Important Point—Conviction cannot be based only on the basis of recovery of articles from open place.

1. In this cr. appeal filed under Section 374(2) Cr.P.C., the judgment dated 25.11.2011 passed by learned Addl. Sessions Judge, Nagaur in Sessions Case No. 80/2011 is under challenge whereby the accused appellant Ram Kishore was convicted for offence under Section 302 and 449 IPC and accused appellant Aaichuki was convicted for offence under Section 302/34 and 449 IPC and following sentence was passed against them:

ACCUSED APPELLANT RAM KISHORE:
Under Section 302/34 IPC	Life imprisonment with fine of Rs. 2,000/- and in default of payment of fine to further undergo six months RI
Under Section 449 IPC	10 years RI with fine of Rs. 1,000/- and in default of payment of fine to further undergo three months SI.
ACCUSED APPELLANT AAICHUKI:
Under Section 302 IPC	Life imprisonment with fine of Rs. 2,000/- and in default of payment of fine to further undergo six months RI
Under Section 449 IPC	10 years RI with fine of Rs. 1,000/- and in default of payment of fine to further undergo three months SI.

Facts of the case:

2. The complainant Bhikhi Devi (PW-13) submitted a written report (Ex. P/21) at Police Station Khivsar, District Nagaur in which an allegation was levelled by her that on 29.11.2008 at about 5-6 p.m. she went to the house of her sister Aaichuki and stayed there in the night. Next day on 30.11.2008 at about 10.00 a.m. she went to the house of her father Nanu Ram. The door of the house of her father was closed and upon opening the door when she entered inside the house, and found that dead body of her father Nanu Ram was lying in a Tibara and blood was scattered on floor. Upon crying her sister Aaichuki came on spot. The aforesaid incident was reported by the complainant to the police that my father has been murdered by unknown persons, therefore, investigation may kindly be conducted and action may be taken to punish the culprits.

3. Upon aforesaid complaint Ex. P/21, the SHO Police Station, Khivsar, District Nagaur registered the FIR No. 131/2008 for offence under Section 302 IPC and commenced investigation.

4. After registration of FIR the SHO, Police Station, Khivsar went on spot immediately and prepared Panchnama (Ex. P/1) site plan (Ex. P/5) and inquest report) Ex. P/7). The photographs of the site were also taken for the purpose of investigation, thereafter, the dead body of deceased was taken to the Primary Health Center, Khivsar, where post mortem was conducted by the medical board head by Dr. Shiv Prasad Partani (PW-9) and post mortem report (Ex. P/10) was prepared and handed over to the investigating officer on 1.12.2008. In the post mortem report it is reported that five injuries including three incised wounds were found upon the neck of the deceased and as per the opinion of the medical board, the cause of death of deceased Nanu Ram was hemorrhage shock due to injury on the neck. During investigation, the police arrested the accused appellant Ram Kishore S/o. accused appellant Aaichuki D/o. deceased Nanu Ram on 2.12.2008 vide arrest memo Ex. P/8 and accused appellant Aaichuki D/o. deceased Nanu Ram was arrested on 22.4.2009 vide Ex. P/9. On completion of investigation the SHO Police Station Khivsar field charge-sheet against the accused appellants on the basis of circumstantial evidence of recovery of cloths and Katar so also, upon the evidence of "motive" with regard to land dispute in the court of Judicial Magistrate under Section 302, 302/34 and 449 IPC.

5. The learned Magistrate committed the case for trial to the court of Addl. Sessions Judge, Nagaur. The learned trial court after hearing arguments on charge, framed charge against the accused appellant Ram Kishore for the offence under Section 302 and 449 IPC whereas charge under Section 302/34 and 449 IPC was framed against the accused appel