RAMESH KUMAR Vs. STATE

JUDGEMENT

(1.) The appellant by this appeal from jail, seeks to challenge the conviction and sentence recorded by Addl. Sessions Judge (Fast Track), Sirohi, vide judgment dated 7.6.2002, passed in Sessions Case No.8/02 (4/02) convicting the appellant for offence under Section 302 and 201 Indian Penal Code, 1860 and sentencing the imprisonment for life and a fine of Rs.1000/- for offence under Section 302, in default of payment of fine to further undergo 6 months' imprisonment, while sentencing to one year's rigorous imprisonment for offence under Section 201 and a fine of Rs.500/-, in default of payment of fine to further undergo imprisonment for two months.

(2.) The brief facts of the case are, that on 5.8.2001, a written report Ex.P-1 was submitted by Roopa Ram, who is the real brother of the appellant Ramesh Kumar, alleging inter-alia, that about 15 days ago, he had gone to Ahmedabad for earning livelihood, and the entire family lives in village Mare-Mandwada. It was alleged that the family consisted of his father Kaluji (deceased), mother Radubai, sister Pawani, and brother Ramesh (appellant). It is then alleged that after working there for about 7 days he got ill disposed, and therefore, on Wednesday at about 12.00 in the noon, he reached home, and did not find father, while the other three were at the house. It is alleged that mother and sister were disturbed, and on asking about father they posed to be weeping, while the appellant said, as to what is so serious, and why he is worrying, he (father) will come, as he has gone to Ahmedabad for some work. He entertained some suspicion and asked the brother, thereupon the brother threatened him also. Thereafter, it is alleged that yesterday in noon at about 4.00 PM Ramesh went in the village, and then he asked his mother and sister, who revealed, that on the last Monday, he asked for key of bicycle, which was with Ramesh, to go to Haliwada, but Ramesh refused, thereupon there was some exchange of words, and the father put another lock and chain on the bicycle, whereupon Ramesh got enraged, and started belaboring the deceased, whereupon the two ladies intervened. Thereafter, on Tuesday after taking meals, when mother, sister and brother had slept in the open, the deceased was sleeping in the Osari. At that time, at about 1.00 in the night Ramesh picked up an iron hammer from behind the house, and inflicted injuries on the head of the deceased. On hearing the cries, mother and sister shouted and went to intervene, whereupon the accused threatened that if they shouted or came near, they too will be killed, as the old man has already been done away with. Then the mother and sister were said to have seen the victim, who was alive, and when they requested to take him for treatment, they were threatened with life, and that the victim died in the morning. Thereupon Ramesh excavated a pit in the stable and buried the dead body, and did not allow the mother and sister to go out of the house. It is also alleged that as there is no habitation near the well, the two ladies could not inform about it to anybody, and on the informant reaching the house, in view of the presence of the accused in the house, the two ladies, under fear, did not disclose anything to the informant either. The cot on which the deceased was lying at the time of incident has been put behind the house. It is alleged that on coming to know of the incident he immediately tried to contact his uncle Babu Lal on telephone, but the telephone could not get connected, thereupon in the morning he went to Sanpur and gave intimation to uncle on telephone. On this report, case under Section 302 and 201 Indian Penal Code, 1860 was registered, and after necessary investigation challan was filed. Then the case was committed and from Sessions Court it was transferred to learned trial Court. The learned Trial court framed charges for offences under section 302 and 201 Indian Penal Code, 1860. The accused obviously denied the charges. During trial the prosecution examined some 13 witnesses, and produced some 32 documents. The statements of the accused were recorded under Section 313, who denied the charges, but did not lead any evidence. After completing trial, the learned trial Court convicted and sentenced the accused as above.

(3.) Mr. Sharma, learned Amicus Curiae, arguing the appeal submitted, that the prosecution has failed to establish the date of occurrence. Then the recovery of the cot and the Fawda is doubtful, as the recovery is hit by Section 162 Code Of Criminal Procedure, 1973. Then regarding recovery of hammer it was submitted that it has been recovered from an open place, which was accessible to the persons, who wanted to have the accused convicted, and that the Forensic Science Laboratory has not found any blood thereon. It is also contended that the motive in the present case is oblique, as it does not stand to reason, that merely on account of the deceased, the father, asking/refusing to give key of the bicycle, would be killed by the son. Then regarding eye-witnesses it was contended, that there was no light at the place of alleged occurrence, and eye-witnesses could not see the incident, apart from the fact that their conduct is wholly unnatural, in keeping silence for good long four/five days. According to learned counsel, the entire theory is suspicious, and it is wholly improbable that the accused was at the house round the clock, and continued the two witnesses under threat. According to learned counsel, the possibilities are not ruled out, that the deceased must have been killed by the informant Roopa Ram, as it has come during trial, that the deceased was keeping bad eye on the wife of Roopa Ram, who had gone to village Haliwada, and the deceased wanted to go to that village Haliwada, and being enraged, the informant may have killed the deceased, and the period between the alleged incident and the first report has been used to cook up a story against the appellant, as the appellant is not earning anything, and was being treated as waster by the family, while the informant was earning for the family.