SAMI ALIAZ SAMIR KHA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Accused/ appellant has preferred this appeal aggrieved by Judgment and sentence dtd. 5/4/2019 passed by Addl. Sessions Judge, Dudu, District Jaipur, whereby appellant has been convicted for offence under Ss. 302, 201, 379 IPC. He has been sentenced with life imprisonment and fine of Rs.50,000.00 and on non-payment of fine, to further undergo one year simple imprisonment for offence under Sec. 302 IPC. Sentence of three years and fine of Rs.5,000.00 and on non-payment of fine, to further undergo one month simple imprisonment for offence under Sec. 379 IPC and seven years rigorous imprisonment and fine of Rs.20,000.00and on non-payment of fine, to further undergo six months simple imprisonment for offence under Sec. 201 IPC.

(2.) Succinctly stated the facts of the case are that on 14/5/2012, Police Station- Dudu received an information that a dead body was buried near falicity. On receipt of the information, officers of Police Station- Dudu went to the spot and the investigating officer- Vijay Sehra directed Subahsingh, ASI for registering FIR in the matter. On which, FIR No.178/2012 was registered for offence under Sec. 302/201 IPC. A missing person report was filed by Rekha Devi (wife of the deceased) at Police Station Khamnor, Rajsamand on 16/5/2012. During the course of search for missing person, police recovered JCB machine from Sighawali, Police Station Sikri, District Bharatpur and on the basis of location of mobile number, police arrested accused Samir from Rigad, District Nuh, Police Station Firojpur. Police StationDudu filed charge-sheet against the accused- appellant and the investigation was kept pending against the co-accused. The matter was committed to Addl. District & Sessions Judge, Sambhar Lake, which was later on, transferred to Addl. District and Sessions Judge, Dudu on 2/6/2018. After hearing the parties on the charge, learned Court below framed charges under Ss. 302, 201, 379 IPC. Appellant denied the charges and claimed trial. Upon which, the prosecution examined as many as 22 witnesses and exhibited 44 documents. Explanation of the accused was recorded under Sec. 313 Cr.P.C. wherein he denied the case and stated that he has been falsely implicated in the case. After hearing the parties, learned Addl. District & Sessions Judge, Dudu vide impugned judgment dtd. 5/4/2019, convicted the accused- appellant for offence under Ss. 302, 201, 379 of IPC and sentenced the accused as herein above mentioned. Aggrieved by which, the present appeal has been filed.

(3.) It is contended by counsel for the appellant that the case rests on circumstantial evidence. There are discrepancies which goes to the root of the matter. As per the prosecution version, the accused came to the house of the complainant and asked for twenty thousand rupees and papers of JCB and the same were given by Doli Bai who is mother of the deceased. It is argued that Doli Bai has not been produced by the prosecution as a witness. It is also contended that the CDR have not been filed by the prosecution in spite of many opportunities been given by the learned Trial Judge, which goes to show that no incriminating material was available in the CDR and it is only for that reason that the prosecution has not filed the CDR along with certificate under Sec. 65-B of the Evidence Act.