BASHAMBERDAS Vs. STATE

JUDGEMENT

(1.) BISHAMBERDAS , Banarsidas and Kamal Kumar, present appellants, alongwith others, were tried by the learned 1st Additional Sessions Judge, Jammu for offences under sections 302, 396 and 120, R. P. C. They alongwith Dharam Singh were convicted under sec. 396 -RPC. Bashamberdas appellant was held to be the principal accused & as such was sentenced to death, while Banarsidas & Kamal Kumar appellants were sentenced to rigorous imprisonment for a period of eight years with a fine of Rs. 300/ -each and Dharam Singh was released on probation of good conduct. Jobindra, Dodi Ram, Nandu and Tara Nath accused in the case were absconding and general warrants or their arrest were issued. Other accused were, however, acquitted. Aggrieved by the Judgment of the Trial Court present appellants have come up in appeal before this court. Learned 1st Additional Sessions Judge has also made a reference for confirmation of the sentence of death imposed upon Bashamberdas appellant.

(2.) PROSECUTION version was that Sharat and Chander was constructing a house near Octroi post paloura a place near Jammu. City where he had kept Raju Shah, a Gorkha, as Chowkidar & had also stacked 235 bagas of cement in his store. Bashambersrdas, Banarsidas, Beli Ram, Shamlal, Suram Chand, Girdharilal, Dharam Singh, Joginder Singh & Sewa Ram in the presence of Major Singh, prosecution witness, conspired to commit theft of cement from the store of Sharat Chander which was latter on to be delivered to parkash Chand Choudhary at Gandhi Nagar & Fateh Hussain Choudhary at Narwal. In order to carry this conspiracy into action owners of truck No. 8474 - JKP and 3921 - JKP were approached for transportation of cement. Bashir Ahmed, owner of truck No : 8474 - JKP accompanied his driver while other truck was driven by Subash Chander. Jobindra and Nandu accused in the case were armed with khokhries while Bashamberd as accused - appellant was having an axe with him. All the accused, excepting Parkash Chand & Fateh Hussain went to the building of Sha -rat Chander during the intervening night of 10th & 11th of January, 1983 where they firstly killed Raju Shah Chowkidar & afterwards loaded the cement in both the above mentioned trucks and delivered the same to Parkash Chand Choudhary & Fateh Hussain Choudhary. Sharat Chander came to the premises in the morning and found Raju Shah Chowkidar dead with multiple injuries on his body & 235 bags of cement stolen. He immediately informed the police of police Station Domana which registered the case. Sharat Chander complainant had also found tyre moulds impressions of the vehicles and of foot wears at his premises. Police after registration of a case took these impressions and compared them with the tyres of the above said vehicles & also with the soles of the shoes of the accused seized later on.

(3.) POLICE filed a challan against 22 accused persons, including four absconding accused under sections 302,396 & 120 -B, R. P. C, in the Court of Chief Judicial Magistrate, Jammu who committed them to the court of sessions for trial. The Sessions Judge, Jammu, however, transferred the case to the court of 1st Addl. Sessions Judge, Jammu for trial. The Trial Court charged the accused under sections 307,396 & 120 -B R.P. C. excepting Parkash Chand & Fateh Hussain, who were charged under section 411 -R.P.C. They pleaded not guilty. Prosecution examined a set of witnesses and the trial court convicted and sentenced the accused in the manner indicated above.