R.R. Yadav, J.
1. In the Instant D.B. Criminal Appeal on the strength of circumstantial evidence the learned Special Judge, SC/ST Court, Udaipur in Sessions Case No. 69/92 has recorded a finding of guilt against accused-appellant Bhaje Singh for committing homicidal death of Hamer Singh vide Judgment dated 4.10.1994 convicting the accused-appellant under Section 302, IPC and sentencing him for life imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo one month's R.I. Learned Special Judge has extended the benefit of set off as contemplated under Section 428, Cr.P.C.
2. We have heard learned Counsel Mr. A.K. Acharya for the appellant as well as learned Public Procesutor Mr. V.R. Mehta appearing on behalf of the State. We have critically examined the finding of guilt recorded by the learned Special Judge and perused the oral and documentary evidence in detail adduced during trial of the case.
3. Whille assailing the finding of guilt recorded by the learned Special Judge, Mr. A.K. Acharya, learned Counsel for the appellant strenuously urged before us that indisputably, there is no eye-witness account or direct evidence to implicate the accused-appellant. According to him, the conviction recorded by the learned Special Judge on the basis of circumstances, is neither fully established nor can be said to be of clinching nature. Thus, according to Mr. Acharya, the circumstances relied upon by the learned Special Judge in the present case, do not lead to a conclusion that the accused-appellant is responsible for homicidal death of deceased Hamer Singh.
4. In support of his aforesaid contentions, learned Counsel for the appellant placed reliance on a classical and land-mark decision rendered by the Apex Court in the case of Sharad Birdhi Chand Sarda v. State of Maharashtra reported in : 1984CriLJ1738 enumerating five golden principles constituting panchsheel of the proof of a case based on circumstantial evidence. He also placed reliance on the decisions reported in State of Punjab v. Bhajan Singh and Ors. : 1975CriLJ282 , State of Orissa v. Brahmanand Nanda : 1976CriLJ1985 , Hakumat Rai v. State of Rajasthan 1987 Cr.L.R. (Raj.) 718 and Pooran v. State of Rajasthan 1993(3) CCR 2376).
5. Learned Public Prosecutor Mr. V.R. Mehta appearing on behalf of the State refuted the aforesaid arguments advanced on behalf of the accused-appellant and supported the finding of guilt recorded by the learned Special Judge. It is true that he has expressed his doubt about the penultimate order of sentence passed by the learned Special Judge extending the benefit of set off as contemplated under Section 428, Cr.P.C.
6. We have given out thoughtful consideration to the rival contentions raised at the Bar.
7. Before entering into the merit of the case, making analytical discussion of oral and documentary evidence on record, we propose to cite a few decisions on the nature, character and essential proof required in a criminal case, which rests on a circumstantial evidence.
8. The contours of the principles of law as regards the mode of proof in a criminal case depending on circumstantial evidence in the absence of a corpus delicti had been set out in catena of judgments rendered by the Apex Court, which can be classified into two groups:
(i) In the first group of cases, the most important decision rendered by the Apex Court in the case of Hanumant v. State of Madhya Pradesh : 1953CriLJ129 is required to be seen. This case has been uniformly followed and applied by the Apex Court in large number of later cases decided by their Lordships. See Tufail v. State of Uttar Pradesh : (1969)3SCC198 , Ram Gopal v. State of Maharashtra AIR 1972 SC 656 7 Chandra Kant Nyal Chand Seth v. State of Bombay Criminal Appeal No. 120 of 1957 decided on 19.2.1958 and Dharambir Singh v. State of Punjab Criminal Appeal No. 98 of 1958 decided on 4.11.1958.
(ii) Second group of cases are those cases where although Hanumant's case (supra) has not been noticed by their Lordships of the Supreme Court but the same principles have been propounded and reiterated. See Naseem Ahmed v. Delhi Administration : 1974CriLJ617 , Mohan Lal Pangasa v. State of U.P. : 1974CriLJ800 , Shankar Lal Gyarasi Lal Dixit v. State of Maharashtra : 1981CriLJ325 and M.G. Agrawal v. State of Maharashtra : [1963]2SCR405 a decision of Constitutional Bench consisting of five Hon'ble Judges of the Apex Court.
9. After analytical discussion of the earlier decisions on the subject, the Apex Court in the case of Shorad Birdhi Chand Sarda (supra) relying upon Hanumant's case (supra) ruled thus;--
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established--
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned must or should and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved and must be or should be proved as was held by this Court in Shivaji Sohebroo Bobode v. State of Maharashtra : 1973CriLJ1783 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conjectures.
