RAKESH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Since in both the aforesaid appeals, both the appellants have been convicted by judgment of conviction and sentence dated 23rd of July, 2012 and 26th of July, 2012 respectively passed in Sessions Trial No. 201 of 2009 (arising out of Ram Krishna Nagar P.S. Case No. 51 of 2008), both the appeals were heard together and are being disposed of by this common judgment.

(2.) Both the appellants were convicted under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act, 1959 by judgment of conviction dated 23-07-2012 and both the appellants were sentenced to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code and a fine of Rs. 5,000/- (five thousand) each and in default, they have been directed to undergo further imprisonment for one year. Both the appellants were further sentenced under Section 27 of the Arms Act, 1959 to undergo rigorous imprisonment for three years. The judgment of their conviction has been passed by Sri Om Prakash Sinha II, learned Additional Sessions Judge XI, Patna (hereinafter referred to as the 'Trial Judge') in Sessions Trial No. 201 of 2009 (arising out of Ram Krishna Nagar P.S. Case No. 51 of 2008) registered for offence under Sections 302/379/34 of the Indian Penal Code, Section 27 of the Arms Act, 1959 and Sections 3 & 4 of the Explosive Substances Act, 1908.

(3.) Short fact of the case is that on 28-09-2008 at about 7:15 P.M., the S.H.O., Ram Krishna Nagar Police Station namely Sona Prasad Singh recorded fardbeyan of Ashok Prasad, son of Yadunandan Sah. The fardbeyan was shown to be recorded near west of Purvi Ram Krishna Nagar chauraha. In the fardbeyan, the informant disclosed that he was permanent resident of district Nalanda and presently, he was residing in a rented house in Eastern Ram Krishna Nagar in the house of one Sri Hari Gope. He stated that two years ago, his younger brother Govind Kumar (deceased) with brother-in-law of his second brother ([1]) Manohar Prasad namely Rakesh Kumar (appellant in Cr. Appeal DB No. 1007/12) resident of village Bahrampur, Police Station Dhanarua, District - Patna had jointly opened a jewellry shop in the name and style of 'Payal Jewellers' in eastern village of Jaganpura (Ram Krishna Nagar). Due to some internal dispute, subsequently his brother Govind Kumar (deceased) separated himself from Rakesh Kumar (appellant in Cr.Appeal DB No. 1007/12). Thereafter, the informant and his younger brother Govind Kumar jointly opened a jewellery shop in the name and style of 'Sri Hans Jewellers' near the chowk of Ram Krishna Nagar. The informant disclosed that since his younger brother Govind had separated himself from Rakesh and opened a new shop, Rakesh Kumar (appellant in Cr.Appeal DB No. 1007/12) himself as well as through others was threatening him and asking him to leave Patna and do not run the shop here. However, with great effort, the informant with his brother (deceased) started his shop and on 28-09-2008 at about 6:45 PM, while he alongwith his younger brother Govind was in the shop, there was heavy rain and as such, Govind said for closing the shop. The informant, after allowing his brother for closing the shop, came down from the shop. His brother, after completion of closure of shop, while was shutting down the shutter, the informant reached to an egg shop. In the meanwhile, he noticed that the brother-in-law of his second brother ([1]) i.e. Manohar, with two persons talking on mobile phone reached there and gave two shots of firing. Thereafter, all the persons started fleeing away to save their life. The informant started to run towards his house. He noticed that behind him, Rakesh Kumar (appellant in Cr. Appeal DB No. 1007/12) with other two persons was chasing his brother Govind Kumar (deceased) and all the three accused persons jointly lobbed bomb and fired on his younger brother Govind Kumar, whereby he received serious injuries and died at the place of occurrence itself. All the three accused persons, while fleeing away, had taken away the hand bag from his younger brother, in which, there were keys, ornaments total 3 Hkj amounting to about rupees thirty nine thousand and a Samsung mobile. The informant claimed that his brother was killed by Rakesh Kumar (appellant in Cr. Appeal DB No. 1007/12) with two other accused persons by means of lobbing bomb & firing and in the said killing, they also took ornaments and mobile. The fardbeyan was read by the informant and thereafter, he put his signature. The fardbeyan was also identified by Manohar Kumar (P.W.-1).