Allahabad High Court
Chotay @ Pream Chandra vs State Of U.P. on 1 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 329
Bench: Sudhir Agarwal, Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 02.01.2019
Delivered on: 01.02.2019
CRIMINAL APPEAL No. - 2150 of 2006
Appellant :- Chotay @ Pream Chandra
Respondent :- State Of U.P.
Counsel for Appellant :- Vineet Singh Sengar,Vijai Prakash Tiwari
Counsel for Respondent :- Sri Ratan Singh,Govt. Advocate
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Hon'ble Sudhir Agarwal,J.
Hon'ble Umesh Kumar,J.
(Delivered by Hon'ble Umesh Kumar,J)
1. This appeal has been filed against the judgment and order dated 31.03.2006 passed by Special Judge (D.A.A.), Kanpur Dehat in Special Session Trial No. 102 of 2003 (State Vs. Chotay @ Pream Chandra) convicting and sentencing the appellant-Chotay @ Pream Chandra under Section 302 of IPC to undergo life imprisonment with a fine of Rs. 4000/-, and further to undergo 7 years R.I. under Section 394/411 of IPC with a fine of Rs.1000/- and to undergo 3 years R.I. under Section 376/511 of IPC with a fine of Rs. 1000/- with default stipulation. All the sentences are ordered to run concurrently.
2. Briefly stating the prosecution story is that on 10.08.2003, at about 5.30 P.M. Smt. Kamlesh aged about 52 year, wife of informant-Daya Shanker Dwivedi was found dead in suspicious condition in the field of Meccai, near his house, where she had gone to bring taroi and as there is no external injury on her dead body, the real cause of her death could not be ascertained. Her dead body has been brought to home from the field. This tahrir was written by one Ram Bilas, on which, the informant put his thumb impression. This tahrir is Ex.Ka-3, upon which, entry in GD No.37 at 11.45 PM was made which is exhibited as Ex.Ka-1. FIR was registered at 12.10 PM, which is Ex.Ka-2.
3. After completion of investigation, charge sheet Ex.Ka-14 has been submitted in the Court of Special Judge (DAA), Kanpur Dehat on 24.09.2003 by the Investigating Officer, on which, congnizance was taken and charge was framed by the Trial Court on 17.04.2004 which reads as under;
"eSa] bUnzthr oekZ fo'ks"k U;k;k/kh'k ¼nL;q izHkkfor {ks=½] dkuiqj nsgkr vki vfHk;qDr NksVs mQZ IkzsepUn ij fuEufyf[kr vkjksi yxkrk gWw%& izFke] ;g fd fnukad 10-08-2003 dks le; 5-30 ih-,e- ij edkbZ dk [ksr cgn xzke NksVh euksg Fkkuk pkScsiqj] dkuiqj&nsgkr ds vUrXkZr vkius vius lkekU; mn~ns'; dh iwfrZ esa deys'k dkUrh ds lkFk cykRdkj djus ds iz;kl esa vlQy gksus ij mldh gR;k dkfjr dh vkSj bl izdkj vkius ,slk vijk/k fd;k gS tks Hkkjrh; n.M lafgrk dh /kkjk 302 ds vUrXkZr n.Muh; gS vkSj bl U;k;ky; ds izlakKku esa gSA f}rh;] ;g fd mijksDr fnukad] le; o LFkku ij vkius vius lkekU; mn~ns'; dh iwfrZ esa deys'k dkUrh dh ,d tksM+h dku dh ckyh o ukd dh dhy lksus dh ywV dkfjr dh vkSj bl izdkj vkius ,Slk vijk/k fd;k gS tks Hkkjrh; n.M lafgrk dh /kkjk&394 ds vUrxZr n.Muh; gS vkSj bl U;k;ky; ds izlaKku esa gSA r`rh;] ;g fd mijksDr fnukad] le; o LFkku ij vius lkekU; mn~ns'; dh iwfrZ dsa deys'k dkUrh ls cykrlax djus dk iz;kl fd;k vkSj bl izdkj vkius ,slk vijk/k fd;k gS tks Hkkjrh; n.M lafgrk dh /kkjk 376 lifBr /kkjk&511 ds vUrxZr n.Muh; gS vkSj bl U;k;ky; ds izlaKku esa gSA prqFkZ] ;g fd fnukad 26-8-03 dks le; 8-30 ,-,e- ij cgn xzke NksVh euksg Fkkuk pkScsiqj] dkuiqj&nsgkr esa vkids dCts ls dku dh nks ckfy;kW o ukd dh dhy lksus dh cjken gq;h ftls vki ;g tkurs gq;s fd ;g lkekUk fnukad 10-8-03 dks deys'k dkUrh ls ywVh x;h Fkh] vius ikl j[ks gq;s Fks vkSj bl izdkj vkius ,Slk vijk/k fd;k gS tks Hkkjrh; n.M lafgrk dh /kkjk&411 ds vk/khu n.Muh; gS vkSj bl U;k;ky; ds izlaKku esa gSA ,rn~ }kjk] eSa vkidks funsZf'kr djrk gWw fd mDr vkjksi ds fy, bl U;k;ky; }kjk fopkj.k fd;k tk;sxkA** I, Indrajeet Verma, Special Judge, (Dacoity Affected Area), Kanpur Dehat, charge you, Chhote alias Premchand, with the following: -
