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2015 DIGILAW 601 (JHR)

Vivek Kumar @ Babloo v. State of Jharkhand

2015-05-07

P.P.BHATT, VIRENDER SINGH

body2015
JUDGMENT : Virender Singh, J. In all there are three accused namely Vivek Kumar @ Babloo, Chhatru Kumar Saw and Sanjay Kumar Varma @ Sanjay Kumar Ram who stand convicted for the charge of Section 302 read with Section 120B IPC for allegedly committing the murder of one Pankaj Kumar. In addition to it, accused Chhatru Kumar Saw is also held guilty for the offence punishable under Section 27 of Arms Act. Aggrieved of the conviction and sentence as slapped upon them vide impugned judgment dated 18th of December, 2014, all the three accused have filed their three separate appeals viz. Cr. Appeal (DB) No. 12 of 2015 filed by Vivek Kumar @ Babloo, Cr. Appeal (DB) No.55 of 2015 filed by Chhatru Kumar Saw and Cr. Appeal (DB) No.159 of 2015 filed by Sanjay Kumar Varma @ Sanjay Kumar Ram. 2. Praying for suspension of sentence, I.A.No.1327/15 has been filed in Cr. Appeal (DB) No.12 of 2015 and I.A. No. 2010/15 in Cr. Appeal (DB) No.159 of 2015. Mr. Jha, learned Senior Advocate states that he has prayed for bail in the memo of appeal itself, therefore, he has not preferred any separate application for suspension of substantive sentence. 3. Learned Additional Public Prosecutors appearing for the State submit that they do not want to file any response/reply to the interlocutory applications filed in two criminal appeals and are ready to argue in all the three cases. 4. Trial Court record has already been received. 5. Heard Mr. B.M. Tripathy, learned Senior Advocate appearing for Vivek Kumar @ Babloo in Cr. Appeal (DB) No.12 of 2015, Mr. J.P.Jha, learned Senior Advocate appearing for Chhatru Kumar Saw in Cr. Appeal (DB) No.55 of 2015 and Mr. Binod Kumar Dubey appearing for Sanjay Kumar Varma @ Sanjay Kumar Ram in Cr. Appeal (DB) No.159 of 2015, learned Additional Public Prosecutors appearing for the State who are assisted by Mr. A.K. Kashyap, learned Senior Advocate appearing for the complainant (first informant). 6. Appeal (DB) No.55 of 2015 and Mr. Binod Kumar Dubey appearing for Sanjay Kumar Varma @ Sanjay Kumar Ram in Cr. Appeal (DB) No.159 of 2015, learned Additional Public Prosecutors appearing for the State who are assisted by Mr. A.K. Kashyap, learned Senior Advocate appearing for the complainant (first informant). 6. In short, the case of the prosecution is that deceased Pankaj Kumar (hereinafter to be referred to as ‘deceased’ only) had gone to attend a party on 30.06.2012 near a petrol pump and came back at about 9.45 p.m. He was on his motorcycle and after parking the same in front of his house, he went to check the locks of his shop and when he was coming from temple after bowing his head before deity, he was found talking to two persons to whom he was showing some paper. One was engaged in seeing the paper and another was sitting on a green coloured motorcycle. This was noticed by one Anup Gupta who was also present near the place of occurrence and when Anup Gupta left that place, there was a sound of gunshot upon which Anup Gupta and the father of the deceased (first informant) rushed to the scene of occurrence and saw that the deceased was lying unconscious and bleeding from his head due to gunshot injury. He was shifted to the hospital, but declared dead. Two persons who had come on a motorcycle had fled from the scene of crime. At the time of filing the report with the police, it was disclosed by the first informant that earlier on 3rd of March, 2012 some unknown person had given a call through cellphone No.919939710400 on cellphone of the deceased for payment of ransom. The other fact mentioned in the first information report is that there was some dispute between Chairman of Municipality and Ward Commissioners, therefore the entire matter required enquiry. 7. It is thereafter on 2nd of July, 2012, statement of Nutan Devi, wife of the deceased, was recorded by the investigating agency in which she stated that on the fateful day it was their sixth marriage anniversary and due to that occasion there was light at her house. 