Bablu @ Babbu @ Chhotu Tiwari vs State Of Chhattisgarh on 13 December, 2022

[Cites 32, Cited by 1]

Chattisgarh High Court

Bablu @ Babbu @ Chhotu Tiwari vs State Of Chhattisgarh on 13 December, 2022

1. This appeal under Section 374(2) of the CrPC is directed against the impugned judgment by which the appellant herein has been convicted for offences under Sections 450, 392 read with Section 397 & 302 of the IPC and sentenced to undergo rigorous imprisonment for ten years and pay fine of ₹ 100/-, Cr.A.No.672/2012 Page 2 of 24 in default, to further undergo rigorous imprisonment for three months; rigorous imprisonment for ten years and fine of ₹ 100/-, in default, to further undergo rigorous imprisonment for three months; and imprisonment for life and fine of ₹ 100/-, in default, to further undergo rigorous imprisonment for three months, respectively.

2. Case of the prosecution, in brief, is that on 14-9-2011 between 10.00 a.m. and 05.00 p.m., at Village Khapri, the appellant herein unauthorizedly trespassed the house of deceased Phulwabai and robbed golden ornaments & ₹ 6,000/- in cash and strangulated her by a cloth ( dupatta) and thereby committed the aforesaid offences. Further case of the prosecution is that on being informed by Kushal Ram (PW-1), morgue intimation was registered and thereafter, shav panchnama was conducted vide Ex.P-23 and on the recommendation of panchas, dead body was sent for postmortem which was conducted by Dr. S.K. Soni (PW-3) vide Ex.P-8 in which he opined that cause of death is shock due to cardio-respiratory arrest due to rupture of right kidney by heavy force applied in right lumbar region (back of abdomen) and death was homicidal in nature. Three injuries were noticed by the doctor over the body of the deceased. Nazri naksha was prepared vide Ex.P-3 and mathmaila dupatta Cr.A.No.672/2012 Page 3 of 24 was recovered vide Ex.P-11. Other articles were seized vide Ex.P-10. Memorandum statement of the appellant was recorded vide Ex.P-9 pursuant to which one pair of anklet, silver chain and other gold & silver articles were seized vide Ex.P-13 and other articles were seized vide Exs.P-14 to P-16. Measurement panchnama of the seized ornaments is Ex.P-21. Thereafter, seized articles were identified by Geeta Bai (PW-2) to be belonging to her mother, in the test identification parade conducted vide Ex.P-6 proved by Vijay Kumar (PW-4) & Chimanlal Patel (PW-8).

3. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused / appellant was charge-sheeted for offences under Sections 450, 302 & 392 read with Section 397 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the Additional Sessions Judge, Balod received the case on transfer for trial and for hearing and disposal in accordance with law.

4. The accused / appellant abjured the guilt and entered into defence stating that he has has not committed the offence and he has been falsely implicated. In order to bring home the offence, the prosecution examined as many as nine witnesses Cr.A.No.672/2012 Page 4 of 24 and brought on record 27 exhibits. The defence has examined none and no document was brought on record.

5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Sections 450, 392 read with Section 397 & 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

6. Mr. B.P. Singh, learned counsel appearing for the appellant, would submit that the impugned judgment of conviction recorded and sentences awarded are contrary to the facts and circumstances of the case and material available on record and therefore conviction and sentences imposed upon the appellant are liable to be set aside. He would further submit that the Executive Magistrate who conducted the test identification parade vide Ex.P-6 namely, D.C. Banjare has not been examined which is fatal to the case of the prosecution and furthermore, Ex.P-6 has not been proved by the prosecution witnesses in accordance with law and as such, the appellant cannot be convicted for offence under Section 302 of the IPC, and at the most, he can be convicted for the offence of theft, if any, but he cannot be convicted under Section 302 of the Cr.A.No.672/2012 Page 5 of 24 IPC, as such, the impugned judgment is liable to be set aside and the appeal deserves to be allowed.

7. Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the State / respondent, would support the impugned judgment and would submit that it is a case of circumstantial evidence and it is a case where the appellant has firstly, a week before the offence, visited the house of the deceased and thereafter, on the fateful day, in absence of other family members, unauthorizedly, trespassed the house of the deceased, caused her death and looted her ornaments. He would further submit that pursuant to the memorandum statement (Ex.P-9) of the appellant, silver & gold articles were seized vide Ex.P-13 and same were subjected to identification in presence of the Executive Magistrate, which have been identified vide Ex.P-6 by Geeta Bai (PW-2) and the identification proceeding has been proved by Chimanlal Patel (PW-8). As such, it has clearly been established that it is the appellant who has not only unauthorizedly trespassed the house of the deceased, but also committed her murder and thereafter, robbed gold & silver ornaments wore / kept by the deceased, which have been recovered from the possession of the appellant pursuant to his memorandum statement, as such, the trial Court has rightly convicted the appellant herein, therefore, Cr.A.No.672/2012 Page 6 of 24 the appeal deserves to be dismissed.

8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

9. The first question for consideration would be, whether the trial Court is justified in holding that the death of deceased Phulwa Bai was homicidal in nature?

10. The trial Court after relying upon the medical evidence of Dr. S.K. Soni (PW-3) and further relying upon the postmortem report Ex.P-8, came to the conclusion that the death of the deceased was homicidal in nature as the death occurred on account of rupture of right kidney and on account of cardio- respiratory arrest and shock. The finding recorded by the trial Court that death of deceased Phulwa Bai was homicidal in nature, is a pure finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. Even it has not been seriously questioned on behalf of the appellant.

11. The next question is, whether the appellant is the author of the crime?

12. The appellant has been identified by Geeta Bai (PW-2) - daughter of the deceased. In her statement before the Court Cr.A.No.672/2012 Page 7 of 24 in paragraph 1, she has identified the appellant and furthermore, in paragraph 4, she has clearly stated that a week before the incident, the appellant had visited her house and he had given his phone number to her and also has taken tea in her house. As such, it is quite established that the appellant had earlier visited the house of the deceased & Geeta Bai (PW-2) and has developed some relation with the deceased and her family specially with Geeta Bai (PW-2).

13. In the postmortem conducted by Dr. S.K. Soni (PW-3) - Medical Officer, Community Health Centre, Balod, three injuries were noticed on the body of the deceased which state as under: -

1. Abrasion internal on neck at level of thyroid cartilage and left side of mastoid 2 x 2 c.m. & 1½ x1 c.m.

2. Contusion 12 x 7 c.m. internal on the back of lumbar region right side with fracture of 9th, 10th, 11th ribs.

3. Abrasion internal on right knee (anterior) 2 x 3 c.m.

14. A careful perusal of the aforesaid statement of Medical Officer Dr. S.K. Soni (PW-3) would show that apart from scratch on neck of the deceased, left side rib bones - 9 th, 10th & 11th were found fractured on account of which right kidney was found ruptured and on that account the deceased died on account of shock. Injury No.3 was on right knee, it was Cr.A.No.672/2012 Page 8 of 24 scratch of 2 x 3 c.m.. As such, the deceased had the sign of struggle over the body which is apparent from the statement of Dr. S.K. Soni (PW-3).

15. The incident is of 14-9-2011 between 10.00 a.m. and 05.00 p.m. and information was received to the police station on 14- 9-2011 at 09.05 p.m.. The appellant was taken into custody and his memorandum statement was recorded vide Ex.P-9 on 15-9-2011 at 02.40 p.m. and silver anklet, silver chain & other gold articles were seized from the possession of the appellant on 15-9-2011 vide Ex.P-13 in presence of Vijay Kumar (PW-

4) & Chimanlal Patel (PW-8).

16. It is well settled law that under Section 27 of the Evidence Act only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word 'fact' means some concrete or material fact to which the information directly relates. As held by Sir John Beaumont in the matter of Pulukuri Kotayya v. King-Emperor1, "... it is fallacious to treat the "fact discovered"

within the section as equivalent to the object produced ; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact."

