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2017 DIGILAW 694 (JHR)

Nilesh Kumar v. State Of Jharkhand

2017-04-13

D.N.PATEL, SHREE CHANDRASHEKHAR

body2017
JUDGMENT D. N. Patel, J. :- The present interlocutory application has been preferred with prayer to declare this appellant as juvenile as on date of offence i.e., on 15th September, 2004. 2. Having heard counsels for both the sides and looking to the facts and circumstances of the case, it appears that as per the allegations levelled against this appellant his date of birth is 19th February, 1988. The date of offence is 15th September 2004. The plea of juvenility was already canvassed before the learned trial Court which was rejected vide order dated 7th June, 2005 by the Additional Chief Judicial Magistrate-cum-Juvenile Court, Hazaribagh. Against this order, appeal was preferred by this appellant at the relevant time being Appeal Nos. 93 of 2005, 97 of 2005 and 105 of 2005 before the Court of Sessions Judge, Hazaribagh. The appeal preferred by this appellant was rejected by the Appellate Court vide order dated 20th July, 2005 and thus, for this appellant, the order passed by the learned Appellate Court has attained finality. Hence, the present application is nothing, but, an afterthought and we see no reason to entertain this application in view of the order passed by the Court of Sessions, Hazaribagh dated 20th July, 2005 and hence, this I.A. is hereby, dismissed. I.A. No. 1672 of 2014 & I.A. No. 4710 of 2015 3. These two interlocutory applications have been preferred for suspension of sentence awarded to this appellant by the learned Additional Sessions Judge-V, Hazaribagh in Sessions Trial No. 349 of 2005. The learned trial Court has convicted this appellant mainly for the offence punishable under Section 364-A to be read with Section 34 of the Indian Penal Code as well as for the offence punishable under Section 302 of the Indian Penal Code. 4. Having heard counsels for both the sides and looking to the evidences on record, it appears that previously also the prayer for suspension of sentence of this appellant was rejected by a detailed speaking order, dated 9th May, 2013 and thereafter, there is no change in the circumstance whatsoever. For ready reference, paragraph Nos. 5 and 6 thereof read as under: 5. Having heard counsel for both the sides and looking to the evidence on record, there is, prima facie, case against this appellant-accused, who is original accused No. 2 in the Sessions Trial No. 349 of 2005. For ready reference, paragraph Nos. 5 and 6 thereof read as under: 5. Having heard counsel for both the sides and looking to the evidence on record, there is, prima facie, case against this appellant-accused, who is original accused No. 2 in the Sessions Trial No. 349 of 2005. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that looking to the depositions of the prosecution witnesses, the victim boy namely, Bhawesh Kumar Mishra, was kidnapped. Ransom of Rs. 5 lakhs was demanded and later on, he was murdered. The offence was disclosed on 16th September, 2004. Upon investigation, initially, two accused namely, Kamlesh Kumar Chobey alias Chitput and Gautam Giri, were arrested. Looking to the evidences on record, charge-sheet was filed against these two accused, but, there were evidences against the present appellant, who is Mukesh Paswan. As he was not traceable or he was not available to the Investigating Officer, it has been recorded in the first charge-sheet that he is yet to be arrested and looking to the provisions of Cr. P.C., within stipulated time, the charge-sheet was filed against Kamlesh Kumar Chobey alias Chitput and Gautam Giri. It further appears from the evidences on record that Gautam Giri was juvenile and he was tried separately under the Juvenile Justice Act, whereas Kamlesh Kumar Chobey alias Chitput has been punished for life imprisonment for causing murder of the deceased for the offence punishable under Section 302, IPC to be read with Section 34, IPC. This appellant namely, Mukesh Paswan, was arrested later on and therefore, against him second charge-sheet was filed which is also known as supplementary charge-sheet. Looking to the further evidences on record is appears from the prosecution witness Nos. 1 to 14 that when the deceased namely, Bhawesh Kumar Mishra, was returning from tuition class, he was kidnapped and ultimately, he was murdered. Several incriminating articles namely, bicycle of the deceased, school bag of the deceased, computer bag of the deceased, exercise book of the deceased, clothes of the deceased and even a weapon used for causing murder of the deceased were recovered. The confessional statement of the accused was also recorded. The confessional statement has led to several recoveries including the dead body. The clothes of the deceased were found from the house of accused namely, Gautam Giri. The confessional statement of the accused was also recorded. The confessional statement has led to