Decided on June 20,2013



Prafulla C. Pant, J. - (1.) THIS appeal is directed against the judgment and order dated 07.04.2010, passed by Additional Sessions Judge, Rishikesh, in Sessions Trial No. 24 of 2007, whereby said court has convicted the accused/appellant Mahesh Kumar under section 302 read with section 34 of I.P.C., and sentenced him to imprisonment for life and directed to pay fine of Rs. 10,000/ -. In default of payment of which the accused is directed to undergo further two months imprisonment. Heard learned Amicus Curiae for the appellant, and learned counsel for the State, and perused the lower court record.
(2.) PROSECUTION story, in brief, is that on 02.11.2006 at about 4.00 am PW1 Asha Ram Semwal (informant) gave First Information Report (Ex -A1) at police station Raiwala stating that a guard (Chowkidar) at about 2.30 am on 02.11.2006, informed him that shutter of shop of the deceased (Kamleshwar Prasad Lakhera) is lying half open and two persons were seen running from there. It was also told by PW1 Asha Ram Semwal that he went to the spot and saw that his brother in law Kamleshwar Prasad Lakhera was lying dead who was tied with the cot and his mouth was gagged with trouser piece. It was further found that the cash and mobile has been looted from the shop. The mobile sim number of the deceased was 9897889187 which was being used in Nokia 2100 set. The set was given to the deceased by PW7 V.K. Walia. On the basis of First Information Report (Ex -A1) Crime No. 135 of 2006, was registered against two unknown persons in respect of offences punishable under section 460 of I.P.C. The investigation was taken up by PW16 Sub Inspector Bhaskar Lal Shah who requested Special Operation Group to keep the looted mobile phone on surveillance and obtain call details. PW12 Sub Inspector Manoj Kumar Negi of Special Operation Group after keeping the looted mobile set under surveillance gave information that from the mobile set bearing IMEI No. 351344609954360 a call was made on 02.11.2006 at about noon to land line number 2484259 belonging to PW6 Vimla Devi. The Investigating Officer interrogated PW6 Vimla Devi and came to know that said call was made by accused/appellant Mahesh who talked with her tenant PW3 Rohit. Accused/appellant Mahesh Kumar was arrested alongwith co accused Harvinder @ Pappu on 20.11.2006 and recovery of the looted set of mobile was made in respect of which memorandum (Ex -A7) was prepared. The recovery was made in the presence of PW14 Shankar Singh, Village Pradhan.
(3.) AFTER completion of investigation, the Investigating Officer submitted charge sheet (Ex -A12) against the two accused/appellants namely Mahesh Kumar and Harvinder@ Pappu. It appears that accused/appellant Harvinder @ Pappu was declared juvenile and his case was separated on 26.10.2009. Before his trial was separated, on 01.09.2007, after hearing the parties, charge in respect of offence punishable under section 302 read with section 34 of I.P.C. was framed against the accused Mahesh Kumar and accused Harvinder @ Pappu to which both of them pleaded not guilty and claimed to be tried.;

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