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2021 DIGILAW 204 (UTT)

Dinesh Kumar v. State Of Uttarakhand

2021-04-01

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT Raghvendra Singh Chauhan, C.J. - Having been convicted of offence under Section 302 IPC, sentenced to Life Imprisonment, imposed with a fine of Rupees Ten Thousand, and directed to undergo two years of Rigorous Imprisonment in default thereof, by the learned Sessions Judge, Pauri Garhwal, by judgment dated 21.09.2012, the appellant, Mr. Dinesh Kumar, has filed this appeal before this Court. 2. Briefly stated the facts of the case are that, on 27.12.2006, Mukesh Kumar (P.W. 1), lodged a written report (Ex. Ka. 1) before the Station House Officer, P.S. Kotdwar, District Pauri Garhwal, wherein he claimed that he has a brother, Dinesh Kumar. According to him, he (the complainant) works at Shahibabad Paras Factory. His elder brother, Dinesh Kumar, stays at their house at Kotdwar. His parents stay with him at Ghaziabad. A week ago, his father, Manik Lal, had gone to his village for some work. His cousin brother, Mr. Tek Chand (P.W. 3), informed him on phone that the complainant's father has expired. Therefore, "this morning, he, his mother and his sister left around 11:00 AM. They reached their home in the village around 5 to 6 PM. They found his father lying in the courtyard on a bedding. His body was covered with a bed-sheet". When he removed the bed-sheet, he discovered that his father was only wearing his trouser; the upper part of his body was without any clothes. He noticed injuries on his father's face, chest and hands. There was blood on the mattress. His elder brother stood there silently. Even after he was asked, he did not reply to any of the questions. The complainant further claimed that his brother is a vagabond. He has sold his share of the land. His brother does not have any other share in the land. "I suspect that it is my brother who has assaulted my father, and caused his death in order to illegally takeover the entire land. There is a pen lying on the bed. The household goods are scattered". 3. On the basis of this written report (Ex. Ka. 1), the police chalked out a formal First Information Report, namely FIR No.827/06 (Ex. Ka. 7) for the offence under Section 302 IPC. The police started the investigation. During the course of investigation, the accused, Dinesh Kumar, was arrested by the police; he was put up for trail. 3. On the basis of this written report (Ex. Ka. 1), the police chalked out a formal First Information Report, namely FIR No.827/06 (Ex. Ka. 7) for the offence under Section 302 IPC. The police started the investigation. During the course of investigation, the accused, Dinesh Kumar, was arrested by the police; he was put up for trail. In order to prove its case, the prosecution examined eight witnesses, and submitted eighteen documents. On the other hand, the defence neither examined any witness, nor submitted any evidence. 4. After going through the evidence produced by the prosecution, by the impugned judgment dated 21.09.2012, the learned Trial Court convicted the appellant, Dinesh Kumar, for the offence, as aforementioned. Hence, the present appeal before this Court by the appellant. 5. Mr. D.C.S. Rawat, the learned counsel for the appellant, has raised the following contentions before this Court:- Firstly, the entire prosecution case is based on circumstantial evidence. However, the prosecution has failed to link all the circumstances in such a manner as would unerringly point towards the guilt of the accused. Therefore, the prosecution has failed to establish its case against the appellant. Secondly, there is no evidence to show that the deceased, Manik Lal, and the appellant, the father and the son, were staying together. In fact, in his statement recorded under Section 313 Cr.P.C., the appellant had clearly stated that he was staying in a rented accommodation located in Village Jhandichaur. Thus, there is no evidence of the "last seen". Thirdly, in his statement recorded under Section 313 Cr.P.C., the appellant had pleaded that his father had jumped out of a moving vehicle, due to which his father had suffered injuries on the head. Thus, his father died an accidental death. However, both these points have not been appreciated by the learned Trial Court. Fourthly, the prosecution has failed to prove the motive behind the alleged murder. Therefore, the element of "motive" is conspicuously missing in the present case. Fifthly, despite the house being surrounded by other houses, the prosecution has failed to produce independent witness. In fact, only interested witnesses like Mukesh Kumar (P.W. 1), son of the deceased, Smt. Sampu Devi (P.W. 2), wife of the deceased, and Tek Chand (P.W. 3), the nephew of the deceased, have been produced. Fifthly, despite the house being surrounded by other houses, the prosecution has failed to produce independent witness. In fact, only interested witnesses like Mukesh Kumar (P.W. 1), son of the deceased, Smt. Sampu Devi (P.W. 2), wife of the deceased, and Tek Chand (P.W. 