Kanwaljit Singh Ahluwalia, J.

1. Masooq Ali @ Bangali and Mohammad Akram @ Akku @ Kala Gitta, both residents of Ward No.16, Mangrole, District Baran have preferred two separate appeals bearing D.B. Criminal Appeal No.512/2014 and D.B. Criminal Appeal No.567/2014 to challenge the impugned judgment dated 17.2.2014 rendered by the Court of Sessions, Baran whereby both the accused-appellants were convicted for offences under Sections 302/34 IPC. The Court of Sessions, Baran vide a separate order of even date sentenced both the appellants as under:-

“U/s. 302 r.w. 34 IPC

Life imprisonment, to pay a fine of Rs.25,000/- each and in default thereof to undergo three months simple imprisonment.”

      2. In the present appeals listed before us, it is prayed that conviction and sentence of the appellants recorded and pronounced by the trial Judge be set aside. Since both the appeals have been filed against the common judgment, they shall be decided together.

3. Case of the prosecution, as it emerges in the charge framed against both the appellants, is that on the intervening night of 29.3.2011 and 30.3.2011 sometime after 8.00 PM, both the accused committed murder of Rizwan Ali and thus, committed the offence punishable under Sections 302 or 302/34 IPC.

4. Criminal proceedings were set into motion on the basis of written report (Ex.P.2) presented by Abdul Hakim (PW.2), father of deceased Rizwan Ali. The said written report (Ex.P.2) was submitted before Rohit Kumar (PW.21) who was then posted as SHO, Police Station Mangrole.

5. Rohit Kumar (PW.21) in court stated that on 30.3.2011 he was posted as SHO, Police Station Mangrole. Complainant Abdul Hakim (PW.2) on the same date at 10.30 AM appeared before him and presented written report (Ex.P.2). The said report when translated into English reads as under:-

“To,

SHO Sahib,

P.S. Mangrole

Sub.: For registration of case and initiating legal proceedings.

Sir,

It is submitted that yesterday on 29.3.2011 at 8.00 PM my son Rizwan Ali aged 13 years after taking meals had gone out of the house to play. In the night he had not returned. I and my family members extensively searched for him, but we could not get any clue. We sought information from the relatives on mobile, but whereabouts of my son were not known. In the night my son Rizwan Ali had not returned. Today on 30.3.2011, I and other family members again searched for him, but no information has received. At about 9.00 AM we learnt that near Meethe Kua in a garden dead body of my son Rizwan Ali is lying, upon which I, my sons Zakir Hussain, Shahjad and other residents of Mohallah went to the garden and found that dead body of my son Rizwan Ali was lying in the garden soaked in blood. Somebody had hit him with a big round stone and had caused his murder. Yesterday evening my son Shahjad Ali and Masooq Ali s/o Usman Ali, resident of Mangrole at about 4.00 PM had quarreled. He had given a threat to commit murder of my son. I have a suspicion that my son Rizwan Ali has been killed by Masooq Ali yesterday in the night in the garden of Meethe Kua. Report is presented. Legal action be taken.

Sd/

Abdul Hakim s/o Jumma Ji

Date: 30/03/2011”

6. On the basis of above said written report (Ex.P.2), a formal FIR (Ex.P.23) bearing No.56/11 was registered at Police Station Mangrole for offence under Section 302 IPC. From perusal of written report (Ex.P.2), it is apparent that none had seen the occurrence. In the written report (Ex.P.2) a suspicion has been expressed that due to a quarrel on previous day at 4.00 PM, Masooq Ali may have committed the murder. On the basis of suspicion, on 2.4.2011 at 7.15 PM Masooq Ali was arrested vide memo (Ex.P.10). On 3.4.2011 at 7.30 PM vide memo (Ex.P.11), Mohammad Akram was arrested.

7. Prosecution, in order to secure conviction of the appellants, examined 21 witnesses, namely Naushad Ali (PW.1), Abdul Hakim (PW.2