Firstly, that, on 10.08.2003 at 5:30 p.m. in the maize field situated within the limits of Village - Chhoti Manoh under PS - Chaubepur, Kanpur Dehat, you, in furtherance of your common object, committed murder of Kamlesh Kanti after an unsuccessful attempt of rape on her; thereby committed such an offence that is punishable under section 302 of the IPC and is in the cognisance of this court.
Secondly, that, on the aforesaid date, time and place, you, in furtherance of your common object, robbed Kamlesh Kanti of baali (a pair of ear rings) and naak ki keel (nose-pin) made of gold; thereby committed such an offence that is punishable u/s 394 IPC and is in the cognisance of this court.
Thirdly, that, on aforesaid date, time and place, you, in furtherance of your common object, attempted to commit rape on Kamlesh Kanti; thereby committing such an offence that is punishable u/s 376 IPC read with section 511 and is in the cognisance of this court.
Fourthly, that, on 26.08.2003 at 8:30 a.m. within the limits of Village - Chhoti Manoh, PS - Chaubepur, Kanpur Dehat, the pair of ear rings and the nose-pin, made of gold, were recovered from your possession, which you had retained to yourself knowing them to have been looted from Kamlesh Kanti on 10.08.2003; in this way, you have committed such an offence that is punishable u/s 411 IPC and is in the cognisance of this court.
I, hereby, direct that you shall be tried by this court for the aforesaid offences."
4. The accused- appelant pleaded not guilty and claimed to be tried.
5. In support of prosecution version, prosecution has examined as many as 12 witnesses. P.W.1 Arvind Singh is the Head Constable, who has made GD. Entry no. 37 at 11.45 PM on 10.08.2003 and after receiving post mortem report on 12.8.2003, G.D. entry No. 20 at 12.10 P.M (Ex.Ka-2). P.W.2 Ram Bilas Dwivedi is the scribe of tahrir- Ex.Ka-3. He has proved this tahrir and stated that on the dictation of informant- Daya Shanker, he has written the same. P.W.3 Data Ram, Sub Inspector of Police, who visited the place of occurrence, prepared inquest report in presence of Station House Officer Lallo Singh who had arrived there. He has stated that from the place of occurrence, he has collected the broken pieces of bangles of the deceased from the field in presence of witnesses.This witness had sealed broken pieces of bangle, ear rings and nose pin and prepared panachayatnama, challan nash, photo nash, letter to CMO, specimen seal, recovery memo in respect of bangle's pieces and proved the same in Court.
6. P.W.4-informant Daya Shanker Dwivedi (husband of deceased). P.W.5 is Dr. Anil Kumar Gupta, who conducted post mortem examination of the deceased-Kamlesh on 11.8.2003 and found following ante-mortem injuries on the body of deceased;
(1) Abraded contusion 1.5 cm x 1 cm on right side of neck, 5 cm from right angle of mandible, 3 cm from mid line.