17. Following the principle of law laid down in Pulukuri Kotayya 1 AIR 1947 PC 67 Cr.A.No.672/2012 Page 9 of 24 (supra), their Lordships of the Supreme Court in the matter of Asar Mohammad and others v. State of U.P. 2, with reference to the word "fact" employed in Section 27 of the Evidence Act, have held that the facts need not be self-probatory and the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence.

18. In order to make Section 27 of the Evidence Act applicable, two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered. In the present case, the incident occurred on 14-9-2011 between 10.00 a.m. and 05.00 p.m. and on 15-9-2011 at 03.45 p.m., as pointed out by the appellant, pursuant to his memorandum statement, incriminating articles were recovered from his possession. As such, recovery made from the appellant pursuant to the disclosure statement satisfies the requirement of 2 AIR 2018 SC 5264 Cr.A.No.672/2012 Page 10 of 24 Section 27 of the Indian Evidence Act, 1872, and that being so, the statement made by the appellant under Section 27 vide Ex.P-9, is clearly admissible in evidence.

19. Now, the seized articles i.e. 11 in number have been identified by Geeta Bai (PW-2) - daughter of the deceased, who at the relevant point of time was staying with the deceased, though at the time of incident, she was not present in the house. Geeta Bai (PW-2) has been examined before the Court and she has clearly proved the identification proceeding of the seized articles vide Ex.P-6, as she was staying with her mother and in paragraph 23, she has clearly stated that at the time of identification, no police officer was present and she has identified gold and silver ornaments of her mother.

20. Not only this, Chimanlal Patel (PW-8) - panch witness, has also been examined who has not only proved memorandum statement and seizure, but also proved Ex.P-6 - identification proceeding of silver & gold ornaments. He has been subjected to lengthy cross-examination, but nothing has been extracted to hold that the identification proceeding has not been conducted in accordance with law, however, he has clearly stated that at that time, police persons were not present in the identification proceeding and identification proceeding was conducted by the Cr.A.No.672/2012 Page 11 of 24 Executive Magistrate. In our considered opinion, the seized ornaments have been identified though the ornaments can be treated to be the ornaments in common use in the villages, but Geeta Bai (PW-2), being daughter of the deceased, has not committed any mistake in identifying the seized ornaments of the deceased and has clearly identified the ornaments i.e. silver anklet, chain, mangal sutra, etc., to be of her mother, as mentioned in Ex.P-6. The Supreme Court in the matter of Earabhadrappa alias Krishnappa v. State of Karnataka 3 has held that it is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings particularly articles of personal use in the family. As such, the submission on behalf of the appellant that memorandum and pursuant seizure have not been proved in accordance with law and further, the ornaments have not been identified in a duly constituted test identification proceeding, has no merit and deserves to be and is accordingly rejected.

21. Now, the next submission on behalf of the appellant is that even if the seized articles were owned by the deceased and were found in possession of the appellant, he can only be convicted for offence under Section 379 of the IPC, but cannot be convicted for offence under Section 302 of the IPC, 3 (1983) 2 SCC 330 Cr.A.No.672/2012 Page 12 of 24 whereas it is the case of the State / respondent that where murder and robbery are proved to have been integral parts of one and the same transaction and consequently, the presumption under Illustration (a) to Section 114 of the Evidence Act would be drawn that it is only the appellant who not only committed the murder of the deceased but also committed robbery of her gold and silver ornaments which form part of the same transaction, as the prosecution has led sufficient evidence to connect the appellant with the commission of the offence in question.

22. In order to consider the submission, it would be appropriate to notice Illustration (a) to Section 114 of the Indian Evidence Act, 1872, which states as under: -

"114. Court may presume existence of certain facts.