3), the nephew of the deceased, have been produced. Since they are interested witnesses, since they wish to get rid of the appellant, who is considered as the 'black sheep' of the family, these witnesses cannot be believed. Sixthly, the learned Trial Court has unnecessarily harped on the recovery of the stick and the recovery of blood soaked clothes of the deceased at the instance of the appellant. However, neither the stick, nor the blood soaked clothes of the deceased were ever subjected to any examination by the Forensic Science Laboratory. Thus, these recoveries are meaningless. For, these alleged recoveries do not connect the accused to the alleged crime. Hence, the impugned judgment deserves to be set-aside by this Court; the appellant deserves to be acquitted. 6. On the other hand, Mr. Amit Bhatt, the learned Deputy Advocate General appearing for the State, has raised the following counter-arguments:- Firstly, the prosecution has presented sufficient links of circumstances which form a complete chain, and which unerringly point to the guilt of the accused. Secondly, through the testimonies of Mukesh Kumar (P.W. 1), Smt. Sampu Devi (P.W. 2), and Tek Chand (P.W. 3), the prosecution has convincingly proved "the motive" behind the murder. According to the first two witnesses, since the appellant had already sold five bighas of his land, he wanted to sell the other land belonging to the family. According to Tek Chand (P.W. 3), the appellant never cared for his father. However, the moment, the deceased, his uncle, arrived at his house, the appellant came to his house and insisted upon taking his father to their house in Ghamandpur. Moreover, in his statement recorded under Section 313 Cr.P.C., the appellant admits that his relationship with his father was strained. Yet, the appellant took away his father with him. Therefore, the motive for committing the crime was to take over the remaining part of the landed property belonging to the family. Moreover, in his statement recorded under Section 313 Cr.P.C., the appellant admits that his relationship with his father was strained. Yet, the appellant took away his father with him. Therefore, the motive for committing the crime was to take over the remaining part of the landed property belonging to the family. Thirdly, Tek Chand (P.W. 3) clearly states that it is the accused who took the deceased with him to his house at Ghamandpur; the body of the deceased was discovered lying in the courtyard at the ancestral house of the complainant at Ghamandpur. Even in his statement recorded under Section 313 Cr.P.C., the accused has admitted that he lives in Ghamandpur; even at the time of incident, he was living in Ghamandpur. Therefore, the element of "last seen" is clearly established by the prosecution. Of course, the accused has claimed, in his statement recorded under Section 313 Cr.P.C., that he was staying at Jhandichaur for the last 5-6 years in the house belonging to Shamim Bhai. Therefore, the appellant has pleaded the defence of alibi. However, the appellant has neither examined Shamim Bhai as a defence witness, nor proven the plea of alibi on the basis of preponderance. Fourthly, according to Mukesh Kumar (P.W. 1) and Smt. Sampu Devi (P.W. 2), when they asked the appellant about the cause of death of the deceased, he maintained a studied silence. Despite the fact that he claims in his statement recorded under Section 313 Cr.P.C., that his father died an accidental death, he is unable to tell the Court as to where his father met with an accident. Although, he claims that he rushed his father to Durgapur Hospital, he failed to produce any document from Durgapur Hospital, such as the injury report, in order to prove the plea. Therefore, the accused has offered a false explanation. The falsity of the statement is an additional evidence that has been read by the learned Trial Court. Fifthly, Dr. Inder Singh Samant (P.W. 4), who carried out the post-mortem, has proven the Post-Mortem Report (Ex. Ka. 6). According to Dr. Samant, the deceased had suffered nine injuries over his head, on his chest, and on his shoulders. The cause of death was brain hemorrhage. The brain hemorrhage was caused due to the injuries caused on the head. Fifthly, Dr. Inder Singh Samant (P.W. 4), who carried out the post-mortem, has proven the Post-Mortem Report (Ex. Ka. 6). According to Dr. Samant, the deceased had suffered nine injuries over his head, on his chest, and on his shoulders. The cause of death was brain hemorrhage. The brain hemorrhage was caused due to the injuries caused on the head. He has further stated that since the deceased was about seventy years old, the death could be caused by a lathi. The prosecution has also established that a lathi was recovered at the instance of the accused. Lastly, Mukesh Kumar (P.W. 1) had clearly stated that there was not too much inhabitation around his house in his village. Moreover, independent witness did not wish to be involved in the recovery of the objects. Thus, it was difficult for the prosecution to produce independent witness. Considering the fact that Mukesh Kumar (P.W. 1) lost his father, and Smt. Sampu Devi (P.W. 2) lost her husband, it was highly improbable to let go of the actual mur der, and to substitute their own brother/son in the present case. Thus, the prosecution has established its case. Hence, the learned Deputy Advocate General has supported the impugned judgment. 7. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 8. In the case of Anwar Ali and another v. The State of Himachal Pradesh, (2020) 10 SCC 166 , the Hon'ble Supreme Court has reiterated the principles with regard to the assessment of evidence in a case based on circumstantial evidence. The principles are as under:- 5.4 It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence, 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 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. In the case of Babu (supra), it is observed and held in paragraphs 22 to 24 as under: "22. In Krishnan v. State, (2008) 15 SCC 430 , this Court after considering a large number of its earlier judgments observed as follows: (SCC p. 435, para 15) "15. ... 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: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) 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 (iv) 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 )" 23. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established; (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 a 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. A similar view has been reiterated by this Court in State of U.P. v. Satish, (2005) 3 SCC 114 and Pawan v. State of Uttaranchal, (2009) 15 SCC 259 . 24. In Subramaniam v. State of T.N, (2009) 14 SCC 415 , while considering the case of dowry death, this Court observed that the fact of living together is a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive proof, and there must be some evidence to arrive at a conclusion that the husband and husband alone was responsible therefor. The evidence produced by the prosecution should not be of such a nature that may make the conviction of the appellant unsustainable. (See Ramesh Bhai v. State of Rajasthan, (2009) 12 SCC 603 )." (emphasis supplied) 5.5 Even in the case of G. Parshwanath (supra), this Court has in paragraphs 23 and 24 observed as under: "23. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the Court." 9. Mukesh Kumar (P.W. 1) informs the Court that "the accused Dinesh is my brother. We are two brothers. I live in Delhi. I work in a private factory. My elder brother, Dinesh, stays at our house in village Ghamandpur, Kotdwar. My mother and sister stay in Delhi with me. My father, Manik Lal, also used to stay with me in Delhi. At this time of the incident, my father had come to Ghamandpur. On 17.12.2006, my uncle's son Tek Chand called me in the morning and informed me that my father, Manik Lal, has died. One week before 27.12.2006, my father had left our house in order to collect his pension. After I was informed on telephone, I, my sister and my mother went to our house in Ghamandpur. We saw that my father was lying in the verandah. His body was covered with a bed-sheet. When I removed the bed-sheet, I noticed that the upper part of his body was naked. There were injuries on his face, chest and hands. Dinesh was also present. But he did not say a single word. My brother, Dinesh, is a vagabond. He has sold his share of five bighas of land. He used to torture my father, my mother and my sister. It is for this reason, my father, my mother and my sister used to live with me in Delhi. He used to constantly fight with these persons. Therefore, due to fear, these persons left Ghamandpur. Dinesh has already sold five bighas of his land, and he wanted to sell the rest of the land. It is for this reason my brother, (the accused), assaulted and killed my father. He used to constantly fight with these persons. Therefore, due to fear, these persons left Ghamandpur. Dinesh has already sold five bighas of his land, and he wanted to sell the rest of the land. It is for this reason my brother, (the accused), assaulted and killed my father. At the time of the incident, my father had come from Delhi and was staying with Dinesh. Although, my father used to stay with my cousin Tek Chand, but my brother took my father from Tek Chand's house to our house. There he assaulted him and killed him. In Ghamandpur, we have our ancestral house where Dinesh lives". The witness then went on to identify the complaint (Ex. Ka. 1). Moreover, according to this witness, on 28.12.2006, the police had brought the accused Dinesh to their house. Dinesh had pulled out a lathi which was hidden under the bed, and handed over the said lathi to the police. 10. He further states that before him and Tek Chand, the accused, Dinesh, took the police in front of the house and there he removed the trash, and pulled out one white colour vest which had blood on it, and which was torn at placed. He also pulled out green colour underwear which also had a blood on it. These two objects were handed over to the police by the accused. He also told the police that, after having killed his father, he took up these clothes from his father. He proved the recovered memo (Ex. Ka. 3). 