several recoveries including the dead body. The clothes of the deceased were found from the house of accused namely, Gautam Giri. Clothes and other articles were also recovered from the house of other co-accused. Even a weapon was also found from the house of Co-accused, who has also given his confessional statement. Thus, the confessional statement is to be read with Section 27 of the Evidence Act. This appellant namely, Mukesh Paswan - s role has also been narrated in detail in causing murder of the deceased. In view of these evidences on record and looking to the recovery of school bag, bicycle, stationery even dead body because of the confessional statement of the accused and in this every confessional statement of Kamlesh Kumar Chobey alias Chitput, the role of this appellant has been narrated. Moreover, Kamlesh Kumar Chobey alias Chitput, who is original accused No. 1 of Sessions Trial No. 349 of 2005, has preferred separate criminal appeal No. 773 of 2012. This appeal has been admitted, but, the prayer for suspension of sentence of Kamlesh Kumar Chobey alias Chitput under section 389 of the Code of Criminal Procedure, 1973 has been rejected by this Court vide order dated 20th February, 2013. Paragraph Nos. 5 and 6 of the said order read as under: ''5.'' We have heard counsel for the State, who is assisted by the counsel for the informant namely, Sri Vineet Chandra who has vehemently submitted that the present case is a case of kidnapping and murder. Charges levelled against his appellant who is original accused No. 1, in the Sessions Trial are under Sections 364-A, 302 and 201 of the Indian Penal Code to be read with Section 34 thereof and the appellant has been punished for life imprisonment for the offence of murder of deceased-Bhawesh Kumar Mishra, who was school going child. He was initially kidnapped and subsequently, murdered.'' 6.'' Having heard the counsel for the State, who is assisted by the counsel for the informant and looking to the evidences on record, there is a, prima facie, case against this appellant. He was initially kidnapped and subsequently, murdered.'' 6.'' Having heard the counsel for the State, who is assisted by the counsel for the informant and looking to the evidences on record, there is a, prima facie, case against this appellant. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that there are several witnesses who have seen this appellant lastly in the company of the deceased, moreover he is P.W. 3. Moreover, there is also evidence given by P.W. 4 and P.W. 5 who have clearly stated before the learned trial Court that the dead body of the deceased was recovered at the behest of this appellant. Similarly, the weapon used for committing murder of the deceased was also recovered at the benefit of this appellant. Bicycle, used for committing offence, was also recovered at the behest of this appellant and a blood stained shirt was also recovered at the behest of this appellant. Looking to the depositions of the prosecution witnesses who are P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 9, there is a prima facie case against this appellant. The depositions given by these witnesses are also getting enough corroboration by the depositions of other prosecution witnesses, who is P.W. 7-Investigating Officer and other evidences. Looking to these evidences, there is a, prima facie, case against this appellant and looking to the gravity of the offence, quantum of punishment and the manner, in which, this appellant is involved in the offences, as alleged by the prosecution, we are not inclined to suspend the sentence awarded to him by Additional Sessions Judge-V, Hazaribag in Sessions Trial No. 349 of 2005, hence, the prayer for suspension of sentence is hereby rejected.'' ? 6. There is conviction of this appellant under Section 302 of IPC to be read with Section 34, IPC thereof and he has been punished for life imprisonment. This appellant has also been punished for life imprisonment for the offence punishable under Section 364-A to be read with Section 34 of the IPC. 6. There is conviction of this appellant under Section 302 of IPC to be read with Section 34, IPC thereof and he has been punished for life imprisonment. This appellant has also been punished for life imprisonment for the offence punishable under Section 364-A to be read with Section 34 of the IPC. Looking to the evidences of the prosecution witnesses and other evidences on record, prima facie this appellant was also sharing common intention with accused No. 1 of Sessions Trial No. 349 of 2005 in kidnapping a minor for ransom and prima facie he was also sharing common intention with original accused No. 1 of the Sessions Trial No. 349 of 2005 for causing murder of the deceased-boy'' 5. Looking to the evidences on record and looking to the reasons given earlier, there is prima facie case against this appellant-accused. There being no substance in these interlocutory applications and, hence, they are hereby, dismissed.