river, at that time, they saw Mukesh and his wife Shaku passing from there. Mukesh was having an axe in his hand. When they were standing on the bank of Narmada river, at that time, they saw Mukesh and his wife Shaku passing from there. Mukesh was having an axe in his hand. When he passed near him; he seemed to be in an intoxicated condition, and on asking form him that where he was going, at that time, Shaku replied that they were going to collect wood, whereas Mukesh while raising his axe uttered the words that he is going to make peace permanently. Thereafter, he returned to his house and slept on the terrace. It is further deposed by him that Ambubhai, Somabhai, Girdharbhai and his family members went to find her. Ambubhai had informed in this regard to him. Ambubhai, Somabhai and Chimahbhai came in the night at his home and informed him that Shaku was murdered, and her dead-body was lying near crematorium. He had informed him that his son in law has murdered her daughter. Thereafter, all four of them went to the place with a torch, and on reaching there, they saw that Shaku was having injuries of axe on her head, chest and the right hand was eaten up by some animal. A blood stained axe was also lying nearby. Thereafter, he had informed the police. Mukesh was not found. He has identified the accused Mukesh in the dock; he has also identified the axe. This witness is cross-examined qua marital life of Ambubhai (PW 2). In his cross-examination, he has stated that the deceased Shaku had come to stay at their village before three months from the day of the incident. He has also stated that the distance between village Dahej and Suwa is 12 k.m. and all type of vehicles are available to go from Dahej to Suwa. He has deposed that he is not aware of business of accused Mukesh. It is also elicited from him that Ambubhai used to occasionally talk about the altercations between accused Mukesh and his daughter Shaku. He has stated that Mukesh had suspicion on his daughter. In response to a suggestion put to him, he has deposed that the place of the incident was isolated place. He has also denied the suggestion that Mukesh Desai did not ever come to Suwa Village. He has also denied that on the day of the incident, Mukesh was working at the salt pan. In response to a suggestion put to him, he has deposed that the place of the incident was isolated place. He has also denied the suggestion that Mukesh Desai did not ever come to Suwa Village. He has also denied that on the day of the incident, Mukesh was working at the salt pan. He has also denied that he is wrongly stating that on the day of incident, Mukesh and Shaku met him at 2.30 in the afternoon at the river bank and at that time, Mukesh was carrying an axe. He has admitted that in the police statement, he had not stated that he went with a torch. This witness has established himself as a credible witness since the defence has failed to dent his credibility by pointing out any omission or contradiction. The testimony of this witness fully corroborates the testimony of the complainant (PW2). 16. Pw4 Chimanbhai Laxmanbhai Gohil, who is the Sarpanch of Suwa village has been examined at Exh.20. He has also deposed on the lines of PW2 and PW3. He has stated about the quarrels between the deceased and the accused. He has also deposed that after a span of one month when Sakhu came to village, the accused had also come there to stay with her. He has stated that on 12.06.2009, he had accompanied his friend Ishwarbhai (PW3) and saw the accused and Shaku at about 2 p.m. He has also reiterated the facts stated by PW 3. He has stated that around 12:30 in the night, he along with Ishwarbhai, Ambubhai and Somabhai went to the place of occurrence with a torch and saw the dead body of Shaku. He has also deposed as per the version of PW 2 and 3 about the injuries and the axe lying nearby. He has identified the accused and the muddamal article no.3, axe. In his cross-examination, it is elicited that Ishwarbhai had called the police by his mobile in his presence and the police arrived within half an hour. He has also stated that Mukesh used to do labour work at Dahej in a salt span and he used to often quarrel with Shaku due to suspicion. In his cross-examination, it is elicited that Ishwarbhai had called the police by his mobile in his presence and the police arrived within half an hour. He has also stated that Mukesh used to do labour work at Dahej in a salt span and he used to often quarrel with Shaku due to suspicion. He has admitted that before the police he had given the statement that the complainant Ambubhai had informed him that his daughter Shaku was married for 10 years at Dahej village, and since his son-in-law Mukesh used to frequently fight and beat his daughter, who is having three sons, he had brought her to his home. This witness has subsisted the cross-examination qua identification of axe and his presence on that day on the river bank. He has deposed that the place of the incident is an isolated place. The deposition of this witness corroborates the testimonies of PW2 and PW3. His deposition confirms the presence of the accused on the day of incident with the deceased Shaku. 17. Pw5 Somabhai Chandubhai Vasava, Who Is A Panch witness is examined at Exh.21. He has prepared the map of the scene of offence. 