(2) Contusion in area of 4 cm. x 2 cm on right side of neck, just below right angle of mandible.
(3) Three abraded contusion in area of 5 cm x 4 cm on upper part of lelft neck . Size of abrasions ranging from .5 cm x 2 cm to 1 cm x .25 cm. All semi subcutical over in shape.
Dissention- sub-cut. Tissue of neck & lower jaws echchynosed. No external injury to private parts.
7. P.W.6 Kumari Babli had first seen the deceased-Kamlesh dead in the field of Meccai and she had given information at the residence of Sanjai, to his father. P.W.7 Pyare Lal is Constable, who accompanied the Sub Inspector up to the place of occurrence and remained there at the time of preparation of inquest report. P.W.8- Rajesh Kumar is the witness of arrest of the accused-appellant on 10.08.2003 from northern side of badi manoh by the police on his pointing out. P.W.9- Gyan Prakash is the witness before whom the accused-appellant has confessed his guilt and asked him to help in the matter. P.W.10- Mahesh Kumar Dwivedi, is the witness who has seen the accused-appellant coming fastly towards west. P.W.11- Pawan Kumar Dwivedi, has also stated to have seen the accused-appellant folding his one fist, wearing only a Lungi coming out from the field of Meccai. P.W.12-Lalloo Singh, is the Investigating Officer, who had visited the place of occurrence, recorded the statement of informant-Daya Shanker and prepared site plan in presence of witnesses.
8. The accused-appellant has been charged under Sections 302, 376 read with Section 511 IPC and Section 394 of IPC, to which he denied and claimed trial.
9. Statement of accused-appellant under Section 313 Cr.P.C. has been recorded, in which he claimed false implication.
10. We have heard Sri Vijay Prakash Tiwari, learned Counsel for the appellant and Sri Ratan Singh, learned AGA on behalf of State and have perused the record.
11. Learned Counsel for the accused-appellant has argued that in the present case, there is no eye witness of the occurrence and the whole prosecution story revolves around circumstantial evidence. The chain of circumstantial evidence is not complete and the conviction of the appellant on the basis of such circumstantial evidence can not be maintained.
12. On the other hand, learned AGA opposed the arguments of learned Counsel for the appellant and has submitted that the prosecution has consistently and satisfactorily established involvement of accused-appellant on the basis of reliable and cogent evidence of prosecution witnesses and the circumstantial evidence proving the guilt of apellant is complete. The judgment and order of conviction passed by learned Trial Judge is well discussed and reasoned one.
13. Now, in the present case, the only question that has to be decided whether the prosecution has proved its case on the basis of circumstantial evidence against the appellant beyond all reasonable doubts or not.
14. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra (2008) 3 SCC 210, Court, while dealing with circumstantial evidence, observed as under:
"11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343], which is one of the earliest decisions on the subject, this court observed as under:
"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
15. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."
16. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:
"(1) 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;
(2) 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;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) 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."
17. In S. Govindaraju v State of Karnataka (2013)15 SCC 315, Court, while dealing with circumstantial evidence, observed as under:
"29. It is obligatory on the part of the accused while being examined under Section 313 of Cr PC to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v. State of Haryana, AIR 2013 SC 912).
31. The prosecution successfully proved its case and, therefore, provisions of Section 113 of the Evidence Act, 1872 come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, Shanthi, deceased died in the house of the appellant. He did not disclose as where he had been at the time of incident. In such a fact situation, the provisions of Section 106 of the Evidence Act may also be made applicable as the appellant/accused had special knowledge regarding such facts, though he failed to furnish any explanation thus, the court could draw an adverse inference against him."
18- Since the conviction of the accused appellant is mainly based on the extra judicial confession made by him, we wish to bring out the law relating to extra-judicial confession by referring to a judgement in State of UP v. M.K. Anthony (1985) 1 SCC 505, relevant portion of which reads thus:
"15...............................It thus appears that extra judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra judicial confession comes from the mouth of witness/ witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon."
