Jaipur: High Court of Rajasthan at Jaipur has issued the following order:
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN,
JAIPUR BENCH, JAIPUR.
(D. B. Criminal Appeal No. 923/08)
Manoj Kumar & Anr.
State of Rajasthan
(D. B. Criminal Appeal No. 844/08)
Balraj @ Tiloo v State of Rajasthan
(D. B. Criminal Appeal No. 606/10)
Vijay Singh @ Sunder v State of Rajasthan
AGAINST THE JUDGMENT DATED 26.7.2008 PASSED BY THE ADDITIONAL SESSIONS JUDGE (FAST TRACK) NO.3, HEADQUARTER KHETRI, DISTRICT JHUNJHUNU IN SESSIONS CASE NO.131/07, 28/07.
Date of Judgment:-
January 30, 2015
HON'BLE MR. JUSTICE R.S.CHAUHAN
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Mr. Suresh Sahni with Mr. R.M. Sharma,
Mr. Amit Punia,
Mr. Mahesh Gupta, for the appellants.
Mr. M.K. Kaushik, for the complainant.
Mr. Aladeen Khan, Public Prosecutor for the State.
(Per R.S. Chauhan, J.)
Three different appeals have been filed by four different appellants before this court. Manoj Kumar, and Manjeet Kumar @ Billu have filed D. B. Criminal Appeal No. 923/08; Balraj @ Tiloo has filed D. B. Criminal Appeal No. 844/08; Vijay Singh @ Sunder has filed D. B. Criminal Appeal No. 606/10. The four appellants are aggrieved by Judgment dated 26-7-2008, passed by the Additional Session Judge (Fast Track) No. 3, Headquarters Khetri, District Jhunjhunu. By the said judgment, the learned Judge has convicted all the accused-appellants for offences under Sections 364/120B, 302/120B, 396 and 201 IPC and sentenced them as under:-
U/s.364/120B IPC: Life imprisonment, imposed with a fine of Rs.500/- and to further undergo two months rigorous imprisonment in default thereof.
U/s.302/120B IPC: Life imprisonment, imposed with a fine of Rs.500/- and to further undergo two months rigorous imprisonment in default thereof.
U/s.396 IPC: Life imprisonment, imposed with a fine of Rs.500/- and to further undergo two months rigorous imprisonment in default thereof.
U/s.201B IPC: Three years rigorous imprisonment, imposed with a fine of Rs.300/- and to further undergo one month's rigorous imprisonment in default thereof.
All the sentences were to run concurrently.
Since these three appeals challenge the same judgment, they are being decided by this common Judgment.
Briefly the prosecution case is that on 28-4-07, Pawan Kumar Sharma (P. W. 1) submitted a written report (Ex. P. 1) before the SHO, Police Station Khetri, wherein he claimed that “I, Pawan Kumar s/o Shri. Radheshyam Sharma, r/o Nanu Wali Bavadi Ki Dhani, Tehsil Khetri, am resident of the said address. My brother, Ashok Kumar Sharma parks his Bolero Jeep, bearing registration No. RJ-18 UA-0871, at Nizampur Moad (Khetri). He takes bookings for the said jeep and runs it as a taxi. On 26-4-07, around 5:00 PM, two boys came to my brother, hired his jeep for Lambi Sahad, and left for the said place with him. My brother was supposed to return that night. But neither Ashok has returned, nor has the jeep come back. We have tried to locate him, but we have not been able to discover him. I can recognize the two boys if they were produced before me. I suspect that in order to misappropriate the jeep, these two boys have abducted my brother. I am filing this report so that appropriate action may be taken.”
On the basis of the said report, a formal FIR (Ex. P. 2), namely FIR No. 122/07, was registered at Police Station Khetri, District Jhunjhunu, for offence under Section 365 IPC. The investigation commenced. During the course of the investigation, the appellants Balraj @ Tillu, Vijay Kumar, Manjeet Kumar @ Biloo, Manoj Kumar, and Surendra Kumar were arrested. Since Surendra Kumar was a juvenile delinquent, he was not put up for trial along with the present appellants.
The learned trial court charged the appellants for offences under Sections 364, 364/120 B, 302/120 B, 396, and 201 IPC. In order to prove its case, the prosecution examined eighteen witnesses, and submitted about sixty-five documents. Although the defense did not examine any witness, it did submit four documents. After going through the evidence, by judgment dated 26-7-08, the learned Judge convicted and sentenced the appellants as aforementioned.
