AKHIL KUMAR AGARWAL Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) These Criminal Appeals are directed against the judgment of conviction and sentence dated 22.03.2017 passed by learned IIIrd Additional Sessions Judge, Rudrapur, District Udham Singh Nagar in Session Trial No. 147 of 2011, State v. Akhil Kumar Agarwal and two others, whereby sentencing appellant/accused Akhil Kumar Agarwal, life imprisonment for the offence punishable under Section 120B IPC read with Section 364A IPC with a fine of Rs. 15,000/- and to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 201 IPC read with Section 120B IPC with a fine of Rs. 5,000/- and in default for further six months, sentencing appellants/accused Vimal Kumar Sharma and Javed life imprisonment for the offence punishable under Section 364A IPC read with Section 120B IPC with a fine of Rs. 15,000/- and to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 201 IPC read with Section 120B IPC with a fine of Rs. 5,000/- each and in default for further six months.

(2.) The case of the prosecution is that on 24.11.2010 at 21.30 p.m., the informant Rakesh Gupta, PW-1, lodged a First Information Report, Ext.Ka.4, at Police Station, Kashipur against unknown persons through his Tehrir, Ext.Ka.1, stating that his son Sachin Gupta, was missing since Wednesday i.e. from 24.11.2010 evening about 04.00 p.m. On that very day i.e. 24.11.2010 at about 06.00 p.m., when the informant was in Ramnagar, he received a ransom call from the mobile number of his son Sachin Gupta. He was informed by the caller that his son Sachin Gupta is in their custody and also told the informant to wait for their next call. This call was received by the informant on his mobile phone. The appellant-Akhil Kumar Agarwal was a close friend of Sachin Gupta and therefore, he was informed regarding the incident by the informant. On 24.11.2010, the appellant-Akhil Kumar Agarwal called Sachin Gupta on his mobile phone from his (Akhil Kumar Agarwal) another mobile phone No. i.e. 9458222568 and asked him to come to the Government Hospital, Kashipur. On the said day, the appellant-Vimal Sharma and appellant-Javed were also called to come to the Government Hospital, Kashipur by the appellant-Akhil Kumar Agarwal from his mobile number. The deceased Sachin Gupta reached at Government Hospital, Kashipur on his motorcycle. On that very day, at about 03.00 p.m. the appellant-Vimal Sharma and appellant Javed accompanied Sachin Gupta went to Ramnagar in a Tavera car of the appellant Vimal Kumar Sharma, which was driven by Phool Hasan, DW2, from the Government Hospital, Kashipur and stayed there at Hotel Taj, Corbett Ramnagar. The deceased Sachin Gupta was last seen on 24.11.2010 with the appellant Vimal Sharma and appellant Javed by the prosecution witness-Deepak Arora-PW-4. The informant inquired from the appellant-accused-Akhil Kumar Agarwal about the whereabout of his son (Sachin Gupta) on which Akhil Kumar Agarwal replied that in case Sachin has been abducted then it is wise to pay the ransom amount and rescue Sachin. When the informant and appellant-Akhil Kumar Agarwal were searching for the informant's son in the night of 24.11.2010, the appellant-Akhil Kumar Agarwal pointed out to the informant a motorcycle, which was of the deceased, and which was parked at the cycle stand of the Government Hospital, Kashipur. On 26.11.2010, the informant submitted another Tehrir to the Police Station, Kashipur that his son Sachin Gupta was missing from 24.11.2010. He had already lodged a report and today i.e. 26.11.2010, he received an information that his missing son has been murdered and post-mortem of the dead body of his son was conducted at a Moradabad Hospital. He then brought the dead body of his son to Kashipur. The informant further said in his another "Tehrir" that the abduction and murder of his deceased son appears to have committed by appellant-Akhil Kumar Agarwal, who is the close friend of his deceased son and his deceased son was in touch with the appellant-Akhil Kumar Agarwal on his mobile phone prior to his abduction and later he was murdered. On 26.11.2010, again a prosecution witness i.e. Safdar Ali-PW-9 submitted a Tehrir-Ex.Ka.9, to the Police Station Murapande, District Moradabad that an unknown dead body is lying in the Trench beside the road. During the period the deceased was in confinement, calls were made from the suspicious and fake mobile phone No. 9458222568, six times on the mobile phone of the deceased. At the time of ransom call from mobile of the deceased, the location of mobile phone of the deceased was found in Ramngar. During the investigation, it was found that on 24.11.2010, the appellant-Akhil Kumar Agarwal was in Ramnagar. The appellant-Akhil Kumar Agarwal admitted in the investigation that the suspicious and fake mobile phone no. 9458222568 was his and he confessed to the offence. The post-mortem of the dead body of the deceased was conducted on 26.11.2010 by Dr. Ashok Kumar-PW-3, in the District Hospital, Moradabad (U.P.). According to the post mortem report-Ex.Ka.6, asphyxia due to the strangulation was the cause of the death. On 04.12.2010, the appellant-Vimal Sharma was arrested and on the same day, the register of Hotel Taj Corbett, Ramnagar, was taken into custody by the police on the identification of appellant-Vimal Sharma. On 05.12.2010, a cord was recovered on the identification of appellant-Vimal Sharma, which was used in the offence. The appellant-Javed was in Moradabad Jail in other offence. The wallet and some articles of the deceased Sachin Gupta were missing. On 27.01.2011, a Tavera car, wallet and missing articles of the deceased were recovered by the police on the identification of the appellant-Javed. The Investigating Officer collected the call details reports and after completion of the investigation, the charge sheet was filed.

(3.) On the basis of Tehrir, Ext.Ka.1, a FIR, Ext.Ka.4, was registered as Case Crime No. 577/2010 against unknown persons under Section 364A IPC. The case was investigated. The Investigating Officer prepared a Site Plan of the house of the informant, Ext.Ka.23, Site Plan of the place of the recovery of the weapon of murder i.e. Cord (Rassi), Ext.Ka.27, Site Plan of the place of the recovery of dead body of the deceased, Ext.Ka.28, Site Plan of the place of the recovery of Tavera Car, Ext.Ka.34. The Investigating Officer recorded the statement of witnesses. Post-mortem of the dead body of the deceased was conducted in the District Hospital Moradabad. After completion of the investigation, the Investigating Officer submitted the charge sheet, Ext.Ka.33, against three accused persons namely, Akhil Kumar Agarwal, Pt. Vimal Kumar Sharma and Javed under Sections 302, 201, 120B, 34, 414 and 364A of IPC.