AJAY KUMAR Vs. STATE

JUDGEMENT

(1.) THIS case depicts of an unfortunate and pathetic incident in which father and step -brother were allegedly killed by Rajgopal appellant accused with pre -concert and participation of his friend, Ajay Kumar appellant -accused. The prosecution version was that Prithvi Raj and his sons from second wife were having litigation with Rajgopal, his son from first wife, in regard to the property. On July 9,1982 at about 2.30 P.M. Ajay Kumar appellant, who was friend of Rajgopal appellant, had altercation with Virinder Kumar and Sunil Kumar sons of Prithvi Raj from his second wife near their house in Mohalla Rehari, Jammu. Ajay Kumar dragged Virinder Kumar inside the house of Rajgopal appellant. Rajgopal appellant also came there Rajgopal then took out his gun from his room and fired a shot at Virinder Kumar and another shot at Sunil Kumar injurying both of them. At that time Prithvi Raj also appeared and Rajgopal appellant fired a third shot at him killing him on spot. Virinder Kumar and Sunil Kumar wert taken to hospital in injured condition where Viricder Kumar succumbed to the injuries, Both the appellants -accused ran from the place of occurrence and remained as absconding. Ajay Kumar appellant was arrested firm Srinagar while proceedings under sec.87 Cr.P.C. were initiated against Rajgcpal appellant Later on, however, Rajgopal was also arrested. The gun used for the commission of offence could not be recovered as the same was fourd to have been thrown in Chenab river by Rajgopal appellant.

(2.) WITH the above said allegations both the appellants were challaned by Police Station Pacca Danga, Jammu for the commission of offerces punishable under sections 302,307,326,201, read with Sec, 34 -R.P.C. in the Court of Chief Judicial Magistrate, Jammu who ct remitted them to the Court of Sessions to stand their trial under the said sections. Rajgopal appellant was charged under sections 302,307, and 201 -RFC whereas Ajay Kumar appellant was charged under sec.302 and 307, read with Sec.34 R.P.C. The case was then transferred to the Court of learned Additional Sessions Judge, Jammu who tried both the appellants and ultimately convicted Rajgopal for the commission of offences punishable under sections 302 and 307 -RPC and Ajay Kumar under sections 302,307 read with sec.34 -R.P.C. and sentenced the former, accused to death under sec. 302 -RPC and rigorous imprisonment for ten years and a fine of Rs.2000/ - under sec.307 -RPC and the latter to imprisonment for life and a fine of Rs.1000/ -under sec.302, read with sec.34 -RPC and rigorous imprisonment for five years and a fine of Rs.500/ - under sec.307, read with sec.34 R. P.C. Aggrieved by this judgment both the accused have filed separate appeals. Learned Additional Sessions Judge, Jammu has also made a reference for confirmation of the sentence imposed upon the accused. Rajgopal appellant has also sent an appeal through Superintendent Central Jail, Jammu. As the matters are inter -connected same are being disposed of by this common order.

(3.) ONE of us, Gupta J. was Sessions Judge, Jammu when the case against the appellants was produced before him for trial and he later on transferred the case to the Court of Additional Sessions Judge, Jammu for trial at the request of Rajgopal appellant. In order of abundant caution before hearing these appeals we enquired from learned counsel for both the sides about their, having any objection regarding the appeals being heard by this Bench and after obtaining their consent appeals were heard, by us. Following order was passed on February 24,1988 in this regard: - "Before taking up the case for hearing, attention of learned counsel for the parties was drawn to interim order on the file of the Trial Court dated 18.3.1983 and a specific question was put to the learned counsel for appellant Rajgopal as to whether he had any objection of the case being heard by this Bench since Justice K.K. Gupta is a member of this Bench. Both M/S Bhat appearing for Rajgopal and G.N. Goni appearing for Ajay Kumar submitted that they have no objection to the case being heard by this bench and they have no objection to Justice K.K. Gupta being party to the Bench. M/S A.V.Gupta and R.P. Bakshi representing the complainant also submitted that the case may be heard by this Bench. The hearing of the case thereafter commenced"