KAMLESH KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The instant appeal is directed by the accused/appellant against the impugned judgment rendered on 19.10.2012 by the learned Additional Sessions Judge (Fast Track Court), Shimla in Session Trial No. 8 -S/7 of 2011, whereby, the learned trial Court convicted and sentenced the accused/appellant for his having allegedly committed offences punishable under Ss. 302 and 201 of the IPC. Brief facts of the case are that on 6.11.2010 at 4.10 p.m., Narayan Negi, resident of Ganeri informed the police telephonically that two of his servants had altercation with each other. One of them is lying in the bushes and appears to be dead. As per the telephonical information, rapat has been entered in daily diary register. ASI Ram Lal, along with other police officials, went towards Ganeri village in official vehicle No. HP -07 -0686. When the police reached at the spot, Narayan Singh Negi got his statement recorded under Sec. 154, Cr.P.C., whereby he revealed to the police that he is an agriculturist by profession. He has one outhouse at his orchard. He engaged one Kamlesh Kumar about three months back to look after his orchard and also engaged one Vishal Bahadur about a month back. Both of them used to take meal in his house and sleep in the outhouse (dogri). On 5.11.2010, both Kamlesh and Vishal went towards outhouse side at 8.30 P.M. after taking meal in his house. On 6.11.2010, only Kamlesh came to his house at 8 a.m. When he asked Kamlesh about Vishal Bahadur, then Kamlesh disclosed to him that Vishal Bahadur had already left his room when he woke up in the morning. Kamlesh went to the Ghasni to tie the grass bundles and he also went to the house of Jagdish Sharma after taking his meals. After some time, Jagdish Sharma, disclosed him that he received a call last night at about 11 p.m., from Kamlesh on his mobile phone disclosing that Vishal Bahadur fell down, then he enquired about his number and disconnected the phone. After hearing these words from Jagdish he became somewhat suspicious as Kamlesh came to his house alone and did not tell that Vishal Bahadur fell down during the night time. Narayan Singh Negi further told to the police that he, along with Jagdish Sharma and Devinder Chauhan, came to his residential house and called Kamlesh there. He inquired from Kamlesh about the call made by him last night to Jagdish Sharma, then Kamlesh became perplexed. Kamlesh disclosed to him that he had an altercation with Vishal over the mobile phone, so, he gave blow on the head of Vishal Bhadur with a stick (Binda) and threw his dead body in the bushes. Thereafter, he went towards outhouse side along with Jadish Sharma, Devinder Chauhan and Kamlesh and saw blood on the walls and on the clothes. They went to the hill side, saw the body of Vishal Bahadur and immediately informed the police telephonically. The complaint further disclosed to the police that Kamlesh disclosed to him that he washed his clothes, having blood stains, after the incident and also wiped the floor to remove the blood stains. The statement of the complainant was sent to police station through HHC Kulbhushan. The police party present at Ganeri deputed some persons to protect the dead body and some police officials and villagers stayed in the outhouse of Narayan Singh. The police party started investigation during the morning hours i.e. at 6.30 a.m. The room where the alleged incident had taken place, was inspected in the presence of witnesses and Narayan Singh Negi. The investigating officer had prepared the site plan and clicked the photographs of the room. They also took into possession the blood stained clothes of Vishal Bahadur. The police also took into possession, the stick stained with blood, prepared its sketch and wrapped the same in a parcel. The police have also lifted the blood from the walls and floor with the help of cotton swab. They also took into possession the register, diary and attendance note book belonging to the deceased. Recovery and seizure memo to this effect was also prepared in the presence of the witnesses. The police party thereafter, went to that place where the dead body was lying in the bushes. The photographs were clicked, site plan was prepared and the dead body was pulled out from the bushes. During the personal search of the dead body, the police did not recover anything except for the clothes, which he was wearing. The dead body was taken to CH, Chopal where the post mortem of the deceased was conducted. The viscera were also preserved along with the clothes. The dead body of Vishal Bahadur was handed over to Naryan Singh Negi for last rituals. The statements of witnesses were recorded. The accused was formally arrested and information regarding his arrest was given to Naryan Singh Negi. On 9.11.2010, the accused made disclosure statement in presence of the witnesses to the effect that he can effect the recovery of clothes and mobile along with charger, which he had hidden near the farm house. The accused took the police to village Ganeri and at the instance of the accused, mobile phone, charger, jacket and pants were recovered near the bathroom of outhouse. The photographs of the place of recovery were clicked and the articles, so recovered, were sealed in parcel. On 11.11.2010, request was sent to SP for obtaining call details of mobile phone No. 98160 -07728. After the information received from the telephone department, one Mast Ram, resident of Village Tiprog was found to be the owner of mobile phone, who disclosed to the police that the mobile phone was given by him to deceased, when he was working with him. The viscera and clothes were sent to FSL Junga on 12.11.2010. The Investigating Officer on 27.11.2010 obtained the jamabandi, tatima and temporary demarcation report from local Patwari and also prepared the site plan of the place of incident with the help of PWD officials. The date of birth certificate of the accused was obtained from Pithoragarh, Uttrakhand. The IO also recorded the statements of the witnesses under Sec. 161 of Cr.P.C. The report of FSL was also obtained, according to which, the shirt, weapon of offence, the jacket of Kamlesh Kumar and the pants of Kamlesh Kumar were having the traces of blood of Vishal Bahadur. During the investigation, it was revealed that the deceased used to refrain the accused from using the mobile phone, so the accused developed ill -will towards the deceased. On the eve of Diwali festival, the deceased and the accused took liquor in the house of Narayan Singh and at about 8.30 p.m., they went to the outhouse where both of them had altercation with each other. Kamlesh Kumar accused took the advantage of the fact that Vishal Bahadur was intoxicated, so, he gave beatings with stick to Vishal Bahadur on his head and other parts of the body, as a result of which, Vishal Bahadur died on the spot.

(2.) On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Sec. 173 of the Code of Criminal Procedure was prepared and filed in the Court.

(3.) Accused was charged for his having committed offences punishable under Ss. 302 and 201 of the IPC by the learned trial Court to which he pleaded not guilty and claimed trial.