Kamlesh Giri vs State of Uttar Pradesh

Pramod Kumar Srivastava, J—This appeal has been filed against judgment dated 10.8.2004 passed by Addl. Sessions Judge/Fast Track Court No. 5, Ghazipur in S.T. No. 124 of 2001, State v. Kamlesh Girt in Case Crime No. 2/2001 under Section 302/506, I.P.C., P.S. Khanpur, district Ghazipur, by which, accused Kamlesh Giri was convicted and punished. The prosecution case in brief was that complainant Sharda Devi had reported on 2.1.2001 in police station Khanpur, Ghazipur that her 18-19 years old son Jitendra Giri had gone from house on 1.1.2001 in the evening at about 5:30-6:00 p.m. with Kamlesh Giri and Harischandra @ Bajroo. Thereafter, her son had not returned home. In the morning of 2.1.2001 she was informed that dead body of her son Jitendra is lying in the tank of pumping set of Harinath Vishwakarma and there are blood stains near the tank. Then complainant went on the spot and found the dead body of her son. She had also mentioned in her report that few days ago, there was a quarrel with Kamlesh and Jitendra after which Kamlesh had threatened Jitendra. On the basis of her report, Case Crime No. 2 of 2001 under Section 302, I.P.C. was registered against Kamlesh Giri and Harishchandra @ Bajroo. After investigation the police had submitted the charge-sheet against three accused persons, namely, Kamlesh Giri, Harishchandra @ Bajroo and Rakesh Yadav for offences under Sections 302 and 506, I.P.C. Before initiation of the trial, co-accused Harischandra @ Bajroo and Rakesh Yadav were declared juvenile, and their files were separated for their trial to be carried out before Juvenile Justice Board. This trial proceeded against appellant Kamlesh Giri who was charged for offences punishable under Section 302 read with 34, I.P.C. Accused Kamlesh Giri pleaded not guilty and claimed to be tried.

Thereafter prosecution side had examined P.W. 1 Sharda Devi, complainant, P.W. 2 Dr. Anil Kumar, P.W. 3 Ram Murat, P.W. 4 Dole Gosai, P.W. 5 Vijay Shankar Singh, P.W. 6 Hawaldar Giri, P.W. 7 Subedar Giri, P.W. 8 Vindresh Giri, P.W. 9 Constable Hardev Ram, P.W. 10 S.D. Prajapati, P.W. 11 S.S.I. Satish Chandra Shukla, and P.W. 12 Constable Chandrabhan Singh. These witnesses had also proved documentary evidences of prosecution side as well as material exhibits.

In his statement under Section 313, Cr.P.C. accused Kamlesh Giri had stated that prosecution case and evidences against him are false and incorrect documents have been prepared during investigation. He is innocent and has been falsely implicated due to rivalry of Panchayat Election. The defence side had not adduced any defence evidence.

After affording opportunity of hearing, the learned Additional Sessions Judge had convicted the accused Kamlesh Giri for offence under Section 302/34, I.P.C. and punished with imprisonment for life and Rs. 5,000 fine. Aggrieved by this judgment of conviction and punishment dated 10.8.2004 the accused had preferred present appeal.

Learned counsel for the appellant had contended that it is a case of circumstantial evidence, in which evidences are not interconnected in way that they may lead to the sole guilt of appellant, but trial court had not considered these facts and passed impugned order of conviction, which should be quashed. Additional plea of the learned counsel for the appellant was regarding plea of juvenility, for which evidences had been adduced. Alternative plea of appellant side has been that since appellant is juvenile and he has been in jail for more than 14 years, therefore, he may be released forthwith.

Learned A.G.A. had opposed the arguments of appellant side and contended that though it is a case of substantial evidence, but evidences are so closely knit and interconnected that they lead to the only inference of guilt of appellant for the charged offence. Learned A.G.A. had admitted that after verification it was found that according to high school certificate, the age of appellant was below 18 years on the date of incident in question.

We have heard the rival contentions, considered them and gone through records of the case.

