JUDGMENT :

SHREE CHANDRASHEKHAR, J.

1. In Majhgaon P.S. Case No. 31 of 2007, Nandlal Purty and Aiwon Kuntia were named as accused by the informant whose fardbeyan was recorded at 11:00 AM on 22.07.2007. After the investigation a charge-sheet was submitted against them and they have faced the trial on the charge under section 302/34, 201 and 379 of the Indian Penal Code.

2. In Sessions Trial No. 75 of 2008, the appellant has been convicted and sentenced to R.I. for life and fine of Rs. 5,000/- under section 302/34 of the Indian Penal Code R.I. for two years and fine of Rs. 1,000/ - under section 201 of the Indian Penal Code and R.I. for three years under section 379 of the Indian Penal Code, Nandlal Purty is still absconding.

3. During the trial the prosecution has examined 13 witnesses - all are co-villagers of the informant except PW-12 and PW-13.

4. The case of the prosecution is that Nandlal Pingua was a handicapped person. On 21.07.2007 he had gone to village market with Nandlal Purty and Aiwon Kuntia and by the evening they came back home. At about 18:30 PM the appellant and Nandlal Purty again came to the house of the informant and took Nandlal Pingua on a red-colour cycle to help him ease out the nature's call. Thereafter the accused persons were not seen in the village. Next day morning dead-body of Nandlal Pingua was found floating in the village pond. Nandlal Pingua was a pensioner and at the time when he was accompanied by the accused persons he was carrying about Rs. 1,000/- with him and to steal his money they have committed his murder.

5. The case of the prosecution is based on circumstantial evidence. There are at least six witnesses who have seen Nandlal Pingua lastly in the company of the accused persons in the evening of 21.07.2007 and the next day morning his dead-body has been found in the village pond.

6. In Gambhir vs. State of Maharashtra, (1982) 2 SCC 351 the Hon'ble Supreme Court has observed:

“9.......When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.....”

7. The informant is brother of Nandlal Pingua, the deceased. He has seen his brother leaving home at about 18:00 PM with the appellant. He has deposed in the Court that in the afternoon of 21.07.2007 the appellant and Nandlal Purty had gone to Aamda Hat (Market) with his brother and they came back home at about 17:00 PM. Again at about 18:30 PM on the pretext of helping him to ease out the nature's call they took him near a pond towards western side of the village, but they did not come back. He has further stated that the wife of Brinder Pingua who had gone towards the pond saw a dead-body and informed him. Thereafter when the dead body was brought of from the pond he found that it was of his brother. He has informed the village Munda and on the information of village Munda the police came to the village and recorded his fardbeyan. PW-3 has also stated that the appellant Nandlal Purty had gone to village Aamda Hat (Market) with Nandlal Pingua in the afternoon of 21.07.2007 and they came back home at about 17:00 P.M. The appellant and Nandlal Purty had gone with Nandlal Pingua towards the pond and killed him. PW-4, PW-5, PW-6 and PW-10 and all have deposed in the Court that they have seen the app