--The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations The Court may presume--

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"

23. In order to draw an inference that fact in dispute has been Cr.A.No.672/2012 Page 13 of 24 established, there must exist, on record, some direct material facts or circumstances from which such inference could be drawn. Inference of proof of that fact could be drawn from given objective facts, direct or circumstantial (see R. Puthunainar Alhithan, etc. v. P.H. Pandian and others4).

24. Furthermore, the illustrations appended to the aforesaid section are not exhaustive but merely illustrate the principle underlying the main provision. The presumption to be drawn under that provision is one of fact and whether it should be drawn or not in a particular case must depend upon the facts of that case.

25. In the matter of Tulsiram Kanu v. The State5, while considering Illustration (a) appended to Section 114 of the Evidence Act, their Lordships of the Supreme Court have held that the presumption permitted to be drawn under Section 114, illustration (a), Evidence Act, has to be read along with the important time-factor. If ornaments or things of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. 4 AIR 1996 SC 1599 5 AIR 1954 SC 1 Cr.A.No.672/2012 Page 14 of 24 Their Lordships observed in paragraph 7 as under: -

"7. Apart from this confession, the judgment of the High Court is based on the identification of the gold ornaments. The Sessions Judge recognised that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning, under the circumstances of the case, is unsound. The alleged murder took place on 28-5-1949 and assuming that the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the appellant being the murderer of the deceased. The important factor which appear to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under S. 114, illu. (a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. The criticism applied equally to the reasoning of the High Court for its conclusion.

26. Thereafter, in the matter of Wasim Khan v. The State of Uttar Pradesh6, the Supreme Court posed a question for consideration, whether the evidence in the case establishes that the appellant murdered and robbed Ram Dularey and their Lordships answered the question that recent and unexplained

6 AIR 1956 SC 400 Cr.A.No.672/2012 Page 15 of 24 possession of stolen articles can well be taken to be presumptive evidence of the charge of murder as well as robbery.

27. Thereafter, in the matter of Alisher v. State of Uttar Pradesh 7, it has been held by their Lordships of the Supreme Court that illustration (a) to Section 114 of the Evidence Act makes it plain that the time factor has a material bearing and the Court must keep it in view before it can draw the presumption in accordance with the illustration. It was further held that the presumption can be raised if a person is found to be in possession of stolen goods soon after the theft. If, however, a long period elapses between the date of the theft and the date on which a person is found to be in possession of the stolen articles, the Court would not be justified in drawing the presumption in accordance with illustration (a) to Section 114. It was also held that the question as to how much period should elapse after the theft in order to rule out the presumption under illustration (a) would depend on the nature of the stolen article and the facts of each case.

28. In the matter of Baiju alias Bharosa v. State of Madhya Pradesh8, the Supreme Court following the decisions in Wasim 7 (1974) 4 SCC 254 8 (1978) 1 SCC 588 Cr.A.No.672/2012 Page 16 of 24 Khan (supra) and Alisher (supra) and while dealing with the presumption to be drawn under illustration (a) to Section 114 of the Evidence Act has held that it is a matter which depends on the evidence and circumstances of each case. Further, their Lordships pointed out the following factors in order to attract illustration (a) to Section 114 of the Evidence Act: -

1. The nature of the stolen article,

2. the manner of its acquisition by the accused,

3. the nature of the evidence about its identification,

4. the manner in which it was dealt with by the accused,

5. the place and circumstances of its recovery,

6. the length of the intervening period, and

7. the ability or otherwise of the accused to explain his possession, are factors which have to be taken into consideration in arriving at a decision.

29. Thereafter, in the matter of Gulab Chand v. State of M.P.9, following the decision of the Supreme Court in Tulsiram Kanu (supra), their Lordships have held that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be read along with the "important

9 (1995) 3 SCC 574 Cr.A.No.672/2012 Page 17 of 24 time factor" and if the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted, but if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case.

