RAJESH KUMAR Vs. STATE OF H.P.

JUDGEMENT

(1.) BOTH appeals filed against the same judgment and sentence passed by learned Addl. Sessions Judge Sirmour District at Nahan in Sessions Trial No. 5 -N/7 of 2007 titled State of H.P. Vs. Rajesh Kumar and others decided on 30th September, 2008 hence both appeals are consolidated and dispose of by way of same judgment.

(2.) IT is alleged by the prosecution that deceased Ashok Kumar was a son of Brij Bala who was running a CD shop near Petrol Pump at Paonta Sahib and on dated 11.1.2007 the deceased Ashok Kumar went to drop his maternal grand mother Jeeto Devi from his house in village Bhatawali to Kulahal at about 2.30 PM and dropped Jeeto Devi at Kulahal but thereafter he did not return back to his home. It is alleged by the prosecution that Brij Bala traced deceased in the village and in her relations but she did not get any information about the deceased. It is further alleged that on 11.1.2007 at about 7 PM co -accused Rajesh Kumar came to the house of Brij Bala and told that a telephone call was received by him from the mobile of the deceased from some unknown person. Co -accused Rajesh Kumar also told Brij Bala that unknown person wanted to talk with Brij Bala through mobile phone of co -accused Rajesh Kumar. It is alleged by prosecution that thereafter Brij Bala had also talked with some unknown person who asked her to arrange Rs. 10,00,000/ - (Rupee ten lacs) and also threatened her not to disclose the same to the police or to any other villagers otherwise the deceased would be killed. It is further alleged that Brij Bala reported the matter to the Police officials on 12.1.2007 and her statement under Section 154 Cr.P.C. was recorded by Inspector Narveer Singh the then SHO Police Station Paonta Sahib which was forwarded to the Police Station through constable Deepak Kumar on the basis of which FIR Ext. PW17/B was recorded by Inspector Gurbax Singh. It is further alleged that police officials went to the house of Brij Bala in order to get such conversation recorded and at that time co -accused Rajesh Kumar was also present in the house of Brij Bala. It is alleged that at about 9.30 PM a telephone call was received on mobile phone bearing No. 98168 -16208 of co -accused Rajesh Kumar from mobile phone No. 98171 -74996 belonging to the deceased. It is alleged that Brij Bala had conversation with unknown person on the mobile phone which was recorded by Inspector Narveer Singh in his personal micro cassette and the same was put in a parcel and was sealed with seal impression 'T' and was seized vide memo Ext. PW16/B in the presence of Jeeto Devi. It is further alleged that thereafter information was received on 14.1.2007 at Police Post Kulahal that a dead body was found in Shakti canal in village Dhaula Tapad on the basis of which rapat was recorded. It is alleged that thereafter the relatives of the deceased went to the spot along with police officials. It is alleged that the dead body of the deceased was tied with motor cycle with the help of a rope and the motor cycle was identified by Brij Bala to be that of deceased Ashok Kumar. It is further alleged by the prosecution that two samples of soil were taken from the spot. It is further alleged that motor cycle bearing No. HP 17A -3289 along with pieces of rope with which the dead body was tied was taken into possession. It is further alleged that blood sample was also obtained from the body of the deceased. It is further alleged that photographs of the dead body were also obtained. It is further alleged that dead body was sent for post mortem examination. It is alleged that as per post mortem report the death was caused due to hemorrhage and shock due to ante mortem injuries. It is further alleged that sweater, T -shirt, Pant, underwear and a pair of shoe of the deceased were also preserved and sealed. It is further alleged by the prosecution that on 14.1.2007 Mahender Kaur along with Suman Devi and some other ladies went to collect wood to Dhaula Tapad where they saw blood, blood stained shirt and shoe. It is further alleged by prosecution that the relatives of the deceased identified the articles belonging to the deceased. It is further alleged by the prosecution that shoe Ext. P1 and shirt Ext. P2 were taken into possession and sealed in a parcel. It is further alleged by the prosecution that blood stained soil and blood stained grass from the spot were also taken into possession and were sealed in a parcel. It is further alleged that on 16.1.2007 the call details of mobile phone No. 98168 -16208 and 98168 -20318 were obtained from Nodal Officer. It is further alleged by the prosecution that mobile No. 98168 -16208 was registered in the name of Hem Lata and mobile phone No. 98168 -20318 was issued in the name of Kaushalya. It is further alleged that mobile phone No. 98171 -74996 was issued in the name of the deceased. It is further alleged that on the basis of the call details the co -accused Rajesh Kumar along with Sher Singh were interrogated by the police and on their interrogation their involvement along with accused Ravinder Kumar were found and thereafter all the accused were arrested accordingly. It is further alleged by prosecution that accused Ravinder Kumar also made a disclosure statement to the police. Thereafter challan was filed against the accused persons before the Court. Learned trial Court framed charge against the accused persons on 15.1.2008 under Sections 120 -B 364 -A, 302 and 201 of the Indian Penal Code. The accused did not plead guilty and claimed trial.

(3.) STATEMENTS of the accused persons recorded under Section 313 Cr.P.C. Learned trial Court acquitted co -accused Ravinder Kumar. Learned trial Court also acquitted co -accused Rajesh Kumar and Sher Singh under Section 120 -B IPC but convicted them under Sections 364 -A, 302 and 201 of the Indian Penal Code. Learned trial court sentenced both the accused namely Sher Singh and Rajesh Kumar under Section 364 -A IPC to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/ - (Twenty thousand) and in default of payment of fine learned trial Court directed that convicted persons would undergo further imprisonment for a period of one year. Learned trial Court also sentenced the convicted persons under Section 302 IPC to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/ - (Ten thousand) and in default of payment of fine learned trial Court directed that convicted persons would undergo further imprisonment for a period of one year. Learned trial Court also sentenced the convicted persons to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/ - (Five thousand). Learned trial court further directed that in default of payment of fine convicted persons would undergo further imprisonment for a period of six months under Section 201 IPC. Learned trial Court has further directed that all the subset sentences passed against the convicted persons shall run concurrently and further directed that the period of detention during the investigation and trial would be set -off under Section 428 Cr.P.C. Feeling aggrieved against the judgment and sentence passed by learned trial Court convicted persons filed two appeals on following memorandum of grounds of appeals.