- (1.)These two appeals arise out of concurrent order of conviction passed by the courts below convicting these two appellants, viz. Vijay Thakur and Surjeet Khachi, along with third accused, namely, Rajinder Thakur under Section 302 read with Section 34 of the Indian Penal Code, 1860 and sentencing all of them to undergo imprisonment for life and pay a fine of 5,000, etc. The appellants are also convicted for the offence under Section 392 read with Section 34 IPC and are given the sentence of five years and fine of 2,000 each with a default clause in case fine is not paid.
(2.)As correctness of the narration of this prosecution case recorded by the High Court is not in dispute, we may state the prosecution version by borrowing from the said judgment. It is as under:
(a) Deceased Santosh Kumar, son of Bir Chand (PW-1), was employed as a driver by Ganga Ram (PW-2) to drive his Maruti van, which he had purchased only few days prior to the date of occurrence, i.e. August 21, 2004. The van had yet not been registered with the Registration Authority, though application for registration had been moved. On August 21, 2004, all the three appellants were looking for a taxi as they wanted to escort a truck carrying timber. They got lift in a truck at Narkanda for going to Sainj to hire a taxi. The truck by which they went to Sainj was being driven by Rajesh Kumar (PW-30). It was carrying merchandise belonging to PW-30. At Sainj, the appellants hired Maruti van of PW-2 on which the deceased had been engaged as a driver. The van started from Sainj for Narkanda late in the evening. On the way, deceased Dharam Pal, an electrician working at Kingar, was approached by the deceased to accompany him. Dharam Pal too boarded the van. Thereafter, the deceased, along with his van, went missing. PW-2, who is the owner of the van, started searching for him.

(b) On August 25, 2004, PW-2 met PW-1 at Luhri and asked him if the deceased had visited his house. PW-1 replied him in the negative. PW-1 and PW-2 started searching for the deceased and the van. A report was lodged on August 24, 2004, with the Police Station, Kumarsain by PW-2 about deceased having gone missing along with Maruti van. An entry was made in the Rojnamcha and the same is exhibited as Ex. PW-47/A.

(c) On August 26, 2004, one Shano Devi (PW-18) spotted two dead bodies in Thachru Nallah, which falls by the side of the road connecting to Sainj with Narkanda. She informed her co-villagers. Police was informed telephonically. Entry regarding telephonic information was made in the Daily Diary and marked as Exhibit PW-37/A. ASI Sada Nand (PW-49) went to the spot accompanied by PW-1, PW-2 and one Talru Ram (PW-3), who is the father of deceased Dharam Pal. Dead bodies were identified to be those of Santosh Kumar and Dharam Pal. Both of them had been strangulated, one by means of a string of jacket's hood and another by means of a handkerchief. Also, there were injuries on their heads. A danda (Exhibit P-1) was also found lying on the spot.

(d) PW-1 made a statement under Section 154 of the Code of Criminal Procedure, 1973 (for short. 'Cr.P.C.') to PW-49, which is exhibited as Ex.PW-49/A. It was sent to the Police Station for registration of the case, where FIR (Exhibit PW-48/A) was recorded by ASI Rattan Chand (PW-48). Inquest was conducted by PW-49 and Forms (Exhibits PW-1/A, 1/B and 1/C) were filled in. Dead bodies were sent to Community Health Centre, Kumarsain, where post-mortem examination was conducted by a team of doctors, consisting of Dr. Ramesh Chand Guleria (PW-32), Dr. N.K. Mehta (PW- 33) and Dr. Sumeet Attri (PW-43). The doctors found injuries on the heads of both the dead bodies and also that the necks of the deceased had been tightened with a string of jacket's hood and a handkerchief. They gave the opinion that the case of death, in both the cases, was head injuries and asphyxia caused by strangulation. Post-mortem reports are exhibited as Exhibits PW-32/B and PW-32/D.

(e) On August 27, 2004, the Maruti van in question was found abandoned at Saproon on Solan-Subathu road. It was taken into possession by ASI Sukhdarshan Singh (PW-36), In-charge of Police Post Saproon. Later on, the van was handed over to SI Rupinder Singh (PW-50), who was associated with the investigation of the case.

(f) When no perceptible progress was achieved in the investigation of the case, a special team of police was constituted by Superintendent of Police, Shimla, vide order Exhibit -52/A. Vijay Kumar (PW-50) was one of the members of that team, who arrested the present appellants and Rajinder Thakur on February 20, 2005.

(g) During the course of their interrogation, the accused persons made disclosure statements. The appellant Surjeet Khachi, in his disclosure statement marked as Exhibit PW-11/B, stated that he had thrown one Chunni and one ribbon, which were there in the van, at a place called Nanni, falling in the area of Matiana. On the basis of this disclosure statement, Chunni (Exhibit P-2) and ribbon (Exhibit P-3) were recovered and taken into possession vide Memo (Exhibit PW-2/B). PW-2 identified the said Chunni and the ribbon to be the same which he had kept in the Maruti van. Surjeet Khachi also made a disclosure that wrist watch of Rajinder Thakur had been pledged with a shopkeeper of Kuthar in Solan District for payment of price of 11/2 litres of petrol, which had been purchased from him, when the fuel in the Maruti Van completely ran dry. On the basis of this disclosure statement, wrist watch (Exhibit P-4) was recovered from one Gian Chand (PW- 16) of village Kuthar. House of Rajinder Thakur was searched and two vouchers (Exhibits PW-54/O and PW-54/P), with regard to purchase of wrist watch, were recovered vide memo Exhibit PW-24/A.

(h) Appellant Vijay Thakur made a disclosure statement, which led to the recovery of Jacket (Exhibit P-5) from his house. The string of Jacket's hood was found missing and it appeared that it was the same string by which the neck of deceased Dharam Pal was found tightened.

(i) During the course of investigation, it also came to light that the appellants and Rajinder Thakur went with the Maruti van to some remote area of Patiala District in Punjab and tried to sell it, but they could not find any buyer. Then they came back and on the way, when the fuel ran dry completely, they purchased 11/2 litres of petrol from PW-16. After the fuel was consumed, they abandoned the vehicle at Saproon on Solan-Subathu road. Rajinder Thakur then tried to sell the Maruti van to a transporter of Dhalli, namely, Vikas Verma (PW-8). PW-8 introduced Rajinder Thakur to one Sneh Bhagat (PW-42), who accompanied by Rajinder Thakur and Dharmender (PW- 10), a driver, went to Saproon. But by that time the Maruti van had already been seized by the Police under section 102 of Cr.P.C. and taken to Police Post Saproon.

(3.)After the completion of investigation, charge sheet was filed, whereby all the three accused persons were challaned. Case was committed by the concerned Judicial Magistrate to the Sessions Court after complying with the requisite procedural formalities. Charges were framed by the Sessions Court and the matter went for trial as all the three accused persons pleaded 'Not Guilty'. Prosecution examined various witnesses and the deposition of some of the material witnesses examined. After the conclusion of prosecution evidence, the statements of the accused persons under Section 313 of Cr.P.C. was recorded. The appellants denied all the incriminating circumstances/material put to them and depositions of the various prosecution witnesses as well as documents placed on record. The accused persons specifically denied that they had hired Maruti van, which was driven by the deceased or that they have travelled by that van on or about August 21, 2012. They also denied having taken lift in the truck of PW-30 from Narkanda to Sainj. Similarly, there was a denial by them that they took the van to an area in Patiala District, Punjab or to Kuthar or to Solan District in Himachal Pradesh or attempted to sell the van. They also pleaded that no such disclosure statements leading to the alleged discovered were made by them.