Vaish Sanjiv Khanna, J.

1. These two appeals by Sudhir Kumar and Salma arise from a common judgment and order of sentence dated 11th January, 2012 and 15th February, 2012 respectively. The two appellants have been convicted under Section 302/392/411/34 of the Indian Penal Code 1860 (IPC, for short). They have been sentenced to life imprisonment and fine of Rs.5,000/- each and in default of payment of fine to undergo rigorous imprisonment for three months each, for the offence under Section 302/34 IPC; rigorous imprisonment for five years and fine of Rs.3,000/- each and in default of payment of fine, rigorous imprisonment for two months for the offence under Section 392/34 IPC; and simple imprisonment for three years for the offence under Section 411 IPC.

2. Before determining whether the appellants are the perpetrators of the alleged crime, it will be appropriate to delineate the undisputed factual position. On 30th January, 2007 at around 8.45 AM, dead body of a male aged about 30 years, was discovered lying in Vaishali Vatika (park) near Rukmani Devi Public School, Pitampura by Naresh Kumar Kadian (PW-20), a passerby, who informed the police at telephone number 100. The corpse was later identified to be of Vivek Kumar Agarwal. DD entry number 14 (Ex. PW14/A) was recorded at Police Post Pitam Pura, Police Station Shalimar Bagh by Ct. Ashok (PW14), after which SI Satinder (PW30) along with Ct. Jaswinder (PW8) left for the crime spot where they found a half-naked body lying in the grooves of Altmas trees, inside the park. Investigation was taken over by SI Satyavir Singh (PW26). The deceased was found wearing a blue wind sheeter, brown jersey, light green shirt and a white vest on the upper portion of his body but on the lower half, he was wearing only a brown colour underwear. On examination, on his private organ a pink colour condom containing seminal fluid was found. Forth was coming out from the mouth and injury marks were visible on neck and chin. The deceased was wearing black lining on his feet but black colour shoe was there only on his left foot. Near the body a black colour helmet, one more pink colour condom, shoe of the right foot, a grey colour pant torn into two pieces with one part having a belt attached, one small pocket diary, one pen, one purse containing visiting cards and one key ring with four keys, including one on which TVS was engraved, were found scattered near the crime spot. A black colour rexine bag in which a driving licence issued to Vivek Kumar Agarwal son of N.C. Agarwal and other documents were kept was found on the nearby iron bench.

3. Ct. Rajesh Kumar (PW9) was sent with rukka at 11.30 A.M. and thereupon FIR No. 72/2007 (PW 3/A) was recorded at 11.45 AM in Police Station Shalimar Bagh, New Delhi. Ct. Rajesh Kumar (PW9) subsequently returned to the place of occurrence with the FIR at about 12.45 PM.

4. FIR (Ex. PW3/A) does not record if there were any suspects or possible culprits. Neither is there mention of any eye-witness to the crime or to affirm whether the deceased was last seen with another person. From the FIR it appears that the police was clueless up to that point and was proceeding with the investigation on the basis of material found near the corpse. The crime team report (Ex. PW23A) records that they had reach the spot on 30th January, 2007 and remained from 10.00 AM to 11.00 AM., after making a departure for the crime spot at 9.30 A.M. According to the crime team report, there were visible mark on deceased’s neck and outside the park a motor cycle DL 8S AH 1647 black colour TVS Start was parked. Deceased’s name is mentioned as Vivek Aggarwal son of N.C. Aggarwal and, in the age column, 30-32 years is recorded. Against the column stolen property, dash (-) is indicated and “murder” is written. No chance prints could be developed but the Investigating Officer was directed to collect earth control sample from the spot. Photographs were taken, including of the shoe marks foun