The main legal point established in the judgment is the distinction between murder and culpable homicide not amounting to murder under the Indian Penal Code, and the application of legal principles of circumstantial evidence and burden of proof.

JUDGMENT :

Anoop Kumar Dhand, J.

1. The appellant is the accused. He was prosecuted for the offence under Sections 302, 201, 34 of the Indian Penal Code (for short “IPC”) along with co-accused Smt. Sudesh Kumari, who expired during pendency of the trial. The learned Additional Sessions Judge (Women Atrocities Cases) Bharatpur (Raj.) (for short ‘the trial Court’) vide judgment dated 12.01.2018 convicted him for the offence under Sections 302 and 201 IPC and sentenced him as under:-

2. Sentences were ordered to run concurrently.

3. Briefly stated, the prosecution case is that on 11.05.2016, complainant PW-1 Ramdhan submitted a typed report (Ex.P1) at Police Station Mathura Gate, Bharatpur stating therein that he is resident of Village Wajna (U.P.). He had two daughters and one son to whom he could not maintain after death of his wife. Hence, he sent his two children to his sister’s house who resides at House No. 21/612 Gandhi Nagar Colony, Bharatpur. He sent his daughter Sapna aged 9 years to his niece who was residing at D-14, Jawahar Nagar, Bharatpur. On 27.04.2016 at 5:00 PM, his daughter went to a shop at the distance of 400 meter to recharge mobile but she did not return back. After inquiry from all the relatives and known persons everywhere, her whereabouts could not be known.

4. Upon this typed report (Ex.P1), Crime No.319/2016 (Ex.P2) was registered for the offence under Section 363 IPC. After investigation, charge-sheet was submitted against the appellant and co-accused Smt. Sudesh Kumari for the offence under Sections 302, 201 and 34 IPC. The case was committed to the Court of District & Sessions Judge, Bharatpur, who transferred the same to the Court of learned Additional Sessions Judge (Women Atrocities Cases) Bharatpur where charges were framed against both the accused persons for the offence under Sections 302 IPC and in the alternative, under Sections 304/34 and 201 IPC. Both accused denied the charges and claimed trial. The prosecution examined as many as 22 witnesses in support of its case and exhibited 57 documents. During the course of trial, the co-accused Smt. Sudesh Kumari expired as a result of which proceedings against her were dropped. After completion of trial, the statement of the appellant was recorded under Section 313 Cr.P.C. He was confronted with the circumstances appearing against him in the prosecution evidence, which he denied and claimed to have been falsely implicated and stated that the seized mobile and sim did not belong to him; Sapna went to recharge the mobile, from where she did not return back. He made lot of search of her and when she did not return back, a missing person report was submitted. The explanation given by the appellant in his statement under section 313 Cr.P.C. is reproduced as under:-

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5. In defence statement of Kaushal was recorded as DW-1.

6. After hearing the arguments advanced by the prosecution and defence and after appreciating the evidence available against the appellant, the trial Court proceeded to convict and sentence him for the offences as stated above.

7. Learned counsel for the accused appellant submits that this case is based on circumstantial evidence and there is no evidence available on the record against the appellant to convict him for the aforesaid offences. Counsel submits that the dead body was not identified. The post-mortem of an unidentified dead body was conducted. He submits