11. Likewise, on 28.12.2006, the accused gave the police a bedding which had blood on it. This witness has identified his signatures on the recovery memo of bedding (Ex. Ka. 4). 12. In his cross-examination, Mukesh Kumar (P.W. 1) states that "his family has been living in Ghamandpur for the last four to five generations. They have their ancestral land in Ghamandpur. His father was a retired Sailor from the Indian Navy. His father never bought any land on his own, nor bought any separate land for Dinesh. Every month his father used to go to Kotdwar to collect his pension. Since his father was fond of drink, he also buys liquor from the Army store. One week from the date of the incident, his father had come from Ghaziabad. During this period, he had no conversation with his father". Every month his father used to go to Kotdwar to collect his pension. Since his father was fond of drink, he also buys liquor from the Army store. One week from the date of the incident, his father had come from Ghaziabad. During this period, he had no conversation with his father". He further stated that "his brother is unmarried and is a vagabond. At times, his brother stays outside, his father would stay with witness's cousin Tek Chand". He further claimed that "the family has about twenty bighas of land in Ghamandpur". He further claimed that his family used to stay at Ghamandpur and his uncle's family stays at Giwaisot. He further claimed, in his cross-examination, that there are other houses around their house. According to him, his father has been staying with him at Ghaziabad for the last five to seven years. 13. Smt. Sampu Devi (P.W. 2), the mother of the accused, in her examination-in-chief informs the Court that "Dinesh is her elder son, and Mukesh is her younger son. Mukesh is employed privately in Delhi. The elder son stays in Ghamandpur. Her daughter and her husband stay with Mukesh in Ghaziabad. At the time of the incident, her husband had come to Ghamandpur, Kotdwar. On 27.12.2006, her nephew Tek Chand informed Mukesh on phone that his father, Manik Lal, has expired. One week prior to 27.12.2006, her husband had gone to Ghamandpur in order to collect his pension". According to this witness, "after receiving the information, her daughter Baijanti and her son Mukesh and she herself come to Ghamandpur and went to their home and there they saw that her husband lying in the verandah. When the bed-sheet was removed, she found that her husband had died. The upper part of his body was without any clothes. He had suffered injuries on his face, chest and hands. There was also blood on the bedding. Dinesh was present at the house. He is a vagabond. He has sold five bighas of the land and kept the money to himself". According to this witness, "the accused used to constantly fight with her husband and her daughter. It is for this reason that they had left Ghamandpur and were living with the younger son, Mukesh. Dinesh was the only person living in Ghamandpur". He is a vagabond. He has sold five bighas of the land and kept the money to himself". According to this witness, "the accused used to constantly fight with her husband and her daughter. It is for this reason that they had left Ghamandpur and were living with the younger son, Mukesh. Dinesh was the only person living in Ghamandpur". Moreover, according to this witness, it is due to the fear of Dinesh, they had left Ghamandpur. 14. This witness further claims that "Dinesh wanted to sell of the entire land belonging to the family. Her husband objected to such a proposal. It is for this reason, Dinesh has killed her husband". According to her, "her husband had come a week ago from Sahibabad and had come to Tek Chand's house. From Tek Chand's house, Dinesh had taken her husband to their house. The reason why he killed his father is due to the land". In her cross-examination, this witness has not been shattered. 15. Tek Chand (P.W. 3), in his examination-in-chief, claims that "the deceased, Manik Lal, is his elder uncle. Dinesh is the elder son of Manik Lal. Dinesh believes in over indulging in himself and is a vagabond. Tired of the antics of Dinesh, his elder uncle, elder aunt had left the village and started living with their younger son, Mukesh Kumar, at Ghaziabad. There they live in a rented accommodation". This witness further claims that, "one week before the incident, his uncle had come to the village in order to collect his pension. His uncle had come to his house. When Dinesh came to know that his father at arrived, he came to the house of the witness. He insisted that he should take his father with him to Ghamandpur". This witness further claimed that Dinesh used to live in the house belonging to Manik Lal in the village. According to this witness "earlier when my uncle come, Dinesh would not even inquire about him. But, on that day, Dinesh took his uncle with him". Furthermore, this witness claims that "on 27.12.2006, Dinesh came to my house at Giwaisot