JUDGMENT :

(Pankaj Bhandari, J.)

1. Since the controversy involved in both these appeals is same and common, the same are being decided by this common judgment and order.

2. The appellants have filed Criminal Appeal Nos.438/2016 and 336/2016 aggrieved by the judgment and sentence dated 08.01.2016 whereby accused appellants have been convicted and sentenced as hereinunder:-

Accused Appellant-Pawan

(i) For the offence under Section 302/34 IPC-Life imprisonment and a fine of Rs.10,000/-and in default of payment of fine, to further undergo, 6 months simple imprisonment.

(ii) For the offence under Section 4/25 Arms Act-3 years rigorous imprisonment and a fine of Rs.1000/-and in default of payment of fine, to further undergo, 1 month simple imprisonment.

Accused Appellants-Chothmal & Narayan

(i) For the offence under Section 302/34 IPC-Life imprisonment and a fine of Rs.10,000/-and in default of payment of fine, to further undergo, 6 months simple imprisonment.

3. Succinctly stated the facts of the case are that on 06.04.2012, complainant – Satya Narain (PW-4) submitted a written report (Exhibit-P7) to the SHO, Police Station, Kotwali, Tonk. On the basis of the said written report, the police registered an FIR bearing No.113/2012 (Exhibit-P23) at 10:25 pm for the offence under Section 302/34 of IPC against the accused appellants. In the written report and in the FIR, the allegation was against accused-Pawan and Chothmal along with 2-3 unknown persons and name of accused-Narayan was not mentioned. The police after due investigation, filed charge-sheet against accused appellant – Pawan under Section 302 IPC and Section 4/25 of the Arms Act, whereas against accused appellants – Chothmal and Narayan under Section 302/34 of IPC. The learned Trial Court after committal of the case, framed charges against accused appellant – Pawan for offence under Section 302 of IPC & Section 4/25 of the Arms Act and against other accused appellants for offence under Section 302/34 of IPC. The accused-appellants denied the charges and sought trial. Upon which, 18 witnesses were examined and 31 documents were exhibited on behalf of the prosecution. Explanation of the accused-appellants was recorded under Section 313 of Cr.P.C. In defence, 6 witnesses were produced. Learned Trial Court after hearing the final arguments of both the parties have convicted and sentenced the accused appellants as stated herein-above, aggrieved by which, the present appeals have been filed before this Court.

4. It is contended by the learned counsel appearing for the accused appellants that all the eye-witnesses i.e. Satya Narain (PW-4), Khem Chand (PW-5), Praveen Kumawat (PW-10) and Bharat Kumar (PW-12) are planted witnesses & are related to the deceased and belong to the same family. It is also contended that the presence of the alleged eye-witnesses is not established as Investigating Officer, Raghuveer Singh (PW-18), has deposed that at 9:00 pm, he received an information about a person lying in a pool of blood near Gandhi Park. He rushed to the spot and from there he shifted the injured to the hospital, where he was declared dead. It is further contended that the version of Raghuveer Singh (PW-18) is to be believed, as none of the eyewitnesses were present at the spot. It is also contended that there is no last seen evidence and Satya Narain (PW-4), father of the deceased, who has posed himself to be a last seen witness, is not a reliable witness.

5. It is contended by the learned counsel appearing for the accused appellants that there is no recovery of blood-stained clothes of the accused -appellants. If the story of the prosecution is to be believed, the deceased had sustained as many as 6 sharp injuries including a stab wound on the chest which is assigned to accused appellant – Pawan and accused appellants Chothmal and Narayan were holding the deceased, hence, all would have stained their clothes with blood. It is also contended that recovery of knife also does not connec