JUDGMENT : Per: Justice Avanindra Kumar Singh This criminal appeal under section 374(2) of the Code of Criminal Procedure has been filed by the appellants/accused challenging the impugned judgment of conviction and sentence dated 14.12.2017 passed by the learned First Additional Sessions Judge, Multai, District Betul in Sessions Trial No.172/2012 [State of M.P. Vs. Sonu and two others] whereby appellants (Sonu & Amar) have been convicted for offences under Section 120B, 364 & 302 of IPC and they have been sentenced under section 364 IPC for Life Imprisonment with fine of Rs.10,000/- and Section 302 of IPC for Life Imprisonment with fine of Rs.25,000/-, with default stipulations but not separately sentenced under section 120B of IPC. Co-accused (Deepak) has been acquitted of the charges under sections 120B, 364, 302 read with section 34 of IPC. 2. As per prosecution story, on 15.6.2012 one Aarti (PW.2) who is sister of deceased-Jitendra informed at the Police Station, Amla that she is a resident of New Govind Colony, Amla and a student of BAMS Course in Dhanwantri College, Ujjain. She is residing in her home at Amla for last two months. Her brother is Jitendra (deceased). On 14.6.2012 at around 11.30 pm appellant-accused (Amar) came to call the deceased by stating that his brother-in-law (Sonu) has called him, for which deceased was not ready but accused-Amar forcibly took the deceased. Bhupendra, younger brother of deceased, saw accused persons, namely, Sonu Sweeper, Deepak Sweeper and Amar Sweeper opposite Rest House Stand alongwith deceased-Jitendra going towards Bus Stand. She also stated that wife of accused-Sonu was a Booking Clerk in Railway. Jitendra-deceased and accused-Sonu’s wife both were working together in the Railways at Multai as booking clerks. Accused- Sonu was having suspicion of illicit relations between his wife and deceased. Therefore, all the accused persons hatched criminal conspiracy and murdered her brother (Jitendra) whose dead body is lying in the Loco Shed. 3. On the information of Aarti (PW.2), Merg Intimation No.25/12 (Ex.P/3) was instituted at P.S.Amla and accordingly, crime at FIR No.243/12 (Ex.P/4) at PS was registered for offences under sections 364, 302, 120-B of IPC against accused persons. Therefore, all the accused persons hatched criminal conspiracy and murdered her brother (Jitendra) whose dead body is lying in the Loco Shed. 3. On the information of Aarti (PW.2), Merg Intimation No.25/12 (Ex.P/3) was instituted at P.S.Amla and accordingly, crime at FIR No.243/12 (Ex.P/4) at PS was registered for offences under sections 364, 302, 120-B of IPC against accused persons. The police prepared ‘Naksha Panchayat’ of dead body (Ex.P/2), prepared spot map (Ex.P/5), recorded statements of witnesses, on the basis of memorandum under section 27 of the Evidence Act (Exhibits-P13 to P/15), seized knives from accused persons and prepared iron knives seizure memo (Exhibits-P/16 to P/18), arrested accused persons and prepared arrest memo (Exhibits-P/22, 23 & 24). The Police after completing the investigation filed charge-sheet against the accused/appellants for offences under sections 364, 302, 120B of IPC. The Magistrate Court committed the case to the Sessions Court for hearing. Charges were framed against the appellants on 29.11.2012 for offences under sections 364, 120-B, 302/34 of IPC by the Second Additional Sessions Judge, Multai. 4. The accused persons abjured his guilt and pleaded innocence, therefore, he was subject to trial in Sessions Trial No.172/2012. 5. The prosecution examined Madan Choudhary (PW.1), Aarti (PW.2), Santosh (PW.3), Sonu (PW.4), Leela Bai (PW.5), Ramji (PW.6), Hitesh (PW.7), Anand Rao Mohabe (PW.8), Dr.N.K.Rohit (PW.9), R.K.Dubey (PW.10), Bhupendra (PW.11), Baban (PW.12), Shabir Shah (PW.13) & Bhunpendra Pawar (PW.14). The prosecution in support of its case exhibited Form regarding death of deceased as Exhibit-P/1, dead body ‘naksha panchayat’ as Ex.P/2, Marg Intimation (Ex.P/3), FIR No.243/12 (Ex.P/4), spot map (Ex.P/5), maps (Ex.P/6, P/7 & P/8), identification memo (Ex.P/9), FIR copy receipt (Ex.P/11), query report application to Doctor (Ex.P/12), application for postmortem (Ex.P/12A), memorandums under section 27 of the accused persons Exhibits-P/13 to P/15, knives seizure memos (Ex.P/16 to P/18), clothes seizure memo of three accused persons (Ex.P/19 to P/21), arrest memo of accused persons (Ex.P/22 to P/24), supplementary memo of accused u/s 27 of Evidence Act as Exhibits-P/25 to P/27, property seizure memo of Mobile from accused-Sonu as Exhibit-P/28, seizure memo of Titan Watch from accused Deepak as Ex.P/29, seizure memo of deceased-Jitendra is Election I-Card from accused-Amar (Ex.P/30), seizure memo of blood stained soil and normal soil from the spot as Exhibit-P/31, seizure memo of deceased-Jitendra’s clothes received from Hospital as Exhibit-P/32, FSL examination reports (Ex.P/33, P/34 & P/35). 