Point of Law: Both appellants and deceased were not located along the same towers during the period when his wife last saw him around noon and the evening when she received an SMS on her mobile.

JUDGMENT :

1. The above captioned appeals impugn the judgment dated 26th December, 2016 whereby the appellants have been convicted for offence punishable under section 302/34 IPC and have been awarded life imprisonment vide order on sentence dated 11th January, 2017 with a fine of Rs.50,000/- and in default, to further undergo simple imprisonment for one year. The fine so realised was directed to be given to the wife and children of the deceased.

The Incident:

2. The facts in brief, as culled out from the documents and Trial Court's Record are as under:

(i) As per the prosecution, 'SM', the wife of the deceased lodged a missing complaint at PS Narela on 14th October, 2013 at 4:30 P.M. that her husband had left home on 12th October, 2013 at about 11:45 AM for his official duty at Patel Nagar but did not return thereafter. On that basis, General Diary Entry No.67B was recorded. On the other hand, on 12th October, 2013, DD No.20A was recorded at PS Alipur that a dead body of an unknown (unidentified) male was lying in the field near Batra Farmhouse with wounds on the neck. Police arrived at the spot and during investigation the dead body was identified as that of the deceased.

(ii) Statement of 'SM', wife of the deceased was recorded who informed the police that her husband was working in a private company at Patel Nagar and appellant No.1 was his friend who was residing in Narela. She further stated that he used to visit their house and also had some money transactions amongst themselves. A few days back her husband (deceased) had told her that a signed cheque was missing which he later came to know that by way of the said cheque, appellant No.1 had withdrawn a sum of Rs.47,000/- from Axis Bank, Kundli Branch. As per her further statement, the deceased talked to appellant No.1 many times on mobile but the latter was not returning money and they had heated arguments.

(iii) 'SM' further stated that on 12th October, 2013 at about 11:00 AM, deceased along with her went to a temple at Sector A-10. Both the appellants,(whom she identified before the Learned Trial Court) met them while on a red colour Pulsar motorcycle near the petrol pump and spoke to the deceased, and purportedly promised to return money to him. The deceased asked both the appellants to wait there and went back home along with his wife. Thereafter the deceased left home along with a black bag but never returned thereafter. On the same day at about 10:00 PM, the deceased sent an SMS to 'SM' informing her that he was going to Ambala along with his boss.

(iv) Subsequently, both the appellants were arrested and recoveries were made of blood-stained clothes, the red motor cycle and also the weapon of offence i.e., a blood stained 'daav’. While mobile phone (Samsung make, No.8130393049) and a black bag (make 'Rock Polo') were recovered from the possession of appellant No.1, ATM card, Voter I Card and other documents of the deceased were recovered. Call details were also collected according to which appellant No.1 had sent message from the mobile of the deceased to 'SM', the wife of the deceased to mislead her. All these articles were sent for forensic examination to the FSL.

(v) Separate statement of one gentleman 'KA' was recorded who had withdrawn the amount of Rs.47,000/-, on being given the said cheque by appellant No.1 for encashing the same.

(vi) Charge under Section 302/34 IPC and 201/34 IPC was framed against both the accused persons, the appellants herein, to which they pleaded not guilty and claimed trial.

(vii) Prosecution examined 22 witnesses, statements of both the appellants were recorded and the defence examined only one witness during trial.

Submissions by the appellants:

3. Aggrieved by the judgment dated 26th December, 2016 and order on sentence dated 11th January, 2017, both the appellants preferred these appeals and raised the following contentions:

(i) Learned counsel for the appellants contended that there was no eyewitness of the alleged incident and the case w