JUDGMENT AND ORDER :

1. This appeal seeks to challenge the judgment dated 29.06.2012 passed by the Additional District and Sessions Judge, Sambhar Lake, District Jaipur in Sessions Case No.51/2009, whereby the accused-appellants have been convicted and sentenced as under:

"Under Section 365 IPC sentencing them to five years rigorous imprisonment and fine of Rs. 2000/- and in default of payment of fine to further undergo sentence of six months rigorous imprisonment.

Under Section 302 IPC sentencing them to life imprisonment and fine of Rs. 5000/- and in default to of payment of fine to further undergo sentence of 1 year rigorous imprisonment.

Under Section 201 IPC sentencing them to 5 years rigorous imprisonment and fine of Rs. 2000/- and in default of payment of fine to further undergo sentence of 6 months rigorous imprisonment.

2. Facts of the case are that Bhagwan Sahai (PW4) submitted a written report (Ex.P8) on 25.07.2009 at 8.05 AM, on the basis of which the FIR (Ex.P9) was got registered at Police Station, Phulera, District Jaipur. As per the case of the complainant, his nephew Ram Niwas and brother Lalit were sleeping along with the complainant himself in the house on 22.07.2009 at 4.00 AM. In the meantime, a telephone call of his nephew Ram Niwas from mobile no.9982886685 was received on mobile no.9928167456. After seeing the mobile, Lalit gave it to Ram Niwas and told him about call of Toofan. His nephew Ram Niwas talked to Toofan Kantwa and thereafter told them that Toofan Kantwa has asked that he along with Chittar Kantwa was coming on motorcycle to meet him outside the village, so he was going to meet them. He stated that they would meet him near the boundary of village outside the Bhasinghpura Village. After telling this, his nephew Ram Niwas went from the house saying that he would return very soon. Afterwards, till today on 25.07.2009, he did not return to his house. They have searched him but could not find. His nephew Ram Niwas had given as sum of Rs.1,00,000/- as loan to Toofan Kantwa for doing business. The loan amount was given on 20.01.2009. It was agreed that the amount would be returned on 20.07.2009 but Toofan Kantwa had not returned that amount. They were having full doubt that his nephew had been abducted by Toofan and Chittar Kantwa and taken somewhere else and they could come harm to him with the intention not to return the loan amount. His nephew Ram Niwas has mobile no.9928167456 which till date i.e. from 22.07.2009, is switched off. It was mentioned that his nephew and the persons, who had abducted his nephew be searched and the persons, who abducted him be punished.

3. That the police on the basis of the said information registered the case under Section 365 IPC and registered FIR no. is 119/2009 and commenced investigation. The accused-appellants were arrested and at their instance the dead body of deceased was recovered. The police submitted the charge sheet against both the accused persons for offence u/s.365, 302 and 201/34 IPC. The learned trial court framed the charges against both the accused persons but they denied the charges, pleaded not guilty and claimed to be tried. The prosecution examined as many as 24 witnesses and exhibited 49 documents to prove its case. Defence did not produce any witness but exhibited three documents. The learned trial court after recording evidence and hearing both the parties, convicted the accused appellants and sentenced them as mentioned above, vide judgment dated 29.06.2012. Hence this appeal.

4. Shri A.K. Gupta, learned counsel for the accused-appellants has argued that admittedly, there is no eye witness of the occurrence and the case hinges entirely on the circumstantial evidence. If the circumstances, which has been put forth by the prosecution are considered in entirety conviction of the accused appellants cannot be sustained. It is submitted that from a bare perusal of the impugned judgment, it is clear that the learned trial court in its finding has not

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