in the morning. He came and told that his uncle has died. I came with Dinesh to Ghamandpur. I saw that my uncle was lying on the bedding in the courtyard. He was covered with the bed-sheet. Furthermore, this witness claims that "on 27.12.2006, Dinesh came to my house at Giwaisot in the morning. He came and told that his uncle has died. I came with Dinesh to Ghamandpur. I saw that my uncle was lying on the bedding in the courtyard. He was covered with the bed-sheet. When I removed the bed-sheet, I noticed that my uncle was half naked. I noticed that my uncle had suffered injuries on his body. Then I called my younger brother Sonu, and told him to call Mukesh (P.W. 1). Around 5:00 PM, my aunt, my elder sister Baijanti, younger sister Km. Meena, and Mukesh reach Ghamandpur. They came and saw the corpse in the house. He informed the police. The police came to the house. The police drew up the panchanama. The police arrested Dinesh. Later on, the police brought Dinesh to the house. Dinesh pulled out the stick from the bed. The recovery memo was drawn up". Likewise, he gave vest and underwear. The recovery memo of the vest and the underwear was drawn up. The bedding was also recovered. It had blood stains on it. 16. Lastly, he has stated, in his examination-in-chief, that "after 27.12.2006, when Dinesh took his uncle to his house, after that he only saw the dead body of his uncle at the house of Dinesh". 17. In cross-examination, he has stated that Ghamandpur is about five to six kilometers away from his village. Ghamandpur is a big village. There is inhabitation far from the house of Dinesh. According to him, his uncle had retired from Navy and Air Force. Every month he used to come to collect his pension and to buy liquor. He used to drink a lot. Dinesh used to go to Ghaziabad with his sister and used to come to this witness's house. At times, he used to stay at Ghamandpur. His uncle used to stay either at Ghaziabad or Ghamandpur. He used to stay at the witness's house for two to four hours. He further claims that the relationship between his uncle and Dinesh was so-so. According to him, the police had arrived at the scene of the crime between 5-6 PM. His brother had informed the police on phone. The police had stayed there for two hours. They arrested the accused and took him away. He further claims that the relationship between his uncle and Dinesh was so-so. According to him, the police had arrived at the scene of the crime between 5-6 PM. His brother had informed the police on phone. The police had stayed there for two hours. They arrested the accused and took him away. Later on, after one and a half hour, the police brought him back and recovered the objects. He further claimed that after the incident, the crowd had gathered. The recovered objects were not hidden but were lying openly. According to him, Dinesh never admitted that he has killed his father with the stick. 18. A bare perusal of these testimonies clearly establishes that the accused used to constantly fight with his family members. The accused had already sold five bighas of land, out of twenty bighas of land, owned by the family and kept the money for himself. The accused wanted to sell of the rest of the land belonging to the family. However, the deceased objected to such a proposal. 19. Moreover, the deceased had come to his village in order to collect his pension and to buy liquor. The deceased had gone to the house of Tek Chand (P.W. 3). According to Tek Chand (P.W. 3), the relationship between the deceased and the accused was so-so. In fact, according to this witness, the accused did not care much for his father. But, upon coming to know that his father had arrived at village, the accused went to Tek Chand's house, and insisted that he be permitted to take his father with him to his house. According to Tek Chand (P.W. 3), the accused took his father to his house. Subsequently, the accused informed Tek Chand (P.W. 3) that his uncle, the deceased, had expired. 20. Mukesh Kumar (P.W. 1) and Smt. Sampu Devi (P.W. 2) arrived at Ghamandpur along with her daughter. They went to their house. They noticed the dead body lying on the bedding in the courtyard. They uncovered the dead body. They discovered that the dead body had sustained numerous injuries on the face, chest and shoulder and on the hand. The bedding was also blood stained. When they asked the accused, Dinesh, he maintained a studied silence. They went to their house. They noticed the dead body lying on the bedding in the courtyard. They uncovered the dead body. They discovered that the dead body had sustained numerous injuries on the face, chest and shoulder and on the hand. The bedding was also blood stained. When they asked the accused, Dinesh, he maintained a studied silence. Therefore, the prosecution has succeeded in establishing the evidence of the "last seen", in establishing "the motive behind the alleged offence", and in establishing that the accused did not offer any explanation about the cause of the death of his father. Instead, he kept mum. 21. Dr. Inder Singh Samant (P.W. 4), in his