Point of Law: Law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence.

JUDGMENT :

Vijay Bishnoi, J.

These two appeals have been preferred against the judgment dated 27.9.2011 passed by the Additional Sessions Judge (Fast Track) No.1, Pali, Headquarter Jaitaran (for short ‘the trial court’) in Sessions Case No.31/2003.

2. D.B. Criminal Appeal No.924/2011 is preferred on behalf of complainant-appellant Sattar Khan challenging acquittal of respondent No.2 – Umrao from the offences under Sections 302 and 120-B IPC; respondent No.3 – Raju Khan @ Shaukat Khan from the offences under Sections 302, 120-B and 201 IPC and accused-respondent Nos.4 to 8 from the offences under Sections 201 and 176 IPC.

3. S.B. Criminal Appeal No.851/2011 is preferred on behalf of appellant – Umrao challenging the impugned judgment dated 27.9.2011 passed by the trial court, whereby he has been convicted for the offence under Section 201 IPC and sentenced to four years’ rigorous imprisonment with a fine of Rs.2000/-, in default of payment of fine to further undergo three months’ simple imprisonment.

4. Brief facts of the case are that complainant-appellant Sattar Khan (D.B. Criminal Appeal No.924/2011) filed a written report (Ex.P/1) dated 12.8.2000 before the SHO, PS Jaitaran at 7:30 AM stating therein that his younger brother Salim is living with him and when he did not reach the home in the night of 9.8.2000, he started searching for him at about 11:00 PM because his gouna (Muklava) was to be solemnized on 11.8.2000. The complainant, in his written report, has stated that he searched his younger brother at everywhere, but today at 4:00 AM, Mumtaj Khan S/o Sattar and Salim S/o Rafiq knocked his door and called him and when he came out from the house, Salim S/o Rafiq told him that dead body of his younger brother Salim is lying on the road and he also told that when he came out of the house, he saw that the tenants of Niyamat Khan namely Nathmal Patwari, Shyamlal @ Bhupendra, Umrao were dragging the dead body of his younger brother Salim and they threw it on the road, however, when they reached there, all of them ran away. It is further stated by the complainant that he informed about the incident to the police on telephone and the respected residents of the colony had also seen the dead body of his brother, which was in bad shape and eyes of the dead body were burnt by some substance. It is further stated that the house, from where the dead body of Salim was dragged was stinking badly and skin of his hand was stuck in a Moped, lying in the house. It is also alleged by the complainant that his brother was detained by accused persons Nathmal, Shyamlal @ Bhupendra and Umrao and they killed him. It is also alleged that some more persons are involved in the commission of murder of his brother.

5. On receiving the report, the police reached the spot, prepared a site map and started investigation. The accused persons namely Nathmal, Shyamlal @ Bhupendra and Umrao were arrested from the house of Nathmal and other evidence was also collected by the police from the house of Nathmal.

6. After recording statements of the several persons and collecting evidence, the police filed charge-sheet against the accused persons. The post mortem of the dead body was conducted but cause of death is not mentioned in the post mortem report, however, it is mentioned that the cause of death of the deceased cannot be ascertained because the dead body is badly decomposed.

7. After investigation, the police filed charge-sheet against accused persons Shyamlal @ Bhupendra, Nathmal, Umrao and Raju Khan for the offences under Sections 302, 201 and 120-B IPC and filed charge-sheet against accused persons Niyamat Khan, Smt. Rukiya, Imran, Rafiq Khan and Bablu for the offences under Sections 302, 201 and 176 IPC. As the case was triable by Sessions Court, it was transferred to the court of Additional District & Sessions Judge, Sojat, Camp Jaitaran and from there it was transferred to the trial court.

8. The trial court has framed charges against the accused Shyamlal @ Bh