Jharkhand High Court
Mukesh Paswan vs The State Of Jharkhand on 9 May, 2013
Author: D.N. Patel
Bench: D.N. Patel, Shree Chandrashekhar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B) No. 771 of 2012
Mukesh Paswan ... ... ... Appellant
Versus
The State of Jharkhand ... ... ... Respondent
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CORAM : HON'BLE MR. JUSTICE D.N. PATEL HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Appellant : Mr. Mahesh Tewari, Advocate For the Respondent : Mr. Amresh Kumar, A.P.P
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18/DATED 09th May, 2013 Per D.N. Patel, J.
1. This appeal is Admitted vide order dated 20th March, 2013. Record and proceedings of Sessions Trial No. 349 of 2005 was called for from the Trial Court so as to appreciate the arguments for suspension of sentence.
2. This Court has received the record and proceedings of Sessions Trial No. 349 of 2005 and we have perused the same.
3. We have heard the counsel for both the sides, at length.
4. Learned counsel for the appellant submitted that except confessional statement, there is no evidence on record against this appellant-accused.
5. Having heard counsel for both the sides and looking to the evidences 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 2 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 Lakh 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 @ 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 @ 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 @ Chitput has been punished for life imprisonment for causing murder of the deceased for the offence punishable under Section 302 I.P.C. to be read with Section 34 I.P.C. 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 it appears from 3 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, cloths 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 cloths of the deceased were found from the house of accused namely, Gautam Giri. Cloths 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 very confessional statement of Kamlesh Kumar Chobey @ Chitput , the role of this appellant has been narrated. Moreover, Kamlesh Kumar Chobey @ Chitput, who is original accused no.1 of Sessions Trial No. 349 of 2005, has preferred separate criminal 4 appeal no. 773 of 2012. This appeal has been admitted, but, the prayer for suspension of sentence of Kamlesh Kumar Chobey @ Chitput under Section 389 of the Code of Criminal Procedure 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 this 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. 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 decease, 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 behest 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, 5 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 I.P.C to be read with Section 34 I.P.C. 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 I.P.C. 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.
7. In view of these evidences on record, 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 this appellant namely, Mukesh Paswan, by the Additional Sessions Judge-V, Hazaribag in Sessions Trial No. 349 of 2005.
8. There is no substance in the prayer for suspension of 6 sentence of this appellant and hence, the same is hereby, rejected.
(D.N. Patel, J.) (Shree Chandrashekhar, J.) Amit/ 7