examination-in-chief, states that, on 28.12.2006, he had carried out the post-mortem of Manik Lal, aged 75 years. He discovered that the deceased had suffered injuries on his face, head and neck. The injuries were ante-mortem in nature. The deceased had suffered nine injuries. The Injury No.1 was an abrasion on the forehead, measuring 10cm X 5cm. It extended to the middle of the left side of the head. The Injury No.2 was, 12cm X 8cm, under the left eye, and extended till the mandible. Injury No.3 was a bluish injury on the chin, measuring 8cm X 6cm. The Injury No.4 was below the mandible, and extended till the neck. It measures 5cm X 5cm. Injury No.5 was abrasion on the chest, measuring 10cm X 8cm. Injury No.6 was abrasion on the left shoulder, measuring 6cm X 6cm. Injury No.7 was abrasion on the left side of the forehead, measuring 4cm X 3cm. Injury No.8 was on the forearm, and on the elbow. Injury No.9 was on the left thumb, and the palm, measuring 8cm X 6cm. The injured had suffered hematoma on the left side of the head of the brain. There was 150 ml of clot. The brain had suffered pressure. 22. According to Dr. Samant (P.W. 4), "the cause of death was coma due to the ante-mortem injuries suffered on the head and due to the hemorrhage in the brain". He proved the Post-Mortem Report (Ex. Ka- 6). He further claimed that it is possible that the deceased had died on 26/27.12.2006. The brain had suffered pressure. 22. According to Dr. Samant (P.W. 4), "the cause of death was coma due to the ante-mortem injuries suffered on the head and due to the hemorrhage in the brain". He proved the Post-Mortem Report (Ex. Ka- 6). He further claimed that it is possible that the deceased had died on 26/27.12.2006. Moreover, he claimed that if a person is 75 years old and is hit by a danda or a lathi, the death can be caused, in case, if any injury were caused on the head. This witness has not been shattered in the cross-examination. 23. Thus, through the witnesses, the prosecution has established the fact that the injured was assaulted with a stick. The injured had suffered nine injuries on different parts of the body. Due to the injury on the head, there was hemorrhage in the brain. Due to the hemorrhage, the injured had died. Hence, the prosecution has successfully proven that the cause of death was neither natural, nor accidental, nor suicidal. It was homicidal. 24. In his statement recorded under Section 313 Cr.P.C., the accused has claimed that his father had suffered head injury, since his father had jumped out of a moving vehicle. Thus, according to the accused, the injury was caused due to an accident. Moreover, according to him, it is he, who had taken his father to Durgapur Hospital. However, the accused claims that he does not know where his father had met with an accident. Moreover, he has neither produced any treating doctor as a defence witness, nor produced any document from the said hospital. Therefore, he has given a false explanation for the death of his father. Hence, even this false explanation is an incriminating evidence which has to be read against the accused. 25. Furthermore, in his statement recorded under Section 313 Cr.P.C., the accused has claimed that he was staying at Jhandichaur in the house of Shamim. However, even Shamim was not produced as a defence witness. 26. Although, the accused has tried to take the defence of alibi, he has failed to prove his presence at another place at the time of the incident. Needless to say alibi has to be established through cogent and convincing reasons and it cannot be pleaded half-heartedly by the accused. 27. 26. Although, the accused has tried to take the defence of alibi, he has failed to prove his presence at another place at the time of the incident. Needless to say alibi has to be established through cogent and convincing reasons and it cannot be pleaded half-heartedly by the accused. 27. Since, according to Mukesh Kumar (P.W. 1), Smt. Sampu Devi (P.W. 2) and Tek Chand (P.W. 3), it is the accused who had taken the deceased with him to his house in Ghamandpur, since the body of the deceased was discovered at his house at Ghamandpur, under Section 106 of the Indian Evidence Act, it was for the accused to explain to the Court as to how the deceased died in his house. As stated above, the explanation given by the accused is a false one. Therefore, the accused has failed to discharge his burden of prove under Section 106 of the Indian Evidence Act. 28. As stated hereinabove, the falsity of his explanation would have to be read against the accused. Therefore, the prosecution has successes in establishing all the links in the chain which unerringly point towards the guilt of the accused. The evidence is inconsistent with the innocence of the accused. 29. Hence, the prosecution has succeeded in establishing its case against the accused. Therefore, the learned Trial Court is justified in convicting the appellant for the offence under Section 302 IPC. 30. For the reasons stated hereinabove, this Court does not find any merit in the present appeal. It is, hereby, dismissed.