(2) the fact 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 olther 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 probility the act must have been done by the accused.
10. With the aforesaid circumspection, we have perused the circumstances taken into account by the learned Special Judge while recording the finding of guilt against the accused-appellant.
11. The first circumstance, on which reliance has been placed by the learned Special Judge is that indisputably the marriage of PW 2 Magni Bai was settled with deceased Hamer Singh, which was to be performed in the latter part of the night of 'Aakha Teej' (i.e. between 4 and 5 a.m. on the fateful night) and for the said purpose, deceased Hamer Singh had come as Bride-groom to village Berothi and was sleeping in a field with other Baraties at 50 meters away from the house of PW 2 Magni Bai.
12. The second circumstance, on which reliance has been placed by the learned Special Judge is that the accused-appellant Bhaje Singh has developed illicit love affair with PW 2 Mangni Bai prior to settlement of her marriage with deceased Hamer Singh, therefore, he was bent upon to elope with PW 2 Magni Bai so that she could not marry with any one else except him. In order to achieve his aforesaid motive and goal, he came out-side the house of PW 2 Magni Bai in the evening of fateful night and by transmitting signal, asked her to come out from her house, which she refused. Immediately before 'Saptpadi' ceremony was about to be performed at about 4 a.m., she case out of her house to make water. When she came out of her house to make water, accused-appellant Bhaje Singh wrapping himself with white dhoti armed with axe appeared before her from the place of his hidding. The accused-appellant outside of her house, caught her hand and asked her to elope with him PW 2 Magni Bai refused to elope with him as he was related to her as brother (house of the accused-appellant is infront of the house of PW 2 Magni Bai). Upon this, the accused-appellant gave her threat that if she was not prepared to elope him, he was going to kill her would be husband.
rw ;fn esjs lkFk ugha py jgh gS rks eSa cjkr ds LFkku ij tkdj rsjs gksus okys fcUn dks ekj nwaxkA
After giving the aforesaid threat to PW 2 Magni Bai, the accused-appellant who was wrapped with white dhoti and was armed with an axe, proceeded towards the place where Barat was staying and deceased Hamer Singh was sleeping. PW 2 Magni Bat also immediately proceeded towards here house. Within a moment, PW 2 Magni Bai reached to her house and while she was about to enter in her house, she heard that her would be husband Hamer Singh has been killed with an axe. Apart from the afore mentioned circumstance, when deceased Hamer Sigh cried after assault, PW 15 Shiv Singh and PW 1 Udai Singh who were sleeping beside him, awakened and they saw that a man was running from the place of occurrence. According to the deposition of PW 15 Shiv Singh, the man who ran away from the scene of occurrence was wrapped with white dhoti. Thereafter it was found that deceased Hamer Singh has received head injury and blood was oozing out from his wound.
13. The third circumstance on which reliance has been placed by the learned Special Judge is that Hamer Singh injured was immediately taken to the hospital and written report was lodged at P.S. Ogana. The injury received by injured Hamer Singh was examined at Udaipur Hospital which was found to have been caused by a sharp edged weapon and was found to be dangerous to life. Looking to the grievous nature of injury received by injured Hamer Singh he was referred from Udaipur Hospital to Ahmedabad Hospital for his treatment, where he expired after some time. According to the post mortem report, Hamer Singh died due to hemorrhage from his head injury and it was further found that the aforesaid head injury was sufficient in the ordinary course of nature to cause death of deceased Hamer Singh..
14. Last circumstance which has been relied upon by the learned Special Judge is that accused-appellant Bhaje Singh was arrested and at his instance, the weapon of assault i.e. Ex.P. 6 an axe was recovered. According to the Serologist report, 'A' Group of human blood was found on the axe which tallied with blood Group 'A' of deceased Hamer Singh.
15. Now we propose to discuss aforesaid circumstances in seriatim.
CIRCUMSTANCE NO. 1
16. Learned Counsel for the appellant urged before us that as regards the first circumstance relied upon by the learned Special Judge was neither disputed before the trial court nor it is being disputed before this Court. Although, according to the learned Counsel, this circumstance independently is not sufficient to establish link of the accused-appellant with the crime. In view of the aforesaid facts and circumstances the first circumstance relied upon by the learned Special Judge is successfully proved in the present case and as such does not require much discussion.
