R.S.SODHI, J. -
(1.) Criminal Appeal Nos.391 of 2005 and 774 of 2005 seek to challenge a common judgment delivered by Additional Sessions Judge, Delhi in Sessions Case No.9 of 2001 arising out of F.I.R. No.126 of 1998, registered at Police Station Alipur, whereby the learned judge vide his judgment and order dated 29.03.2005 has held the appellants, namely, Prem Singh @ Fauzi and Samson @ Raju, guilty for an offence under Section 302/34 IPC. Further by his order dated 31.03.2005, has awarded sentence of life imprisonment together with a fine of Rs.5,000/- each and in default of payment of fine, to undergo Rigorous Imprisonment for a period of one year to each of the appellants under Section 302/34 IPC. However, the appellants were awarded the benefit of Section 428 of Code of Criminal Procedure.
(2.) Brief facts of the case as have been noted by the learned Additional Sessions Judge in the judgment under challenge are as under :-
"That on 26.4.98 at about 8.40 PM, the duty officer at P.S. Alipur received information from the PCR that one maruti car had thrown a dead body near Community Centre, Village Tigipur. SI Vijender Rana and Const. Balbir and then, Insp. Sajjan Singh with staff reached at the Community Centre, Village Tigipur and found that on the left side of the road, there was grass and in that grass, the body of a young person, aged about 20/25 years was lying in naked condition. There were ligature marks around the neck and head was found shaved recently. The police did the necessary investigation and then, the body was sent to the mortuary, where the postmortem was conducted. The blood sample and scalp hair of the deceased were kept in sealed parcels and were delivered to the police. Later on, the body was identified as that of Agastya, son of Shiveshwar Jha, resident of Village Manik Chak, Distt. Sitamarhi, Bihar. The case FIR No.192/97, under Section 302, 201 and 120-B IPC was registered at P.S. Bara Hindu Rao. Insp. Jaan Mohd. and other police officials investigated that case and arrested accused Prem Singh @ Fauzi and Samson @ Raju. They made disclosure about their involvement in the crime of the present case. They got recovered clothes, rope, razor and also the car used for transporting the body and throwing the same in the area of P.S. Alipur. the investigating agency found that one lady, namely, Sunita used to live with accused Prem Singh @ Fauzi as his wife. Whenever she tried to slip away from the hands of accused Prem Singh, the accused took action and even lodged the report of theft against her. Accused Prem Singh @ Fauzi had suspicion that Shadab was having relations with Sunita. Shadab and Arshad Zafri were the persons, who were murdered in regard to case FIR No.192/97, P.S. Bara Hindu Rao. Sunita was found missing from the house of accused Prem Singh on 13.2.98 and he lodged the missing report in P.S. Mukherjee Nagar. The accused suspected the Ajay, who was tenant in the house of the accused, had taken away Sunita. According to the allegations, accused Prem Singh @ Fauzi with the help of co- accused Raju @ Samson killed Ajay. It is also the case of the prosecution that Ajay had told accused Prem Singh @ Fauzi that Abhey, brother of Aditya and Agastya had eloped with Sunita. Ajay was killed in the night intervening 15/16.4.98 and his body was found lying in Village Khera. The case FIR No.271/98, under Section 302/201 IPC was registered at P.S. Sameypur, Badli in that regard. Agastya and his brother Aditya were with the two accused on 25.4.98 at about 11.30 PM. They were taken to the dairy of accused Prem Singh @ Fauzi at Village Jharoda. Rakesh, Bhim and other persons helped the two accused in interrogating both the brothers. Aditya and Agastya were killed by way of strangulation. Their heads were shaved and the clothes were removed from the body. Thereafter, the body of Agastya was taken in the car No.DL 8C B-4397 of accused Prem Singh in the evening of 26.4.98 and was thrown in Village Tigipur, whereas the body of Aditya was thrown in the area of P.S. Timar Pur. The case FIR No.204/98, under Section 302/201/34 IPC was registered at P.S. Timar Pur in regard to the murder of Aditya."
(3.) The prosecution in order to establish their case examined as many as 38 witnesses. The case, according to the learned trial court is based on circumstantial evidence. The circumstances which were required to be proved have been enumerated as follows :-
"i) Deceased Agastya and his brothers Aditya and Abhey @ Guddu were residing in House No.80, Village Dhaka and that accused Prem Singh @ Fauzi was residing in House No.81, Village Dhaka, Delhi; ii) Agastya and his brother Aditya were seen last time in the company of accused Prem Singh and Samson and they were not seen thereafter; iii) Recovery of the body of Agastya and the identification of the body; iv) White maruti car was spotted near Community Centre, Tigipur on 26.4.98 and the seizure of the maruti car of accused Prem Singh; v) No delay in recording of the FIR; vi) Postmortem report of deceased Agastya; vii) Smt. Roshni is wife of accused Prem Singh @ Fauzi whereas Sunita @ Shamim was a keep of Prem Singh and accused Prem Singh was possessive of Sunita @ Shamim; viii) In the year 1998, Sunita @ Shamim eloped with Abhey @ Guddu, brother of deceased Agastya; ix) Motive for the crime; x) Arrest of accused Prem Singh and his disclosure statement; xi) Arrest of accused Raju @ Samson and his disclosure statement; xii) Recovery of the incriminating articles at the instance of accused Prem Singh @ Fauzi; xiii) Recovery of the incriminating articles at the instance of accused Raju @ Samson; and xiv) Identification of the recovered clothes of deceased Agastya.";