RAJ KUMAR Vs. STATE

JUDGEMENT

(1.) THESE two appeals are directed against the judgment dated 08. 12. 2008 and order on sentence dated 11. 12. 2008 passed in sessions case No. 37/2008 arising out of the FIR No. 138/2003 PS kapashera, whereby the Additional Sessions Judge, Dwarka has convicted the two appellants under Sections 302/201/363 IPC. The appellant Raj Kumar was additionally convicted under section 457 IPC also. Both the appellants were sentenced to life imprisonment and also to pay a fine of Rs. 5,000/- each, in default to further undergo simple imprisonment for three years under section 302 IPC. Under Section 363 IPC the appellants were awarded five years rigorous imprisonment and fine of Rs. 3,000/, in default of payment of fine to undergo simple imprisonment for one year. For the conviction under Section 201 IPC appellants were sentenced to two years rigorous imprisonment and fine of rs. 1000/- each, in default to undergo simple imprisonment for six months. Appellant Raj Kumar was awarded rigorous imprisonment for two years and fine of Rs. 1,000/-, in default of payment of fine to further undergo simple imprisonment for six months under Section 457 IPC. All the substantive sentences, however, ordered to run concurrently.

(2.) THE appellants have been held guilty of having first kidnapped one 3 1/2 years old child Himanshu from his house in the night intervening 24/25. 7. 2003 and thereafter for having murdered him and thrown away his dead body in order to destroy the evidence of the crime. The relevant facts are that the appellant Raj Kumar had married PW-1 Smt. Rachna, who was a widow, on 15. 5. 2002. Her first husband Devender had died on 5. 11. 1999 and out of that wedlock she had been blessed with the deceased child Himanshu. It was the case of the prosecution that although Raj Kumar had married a widow having a child from her first marriage but after marrying her the relations between husband-wife became strained over some matters including that of Raj Kumar being a drunkard due to which Rachna left her matrimonial home and started living at her parental house in shahabad, Mohammadpur, New Delhi. Further case of the prosecution is that on the night of 24. 7. 2003, the complainant rachna as well as all other family members of her family including her son Himanshu had gone for sleep and when at about 2. 00 a. m. the mother of the complainant Smt. Rachna woke up to attend the call of nature she noticed that Himanshu was missing from his bed, which was adjoining to the bed of his mother Smt. Rachna. She then woke up everyone else also. They all looked around for Himanshu but he could not be found and so the police was informed. The police reached and immediately on coming to the house of the complainant her statement Ex. PW-1/a was recorded.

(3.) IN the statement Ex. PW-1/a Smt. Rachna had claimed that after her marriage with accused Raj Kumar, a TSR driver, on 15/05/02, which was solemnized after the death of her first husband, their relations became strained for some reasons and as Raj Kumar was a drunkard and so she had started living with her parents. That night at about 11 p. m. Himanshu was put to sleep. Around 2 a. m. when her mother got up for going to bathroom she did not find Himanshu on his bed. Then everybody was woken up and Himanshu was not found in the house and was not traced outside also. She expressed the suspicion against her husband Raj Kumar in the disappearance of Himanshu. In view of the suspicion expressed by Rachna that her husband only must have removed the child after entering the house SI Shiv Singh (PW-11) got one FIR under Sections 351/363 IPC registered. He also accompanied by PW-4 Mukesh, brother of the complainant, who was also living along with her in the same house, and other police officials went to the village of Raj Kumar which was somewhere in District Sonepat. Raj Kumar was not found present in his house at the time of their visit there. His father was, however, found and he gave the information that Raj Kumar had not come to the house even on the last night (when the deceased himanshu was allegedly kidnapped from his house ). The police team also came to know that Raj Kumar was a close friend of one mahipal, (appellant in Crl. A. No. 221/09) who was also living in the same village. Then the police team went to the house of mahipal but he was also not present in his house. However, mahipals brother Ashok was present and he informed the police that Mahipal was a vagabond type of person and then Ashok also joined the police team for the search of Raj Kumar and Mahipal.