CIRCUMSTANCE NO. 2
17. Learned Counsel for the appellant strenuously urged before us that second circumstance in the present case is not established. As according to the learned Counsel for the appellant, the testimonial value of PW 2 Magni Bai and PW 3 Devi Singh relied upon by the learned Special Judge in support of second circumstance is not sustainable. According to the learned Counsel for the appellant, the statements of PW 2 Magni Bai and PW 3 Devi Singh are not believable.
18. In the present case, star witness of the prosecution is PW 2 Magni Bai. With the assistance of learned Counsel for the appellant, we have perused the statement of PW 2 Magni Bai and PW 3 Devi Singh. The sum and substance of the deposition of PW 2 Magni Bai is that that accused-appellant came at her house in the evening of fateful night and transmitted signal to her to come out of her house but she refused to oblige him. The accused wrapping himself with white dhoti and armed with an axe continued to keep an eye on her by hidding himself out-side of her house. When she came out of her house at about 4 a.m. to make water, the accused-appellant caught her hand and persuaded her to elope with him but she refused to oblige him. PW 2 Magni Bai told him, thus:
rw esjk HkkbZ yxrk gS eSa rsjs lkFk ugha pyrh!
which means that as the accused-appellant was related to her as brother, ' therefore, she refused to elope with him. Upon her aforesaid refusal, the accused-appellant, extended threat to her to kill her would be husband deceased Hamer Singh. The deposition of PW 2 Magni Bai before the learned Special Judge leads us to believe that there was illicit love affair between PW 2 Magni Bai and accused-appellant Bhaje Singh. The accused-appellant was not prepared to see that PW 2 Magni Bai should be married with any one else except him. PW 2 Magni Bai was not prepared to elope with accused-appellant Bhaje Singh as he was related to her as brother.
19. The aforesaid belief is further supported from the statement of PW 3 Devi Singh, who is father of PW 2 Magni Bai. He had specifically deposed in his cross-examination that he did not know whether there was illicit love affair with his daughter Magni Bai and accused appellant Bhaje Singh. He has further deposed before the learned Special Judge that once upon a time, the residents of village Barothi advised him that his daughter used to roam here and there, so, he should make arrangements of her marriage. The aforesaid statement of PW 3 Devi Singh also throws a flood of light that he has not specifically denied about the illicit love affair of his daughter PW 2 Magni Bai with accused-appellant Bhaje Singh.
20. In our considered opinion, the depositions of PW 2 Magni Bai and PW 3 Devi Singh are natural, inasmuch as, both the witnesses will not accept the illicit love affair with accused-appellant in order to earn social stigma to the effect that due to illicit love affair of PW 2 Magni Bai daughter of PW 3 Devi Singh with accused appellant Bhaje Singh, the innocent bride-groom Hamer Singh has been killed. We are fully satisfied from the material available on record that there was illicit love affair between PW 2 Magni Bai and accused-appellant Bhaje Singh before settlement of marriage of PW 2 Magni Bai with deceased Hamer Singh. The statement of PW 2 Magni Bai inspires our confidence and there is no reason whatsoever to discredit her testimony.
21. There is yet another reason to believe the depositions of PW 2 Magni Bai and PW 3 Devi Singh, inasmuch as, in such a situation, a court of law is required to bear in mind human psychology behavioural probability while assessing the testimonial potency of such witnesses. A pointed question was asked to PW 2 Magni Bai whether she had developed love affair with accused-appellant Bhaje Singh before the date of occurrence. In reply to the said query, she stated thus--
eSa izse esa ugha tkurh*
22. We have also scrutinized the statement of PW 3 Devi Singh father of PW 2 Magni Bai on the question of illicit love affair of PW 2 Magni Bai with accused-appellant Bhaje Singh PW 3 Devi Singh has deposed thus--
esjh yM+dh o Hkts flag ds dksbZ izse lEcU/k gS rks eq>s bl ckr dk irk ugha! ,d ckj xkao okyksa us ;g t:j dgk Fkk fd rqEgkjh yM+dh ;ks gh ?kwerh gS bldh 'kknh djok nks!
23. We have tested the aforesaid depositions of PW 2 Magni Bai and PW 3 Devi Singh on the anvil of human psychology and behavioural probabilities and reached to the conclusion that testimonial potency of these two witnesses indicates towards only one conclusion that PW 2 Magni Bai has developed illicit love affair with accused-appellant Bhqje Singh before settlement of her marriage with deceased Hamer Singh, otherwise, the accused-appellant would have not transmitted signal to PW 2 Magni Bai in the evening of fateful night to come out from her house. The accused-appellant would have not mustered courage to catch hand of FW 2 Magni Bai at 4 a.m. before 'Saptpadi' ceremony could be performed with deceased Hamer Singh and would have not made suggestion to her to elope with him.
