Kanwaljit Singh Ahluwalia, J.

1. Ajay Gupta aged 52 years, on 23.3.2008, left his house on motorcycle Bajaj Pulsar, to attend Holi Milan Party with his colleagues. Ajay Gupta had not returned to his house. His family members carried search. On 24.3.2008 at about 6:00 PM, Anil Gupta (P.W.5) cousin of the Ajay Gupta went to Police Station Ramganj to inquire about whereabouts of his brother and was informed that an unidentified dead body is lying in the mortuary of Jawahar Lal Nehru Hospital, Ajmer. The complainant Anil Gupta (P.W.5) reached at mortuary and identified the dead body to be of his brother Ajay Gupta.

2. After identification of the dead body, Anil Gupta (P.W.5) presented written report (Exhibit-P/11), before Dilip Sharma (P.W.25), who was then posted as SHO, Police Station Ramganj, Ajmer. In the written report (Exhibit-P/11) Anil Gupta (P.W.5) stated that when his brother left his house to attend the Party, he was carrying a purse having his photograph, Election I.D. Card, ATM and Credit Cards. In the written report, Anil Gupta (P.W.5) also stated that though the dead body is lying in the mortuary, but purse, mobile and motorcycle of the deceased brother are missing. In the written report (Exhibit-P/11), Anil Gupta (P.W.5) further stated that his brother is having serious injuries on head and other parts of the body, therefore, he has suspicion that assailants after committing robbery of motorcycle, purse and mobile caused his murder.

3. On the basis of written report (Exhibit-P/11), contents of which we have reproduced above, a formal FIR (Exhibit-P/12) bearing No.42/08 was registered at Police Station Ramganj, District Ajmer for the offences punishable under Sections 302 and 394 IPC. The above said FIR was investigated. During the course of investigation, Sonu @ Jun son of Ram Lal, by caste Harijan, Pooran @ Poorniya son of Basanti Lal, by caste Nayak, and Anil Kumar son of Mohan Singh, by caste Kushwaha, were nominated as accused. They were tried by the court of Additional Sessions Judge (Fast Track), No.1, Ajmer. The said court vide impugned judgment dated 4.4.2009, held the appellant Sonu @ Jun and Pooran @ Poorniya guilty of offences punishable under Sections 302/34 and 397 IPC. The accused Anil Kumar, who was initially charged for the offence under Section 404 IPC, was convicted for the said offence. The trial Judge, having convicted the appellants for the above said offences, vide a separate order of even date, sentenced them as under:-

U/s. 302/34 IPC-to undergo life imprisonment and to pay a fine of Rs.1000/-; each in default of payment of fine, to further undergo additional three months SI.

U/s. 397 IPC-to undergo seven years R.I.

U/s.404 IPC-to undergo one year R.I. and to pay a fine of Rs.500/-, in default of payment of fine to further undergo one month S.I.

All the sentences were ordered to run concurrently.

4. Aggrieved against their conviction and sentence, appellant Sonu @ Jun has filed D.B. Criminal Appeal No. 674/2009, Pooran @ Poorniya has preferred D.B. Criminal Appeal No. 176/2011 and Anil Kumar has instituted D.B. Criminal Appeal No. 440/2009. Since in all the three appeals, common judgment has been assailed, all the three appeals listed before us, shall be decided together.

5. In the present case, none has witnessed the occurrence. To secure the conviction of the appellants, the prosecution has relied upon the circumstantial evidence. It is to be noted that in the written report (Exhibit-P/11), leading to registration of FIR (Exhibit-P/12), it was stated that three pieces of property/articles belonging to deceased were missing, i.e. motorcycle, purse containing Election I.D. Card, ATM and Credit Cards. All the above three pieces of property/articles have been recovered from each accused.

6. As per prosecution, Sonu @ Jun got recovered motorcycle, Pooran @ Poorniya got recovered purse containing Election I.D. Card, two ATM Cards, whereas, from the person of Anil Kumar, mobile of the deceased wa