A conviction based solely on circumstantial evidence requires concrete proof beyond reasonable doubt, which was not established in this case.

JUDGMENT :

VIVEK RUSIA, J.

1. The appellant has filed the present appeal being aggrieved by the judgment dated 25.5.2013 passed by the Additional Sessions Judge, Indore in S.T. No.856/2012 whereby he has been convicted u/s. 394/397 and 302 of the IPC and sentenced to undergo 10 years' RI and life imprisonment and to pay a fine of Rs.500/- - 500/- respectively with default stipulation.

2. The facts of the case, in short, are as under :

2.1 Shyamsunder Kakani was working as a Guard in the parking lot in front of Jammu Kashmir Jewelers. On 5.2.2010 he heard the sound of falling of a person from the building. He along with others reached there and saw one person lying and bleeding and he was found to be dead. His name was known to be Kuldeep S/o. Narendra Jain resident of Kalani Nagar, Indore. On the basis of information given by Shyamsunder Kakani, the Police Station Tukoganj registered 'Merg' No. 7/2010 u/s. 174 of the Cr.P.C. The 'Merg' intimation revealed that some unknown person snatched his bag and killed the deceased Kuldeep Jain. The FIR at No. 108/2010 was registered against an unknown person.

2.2 Sub Inspector Y.S. Kushwaha reached the spot, found an empty cartridge, and used a bullet. The investigation revealed that the present appellant is already an accused of offenses 302, 397, and 394 of the IPC and u/s. 25 & 27 of the Arms Act in Crime No. 263/2011 registered at Police Station Kotwali, Satna, and languishing in jail. The Investigation Officer obtained his memorandum statement recorded in Satna Police Station in which he admitted to killing and looting Kuldeep Jain. The gun used in this crime was seized in the aforesaid Crime No. 263/2011 Police Station Satna. He disclosed that he kept the bag containing artificial ornaments/jewelry below the seat in an old bus parked in Vijay Nagar Bus Depot. Vide Exh. P/1 the bag was seized from the bus. The spot map vide Exh. P/12 was prepared. Blood contained soil and plain soil were collected and were sent for FSL. The bullet and Hero Honda Passion motorcycle were also seized. The present appellant was formally arrested vide Exh. P/9. The statement of witnesses was recorded by the Investigation Officer. The investigation was completed and the charge-sheet was filed in the court of Judicial Magistrate First Class. The trial was committed to the Additional Session Judge where the charges were framed against the appellant. The charges u/s. 394, 397, and 302 of the IPC were read over and explained to the appellant/accused which he denied and pleaded for trial.

2.3 The prosecution was called upon witnesses to establish the above charges. The prosecution examined 8 witnesses as P.W.1 to P.W.8 and exhibited 17 documents as Exh. P/1 to P/17. After evaluating the evidence that came on record, the learned Additional Sessions Judge has convicted and sentenced the appellant as stated first. Hence, the present appeal before this Court. We have heard the learned counsel for the parties and perused the record of the court below.

3. The prosecution examined Manoj Bafna as P.W.1 who deals with the business of diamond jewelry in the name of Krishna Diamond. According to him on 5.2.2010 Kuldeep Jain came to his jewelry shop and took the jewelry worth Rs. 1.00 – 150 Lakhs. The police opened the bag in his presence in which he found imitation jewelry. He is the owner of Kalakriti Jewelers He identified the driver's license and the diary. In the cross-examination, he admitted that he did not issue any bill or receipt to the deceased Kuldeep Jain in respect of jewelry and he has no proof of it. But according to him, he gave original gold and diamond jewelry to the deceased Kuldeep Jain and not the artificial jewelry. On the date of the incident, he was called by the Police Stat