24. The deposition of PW 2 Magni Bai further inspire our confidence that when she refused to elope with accused appellant he extended threat to her to the effect that if she was not prepared to elope with him then he was going towards Barat to kill her would be husband deceased Hamer Singh. PW 2 Magni Bai after refusing to elope with accused appellant Bhaje Singh got herself released from the clutches of accused-appellant and immediately proceeded towards her house and the accused appellant wrapped with white Dhoti and armed with an axe proceeded towards Barat where deceased Hamer Singh was sleeping with other Baraties. When PW 2 Magni Bai was about to enter in her house she heard that her would be husband with whom 'Saptpadi' ceremony was about to be performed has been filled.
CIRCUMSTANCE NO. 3
25. In support of third circumstance, learned Special Judge has relied upon the statement of PW 1 Udai Singh and FIR (Ex.P./2) lodged by him at PS Ogana. The FIR was lodged immediately after the occurrence by father of deceased PW 1 Udai Singh. Injury received by the deceased was examined by PW 12 Dr. Yogesh Sharma. Injury report of deceased Hamer Singh was prepared by PW 12 Dr. Yogesh Sharma, is on record as Ex.P./19- PW 12 Dr. Yogesh Sharma in his deposition, proved injury report Ex.P./19 reveals that injured Hamer Singh received an incised wound 12.5 x 5.00 cms. x bone deep on left parietal region and brain material was protruding out. The aforesaid injury was found to be dangerous to life by the Medical Jurist. He has also proved X-Ray plates No. 9206 and 9207 dated 6.5.92 and X-Ray plates No. 10223 and 10224 dated 18.5.1992. In his deposition PW 12 Dr. Yogesh Sharma opined that the aforesaid injury report Ex.P./19 the weapon of assault is shown as a sharp edged weapon. PW 12 has further deposed that injury caused to the injured Hamer Singh could be caused by an axe. Nothing has been brought to our notice by the learned Counsel for the appellant which may discredit the sworn testimony of PW 12 Dr. Yogesh Sharma.
26. PW 16 Dr. Nain Kumar Natwar Lal Pareekh has deposed that deceased Hamer Singh died due to haemorrahage on account of head injury received by deceased Hamer Singh. According to the deposition of PW 16 Dr. Nain Kumar Natwar lal Pareekh, the injury received by the deceased was sufficient in the ordinary course of nature to cause his death. The learned Special Judge has correctly appreciated the testimonial value of PW 1 Udai Singh who lodged the FIR Ex.P./2 testimonial value of Dr. Yogesh Sharma who prepared the injury report Ex.P./19 and deposition of PW 16 Dr. Nain Kumar Natwar Lal Pareekh who prepared post-mortem report Ex.P/25. On the basis of, the depositions of PW 1 Udai Singh, PW 12 Dr. Yogesh Sharma and PW 16 Dr. Nain Kumar Natwar Lal Pareekh together with documentary evidence Ex.P/2, injury report Ex.P/19 and post-mortem report Ex.P/25 the third circumstance relied upon by the learned Special Judge is also conclusively proved beyond pale of doubt and an argument contrary to it is not acceptable to us.
CIRCUMSTANCE NO. 4
27. In support of the last circumstance, learned Special Judge has relied upon the recovery of weapon of assault Ex.P/6, recovery memo of the aforesaid axe and recovery memo of dhoti which was wrapped by the accused-appellant at the time of commission of offence which were recovered at instance of the accused-appellant from his house. Learned Special Judge has also relied upon blood-stained hand-ker-chief of Hamer Singh and 'Gudra'. Most important evidence relied upon by the learned Special Judge is recovery of the axe (Ex.P/6) from the house of the accused-appellant at his instance. It is true that, the recovery witnesses regarding axe and dhoti PW 4 Lal Singh and PW 5 Keshar Singh have admitted about their presence at the time of recovery. They have further admitted in their depositions that they have signed the recovery memo but they have not supported the prosecution story to the, effect that they have signed the recovery memo of axe and dhoti on the spot. They have not admitted that the axe and dhoti were sealed on the spot. These recovery witnesses PW 4 Lal Singh and PW 5 Keshar Singh have been declared hostile by the prosecution. The depositions of PW 4 Lal Singh and PW 5 Keshar Singh together with the statement of PW 8 Deva Ram Choudhary, Investigating Officer lead towards an irresistible conclusion that the recovery of axe Ex.P/6 and recovery of dhoti Ex.P/12 were made at the instance of the accused-appellant from his house in the presence of PW 4 Lal Singh and PW 5 Keshar Singh, But PW 4 Lal Singh and PW 5 Keshar Singh obviously in order to help the accused-appellant, have not supported the recovery of the aforesaid two articles i.e. Ex.P./6 and Ex.P/12 in toto. Nothing has been brought to our notice about the testimony of PW 8 D.R. Choudhary, I.O. about the recovery of axe (Ex.P/6) and dhoti (Ex.P/12) which may lead to discredit his sworn testimony. In our considered opinion the learned Special Judge has correctly appreciated the statements of witnesses of recovery and he has not committed an error in believing the recovery of weapon of assault axe (Ex.P/6) and recovery of white dhoti (Ex,P/12) at the instance of accused-appellant.