6. 6. The defence examined P.S.Uike (DW.1), Ravishanker Ingare (DW.2), Shahid (DW.3) & Sonu @ Santosh (DW.4) and has exhibited statements of Aarti, Leelabai and Bhupendra u/s 161 Cr.P.C. as Exhibits-D/1 to D/3. 7 . The learned trial Court on the basis of material available and appreciating the oral and documentary evidence acquitted accused-Deepak and came to hold that appellants (Sonu and Amar) are guilty for having committed the offences under sections 120-B, 364 & 302 of IPC and convicted them accordingly and sentenced as has been indicated hereinabove in paragraph 1 of the judgment. 8. Learned counsel for the appellants submits that appellants are innocent. There is no proper evidence of last seen. Reading from the evidence of Bhupendra Pawar (PW-14), brother of the deceased-Jitendra, it is pointed out that this witness has stated that he had seen his brother-Jitendra on a motorcycle along with Sonu, Deepak and Amar Sweeper going towards bus-stand. It is also submitted that in para-5 of his cross-examination, this witness has admitted that it was a black colour Pulsar on which Sonu and Deepak were sitting along with Jitendra. Sonu was driving the motorcycle whereas Jitendra was sitting in between and Deepak was the last pillion rider. It is further submitted that it is contrary to the evidence of R.K. Dubey (PW-10), I.O. of the case, who has deposed that Bhupendra Pawar (PW-14) had informed him that Jitendra was seen on foot along with co-accused persons. Thus, it is submitted that since there is no seizure of motorcycle and there is contradiction in the evidence of R.K. Dubey (PW-10), I.O. of the case, as well as that of Bhupendra Pawar (PW-14) inasmuch as R.K. Dubey (PW-10), I.O. of the case, in para-22 has admitted that Bhupendra had neither given them the time of witnessing the accused with the company of the deceased nor had informed him as to what was the mode of movement. There is contradiction in the evidence of the I.O. R.K. Dubey (PW-10) as well as witness of last seen Bhupendra Pawar (PW-14). There is contradiction in the evidence of the I.O. R.K. Dubey (PW-10) as well as witness of last seen Bhupendra Pawar (PW-14). Similarly, it is pointed out that Arti (PW-2), sister of the deceased, has admitted that Jitendra after getting up met Amar who had come to call him and thereafter there is contradiction in the evidence of the cloths which he was wearing at the time of leaving his home and other contradictions as to whether he had freshen up or not. It is also submitted that deceased was wearing certain ornaments which were not recovered. There was no motive and there is no evidence to the effect that deceased was having any affection towards the sister of Amar and wife of Sonu. It is also submitted that The learned trial Court arrived at erroneous finding ignoring the aspect of during of 19 hours between scene of last together and recovery of dead body. Therefore, when chain of circumstances is not complete, then in the light of the judgment of Division Bench of Gwalior Bench of this High in Neeraj Vs. State of M.P., I.L.R. 2014 M.P. 1610 conviction cannot be sustained in the eyes of law. 9. On the contrary, learned Government Advocate opposes the submissions advanced by learned counsel for the appellants and claimed dismissal of instant appeal. 