Point of Law: Section 8 of Evidence Act states as Motive, preparation and previous or subsequent conduct —any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of the CrPC filed by the appellant herein is directed against the impugned judgment dated 12-3-2013, by which he has been convicted under Sections 302 read with Section 34, 364 & 201 of the IPC and sentenced to undergo imprisonment for life and pay a fine of Rs.1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for six months; rigorous imprisonment for ten years and pay a fine of Rs.500/-, in default of payment of fine to further undergo additional rigorous imprisonment for six months; and rigorous imprisonment for three years and pay a fine of Rs.200/-, in default of payment of fine to further undergo additional rigorous imprisonment for six months, respectively.

2. Case of the prosecution, in brief, is that on 16-2-2011 at about 10.30 p.m. from the country made liquor shop at Village Moipar, the appellant herein and four other co-accused persons (now declared absconded) abducted one Shyam Gupta / deceased and in furtherance of common intention, caused his death and in furtherance of their criminal conspiracy, in order to screen themselves from the offence, they concealed the dead body of the deceased and thereby committed the above stated offences. Further case of the prosecution, in brief, is that deceased Shyam Gupta, the appellant herein and other co-accused persons were working in the liquor shop managed by Subhash Gupta and owned by Shrawan Gupta Thakur. From 16-2-2011, 10.45 p.m., deceased Shyam Gupta went missing from the country made liquor shop of Mudipar which was reported by the brother of the deceased to Police Station Kasdol as missing report Ex.P-3 suspecting the appellant and other co-accused persons of the offence pursuant to which FIR for offence punishable under Section 365 read with Section 34 of the IPC was registered against the appellant and other accused persons (absconded) vide Ex.P-23. Thereafter, on the report of Kotwar Mohandas Manikpuri (PW- 17), morgue vide Ex.P-24 was registered and thereafter, dehati morgue intimation Ex.P-25 was registered in which it was informed that near Balamdehi Stop-dam at Turturiya pahadi, in between the stones, dead body of an unknown person is lying and a muffler and one blue pant were also lying there. Dead body was recovered on 1-5-2011. Panchnama was prepared vide Ex.P-9 and dead body was identified to be of Shyam Gupta vide Exs.P-4 & P-5 and it was sent for postmortem which was conducted by Dr. S.K. Bagh (PW- 26) vide Ex.P-44 and cause of death was stated to be due to head injuries and death was homicidal in nature. Thereafter, on 30-10-2011, memorandum statement of the appellant was recorded vide Ex.P-12 pursuant to which lathi was seized from Turturiya Pahadi vide Ex.P-13, it was sent for inviting medical opinion of the doctor as to whether the injuries found on the body of the deceased have been caused by the said weapon of offence lathi to which Dr. S.K. Bagh (PW-26) submitted query report Ex.P-30 that the injuries found on the body of the deceased could have been caused by the lathi seized. Seized articles were sent for forensic examination to the Forensic Science Laboratory, Raipur, vide Ex.P-35 and acknowledgment receipt of the same was also received from the FSL, Raipur, vide Ex.P-34, but the FSL report was not brought on record. Bones of the deceased were also sent for DNA test, but no such report was brought on record.

3. Statements of the witnesses were recorded under Section 161 of the CrPC.. After completion of investigation, charge-sheet was filed against the appellant before the jurisdictional criminal court which was committed to the Court of Sessions for trial and hearing and disposal in accordance with law.

4. The trial Court has framed charge against the appellant for offences under Sections 364, 302 read with Section 34, in alternative, Section 302 read with Section 120B and Section 201 of the IPC and proceeded on trial. The appellan