18. Pw6 Rameshchandra Mahashankar Pandya, PSO of Dahej Police Station, is examined at Exh.23. In his evidence, he has stated that on 13.06.2009, he was in charge Police Station Officer between 0.00 and 9.15 hours. At about 2.30 hours in the night, he received a phonecall from Ishwarbhai Gohil of Suwa Village and he informed him that the daughter of Ambubhai Chaganbhai Rathod viz. Shakuben has been murdered. Accordingly, Police Inspector Shri Kathiriya and police personnel were informed by him and the police party left for the place of the incident at about 02.50 hours in the night. In his cross-examination, he has stated that he has received a phonecall of Ishwarbhai Gohil at around 2.30 hours in the night and accordingly, he had recorded it in the station diary. It is also elicited that in the telephone call, no name of the accused was given. 19. Pw7, Investigating Officer, Shri Nathalal Vallabhbhai Katheriya, Police Inspector of Dahej Police Station is examined at Exh.25. It is also elicited that in the telephone call, no name of the accused was given. 19. Pw7, Investigating Officer, Shri Nathalal Vallabhbhai Katheriya, Police Inspector of Dahej Police Station is examined at Exh.25. In his evidence, he has deposed that on 13.06.2009, in the night, PSO Rameshchandra informed him about the phone call made by Ishwarbhai Gohil, who informed about the murder of Shakuben and accordingly, he made an entry in the station diary and went to the place of offence where the complainant Ambubhai Chaganbhai Rathod lodged the compliant against the accused Mukesh Desaibhai Rathod, which was written by him and accordingly, the report was sent for registering an offence to the Dahej Police Station. He has also stated that the necessary procedure for the inquest panchnama was carried out by him. He performed the panchnama of scene of offence, recovered blood, sand, blood stained axe in presence of the panchas and sent it to F.S.L, Surat for examination. The same is also identified by him in the courtroom. In the cross-examination, he has asserted that he received vardhi at around 2.30 hours in the night. In that vardhi, no name of the accused was given. He has deposed that when he went to the scene of offence, the complainant Ambubhai and witnesses Chimanbhai and Ishwarbhai were present. He has also stated that he has recorded the FIR at the scene of offence and when he was recording the FIR, the witnesses Chimanbhai and Ishwarbhai were not present and they were sitting on the platform of temple. He has further deposed that after recording the FIR, he had recorded their statements. He also deposed that the accused was doing the job at the salt pan. From the testimony of this witness, it emerges that he had recorded the compliant at the scene of offence and two witnesses viz. Chimabhai and Ishwarbhai were not present on the spot when he recorded their statements, but they were on the different place i.e. on the platform of temple. Thus, the testimony of this witness does not indicate any illegality or infirmity which can be fatal for the prosecution case. 20. Pw8 Dr. Binoykumar Taraknath Sharma Is Examined at Exh.30. In his evidence, he has stated that he has carried out the autopsy of the deceased. Thus, the testimony of this witness does not indicate any illegality or infirmity which can be fatal for the prosecution case. 20. Pw8 Dr. Binoykumar Taraknath Sharma Is Examined at Exh.30. In his evidence, he has stated that he has carried out the autopsy of the deceased. He has deposed that as per Post mortem report, which is prepared by him the deceased had suffered four injuries. The same are mentioned in Column No.17 of the postmortem report i.e. (i) chop wound of size 6 cms x 2 cms x bone deep over Rt. frontal region. Margin sharp, edge brushed & reddish brown blood clot present. Vertical in direction (ii) Chop wound of Size 8 cms. X 2 cms x up to thoracic Cavity over upper part of sternum with cut of skin, subcutaneous tessue, muscle & sternum Margin sharp, edge bruished and reddish brown blood cot present. Horizontal in direction. (iii) Chop of Size 9 cms x 2 cms x muscle dep over Rt supraclavicular area. Margin shapr, edge bruised & reddish brown blood clot present. Horizontal in direction. (iv) wound with irregular margin of Rt upper limb (arm to wrist) with underlying bone exposed & absence of soft tessue with absence of vital reaction. 21. The defence has also examined defence witness no.1, Natwarsinh Fatehsinh Rana at Exh.34. in support of the plea of alibi. In his testimony, he has stated that the accused Mukesh used to work with him and they used to call him for doing work at the salt pan and for the said work, he was being paid Rs.100/- daily. He has stated that on 12.06.2009, accused Mukesh was present at the salt pan. He has further stated that the accused Mukesh came in the morning at about 8.30 hours and left at about 2 O'clock in the afternoon. Thereafter, he came to know from the villagers that Mukesh has been arrested. In the cross-examination, it is elicited that the date mentioned by him in the examination in chief i.e. 12.06.2009 was stated by him since on that date, the accused was arrested from the village and hence, he had mentioned such date. He has further stated that on that day, he was not aware why Mukesh was arrested, but thereafter, he came to know that since he had murdered his wife, the police had arrested him. He has further stated that on that day, he was not aware why Mukesh was arrested, but thereafter, he came to know that since he had murdered his wife, the police had arrested him. He has also stated that he did not inform the police that on the day of incident, Mukesh was present there and why he was being arrested. It is further elicited in his cross-examination that he does not have any documentary proof establishing the fact that Mukesh was working at the salt pan. He has also stated that he does not have any proof to show that he was working at the salt pan of Mayur Sheth. From the testimony of this witness, it emerges that he had deposed about the presence of Mukesh at the salt pan on 12.06.2009 only on the basis that the accused Mukesh was caught on that day from the village. It is also revealed that he did not have any documentary proof either to reveal his employment or the employment of accused Mukesh in the salt pan of Mayur Sheth. Thus, the testimony of this defence witness does not inspire any confidence, which would convince this court to validate the plea of alibi. 