10. We have perused the record. On the basis of evidence before the trial Court and the postmortem report (Ex.P/10) it is not in dispute that death of deceased-Jitendra was of homicidal in nature. One objection is raised that there is no evidence that accused-Sonu had suspected his wife was having illicit relations with deceased-Jitendra, therefore, charge of conspiracy to commit murder of deceased-Jitendra is not proved. In this regard, on perusal of F.I.R. (Exhibit-P/4) it is seen that it is mentioned that accused-Sonu suspected illicit relations between his wife and deceased-Jitendra. The same fact is also mentioned in the Merg intimation (Exhibit-P/3). Aarti (PW.2) who is sister of deceased-Jitendra has lodged the report FIR (Ex.P/4) and Merg intimation (Ex.P/3). In matters of circumstantial evidence it is not always necessary that if motive is not proved the case of prosecution will fail. Other evidence will have to be appreciated. In this regard it is worth referring to the decision in the case of G.Parasnath Vs. In matters of circumstantial evidence it is not always necessary that if motive is not proved the case of prosecution will fail. Other evidence will have to be appreciated. In this regard it is worth referring to the decision in the case of G.Parasnath Vs. State of Karnataka, (2010) 8 SCC 593 wherein the Hon’ble Supreme Court in paragraph 45 held as under:- “45. The argument that in absence of motive on the part of the appellant to kill the deceased benefit of reasonable doubt should be given, cannot be accepted. First of all every suspicion is not a doubt. Only reasonable doubt gives benefit to the accused and not the doubt of a vacillating Judge. Very often a motive is alleged to indicate the high degree of probability that the offence was committed by the person who was prompted by the motive. In a case where the motive alleged against accused is fully established, it provides foundational material to connect the chain of circumstances. It affords a key on a pointer to scan the evidence in the case in that perspective and as a satisfactory circumstance of corroboration. However, in a case based on circumstantial evidence where proved circumstances complete the chain of evidence, it cannot be said that in absence of motive, the other proved circumstances are of no consequence. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. There is no absolute legal proposition of law that in the absence of any motive an accused cannot be convicted under Section 302 IPC. Effect of absence of motive would depend on the facts of each case………..” Therefore, if in trial Court motive is not proved then prosecution case will not fail. 11. As the prosecution case is based on circumstantial evidence, on perusal of record it is seen that there is recovery of iron knife from accused- Sonu by Exhibit-P/16 (seizure memo) prepared on the memorandum of Sonu (Exhibit-P/13). Similarly, there is recovery of iron knife from accused-Amar by property seizure memo (Exhibit-P/18) prepared on the basis of memorandum Exhibit-P/15 of accused-Amar. Further, there is seizure of blood stained jeans and shirt from accused-Sonu vide Exhibit-P/19. There is also recovery of Jeans & T-shirt from accused-Amar according to Exhibit- P/21. Similarly, there is recovery of iron knife from accused-Amar by property seizure memo (Exhibit-P/18) prepared on the basis of memorandum Exhibit-P/15 of accused-Amar. Further, there is seizure of blood stained jeans and shirt from accused-Sonu vide Exhibit-P/19. There is also recovery of Jeans & T-shirt from accused-Amar according to Exhibit- P/21. On the basis of supplementary memorandum given by accused-Sonu & accused-Amar vide Exhibits-P/25 & P/27 respectively from accused-Sonu vide Exhibit-P/28 mobile of deceased-Jitendra was recovered. Likewise, on the basis of supplementary memorandum of accused-Amar made vide Exhibit-P/27 recovery of Election Identity Card of deceased-Jitendra was made as per Exhibit-P/30. 12. The seized articles of deceased-Jitendra were sent for examination to the Forensic Science Laboratory (FSL) by letter (Exhibit- P/34). FSL report is Exhibit-P/35 in which article ‘A’ is blood stained soil from the spot. Article C-1 is shirt and article C-2 is vest (‘Baniyan’) of deceased-Jitendra. Articles D-knife seized from Amar, E-1 pant and E-2 T- shirt are of accused-Amar. Articles H-knife, I-1 pant and I-2 are of accused- Sonu. As per FSL report (Exhibit-P/35) the Articles A-soil, C-1 shirt & C-2 vest of deceased-Jitendra, E-1 pant of Amar and I-2 shirt of Sonu contain human blood. Article-D knife seized from Amar and article-H knife seized from Sonu contain blood. No explanation has been given by the accused Amar and Sonu when examination under section 313 of Cr.P.C. was made before the trial Court in this regard. 