RAHUL DEV Vs. STATE

JUDGEMENT

(1.) By the present appeal, Rahul Dev challenges the impugned judgment dated 29th Aug., 2014 convicting him for offences punishable under Sec. 302/201 Penal Code and the order on sentence dated 30th Aug., 2014 directing him to life imprisonment and to pay a fine of Rs. 5,000.00 for the offence punishable under Sec. 302 Penal Code and rigorous imprisonment for a period of four years and to pay a fine of Rs. 2,000.00 for the offence punishable under Sec. 201 IPC.

(2.) Learned counsel for the appellant contends that despite the fact that the incident took place at around 130 AM on the intervening night of 22nd and 23rd June, 2009 the three alleged eye-witnesses reached the Police Station and met the investigating officer Inspector Yashpal Singh only at 4.00AM. There is no explanation as to what the alleged eye-witnesses were doing for three and a half hour. Further there is no departure entry nor has one been exhibited by Inspector Yashpal Singh showing his departure for the scene of crime at 4.00AM. Even as per the case of the prosecution after Inspector Yashpal Singh reached the spot, he called SI Ramesh Dutt only at 5.30 AM and no information in this regard was made prior thereto. Thus the information to the Police and the arrival of the Police at the spot is shrouded with mystery. Though the alleged witnesses were having mobile phones, nobody made a PCR call. Though Nirmal Babbar, landlord of the premises stated that Rahul, Raj Kumar and Umesh were residing in the flat, however he did not depose that Prakash @ Pinkoo was also residing in the flat. Hence presence of Prakash @ Pinkoo who is the maker of the FIR at the spot is doubtful.

(3.) Learned counsel further contends that to implicate the appellant Umesh Kumar has been introduced along with alleged extra judicial confession made to him. Though it is the consistent case of the prosecution that after the three alleged eye-witnesses went to the Police Station to inform, the door was opened twice, both the times by the appellant, it is unbelievable that the appellant would continue in the same condition with blood stains on his bare chest for three and a half hour and make no effort to clean the same or do anything to avoid his complicity in the offence. Version of Seema, wife of the deceased is not corroborated by the call records. Further even as per Seema, a quarrel took place six months prior to the incident, hence the alleged motive introduced by the prosecution is too weak to base conviction of the appellant. Despite the fact that the case of the prosecution is that the body of the appellant was blood stained and appellant was wearing a black pant, still no blood was found on the pant of the appellant as per the FSL report. Though it is the case of prosecution that four persons were drinking but only two glasses were found at the spot. Although it is the consistent testimony of the alleged eye-witnesses that the deceased was made to drink alcohol, however the viscera of the deceased did not show presence of alcohol. Further the witnesses have stated that meat was brought by Balloo, who cooked the same which was eaten by the deceased, however as per the post-mortem of the deceased undigested food found in his body was egg and pieces of tomato. Further on all articles of the appellant allegedly collected, even as per the FSL report, blood of the deceased was not found, as no grouping could be given.