RAKESH Vs. SATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS judgement shall dispose of the criminal appeal No. 115 of 2004 along with criminal reference No. 4 of 2004 and also the criminal jail appeal No.113 of 2004. Originally, four accused persons came to be tried for the offence of murder of one Sarwan alias Gullu. The present appellant, namely, Rakesh alone, was convicted and was sen­tenced to death. He has filed an appeal against his conviction and sentence, while the criminal reference No. 4 of 2004 has been made for confirmation of the death sentence awarded to the accused Rakesh.

(2.) THE prosecution's story, as re­vealed from the charge-sheet, is that one Surendra Singh (PW3) made a re­port in Bhagwanpur Police Station that on 23-3-1.999, he came to know that there was a dead body lying and there­fore, he reported the fact of the dead body lying near Sikroda Road in the field of one Bishamber R/o Village Farakpur. He also mentioned therein that there was a letter 'Om' tattooed on the lent forearm of the dead body. On that basis, it seems, that the investiga­tion started. J.P Juyal (PW10) who was then the Incharge of the Police Sta­tion Bhagwanpur, went to the spot and he found that one dead body was ly­ing without its head. He prepared the inquest report and then sent the dead body for post mortem. He also made the inspection of the place of occur­rence and recorded the statements of some of the witnesses and tried to es­tablish the identity of the deceased, but he did not succeed. It comes in his evi­dence that on 30-3-1999, a Chaukidar of village Dadapatti, naivety, Salim carne with few blood stained clothes, which were allegedly found in the jun­gle of Farakpur. He sealed them and sent them. He had arranged for the photograph of the dead body taken. However, in the meantime, since he was transferred to some other place, he handed over the investigation to the S.H.O., namely, O.P. Sisodia (PW11) on 28-7-1999. It seems that on 12-5­1999, one Kalu Ram (PW1) R/o Village Manjhol, Jabardastpur, Police Station Deoband, District Saharanpur came to the Police Station Bhagwanpur and re­corded a F.I.R. that his son Sarwan alias Gullu was involved in the murder of the brother of Raj Kumar. He insisted that accused Rakesh S/o Karam Singh and one Pappu S/o Natthan were the relations. He claimed that Rakesh and Pappu started coming to his son Sarwan alias Gullu and on 22-3-1999, accused Rakesh and Pappu came to his house at about 10'0 Clock in the morning and told his son Sarwan alias Gullu (deceased) that his maternal Un­cle Raj Singh was not well and took his son along with them, which was seen by Gyani (PW4), Jagmal (PW5) and other villagers. Kalu Ram (PW1), then claimed that these three persons, namely, Sarwan alias Gullu (deceased), accused Rakesh and Pappu were seen at 2'0 Clock in Bhagwanpur and then at about 4'0 Clock at Chora Dev, where they were seen by Raj Singh (the maternal Uncle deceased). It was fur­ther claimed that when Raj Singh asked his nephew i.e. the deceased Sarwan alias Gullu to go home, they said that they would be coming in sometime, on which Raj Singh left for his house. Kalu Ram (PW1) then contended that when Sarwan alias Gullu did not come back for three days, he and his son Arun asked accused Rakesh and Pappu and they said that he would come in three or four days. He, then, expressed that he was suspicious of the two that these people must have killed his son and therefore, he started enquiry from the police stations. So, he was told by some persons that one dead body was found the jungle within the area of Bhagwanpur Police Station. He, then, pointed out that he would like to see the clothes and the photograph of 'the dead body. He, then, contended that there was letter 'Om' tattooed on the left forearm and that he had an opera­tion mark below the armpit of the left hand. He also described the clothes on the body of the deceased that he was wearing a blue striped shirt, which was full-sleeves and was wearing a dark grey coloured pant. It seems that he, then, was shown the photograph and the clothes and he accepted them to be of his son Sarwan alias Gullu. On that basis, further investigation was com­menced and on 14th May, 1999, the present accused Rakesh came to be arrested.

(3.) BEFORE the Sessions Court, the accused abjured their guilt. They were charged for the offence under Section 302 as also under Section 201 I.P.C. The charge is, however, with the aid of Section 34 against all the accused per­sons on both counts i.e. under Section 302 and under Section 201 I.PC.