13. Regarding articles of deceased-Jitendra recovered from possession of appellant/accused-Sonu, in which, mobile is seized from Sonu by Exhibit-P/28 it is identified and ‘Shinakhti’ (identification) panchnama was prepared as Exhibit-P/9 and this identification of article is reliable and same cannot be doubted on the sole ground that mother of deceased (Leelabai-PW5) failed to state when mobile was purchased or she did not have details of purchase of mobile. 14. Deceased-Jitendra was last seen with appellants (Amar & Sonu) is established by statement of PW.2-Aarti (sister of deceased) that on 14.6.2012 accused-Amar took deceased-Jitendra with him and dead body of Jitendra was recovered next day i.e. on 15.6.2012 and recovery of article of deceased-Jitendra from the accused-Sonu and other incriminating evidence against appellants (Sonu and Amar) as discussed above establishes a chain of circumstantial evidence against appellants. 15. 15. One more arguments was made at the time of hearing that Bhupendra Pawar (PW.14) brother of deceased stated that on 14.6.2012 at about 11.30 am he saw his brother-Jitendra was going alongwith Sonu, Deepak & Amar on motorcycle, whereas Investigating Officer PW.10- R.K.Dubey has stated that PW.14-Bhupendra informed him that he had seen brother-Jitendra walking on foot In this regard in paragraph 27 Aarti (PW.2) stated that her brother-Jitendra had gone on foot as her brother used to leave his motorcycle in his friend’s house. Therefore, there is no contradiction between the statement of PW.2 (Aarti) sister of deceased and Bhupendra (PW.14) brother of the deceased that he saw Jitendra with appellants on motorcycle as both statements relate to different place and time but link is with at earlier point of time with appellant-Amar and later on with both the appellants. 16. Further, regarding last seen theory it is also seen that Aarti (PW.2) has stated that on 14.6.2012 accused-Amar came to his house at about 11.30 am and stated that his brother-in-law (Sonu) is calling her brother deceased-Jitendra. She also stated that her brother went with accused-Amar. After sometime her brother-Bhupendra came who informed that he saw deceased-Jitendra going alongwith accused persons towards Bus Stand. This fact has not been disproved by the cross-examination of prosecution witness. 17. It was also submitted that prosecution case is full of contradiction & omission and chain of circumstance against appellant is not proved beyond reasonable doubt. 18. In this regard, it is settled principle of law that every omission and contradiction is not fatal to the prosecution case and small omissions & contradictions are to be ignored. It is only when there is by way of substantial contradiction and omission, then prosecution case would be doubtful. In the case of Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457 the Hon’ble Supreme Court in paragraph 42 has held that only contradictions in material particulars and not minor contradictions can be ground discredit the testimony of the witnesses. The said paragraph read thus:- “42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. The said paragraph read thus:- “42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. In this regard this Court in State of H.P. v. Lekh Raj [ (2000) 1 SCC 247 : 2000 SCC (Cri) 147 : (1999) 9 ST 155] (in which one of us was a party), dealing with discrepancies, contradictions and omissions held: (SCC pp. 258-59, paras 7-8) “Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala [ (1974) 3 SCC 767 : 1974 SCC (Cri) 243] held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. This Court in Ousu Varghese v. State of Kerala [ (1974) 3 SCC 767 : 1974 SCC (Cri) 243] held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. [ 1981 Supp SCC 40 : 1981 SCC (Cri) 676] this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki [ (1981) 2 SCC 752 : 1981 SCC (Cri) 593] held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. Referring to and relying upon the earlier judgments of this Court in State of U.P. v. M.K. Anthony [ (1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48 ] , Tahsildar Singh v. State of U.P. [ AIR 1959 SC 1012 : 1959 Cri LJ 1231] , Appabhai v. State of Gujarat [ 1988 Supp SCC 241 : 1988 SCC (Cri) 559 : JT (1988) 1 SC 249] and Rammi v. State of M.P. [ (1999) 8 SCC 649 : JT (1999) 7 SC 247] this court in a recent case Leela Ram v. State of Haryana [ (1999) 9 SCC 525 : JT (1999) 8 SC 274] held: ‘There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence…. