Raj Kumar @ Raju vs State Of Uttaranchal

2. The case of the prosecution was that on September 24, 1982 one Tilak Raj-PW1 submitted a written report at Police Station, Khatima stating therein that when he reached his house for taking lunch at about 12.30 p.m., he saw Raj Kumar @ Raju, Pushpendra Singh, Swadesh Chandra @ Gappu and Nirankar in his house. All the accused were dragging his wife who was soaked in blood. According to Tilak Raj, on seeing him, the accused fled away. Though he tried to catch hold of them, Pushpendra Singh pushed at his chest due to which he fell down. He raised hue and cry. According to the complainant Raj Kumar, Swadesh Chandra @ Gappu and Nirankar were holding knives. All the accused committed loot of articles from his house and also committed murder of his wife Kamlesh Kumari. Rajendra Kumar-PW6, Purshottam Lal-PW3, Prem Kumar-PW5 and other persons who came there, also saw the accused running away. The first information was recorded and investigation was conducted. Accused were arrested and certain articles were also recovered from them. On completion of investigation, charge-sheet was submitted by the Investigating Officer against four accused referred to above and two others, namely, Mohan Lal and Balram Singh for offences punishable under Sections 396 and 412 read with Section 120B, IPC. The case was committed by the Magistrate to learned II Addl. Sessions Judge. Charge was framed and the accused were asked whether they pleaded guilty upon which they denied to have committed any offence and claimed to be tried.

3. In order to prove the case against the accused, the prosecution examined 13 witnesses. Out of them Tilak Raj-PW1, informant and husband of deceased Kamlesh Kumari was an eye- witness who supported the case of the prosecution. According to him, he saw all the accused dragging dead body of his wife Kamlesh Kumari from kitchen. He wanted to catch hold of the accused but could not do so as Pushpendra Singh pushed him and resultantly he fell down. It was also his case that on hearing his cries, PW3-Purshottam Lal, PW5-Prem Kumar and PW6- Rajendra Kumar reached at the scene of offence and saw all the accused running away. After the arrest of accused, looted property and weapons of offence, namely, knives were recovered.

4. It was also the case of the prosecution that there was a conspiracy to commit dacoity by all the accused on the previous day i.e. September 23, 1982. To prove conspiracy, the prosecution examined PW7-Kishan Lal-real brother of PW1-Tilak Raj. PW11-Dr. J.K. Goel who performed post-mortem of deceased Kamlesh Kumari on September 25, 1982 was examined to prove injuries sustained by the deceased and to establish that she died due to those injuries.

9. Notice was issued by this Court in the present appeal instituted by accused No.1-Raj Kumar @ Raju on February 9, 2007. On July 9, 2007, leave was granted. Bail, however, was refused. In view of the said fact, the matter was placed for final hearing and that is how the matter is before us.

8. All the four convicted accused preferred appeal and the High Court, as stated above, confirmed the order of conviction and sentence recorded by the trial Court and dismissed the appeal.

35. For the foregoing reasons, the appeal is allowed. The conviction of the appellant for an offence punishable under Section 396, IPC is set aside and he is ordered to be acquitted. Since the appellant is in jail, he is ordered to be released forthwith if his presence is not required in any other case.

36. The appeal is accordingly allowed.