JUDGMENT

1. Both the appeals have been filed by the appellant/accused being aggrieved by the common judgment dated 12.1.2010 passed by the Additional Sessions Judge, Narsinghgarh, District – Rajgarh in Sessions Trial No. 138/2009, therefore, both the appeals are being decided by this common judgment.

2. By the impugned judgment, the appellants have been convicted under sections 302 r/w 34, and 120-B r/w 34 of IPC and sentenced to undergo rigorous life imprisonment with fine of Rs. 1,000/- each and in default of not depositing fine, they shall further undergo rigorous imprisonment for 1 year each and for the offence u/s 201 r/w 34 of IPC to undergo rigorous Imprisonment for a term of 7 years with fine of Rs. 500/- each and in default of not depositing fine, further undergo 6 months rigorous imprisonment each.

3. Brief fact of the case is that on 23.1.2009 at about 11.00 am, Karan Singh Jat (PW-4) gave merg intimation (Ex-P/6) to police station – Pachor by stating that he came to know that in Badigaon Umariya Road near Dargah, one dead body is lying, which is smelling. Accordingly, merg No. 05/2009( Ex.-P/6) was registered. Thereafter, Sub-Inspector S.R. Yadav (PW-14) went to the spot and prepared spot map (Ex-P/5) and seized pouch of “Range ghutka” and iron Buckle and prepared seizure Memo (Ex. P/2) and also prepared inquest panchanama Ex-P/4.. It was found that a handkerchief is tied in the neck of deceased and in the neck, below handkerchief black coloured ligature mark was found.. Dr. R.K. Jain (PW12) conducted postmortem of the deceased at Primary Health Centre, Pachore and as per postmortem report (Ex-P/30), injuries found over the dead body were ante-mortem and caused between 24 hours to 3 days and cause of death was asphyxia which was due to strangulation and homicidal in nature. Thereafter, offence under section 302/201 of I.P.C. was registered against the unknown person. During investigation. Chunnilal (PW-9), father of the deceased identified the deceased as his son Mangilal through his clothes and photographs (Ex.- P/14 to Ex.-P/26).

4. Prosecution case in further is that the appellants, in order to commit loot of Rs. 5000/- from Mangilal (deceased), hatched conspiracy and mixed the sleeping pills in the food and liquor and when Mangilal fell down being inconspicuous, then appellant Ramesh and Jagdish took Mangilal in the jungle of village Badi in a motorcycle and killed him by throttling his neck through handkerchief and hided his dead body. SubInspector S.R. Yadav (PW-14) recorded confessional statement of the accused persons and recovered one mobile phone and cycle of the deceased from the possession of appellant Ramesh. Wrapper of sleeping pills was recovered from accused Kalabai and cash of Rs. 2500/- had been recovered from the possession of appellant Jagdish. Seized cycle and mobile phone were identified by father of the deceased during test identification parade.

5. After completion of the investigation, charge-sheet was filed and charges under sections 120-B/34, 302/34 and 201/34 of IPC were framed by the trial Court. The appellants abjured their guilt. The prosecution examined as many as 15 witnesses while the defence did not examine any witness. After conclusion of the trial, on appreciating the evidence available on record, the trial Court convicted and sentenced the appellants as mentioned herein above.

6. Learned counsel for the appellants preferred both the appeals by stating that there is no eye witness in the instant. The entire case is based upon the circumstantial evidence, but the chain of the circumstances is not completed. Looted currency notes have not been recovered from the possession of the appellants. The handkerchief which was used for murder, has not been sent for examination to forensic laboratory or finger print bureau. The trial Court has erred in convicting on the ground of recovery of very common articles like cycle and mobile phone. The trial Court has not properly considered the material