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence…. The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.” 19. It is also submitted that ornaments which deceased was wearing and mode of transport i.e. motorcycle is not recovered therefore, prosecution has failed to prove its case. 20. In the facts and circumstances of the case, whether deceased was going on foot or on motorcycle when he went with accused-Amar and later joined by Sonu is not very relevant. As it is not anybody’s case that Jitendra went alone from home or motorcycle was of deceased. Only two strong circumstances link the appellants/accused persons to the murder which has been aptly dealt with by the learned trial Court in its judgment. 21. In this regard, Aarti (PW.2) in paragraph 27 of cross-examination has accepted suggestion of defence that deceased-Jitendra had gone by foot and motorcycle was found on the juice shop. PW.4-Sonu s/o Amratlal Pawar has deposed that at about 01.00 pm a day prior to recovery of dead body of deceased-Jitendra, he met him and thereafter he went alone on the motorcycle. Bhupednra (PW.14) deposed that around 11 to 11.30 am his brother Jitendra was going alongwith Amar and Sonu. No question to the effect that to whom motorcycle belongs was put to this witness. Defence Witness No.4 (Sonu @ Santosh s/o Kallu) has deposed that around 9.0 to 10 am deceased-Jitendra had gone away by leaving motorcycle on his shop. 22. The second ground of appeal is that ornaments of the deceased were not recovered. No question to the effect that to whom motorcycle belongs was put to this witness. Defence Witness No.4 (Sonu @ Santosh s/o Kallu) has deposed that around 9.0 to 10 am deceased-Jitendra had gone away by leaving motorcycle on his shop. 22. The second ground of appeal is that ornaments of the deceased were not recovered. There is no fundamental rule that if ornaments which the deceased was wearing were not recovered then same would disprove the prosecution story. It is pertinent to note that this case is not based on commission of offence of ‘loot’ or ‘dacoity’ in which motive of murder is loot of ornaments. After all recovery of ornaments if it was there, the same would have been one additional link but non recovery of ornaments in this case, in which prosecution case is based on circumstantial evidence and last seen theory, can fail due to non-recovery of ornaments. 23. Weakness in the prosecution case, like non-recovery of golden ornaments, cannot be fatal as has been held in the case of Rakesh and another Vs. State of Uttar Pradesh and another, (2021) 7 SCC 188 in paragraph 12 the Hon’ble Supreme Court has held that for convicting accused recovery of weapon used in commission of offence is not a sine quo non. On the same principle non-recovery of ornaments of the deceased in a murder case would not dislodge the prosecution case. 24. In this way, on the basis of evidence of both the parties in this case and strong chain of circumstances against the accused/appellants whereby deceased was taken away from his home by accused-Amar on the pretext that his brother-in-law (accused-Sonu) is calling deceased and thereafter finding of dead body of deceased on the next day; recovery of mobile from the possession of accused-Sonu; recovery of identity card from possession of accused-Amar, finding of human blood on the article E-1 pant of accused-Amar and I-2 shirt of accused-Sonu; finding blood stain on knives (article D & F) recovered from both the accused/appellants do create such strong chain of circumstances against accused persons wherein except accused/appellants there is no possibility of any other person being guilty or possibility of accused/appellants being innocent. 25. Thus, there is no ground on which the judgment of the learned trial Court can be set aside. Accordingly, appeal fails and judgment of the trial Court is affirmed. 25. Thus, there is no ground on which the judgment of the learned trial Court can be set aside. Accordingly, appeal fails and judgment of the trial Court is affirmed. Let appellants/accused serve remaining jail sentence. 26. Let record of the trial Court be sent back.