22. A close scrutiny of the witnesses as well as documentary evidence reveals the presence of the accused at the place of scene of offence. He was lastly seen with the deceased in the afternoon on the day of incident. The testimonies of the witnesses corroborate with each other. The presence of the accused on the day of the incident is established. The deposition of the DW1 who has been examined to lend support for the plea of alibi by the accused does not inspire confidence, and the same gets obliterated in the wake of the credible evidence which is adduced from the testimonies of the prosecution witnesses. The evidence unveils that the accused used to stay with his wife at the complainant's house, and he frequently quarreled and assaulted her due to distrust on her fidelity. The evidence also reveals that the incident has occurred at an isolated place which reveals the intention of the accused of taking his wife at a secluded place and thereafter commit her murder. The minor discrepancies brought out by the defence apro pos the calling and arrival of the police would not dent the case of the prosecution. The evidence also reveals that the incident has occurred at an isolated place which reveals the intention of the accused of taking his wife at a secluded place and thereafter commit her murder. The minor discrepancies brought out by the defence apro pos the calling and arrival of the police would not dent the case of the prosecution. There was no explanation tendered by the accused about his absence for six days after the day of the incident. The accused in the statement recorded by the learned Sessions Judge under Section 313 of the Code has absolutely offered no explanation or has not come forward explaining the circumstances against him. The chain of the circumstances indubitably establishes only one conclusion i.e. the guilt of the accused. The motive of garnering suspicion on the deceased for committing the offence has also been established. The defence has also miserably failed in establishing any illicit relation of the deceased. 23. In The Case Of Kuna @ Sanjaya Behra the Supreme Court gave benefit of doubt to the accused since there was discrepancy in the testimony of the sole eye witness and the conviction is only based on the medical evidence, and therefore, the accused was given benefit of doubt, whereas in the present case, the testimonies of the three witnesses i.e. PW2 Complainant Ambubhai Chaganbhai, PW3 Ishwarbhai Chaganbhai Gohil and PW4 Chimanbhai Laxmanbhai Gohil clearly establish the guilty of the present accused, who have last seen the deceased with the accused. The contention raised by the learned advocate, Mr. Barot that the absence of blood stains of the deceased on the clothes of the accused absolves him from the offence does not merit acceptance since it is not essential that in every case where a blow is inflicted the blood may travel to clothes of the assailant. It all depends on the proximity of the blow and the weapon with which the blow is inflicted. In the present case, the accused had inflicted the blow with an axe which has a long handle. The blows are inflicted on the head and chest. Thus, the blood may not have travelled to the clothes of the accused. Hence, the innocence of the accused cannot be acknowledged only for the reason that no blood stains were found on his clothes. 24. The blows are inflicted on the head and chest. Thus, the blood may not have travelled to the clothes of the accused. Hence, the innocence of the accused cannot be acknowledged only for the reason that no blood stains were found on his clothes. 24. The Supreme Court in the case of Padala Veera Reddy v. State of Andhra Pradesh, (1989) Supp2 SCC 706, has observed thus : "10..... 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." 25. We are, therefore, of the considered opinion that in the present case the prosecution has successfully established the tests laid down by the Apex Court. The theory of last seen together fastens the accused with the guilt. From the aforesaid analysis, there can be no scintilla of doubt that the appellant is involved in the offence for which he has been charged. The findings recorded by the trial court in convicting the accused of the charges leveled against him are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed. We have also independently examined the entire evidence and are in complete agreement with the reasonings given and the findings arrived at by the trial court. No interference is warranted with the judgment and order of the trial court. 26. In View Of The Above Discussions, We Are Of The opinion that the trial court has committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed. 27. In the result, the appeal fails and is accordingly, dismissed. No interference is warranted with the judgment and order of the trial court. 26. In View Of The Above Discussions, We Are Of The opinion that the trial court has committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed. 27. In the result, the appeal fails and is accordingly, dismissed. The judgment and order dated 20.06.2011 passed by learned Principal Sessions Judge, Bharuch, rendered in Sessions Case No.4 of 2010 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. Record and proceedings be sent to the concerned trial court, forthwith.