The main legal point established in the judgment is the reliance on circumstantial evidence including last seen evidence, conduct of the accused in absconding, and the motive attributed to A1- Virender to establish the guilt of the accused.

VIPIN SANGHI, J.

1. The present appeal has been preferred by the two appellants Virender and Devraj @ Deva who were arrayed and tried as accused Nos. 1 and 2, to assail their conviction by the Ld. ASJ (FTC) (W): DELHI in Sessions Case No. 49/2011, arising out of FIR No. 240/2010, under Section 302/34IPC, registered at PS Nihal Vihar, vide judgment dated 08.09.2014 and the order on sentence dated 16.09.2014 whereby both of them have been sentenced to life imprisonment with fine of Rs.5,000/- each. In default of payment of fine they have been directed to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 302IPC read with Section 34 IPC.

2. The background facts of the case have been taken note of in para 1 of the impugned judgment. We reproduce the same herein below:

“Mukesh Kumar is carrying on work of Angel Iron Welding from Plot No.C-47, Naresh Park Extension and for that purpose he has kept 2 employees namely Yogesh @ Yogender Singh and Khairati, he has also let out some part of the factory and in that part break shoes are manufactured and in that factory 2-3 boys were working. Yogesh was working on daily wages for 5-6 months and used to sleep in the room in the plot. On 18.11.2010 at about 11:00 pm when Mukesh came to park his vehicle in the adjacent plot, he found that small gate of his factory was open. He got suspicious and went inside. He found the door of the room was partly bolted from outside. When he peeped through the gap between the door he noticed Yogesh lying on the takhat and in his neck orange colour welding wire was tide. Yogesh appeared to be dead. Mukesh further mentioned that other boy Khairati working in his factory told that 1 week before Diwali festival Yogesh has altercation with his uncle’s son working at Mundka, when Khairati inquired from Yogesh, he told that Virender his cousin had seen him with his wife in compromising position due to which he was beaten by his cousin. Khairati told that even thereafter Yogesh used to go to wife of his cousin and was having illicit relations. Mukesh suspected that he has been killed by his cousin and his companion. On this FIR No.240/10 u/s 302/34 IPC was registered.”

3. Charges were framed against both the accused under Section 302 IPC read with Section 34 IPC to which they pleaded not guilty and claimed trial.

4. To prove its case, the prosecution examined 24 witnesses, including PW1 Mukesh Kr. Yadav- Complainant; PW2 Manoj- Last seen witness; PW6 Bindravan- Landlord of A1- Virender; PW7 Khairati; PW9 Sharwan Kumar- Last seen witness, and PW16 Manoj Dhingra- Doctor who conducted the post mortem of the deceased.

5. After completion of prosecution evidence, statements of the accused persons under Section 313 Cr.P.C. were recorded in which they claimed innocence and denied the entire case of the prosecution. Accused persons did not examine any defence witness.

6. On appreciation of evidence and material brought on record, the trial court convicted the appellants as aforesaid. Feeling aggrieved of the same, the appellants have preferred the instant appeals.

7. Ld. counsel for A1- Virender, Mr. Davlender Hora submits that the present is a case based on circumstantial evidence. Thus, to prove the guilt of the accused, it was essential for the prosecution to conclusively establish a complete chain of circumstances, pointing only to the guilt of the accused. He submits that the said chain is not complete. He further submits that the Trial Court has not believed the case of the prosecution insofar as the motive for commission of the crime is concerned. Thus, the said circumstance has not been proved on record.

8. Mr. Hora points out that the Trial Court has convicted the appellant on the basis of (i) last seen evidence, and (ii) the conduct of the appellants in absconding on the night of the incident i.e., 18.11.2010, from the place where they were residing.

9. So far as the evidence relating to the deceased being lastly seen