Circumstantial evidence must establish a clear chain of guilt; absence of crucial witness testimony undermines prosecution's case.

JUDGMENT

Appellant has filed the appeal, challenging the judgment/order dated 17.8.2018 and 24.8.2018, whereby he was convicted and sentenced, respectively, as under:-

Sections 302 & 364 read with Section 34 of Indian Penal Code

Imprisonment for life and to pay a fine of read with Section 34 Rs.25,000/-each.

Section 201 read with: Section 34 of Indian Penal Code

Rigorous imprisonment for a term of seven years and to pay a fine of Rs.25,000/- and in default of payment of fine to further undergo imprisonment for a term of six months.

2. Prosecution story, in brief, is that on the night intervening 13.4.2013 and 14.4.2013, appellant Naresh Kumar and his co-accused Vijay Kumar, had committed murder of Rajeev Kumar and had thrown the dead body on the Kalka-Shimla Railway Track near Taksal, KM No.3/7-8. Deceased Rajeev Kumar was residing with Rajesh Kumar in a rented room in the building of Shyam Lal. Rajeev Kumar went missing on the night of 13.4.2013 from his rented premises. On 19.4.2013, Mangat Ram (father of the deceased), received a letter from Balraj Engineering Works that his son was absent from duty w.e.f. 14.4.2013. Complainant made all possible efforts to search his son, but in vain. Thereafter, complainant lodged the missing report of his son at Police Station, Nalagarh on 23.4.2013. Thereafter, on 27.4.2013, complainant came to know from Rajesh Kumar (room partner of the deceased) that Rajeev Kumar was missing since 13.4.2013. Complainant further came to know that on 13.4.2013, Rajeev Kumar had consumed liquor with accused and then they had left at about 1:00 a.m. towards Nalagarh on a motorcycle. Although, the accused had returned in the morning, but Rajeev Kumar had gone missing.

3. FIR was registered on 28.4.2013 at Police Station, Nalagarh. On 14.4.2013, an unidentified male body, run over by the train, was found at Kalka-Shimla Railway Track near Taksal, KM No.3/7-8 near HPMC Factory, Parwanoo. After postmortem examination, the dead body had been cremated as unidentified/unclaimed. After seeing the photographs of the dead body, the same was identified as that of Rajeev Kumar by the complainant on 11.5.2013. Appellant was arrested on 9.5.2013, but his co-accused Vijay Kumar could not be arrested. After completion of investigation and necessary formalities, Challan was presented against the appellant.

4. Charge was framed against the appellant under Sections 364 , 302, 201 read with Section 34 of the IPC. Appellant did not plead guilty to the charges framed against him and claimed trial.

5. During trial, prosecution examined 26 witnesses to prove its case. Appellant, when examined under Section 313 of the Code of Criminal Procedure , 1973, after the close of prosecution evidence, prayed that he had been falsely implicated in the case. In fact, he was present in Delhi with his friend, Gagan from 13.4.2013 to 17.4.2013. Appellant did not examine any witness in defence.

6. Learned counsel for the appellant has submitted that the present case rests on circumstantial evidence. The star witness of the prosecution was Rajesh Kumar. However, the said witness had not been examined during trial. So far as the statement of PW-9 (Shyam Lal) is concerned, the same had been recorded on 17.5.2013. Hence, the delay in recording his statement renders his testimony doubtful. So far as PW-4 (Navneet Saini) and PW-2 (Gurmeet Singh) are concerned, their statements were hearsay and could not be relied upon in the absence of testimony of Rajesh Kumar. No reliance can be placed on the report of the Forensic Science Laboratory (Ex.PE) as the T-Shirt alleged to have been worn by the appellant had been recovered from Rajesh Kumar, whereas Rajesh Kumar had not been examined as a witness during trial.

7. Mr. Ashwani K. Sharma, learned Additional