Before this court delineates the respective contentions of different counsel for the various appellants, for the sake of clarity, it would be profitable to deal with the salient features of this case, and to move through the facts of the case in chronological order. Firstly, according to the prosecution, the two boys who hired Ashok’s taxi were Vijay and Surendra. Thus, Ashok, the deceased in this case, was last seen in their company. Secondly, Vijay was identified by Pawan (P.W. 1), and Rajendra Kuamr (P. W. 8). Thirdly, the police recovered a towel from Vijay’s house. Fourthly, from other appellants the police recovered different articles: Ashok’s dead body was discovered at the behest of Balraj; allegedly at his instance, the police also recovered the Bolero jeep which was operated by Ashok. The police also recovered a ‘lathi’ (bamboo stick) as according to the prosecution, Ashok was initially assaulted with a blunt weapon, and subsequently strangulated with the use of a towel. From Manjeet, the police recovered one tape recorder, which was allegedly in the taxi, and one wrist watch which allegedly belonged to the deceased. From Manoj Kumar, the police recovered another Bolero jeep which was allegedly used in the commission of the crime; it also recovered the papers of Ashok’s Balero jeep. Thus, the entire prosecution case is based on the evidence of ‘last seen’, the discovery of Ashok’s dead body at the instance of Balraj, on identification of Vijay, and on recovery of certain articles/objects from different appellants.
According to the prosecution, on 28.4.2007, Balraj was arrested by arrest memo (Ex.P.36). Upon his information, the Ashok’s dead body was discovered from a well situated at Dhaka Mandi Tan Peepali Johadi. The said recovery was made before two independent witnesses, namely Mr. Kishan Lal (P.W.2) and Mr. Ramavtar (not examined by the prosecution) by recovery memo (Ex.P. 9). During his police custody, on 5.5.2007, Balraj made a statement (Ex.P. 49) under Section 27 of the Evidence Act pursuant to which the police recovered a bamboo stick by recovery memo (Ex.P. 27) from his house.
Lastly, upon his statement (Ex.P. 50) dated 7.5.2007 under Section 27 of the Evidence Act, the police also recovered a Bolero Jeep by recovery memo (Ex.P.38). The said recovery was witnesses by Rati Ram (P.W.18) and Subey Singh (P.W.14). However, both these witnesses are police personnel and not independent witnesses. According to the prosecution, the appellants have not only killed Ashok, but had also taken away his Bolero Jeep whose original registration number was RJ18-UA-0871. However, subsequently, the number plate was changed by the appellants. Therefore, the Bolero Jeep recovered at the instance of Balraj bore the registration No.MH12-TR-9211. According to the prosecution, the chassis number of this Jeep is 2GFK27C18910.
On 2.5.2007, the police arrested Vijay by arrest memo (Ex.P. 33). On 5.5.207, he made a statement (Ex.P. 46) under Section 27 of the
Evidence Act. Consequently, by recovery memo (Ex.P. 20), the police recovered a towel from Vijay’s home. According to the prosecution, it is this towel which was used for strangulating Ashok. Subsequently, on 19.5.2007, Vijay was subjected to test identification parade. The test identification parade was held by Smt. Rajuka Singh Hooda (P.W.15), a Judicial Magistrate. Both Pawan Kumar (P.W.1) and Rajendra Kumar (P.W.8) identified Vijay as the person who had come along with another boy (Surendra Kumar) for hiring the Jeep from Ashok. Thus, the two pieces of evidence against Vijay is identification, and the recovery of the towel.
Further, on 29.4.2007 the police arrested Manjeet Kumar @ Billu by arrest memo (Ex.P.44). On 5.5.2007 he made a statement (Ex.P.45) under Section 27 of the Evidence Act whereby he informed the police that the deck (tape recorder of the Bolero Jeep) and the wrist watch of the deceased can be recovered from his house. Consequently, by recovery memo (Ex.P.29), the police recovered a tape recorded from Manjeet Kumar’s house. Moreover by recovery memo (Ex.P.31), the police recovered a wrist watch bearing the words “Kissan Quartz Watch”. Both these recoveries were made before Rajendra Kumar (P.W.8), the brother of the deceased, and one Hanuman who has not been produced by the prosecution as a witness.
Moreover, on 8.5.2007 the police arrested Manoj Kumar by arrest memo (Ex.P. 34). Manoj Kumar made a statement (Ex.P. 39) under Section 27 of the Evidence Act whereby he informed the police that he could get the Bolero Jeep recovered which was used by the culprits for the purpose of committing the crime, and could get the papers of the Bolero jeep which was operated by Ashok recovered from his house. Consequently, by recovery memo (Ex.P. 22) the police recovered a Bolero Jeep from his house. The said recovery was witnessed by Mr. Jagveer Singh (P.W. 7) and Mr. Mool Chand (P.W. 10). Moreover, by recovery memo (Ex. P. 22), the police recovered the jeep papers, such as the Registration Certificate, the insurance papers, etc...