The main legal point established in the judgment is the reliance on circumstantial evidence and the application of the burden of proof under Section 106 of the Indian Evidence Act, 1872 to establish the guilt of the accused beyond reasonable doubt.

JUDGMENT

Ashok Kumar Verma, J. - This is an appeal preferred by the appellant against a judgment of conviction and order of sentence dated 22.02.2017 for commission of an offence punishable under Section 302 of the Indian Penal Code, 1860 (for short 'the IPC'), sentencing the appellant to undergo life imprisonment and to pay a fine of Rs.15,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of 02 years.

2. Brief facts relevant for disposal of the present appeal are that Rehman, father of the appellant, was working as Chowkidar in the house of Gulshan Kumar, complainant. The said house was under construction. Rehman and his wife-Kundan, parents of the appellant, used to sleep on the ground floor whereas the appellant alongwith his wife Shakila and son Arshad used to sleep on the second floor of the house. On 10.06.2014 some altercation had taken place between the appellant and his wife but Gulshan Kumar intervened and made them to understand. On 11.06.2014 at about 8:30 a.m. Gulshan Kumar came to the house under construction and made a call to Rehman but he did not receive any response. He went upstairs and found Shakila and Arshad lying in a pool of blood and on seeing Gulshan Kumar, the appellant fled from the spot saying that he had taught a lesson to his wife for making quarrel with him and had also committed murder of his son by throttling. Gulshan Kumar informed the police and on the basis of that information, SI Gian Singh came to the spot and recorded statement of Gulshan Kumar. Police proceedings were carried out by SI Gian Singh and thereafter he sent the same to the Police Station through EHC Ajay Pal. On which formal FIR was recorded by ASI Ishwer who also made his endorsement and sent special reports to the learned Area Magistrate and higher police officers through HC Ram Niwas. SI Gian Singh carried out spot inspection and prepared rough site plan of the place of occurrence. Report under Section 173 of the Cr.P.C. was prepared and presented in the Court of Illaqa Magistrate. After complying with the provisions of Section 208 of the Cr.P.C., the Addl. Chief Judicial Magistrate, Rohtak vide order dated 19.09.2014 committed the case to the Court of Session. Vide order dated 01.10.2014, charge under Section 302 of the IPC was framed against the appellant to which he did not plead guilty and claimed trial.

3. In order to prove its case, the prosecution examined complainant-PW-1 Gulshan Kumar, PW-2 HC Sumit Kumar, PW-3 Rehman, PW-4 Kundan, PW-5 HC Ram Niwas, PW-6 Ishwar Singh, PW-7 HC Ajay Pal, PW-8 HC Manjeet, PW-9 Dr. Rahul Rathi, PW-10 ASI Virender Singh, PW-11 Mohammad Sahadat Mansuri, PW-12 Khalil and PW-13 Gian Singh and produced documents and material objects exhibited on record.

4. On perusal of the material on record and consideration of the submissions made by the learned Public Prosecutor for the State and the learned defence Counsel, the learned Sessions Judge, Rohtak vide judgment of conviction and order of sentence dated 22.02.2017 held accused-Nashim guilty under Section 302 for the I.P.C. and sentenced him to undergo life imprisonment and to pay a fine of Rs.15,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of 02 years.

5. Aggrieved against the above said judgment of conviction and order of sentence, the appellant has filed the present appeal.

6. Learned counsel for the appellant has vehemently submitted that the appellant has been falsely implicated in the present case. There is no eye witness in the present case. The case of the prosecution is merely based upon the circumstantial evidence. In the testimony of prosecution witnesses, there are great discrepancies, material contradictions and embellishment. In the cross-examination, PW1-Gulshan Kumar deposed that he had not seen appellant Nashim on that morning. He had not got recorded in his statement Ex.PC that accused-Nashim had fled away from the spot on seeing him.