30. Similarly, in the matter of George v. State of Kerala10, relying upon the earlier decision in Baiju (supra), the Supreme Court while dealing with the phrase "soon after" employed in illustration (a) to Section 114 of the Evidence Act held as under: -

"7. ... The possession of the articles which had been duly identified by the witnesses as belonging to the deceased were found in his possession within less than 24 hours of the incident. It would lead to inference under Section 114(a) of the Evidence Act that the appellant has himself committed the robbery, an offence punishable under Section 392 IPC. According to the statement of PWs 10, 12 and 13 the deceased had been saying "take whatever you want, leave me alone", which shows that he must have been under some apprehension or threat thereof."

31. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court to invoke Illustration (a) to Section 114 of the Evidence Act, it is quite vivid that the appellant was found in 10 (2002) 4 SCC 475 Cr.A.No.672/2012 Page 18 of 24 possession of the ornaments owned and possessed by the deceased soon after the murder and therefore it satisfies the requirement of important time factor envisaged by the Supreme Court in Tulsiram Kanu (supra) to invoke Illustration (a) to Section 114 of the Evidence Act, as the ornaments were duly identified. Possession of the articles of the deceased has duly been identified by her daughter namely, Geeta Bai (PW-2) as belonging to the deceased. The date of offence is 14-9-2011 between 10.00 a.m. and 05.00 p.m. and information was received to the police station on 14-9-2011 at 09.05 p.m.. and immediately within 24 hours from the date of information to the police, ornaments were seized from the possession of the appellant pursuant to the memorandum statement of the appellant, on 15-9-2011 at 03.45 p.m. and the said ornaments were duly identified by Geeta Bai (PW-2) - daughter of the deceased, in the test identification proceeding Ex.P-6 which has duly been proved by Vijay Kumar (PW-4) & Chimanlal Patel (PW-8). The appellant was required to explain the possession of the aforesaid articles found in his possession, in his examination under Section 313 of the CrPC which he has not explained. This would meet the requirement of Illustration

(a) to Section 114 of the Evidence Act and as such, murder and robbery are proved to be integral parts of one and the Cr.A.No.672/2012 Page 19 of 24 same transaction and therefore the presumption permitted under Section 114, Illustration (a), of the Evidence Act, would apply and it is held that the trial Court has rightly held that it is the appellant who not only committed the murder of the deceased but also robbed her gold and silver ornaments which form part of one and the same transaction for which the prosecution has led ample evidence to connect the appellant with the offence in question.

32. The Supreme Court in Earabhadrappa alias Krishnappa (supra) in the like case it has been held that denial by the accused where the accused has no satisfactory explanation to offer for his possession of stolen articles, as in this case no satisfactory explanation has been offered, rather it has been denied, their Lordships held that false denial by itself is an incriminating circumstance (see paragraph 13).

33. Now, it has been contended on behalf of the appellant that the Executive Magistrate, who has conducted the test identification parade, has not been examined and therefore the entire proceeding Ex.P-6 has not been proved in accordance with law and in that view, the prosecution case has no legs to stand and is liable to be rejected in toto.

34. In order to consider this plea, it would be appropriate to Cr.A.No.672/2012 Page 20 of 24 notice Section 291-A of the CrPC which deals with identification report of Magistrate and which states as under: -

"291-A. Identification report of Magistrate.--(1) Any document purporting to be a report of identification under the hand of an Executive Magistrate in respect of a person or property may be used as evidence in any inquiry, trial or other proceeding under this Code, although such Magistrate is not called as a witness:

Provided that where such report contains a statement of any suspect or witness to which the provisions of section 21, section 32, section 33, section 155 or section 157, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), apply, such statement shall not be used under this sub- section except in accordance with the provisions of those sections.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject-matter of the said report."

35. The aforesaid provision has been inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005) and has come into force with effect from 23-6-2006. Under the existing provisions of the Code an identification memo is required to be proved in the Court by examination of the Magistrate, who conducted the proceedings. These facts are generally not disputed. In order to save time of the Court, a new section in shape of Section 291-A has been inserted with Cr.A.No.672/2012 Page 21 of 24 a view to making memorandum of identification prepared by the Magistrate admissible in evidence without formal proof of facts stated therein with a provision that the Court may, if it thinks fit, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject-matter contained in the memorandum of identification.

