NARESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against judgment dated 27.02.2008 passed by the Additional Sessions Judge (Fast Track), Kotputli, District Jaipur, in Sessions Case No.21/2007 (24/2006), whereunder accused-appellant Naresh @ Tekchand @ Sumit, has been convicted for offence under Sections 364A, 302 and 201 IPC. For offence under Section 201 IPC, he has been sentenced to undergo seven years rigorous imprisonment with fine of Rs.1000/-; in default of payment of fine, to further undergo three months imprisonment. For offence under Section 364A IPC, he has been sentenced to undergo life imprisonment and fine of Rs.4000/-; in default whereof, to further undergo two months imprisonment. For offence under Section 302 IPC, he has been sentenced to undergo life imprisonment and fine of Rs.5000/-; in default whereof, to further undergo two months imprisonment. All the aforesaid substantive sentences were ordered to run concurrently.

(2.) Learned counsel argued that as per prosecution case, the deceased was kidnapped from the shop of Hari Prasad Punjabi (PW-38) and thereafter he was taken to Shri Ram Bhawan Dharamshala, Kotputli in its Room No.24 by accused, where Deepak was murdered. In this regard, Mahesh Pareek (PW-9), the Manager of Sri Ram Bhawan Dharamshala, was examined. In examination in chief, he did not state that Deepak came to the said Dharamshala. He was declared hostile. In cross-examination, he admitted that whatever he has stated was told to him by the police. He admitted that he did not see the accused-appellant either coming to Dharamshala or going out. As per prosecution case, the appellant stayed in the said Dharamshala by the name of Vijay Kumar S/o Shri Mahavir Prasad, by Caste Sain, resident of R/o 108, Sultanpuri Mod, Nagloi, Delhi, but no enquiry in relation to the said name and address was made from the Municipal Corporation, Delhi, and no evidence whatsoever was collected in this regard. The prosecution has failed to establish its case in relation to taking the room in the said Dharamshala on rent by accused-appellant, and his stay or leaving the Dharamshala with alleged box. It is argued that as per prosecution case, the accused stayed in Dharamshala by fake name of Vijay Kumar and to establish the same, the prosecution has produced documents Exhibit 5A and Exhibit 43A, which were got exhibited by Mahesh Pareek (PW-9), Hotel Manager, Ram Bhawan Dharamshala, Kotputli, and Manish Sharma (PW-35), Hotel Manager, Kastoori Dharamshala, Near Railway Station, Jaipur, but both the witnesses failed to prove the prosecution case, because normally as per norms/practice the identity proof of the visitors are taken, but no such identity proof was taken from the accused and such statement were not believable. Besides, no test identification parade was conducted from both these witnesses to identify the accused-appellant.

(3.) It is argued that statement of complainant Hari Prasad (PW-38) is improbable and highly exaggerated. Learned trial court itself on page 43 of the judgment, observed that there is exaggeration in statement of complainant Hari Prasad (PW-38), but still it has placed reliance on his testimony. No telephone call details were produced, in the absence of which the accused-appellant could not be connected with alleged commission of crime. Hari Prasad (PW-38), in examination in chief, has stated that he lastly saw Deepak accompanying the accused-appellant Naresh, whereas this important fact was not at all mentioned by him in the first information report, which clearly shows that he has improved upon his version in the examination in chief. It is highly improbable and unbelievable that accused-appellant, who was 21 years of age, first kidnapped the deceased and thereafter, caused murder of deceased for the purpose of ransom in the manner as alleged by the prosecution. From the evidence led by the prosecution, it cannot reasonably be inferred or presumed that it was the accused-appellant alone and none else, who had committed murder of deceased. The circumstances relied by the prosecution are weak and they do not at all connect the accused-appellant with alleged crime. Bannalal, Head Constable, was deputed at the residence of complainant Hari Prasad (PW-38) to hear the telephone calls, but he has not been produced by the prosecution. Further, no call details were produced and thus there is no evidence whatsoever to prove the demand of ransom by the accused-appellant.