19- In Gura Singh vs. State of Rajasthan (2001) 2 SCC 205, Court observed as under:
"6. It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (1954 SCR 1098), this Court again in Maghar Singh v. State of Punjab [AIR 1975 SC 1320] held that the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of MP [AIR 1985 SC 1678] this Court cautioned that it is not open to the court trying the criminal case to start with presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra-judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of HP [AIR 1990 SC 2140] this Court held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in Baldev Raj v. State of Haryana [AIR 1991 SC 37]. After referring to the judgment in Piara Singh v. State of Punjab [AIR 1977 SC 2274] this Court in Madan Gopal Kakkad v. Naval Dubey & anr [JT 1992 (3) SC 270] held that the extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration."
20- In State of Rajasthan v. Raja Ram (2003) 8 SCC 180, Court observed the principle that an extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The Court, further expressed the view that such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witness who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.
21- In Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 it was held;
"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material."
22- Again in Baskaran & another v. State of Tamil Nadu (2014) 5 SCC 765, Court observed thus:-
"17. It is no doubt true that this Court time and again has held that an extra-judicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. But it is not open to any court to start with the presumption that extra-judicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated by independent witness which is the position in the instant case. The Courts cannot be unmindful of the legal position that even if the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction."
23- Applying the above law, in the present case, it is clear that on 10.8.2003, it is the accused-appellant, who tried to outrage the modesty of the deceased and when failed, has committed the murder and looted her ornaments. After the incident, the accused made extra judicial confession. PW.6- Km Babli, in her statement has stated that on 10.08.2003, in the evening at about 5.00 PM., deceased- Kamlesh asked her " chalo bitiya taroi le ayen", to which she replied that she is cuitting grass/chara and she should go and she (Babli) would come after cutting it. When she reached there, she saw that Sanjay's mother-deceased-Kamlesh is lying dead on the ground. Mahesh Kumar Trivedi-P.W.10 and Pawan Kumar Trivedi-P.W.11 both have stated that on the date of occurrence at about 5.30 PM, they saw the accused-Chotey @ Pream Chandra in flustered condition moving quickly towards west from the field of Daya Shanker. At that time, he was not wearing any cloth except a Lungi on his body. He was also witnessed holding something in his hand while moving quickly. It shows that on the said date and time of occurrence, accused Chotey @ Pream Chandra was seen coming out from the field of Daya Shanker in stupefied condition.
24- Another very imporant fact is that accused-Chotey @ Pream Chandra has confessed his guilt before Gyan Prakash-P.W.9 when he was feeding his cattles five days later to the said occurrence that accused-appellant came near him and said that "I have committed a great mistake. I misbehaved with deceased-Kamlesh in the field of Meccai and murdered her by throttling and looted her ear-ring and nose pin". This version of P.W.9- Gyan Prakash is fully supported by the statement of P.W.8 Rajesh Kumar Shukla, who has deposed that on 26.8.2003 at about 7.30 a.m., accused- Chotey @ Pream Chandra was arrested by the police and he has confessed his guilt. The accused-appellant further stated that he robbed ear-ring and nose pin, which, he has hidden in his house and the same can be recovered from there. After this confession, the accused-Chotey @ Pream Chandra along with police personnel and other witnesses took them to his house, where the accused handed over two ear-rings and one nose pin kept in a polythene to the Station House Officer. There, the accused-appellant also said that these are the ornaments, which he had looted from the deceased-Kamlesh after committing rape with her in maize field on 10th August, 2003. This witness (P.W.8) has further stated that after getting information, husband of deceased namely Daya Shanker and his son Sanjay reached there. They identified the ornaments that belongs to his wife. A recovery memo Ex.Ka-10 was executed and P.W.8 put his signature over it and this statement, he has proved in his cross examination, wherein he has stated that accused- Chotey @ Pream Chandra admitted before him that Maal (case property) is kept at his residence and specifically stated that "I committed rape, murdered her and looted her". Although, he has not written this version any where but he did write down it in his mind.