28. The main thrust of argument of the learned Counsel for the appellant is that at the time of preparation of recovery memo of axe (Ex.P/6), there was a Note appended to the effect that the edge of the axe is very sharp but no blood is visible. According to the learned Counsel for the appellant, the aforesaid fact leads to an inference that if blood was not visible on the axe Ex.P/6 then how it is found to be blood-stained with 'A' Group of blood by the Serologist in his report Ex.P/26. The learned Special Judge has given cogent and convincing reason that it may be possible that blood would have not been visible by naked eyes on axe at the time of its recovery but at the time of scientific examination by Serologist, 'A' Group of Blood was found on the axe with the help of scientific instruments. On the hand-ker-chief of deceased Hamer Singh and on the Gudra on which the deceased was sleeping at the time of assault were also found to be blood stained with 'A' Group of Blood.
29. The aforesaid circumstance relied upon by the learned Special Judge is based on analytical discussion of oral and documentary evidence on record with which we are in full agreement. Thus, the last circumstance relied upon by the learned Special Judge is also proved beyond any shadow of doubt.
30. In our considered opinion, in the present case, the aforesaid four circumstances relied upon by the learned Special Judge in support of the finding of guilt against the accused-appellant are proved from any pale of doubt. The circumstances found to be established by learned Special Judge are consistent only with the hypothesis of guilt of accused-appellant Bhaje Singh and they are not capable to be explained on any other hypothesis except that the accused is guilty of committing homicidal death of deceased Hamer Singh. The aforesaid four circumstances are of conclusive nature and tendency. These four circumstances relied upon by the learned Special Judge exclude every possible hypothesis except that the accused-appellant is guilty of committing homicidal death of deceased Hamer Singh.
31. In abundant caution we would like to discuss the conduct of the accused in the present case constituting meansrea, motive, preparation and actual commission of crime which shows that it, is the accused-appellant alone who has committed the cold blooded murder of deceased Hamer Singh and none else. The accused-appellant in the instant case premeditated the murder of deceased Hamer Singh which falls within the definition of culpable homicide amounting to murder.
32. The first comes mensrea or awareness of wrongful of an act with criminal intent of accused-appellant. As discussed in preceding paragraphs in detail that accused-appellant has developed illicit love affair with PW 2 Magni Bai prior to settlement of, her marriage with deceased Hamer Singh. This illicit love affair ,of accused-appellant with PW 2 Magni Bai was not a devoted attachment towards her but it was a longing for sexual desire of degraded kind treating her to be his personal property to gratify his lust ignoring her wishes and willingness.