7. It is thereafter on 2nd of July, 2012, statement of Nutan Devi, wife of the deceased, was recorded by the investigating agency in which she stated that on the fateful day it was their sixth marriage anniversary and due to that occasion there was light at her house. She stated that her husband had gone to attend a party and came back at about 9.45 p.m. on motorcycle and when she heard the sound of motorcycle, she saw through window that her husband first checked the lock of the shop and thereafter bowed his head at Kali temple and when he was coming towards his house, accused Chhatru Kumar Saw arrived there on a motorcycle alongwith accused Sanjay Kumar Verma and started talking with the deceased and as soon as the deceased came forward towards the house, accused Chhatru Kumar Saw fired a shot from his pistol which hit her husband and then both the accused fled away on the motorcycle and she rushed to the place of occurrence and fell down unconscious. She further stated about the enmity which was going on between her husband and accused Vivek Kumar @ Babloo relating to one showroom, termination of agency of accused Vivek Kumar @ Babloo by Swadeshi Bajaj which was subsequently given to the deceased and that the allegations made by the deceased against Vivek Kumar @ Babloo with regard to the company being run by him. 8. Investigating agency also recorded supplementary statement of the first informant in which he also shown the presence of the wife of the deceased (PW Nutan Devi) at the scene of occurrence stating that after hearing the sound of the gunshot, she came running down to the place of occurrence and looking at the condition of her husband, fell unconscious on the ground and taken to the hospital where she regained consciousness on 2nd of July, 2012 and gave her statement to the police. He also projects the enmity between the deceased and accused Vivek Kumar @ Babloo stating that it is accused Vivek Kumar @ Babloo only who had conspired with his other two co-accused in murdering the deceased. 9. He also projects the enmity between the deceased and accused Vivek Kumar @ Babloo stating that it is accused Vivek Kumar @ Babloo only who had conspired with his other two co-accused in murdering the deceased. 9. During investigation, the police collected some other material evidence with regard to the presence of accused Chhatru Kumar Saw near the place of occurrence, the amount settled by accused Vivek Kumar @ Babloo with accused Chhatru Kumar Saw for murdering the deceased out of which some part payment was made, the documentary evidence with regard to the Bajaj Agency which was earlier in the name of accused Vivek Kumar @ Babloo and after termination given to the deceased. Some evidence was also collected with regard to the details of the phone calls made from the mobile phone of accused Vivek Kumar @ Babloo to the mobile phone of the deceased. During investigation accused Chhatru Kumar Saw also suffered a disclosure statement pursuant to which the weapon of offence (Pistol) was allegedly recovered which was sent to the ballistic expert and the opinion given by the expert is that the said pistol has been used in the commission of the offence. This precisely is the prosecution case. 10. Mr. Tripathy, learned Senior Advocate appearing for accused Vivek Kumar @ Babloo vehemently contended that charge of Section 120 B IPC qua accused Vivek Kumar @ Babloo is not proved by the prosecution in any manner. He submitted that the prosecution case was given a ‘U’ turn on 2nd of July, 2012 when the statement of PW Nutan Devi, wife of the deceased, was recorded in which she not only claims herself to be the eye witness to the occurrence, but discloses the enmity between the deceased and accused Vivek Kumar @ Babloo whereas the father of the deceased, who turns out to be the first informant, did not whisper a word about the presence of the wife of the deceased at the scene of crime or falling unconscious after seeing the condition of her husband. Mr. Tripathy submitted that such an important fact, the father of the deceased could not miss in his initial statement which is written by none else but another son of the first informant, who is a police officer and stepped into the witness box also. Mr. Mr. Tripathy submitted that such an important fact, the father of the deceased could not miss in his initial statement which is written by none else but another son of the first informant, who is a police officer and stepped into the witness box also. Mr. Tripathy submitted that in the initial statement, the suspicion projected for the murder is a phone call received by the deceased somewhere in March, 2012 for ransom or some tiff going on between the Chairman of Municipality and Ward Commissioners as the deceased was helping the Ward Commissioners. Learned counsel submitted that it was only the suspicion projected in the first information report whereas on 2nd of July, 2012, altogether a different shape is given to the prosecution case by projecting an eye witness to the occurrence i.e. the wife of the deceased. 