36. As such, Ex.P-6 prepared by the Tahsildar who is also Executive Magistrate in respect of property can be used in evidence at the trial, though the Executive Magistrate is not called as a witness. However, the proviso appended to sub- section (1) of Section 291-A of the CrPC provides that where such report contains a statement of any suspect or witness to which the provisions of Sections 21, 32, 33, 155 or Section 157, as the case may be, of the Evidence Act, apply, such statement shall not be used under this sub-section except in accordance with the provisions of those Sections. However, sub-section (2) of Section 291-A provides that the Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject-matter of the said report.

37. In the instant case, it is quite vivid that though the identification report (Ex.P-6) of the Executive Magistrate can Cr.A.No.672/2012 Page 22 of 24 be used in trial, though he is not called as a witness, yet, by virtue of sub-section (2) of Section 291-A of the CrPC, on the application of the accused, he could be summoned and examined as to the subject-matter of the said report. But here, the appellant herein has not invoked Section 291-A(2) of the CrPC and did not think it expedient to call the Executive Magistrate as a witness as to the subject-matter of the said report Ex.P-6 during the course of trial for cross-examination (if any) and sought to make capital of non-examination of the Executive Magistrate / Tahsildar - D.C. Banjare, who conducted test identification proceeding of the seized articles. Statutory provision like Section 291-A(2) of the CrPC has been enacted conferring rights to the parties to call for and examine the Executive Magistrate, if required, by the accused or the prosecution, as the case may be, qua the identification report for the purpose of examination. But for the reasons best known to the appellant herein, he did not choose to exercise the said provision during the course of trial and did not avail the said opportunity and thereby waived the right, if any, to get the Executive Magistrate examined qua the report Ex.P-6 and did not lay any foundation for that purpose. Statutory provisions are meant for exercising those provisions by a party which thinks that he is entitled to invoke that Cr.A.No.672/2012 Page 23 of 24 provision on the facts of the case, but the said provision cannot be used to wriggle out from the legal proceeding which is in accordance with law and thereby to frustrate the legislative intent beyond enacting the provision like Section 291-A of the CrPC.

38. As such, the objection of non-examination of the Executive Magistrate to prove Ex.P-6 is hereby repelled, as Geeta Bai (PW-2) has proved Ex.P-6 and one witness to Ex.P-6 namely Chimanlal Patel who has also been examined as PW-8 has also clearly proved Ex.P-6 that it has been conducted in accordance with law. Therefore, the objection in this regard is hereby rejected.

39. In view of the aforesaid discussion, we are of the opinion that the prosecution has been able to prove that the appellant having kept eagle's eye on the property of the deceased, has developed relationship with her by visiting her house a week before the date of offence as apparent from the statement of Geeta Bai (PW-2) and taking advantage of her being a weak and aged woman and staying all alone, on the fateful day, in absence of Geeta Bai and other family members, trespassed the house of the deceased and murdered her and looted gold & silver ornaments and pursuant to the memorandum statement of Cr.A.No.672/2012 Page 24 of 24 the appellant Ex.P-9, seized articles were identified by Geeta Bai (PW-2) to be belonging to her mother (deceased herein) in the identification proceeding conducted by the Executive Magistrate. The appellant has failed to offer explanation about the ornaments which were recovered within 24 hours from the date and time of incident and has given false explanation which itself is an incriminating circumstance.

40. In view of the above-stated analysis, the trial Court is absolutely justified in holding that the appellant is the author of the crime in question and as such, the trial Court is justified in convicting the appellant under Sections 450, 392 read with Section 397 & 302 of the IPC.

41. For the foregoing reasons, we do not find any merit in this appeal, it deserves to be and is accordingly dismissed.

                 Sd/-                                           Sd/-
          (Sanjay K. Agrawal)                          (Rakesh Mohan Pandey)
                Judge                                          Judge

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