33. The accused appellant at the evening of fateful night came to the house of PW 2 Magni Bai and transmitted signals to her to come out from her house. It has come in the deposition of PW 2 that at the time accused was wearing black Jersey and Lungi. The motive of accused behind transmitting signal was to persuade PW 2 to elope with him before her marriage with deceased Hamer Singh could be when his attempt to persuade PW 2 Magni Bai to elope with him before her marriage resulted into fiasco due to unfavorable response of PW 2, he premeditated and made preparations to commit cold blooded murder of deceased Hamer Singh would be husband of PW 2 Magni Bai in case, PW 2 refused to elope with him because even after having full knowledge about unfavorable response of PW 2 accused was hoping against hope that he would succeed in persuading her to elope with him. He made preparations by wrapping himself with white Dhoti and by arming himself with a weapon of assault an axe Ex.P/6 and started hovering near the house of PW 2 incognito to keep vigil about coming out of PW 2 from her house. When PW 2 Magni Bai came out of her house at about 4 a.m. before performance of her 'Saptapadi' with deceased Hamer Singh to make water the accused appellant caught her hand and made an attempt to persuade her to elope with him before her marriage which was about to be performed in short while with deceased Hamer Singh. PW 2 Magni Bai refused to elope with him saying that he was her brother therefore it would not be proper to elope with him. When PW 2 Magni Bai refused to elope with him he extended threat to her to the effect that if she is not prepared to elope with him before her marriage with deceased Hamer Singh then he was going to kill her would be husband Hamer Singh. PW-2 Magni Bai was scared after hearing the aforesaid threat of accused-appellant so she immediately got herself released from the clutches of accused-appellant and rushed towards her house and accused appellant proceeded towards the place where Baraties were staying and deceased Hamer Singh was sleeping. When accused appellant proceeded towards the place where deceased Hamer Singh was sleeping he was wrapped with white Dhoti and was armed with an axe according to deposition of PW 2 before learned Special Judge. When PW 2 Magni Bai was about to enter in her house she heard that her would be husband Hamer Singh has been killed. The aforesaid conduct of accused appellant is relevant under Section 8 of the Indian Evidence Act which conclusively proves the meansrea, motive, preparation and actual commission of offence by him.
34. It is well to remember that the Evidence Act considers a fact as 'proved' when after considering the matter before it as an integrated whole the court either believe it to exist or considers its existence so probable that a prudent mind ought under the circumstances of the case to act upon the supposition that it exists. In the present case prosecution has successfully established all links beyond a pale of doubt to connect the accused appellant with homicidal death amounting to murder of deceased Hamer Singh and no missing link has been brought to our notice which could be said to be fatal for the prosecution.
35. In our considered opinion all the four circumstances relied upon by the learned Special Judge fulfill a complete chain of evidence, so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and the aforesaid four circumstances indicates that in the all human probabilities the crime has been committed none-else except the accused-appellant Bhaje Singh. We are of the opinion that five golden principles enunciated in the case of Sharad Birdhi Chand (supra) are fulfilled in the instant case and an argument contrary to it raised by the learned Counsel for the appellant is not acceptable to us. The other decisions relied upon by the learned Counsel for the appellant are. not applicable to the facts and circumstances of the present case, therefore, other decisions do not require, threadbare discussion.
36. We have critically examined the finding of guilt recorded by the learned Special Judge and in our considered opinion, the finding of guilt recorded by the learned Special Judge is based on analytical discussion of oral and documentary evidence on record with which we are in full agreement. The learned Special Judge has committed no error in appreciating the oral and documentary evidence on record.
37. Lastly, although the State has not filed an appeal against the benefit of set off extended by the learned Special Judge to the accused-appellant as contemplated under Section 428 Cr.P.C. yet the learned Public Prosecutor expressed his doubt about the legality of the benefit of set off extended by the learned Special Judge. As according to him the accused who is convicted and sentenced to imprisonment for life cannot claim benefit of the aforesaid Section in view of the distinction between 'imprisonment for life' and 'imprisonment for a term. According to him, since in the present case the accused-appellant has been convicted and sentenced to imprisonment for life, therefore, the benefit of set off contemplated under Section 428 Cr.P.C. could not be extended to him.
38. In our considered opinion there is a force in the aforesaid argument of the learned Public Prosecutor that the benefit of set off under Section 428 Cr.P.C. cannot be extended to an accused, who is convicted and sentenced to imprisonment for life. But the question which this Court is called upon to decide would be as to whether there could be a distinction between 'substantive sentence to imprisonment for life' and 'sentence of imprisonment is default of payment of fine'. According to us, when an accused is sentenced to a term 'in default of payment of fine' other than in a case where 'imprisonment for life' is not awarded 'in default of payment of fine' he can avoid undergoing such imprisonment by making payment of fine but if he does not, he would have to undergo such imprisonment and that for full term specified in the sentence. But where an accused is convicted to imprisonment for life, the benefit of set off' contemplated under Section 428 Cr.P.C. could not be extended to him as extended by the learned Special Judge in the present case.
39. As a result of the aforementioned discussion, the finding of guilt recorded by the learned Special Judge is hereby confirmed and it does not require any interference under Section 374(2) Cr.P.C. The conviction and sentence recorded by the learned Special Judge on 4.10.94 is hereby affirmed and the instant appeal filed by the appellant is dismissed with the modification that benefit of set off granted to the accursed-appellant under Section 428 Cr.P.C. is hereby refused for the reasons stated in the preceding paragraphs of this judgment.