11. Mr. Tripathy submitted that the prosecution, although made an attempt to connect accused Vivek Kumar @ Babloo by collecting some details of the phone calls, but none of the phone numbers relates to the mobile of the accused, therefore, even that plank of evidence is not pointing towards the complicity of accused Vivek Kumar @ Babloo. 12. Learned counsel, on the strength of aforesaid arguments, prays for suspension of sentence of accused Vivek Kumar @ Babloo during the pendency of the appeal. 13. Arguments advanced by Mr. Jha, learned Senior Advocate appearing for Chhatru Kumar Saw or Mr. Dubey, appearing for Sanjay Kumar Varma @ Sanjay Kumar Ram are virtually the same for the reason that both of them are shown to have come together on a motorcycle at the scene of crime, one out of them (accused Chhatru Kumar Saw) was allegedly armed with the pistol, released a shot from his pistol. In order to demolish the case of the prosecution, it is submitted by learned counsel that introducing wife of the deceased on the 3rd day of the occurrence as an eye witness is a crude padding on the face of it, therefore, her evidence deserves rejection outrightly. Learned counsel submitted that both the accused, in fact, have been falsely implicated in this case for certain ulterior motive, whereas they cannot be even remotely connected with the commission of the offence, there being no evidence against them worth the name on record. Learned counsel submitted that both the accused, in fact, have been falsely implicated in this case for certain ulterior motive, whereas they cannot be even remotely connected with the commission of the offence, there being no evidence against them worth the name on record. Both the learned counsel thus pray for suspension of substantive sentence slapped upon accused namely Chhatru Kumar Saw and Sanjay Kumar Varma @ Sanjay Kumar Ram during the pendency of the appeal. 14. Prayer for bail qua all the three appellants-accused is strongly opposed by the learned State counsel submitting that it is well planned murder in which accused Vivek Kumar @ Babloo availed the services of his two co-accused in settling score with the deceased on account of business rivalry which fact is proved on record through documentary evidence. Learned State counsel submitted that no doubt at the time of recording of the initial statement with the police, the father of the deceased did not raise any suspicion qua accused Vivek Kumar @ Babloo as at that time he was under the impression that the cause of murder, perhaps is the phone call made somewhere in March, 2012 to the deceased for ransom. The father thought at that time that it could be a case of extortion. According to learned State counsel, another fact which was also lurking in the mind of the father of the deceased was that the occurrence could be on account of some tiff going on between the Chairman of Municipality and the Ward Commissioners as the deceased was supporting the Ward Commissioners, therefore, the first informant could not even imagine in his wildest dreams that the murder of his son was designed by accused Vivek Kumar @ Babloo on account of termination of his Bajaj Agency which was subsequently allotted to the deceased and it is only when the wife of the deceased, who was waiting for her husband to come back home being their wedding anniversary day, had seen two accused talking to the deceased and then one of them killing the deceased and thereafter she fainted and vomited out the true occurrence after regaining fitness on 2nd of July, 2012, the entire complexion of the case changed. Learned counsel submitted that all what has happened in three days of the occurrence, perhaps appears to be most unnatural and the investigation has also been carried out in that direction only in which a lot of material has been collected against accused Vivek Kumar @ Babloo for hatching a conspiracy with his two co-accused for committing the murder of the deceased. According to learned State counsel, it is a case of hired killing (in common parlance “Supari Killing”), therefore, none of the accused deserves the concession of suspension of sentence during the pendency of the appeal. 15. Having regard to the entirety of facts and circumstances of the present case and without expressing any opinion on merits of the appeal, lest it may prejudice the case of either side at the relevant stage, in our considered view, none of the three appellants-accused deserves the concession of suspension of sentence. Consequently, the prayer made for the said relief is hereby declined. 16. I.A. No.1327/15 and I.A. No.2010/15 stand disposed of accordingly.