Circumstantial Evidence - The inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused.

A.N.Jindal, J.

1. Appellants Ved Parkash @ Bhagwan Dia son of Puran Singh and Rajesh © Raju son of Sukh Ram both residents of Village Jandli, District Ambala have been charged under Sections 302/34, IPC for abducting and killing Nirmal Singh on the intervening night of 21/22.8.1995. After trial, they were convicted and sentenced to imprisonment for life and to pay a fine of Rs. 5000.00 each, and in default of payment of fine they were to further undergo RI for six months each by Sessions Judge, Ambala. Since both the accused filed different appeals in this Court, namely, Crl. Appeal Nos. 432-DB and 448-DB of 1997 and the complainant has also filed a Crl. Rev. No. 624 of 1997 for enhancement of sentence of fine. Therefore, all the three matters are being disposed of by way of a common Judgment.

2. The genesis of the case began with the report which was lodged by Gurdial Singh uncle of the deceased Nirmal Singh on hearsay basis i.e. after receiving information from PW-6 Sharda Devi about the incident.

3. He in his statement, Ex. PE/1, dated 22.8.1995 at 9.00 A.M. recorded that on 21.8.1995 at about 9.30 P.M. Ved parkash @ Bhagwan Dia accused-appellant (hereinafter referred to as the accused) had called his nephew Nirmal Singh to accompany him because two other persons were waiting for him outside the house. Thereupon his nephew (deceased) accompanied him but did not return for whole of the night. During that night, at about 2.00 A.M. two persons had come to the house of deceased and knocked the door of the deceased but when Sharda Devi raised alarm "kaun hai kaun hai", then both of them ran away while taking the shelter of darkness. Sharda Devi had informed about this whole episode to Gurdial Singh in the morning and he in turn, informed about the same to the police. He also informed the police that since Nirmal Singh did not turn up, therefore, he accompanied by Jagdev Singh son of Khajan Singh went in search for him and when they reached one furlong ahead of cremation ground of village Jandli, they saw the dead body of Nirmal Singh lying on the northern side of the road.

4. The aforesaid statement Ex. PE was got recorded by Gurdial Singh on 22.8.1995 at 9.00 A.M. over which ASI Bir Bhan made his endorsement Ex. PE/1 on the basis of which an FIR was registered against Ved Parkash @ Bhagwan Dia and Rajesh @ Raju.

5. On registration of the case, the investigation commenced. During Investigation, ASI Bir Bhan prepared the Inquest report EX. PJ and got the post-mortem of the deceased conducted on the basis of application Ex. PJ/1. He also took into possession a pair of chappal Ex. P10 and a rickshaw Ex. P11 vide memo Ex. PF from the scene of occurrence.

6. The investigating Officer also prepared a rough site plan of the place where the dead body was lying. According to the investigation, it was found that the death of Nirmal Singh was caused by strangulation and Ashpyxia. It also came to light from the testimony of PW-4 Nachhattar Pal that the accused wanted to make the dead body of Nirmal Singh disappear. It was also revealed during investigation that PW-9 Ajaib Singh had also noticed that accused Ved Parkash and Rajesh roaming about in the street on the intervening night of 21/22.8.95 and that they had also made the extra judicial confession before PW-7 Balwinder Singh, Sarpanch of Village Jandli that they had killed Nirmal Singh as they wanted to rob money which was in his possession and they wanted to be produced before the police through him as he had the access to the police. The Investigating Officer also recovered the Parna (i.e. a piece of cloth) concealed by the accused Ved Parkash which was recovered in pursuance of his statement Ex. PC under Section 27 of the Indian Evidence Act, by the Investigating Officer vide Memo Ex. P-9. The Investigating Officer also recorded the statements of the witnesses. On completion of investigation, challan was presented against the accused. On finding a prima facie case against th