25- P.W.7-Pyarey Lal has stated in his statement that at the time of panchayatnama, he was with the Inspector. After inquest, the dead body of deceased was handed over by him to the police for post mortem in an intact position.
26- P.W.4-Daya Shanker Trivedi has also supported the statement of the P.W.6-Km Babli that his wife Kamlesh went to Maize (Meccai) field to bring Taroi and when Km. Babli went there after cutting grass (chara), she found her dead in the field and then she stated this fact to him and thereafter, he, Sanjay, Ram Bilas, Vijay Shanker and several other people went to the field and brought the dead body to his house. This witness has proved his tahrir as Ex.Ka.3. P.W.5- Dr. Anil Kumar Gupta has conducted the post mortem examination and he has stated the cause of death as Asphyxia due to throttling. The cause of death as shown also corroborates the prosecution version. He has further stated that Pawan Trivedi (P.W.11) and Mahesh (P.W.10) told him that they saw the accused-Chotey @ Pream Chandra who was running towards west from the field where ococurrence took place. Then he was convinced that accused Chotey @ Pream Chandra has killed his wife and looted her ornaments.
27- P.W.3 Sub-Inspector Data Ram has stated that he visited the place of occurrence and has conducted panchayatnama of the deceased on 12.8.2003, where on the instruction of the Station House Officer Lalloo Singh, he collected broken pieces of bangles of the deceased, sealed it and prepared a recovery memo (Ex.Ka-9). He has also proved the recovery memo of ornaments dated 26.8.2003 (Ex.Ka-10). The case property i.e. broken pieces of bangles, Ex-1, ear-rings Ex-2 & 3 and also nose pin Ex-4 have also been proved by this witness. P.W.2-Ram Bilas Trivedi has proved Ex.Ka-3 tahrir. P.W.1 Head Constable Arvind Singh has proved GD (Ex.Ka1) and thereafter, when post mortem was conducted, GD entry No. 37 dated 12.8.2003 (Ex.Ka-2) in case crime No. 211 of 2003.
28- True, it is that the evidence of extra judicial confession is a weak evidence and normally, Courts look forward about some supporting evidence. However, present is a case where on the said date of occurrence, P.W.6 Km.Babli found deceased-Kamlesh dead on the spot, place of occurrence is established by the evidence of P.W.3 and P.W.12 together with the evidence of other witnesses of fact showing that broken bangles were found, broken Torai was lying there. Morever the balis of the maize were also found broken there. It is also well established by the evidence adduced from the side of prosecution that accused-Chotey @ Pream Chandra was seen running from the spot just after commission of offence by independent witness in flustered condition wearing only a Lungi, holding something in his hand and from this, involvement of the accused-Chotey @ Pream Chandra in the present case, can safely be inferred.
29- Extra-judicial confession made before P.W.9-Gyan Prakash is another connecting circumstance which supports the prosecution version. The post mortem of the deceased- Kamlesh also supports the prosecution story. P.W.5 Dr. Anil Kumar Gupta who has conducted the post mortem examination, has proved the same. Recovery of ear-rings (Material Ex.2, 3 and nose pin (material Ex.4) on the pointing out of the accused-appellant himself is very important and clinching circumstance, which cogently and firmly establishes the guilt of the accused-appellant in the present case.
30- From above discussed circumstances, it can safely be held that the evidence of the witnesses, in the present case, not only inspires confidence of this Court, but their statements also seem to be trustworthy and natural.
31- Further more, the circumstances, if taken cumulatively, they form a complete chain and there is no escape from the conclusion that within all human probability, the crime has been committed by the accused-appellant (Chotey @ Pream Chandra) and none else.
32- Hence, the impugned judgment and order passed by the learned Trial Judge requires no inteference and the conviction and sentence of the appellant-chotey @ Pream Chandra is upheld.
33- The appeal is dismissed.
34- The appellant is in jail. Registry is directed to transmit the original record of the Trial Court and the judgment for immediate compliance to the Court concerned so as to ensure that the accused-appellant serves out the remaining sentence, in accordance with law.
Order Date :- 01.02. 2019 (Sudhir Agarwal,J)
SH.
(Umesh Kumar, J)