ORDER :

Agarwal, J. -- 1. Criminal Appeal No.2499/2024 under section 374(2) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”) is filed being aggrieved of judgment dated 9.1.2024 passed by learned Additional Sessions Judge, Special Court No.8 (Electricity Act, 2003), Jabalpur in Sessions Case No.171/2019 convicting the appellant Pramod Kushwaha S/o.Kallu Kushwaha for the offence under sections 302 & 201 of the Indian Penal Code, 1860 (for short “I.P.C”) and sentencing him to undergo imprisonment for life and rigorous imprisonment for two years with fine of Rs.2,000/- & Rs.500/- and in default of payment of fine to undergo additional imprisonment for two years and six months respectively with a further direction to run all the jail sentences concurrently.

2. Criminal Appeal No.5802/2024 under section 378(1) of the Cr.P.C is filed by the State being aggrieved of judgment dated 9.1.2024 passed by learned Additional Sessions Judge, Special Court No.8 (Electricity Act, 2003), Jabalpur in Sessions Case No.171/2019 acquitting the respondent No.1 Raja Kushwaha and respondent No.2 Saurabh Sen from the charges under section 302 and in the alternative section 302/34 and section 201 of the I.P.C.

3. Learned counsel for the appellant Pramod Kushwaha submits that it is a case of circumstantial evidence and the chain of circumstances is not complete, therefore, the judgment of conviction passed against the appellant Pramod Kushwaha be set aside and he be acquitted from the charges of sections 302 & 201 of the I.P.C.

4. Learned Government Advocate for the State submits that not only the conviction of the appellant Pramod Kushwaha is made out from the testimony of last seen i.e. the deceased Vinay, who was last seen in the company of Pramod Kushwaha as deposed by PW.2 Manku Patel but also supported from the recovery etc made at the instance of the appellant Pramod Kushwaha. The memorandum of the appellant Pramod Kushwaha given under section 27 of the Indian Evidence Act, 1872 on 7.1.2019 as contained in Exhibit P/12 supported with Property Seizure Memo Exhibit P/13 reveals that the conviction of appellant Pramod Kushwaha is justified. The acquittal of two accused persons, namely, the respondent No.1 Raja Kushwaha and respondent No.2 Saurabh Sen from the charges under section 302 and in the alternative section 302/34 and section 201 of the I.P.C is arbitrary and illegal and, therefore, the finding of acquittal recorded in favour of the respondent No.1 Raja Kushwaha and respondent No.2 Saurabh Sen be set aside.

5. We have heard learned counsel for the parties and gone through the record.

6. The brief chronology of events as narrated by learned Trial Court is that at Police Station Panagar, the Merg No.93/2018 under section 174 of the Cr.P.C was registered. The statements of PW.1 Purshottam Lal, the father of deceased Vinay, his brother Shubham Patel, PW.2 Manku Patel, PW.7 Gulab Yadav and that of Govind Kachhi, Vikas Singh Thakur, Abhayraj Singh were recorded. The postmortem of the dead body of deceased Vinay was conducted vide Exhibit P/10 in which it is mentioned that the cause of death is asphyxia due to antemortem drowning. On investigation, it was found that Vinay was working in a Parle-G Factory Godown situated at Richhai. The appellant Pramod Kushwaha was also working there with him and they were friends. They had entered into a nexus whereby they were stealing cartons of Parle-G Biscuit and were selling them illegally to earn illegal gratification. It is alleged that in the night of 11/12th of August 2018, Vinay and Pramod Kushwaha had stolen 12 cartons of Parle-G biscuit etc and they had kept them outside. The appellant Pramod Kushwaha with a view to transport those cartons had taken a bike of Ranjeet, which was a red colour Pulsar Motorcycle-150 bearing registration No.MP20-MN-8278. When in the night of 12.8.2018, Pramod Kushwaha, Vinay, Raja Kushwaha, Bhola Kushwaha and Saurabh Sen were taking stolen Parle-G biscuit cartons th