P.W. 1 Sharda Devi, complainant had supported the prosecution case in truthful manner when she stated that before the date of incident, there occurred some quarrel between appellant Kamlesh Giri and her son Jitendra. Then on 1.1.2001, appellant Kamlesh Giri and other co-accused had visited at her house and taken Jitendra with them at about 5.30-6.00 p.m. After that Jitendra never came back and in the next morning, his dead body was found in the village near pumping set tank of Harinath Vishwakarma. P.W. 2, P.W. 3 and P.W. 4 had not supported the prosecution case and were declared hostile witnesses. P.W. 6 Hawaldar Giri had stated that his field is situated near the tube-well of Harinath Vishwakarma in village Gauri, where Jitendra Giri was murdered in the night of 1-2 January, 2001. On 1.1.2001, he had gone to his field near pumping-set with his brother-in-law Ramsant Giri for returning the call of the nature. While coming back from there, he saw Kamlesh Giri, Harishchandra, Rakesh and Jitendra going towards west of tube-well of Harinath Vishwakarma. After one hour Kamlesh Giri, Harishchandra and Rakesh came back, but Jitendra had not returned. The next day in the morning the dead body of Jitendra was found in tank of pumping set of Harinath Vishwakarma. P.W. 7 Subedar Giri had stated that after arrest of appellants in this case, accused Kamlesh Giri, Rakesh and Harishchandra had asked police regarding recovery of murder weapon and cloth. Then Sub-Inspector brought these accused in village Gauri where he (P.W. 7) also accompanied them. Then Kamlesh Giri led them to his house where on his Information and indication the blood stained knife and shirt were recovered, which were kept in tin-shed below the brick. Thereafter recovery memo (Ex-Ka-3) was prepared there in his presence.

P.W. 7 Vindresh Giri is younger brother of the deceased, and was a child aged about 10-11 years. Court had properly enquired and scrutinized him before recording formal statement and given certificate to the effect that he can understand the questions and answered properly. Therefore, he could be a competent witness. P.W. 8 stated that on the date of incident, Kamlesh and Harishchandra @ Bajroo had come to his house and called his brother Jitendra Giri; then Jitendra had completed his meal and went with Kamlesh and Harishchandra thereafter Rakesh also came there. He (P.W. 8) had also stated that those persons had asked him to go back, thereafter, he came back his home, but his brother Jitendra had gone with three accused persons towards tube-well. Later on his mother was informed about dead body of Jitendra, and he had seen Jitendra''s dead body over which there were several injuries. P.W. 10 Constable Satya Deo Prajapati was accompanying the Investigating Officer when three accused of this case were arrested by police. He stated that Kamlesh Giri, Harischandra Giri and Rakesh Yadav had confessed before Investigating Officer that they had committed murder of Jitendra Giri due to jealousy; because Jitendra Giri was talking with a girl Renu. Accused had confessed murder of Jitendra by inflicting injuries of knife. Accused had also informed that they could get the knife and shirt of Kamlesh Giri recovered. Thereafter accused persons had led them to house of Kamlesh where Kamlesh had helped them in recovery of blood stained knife and blood stained shirt from tin-shed. P.W. 11 S.S.I. Satish Chandra Shukla had also stated that after finding the dead body, inquest report was prepared and body was sent for post-mortem. Thereafter, he had arrested the three accused persons, namely, Kamlesh Giri, Rakesh Yadav and Harishchandra @ Bajroo who had led him to recovery of blood stained knife from which they had murdered Jitendra Giri and also they had got recovered the blood stained shirt of Kamlesh Giri wore at the time of incident. The other witness P.W. 9 Hardev Ram had proved the inquest report and taking of the dead body of Jitendra from place of incident to doctor for post-mortem. P.W. 12 was also formal witness who proved the documents of prosecution case. P.W. 2 Dr. Anil Kumar was posted as Radiologist in District Hospital, Ghazipur on 3.1.2001 when he had conducted post-mortem of deceased Jitendra Giri son of Uma Shankar at about 3.30 p.m. and prepared postmortem report (Ex-Ka-2). He had proved ante-mortem injuries found over body of deceased Jitendra Giri, which were 13 in number, and all were either incised wound or punctured wound caused by sharped edged weapon. This witness P.W. 2 Dr. Anil Kumar had proved that cause of death of Jitendra was those ante-mortem incised wounds and punctured wounds which could have been caused in the night of 1 and 2 January, 2001.

A perusal of these evidences make it explicitly clear that accused persons, namely, Kamlesh Giri, Harishchandra and Rakesh Yadav had called Jitendra from his house at about 5.30-6.00 p.m. and taken him near the tank of pumping set of Harinath Vishwakarma in village Gauri. After that Jitendra Giri was never seen alive. Approximate time of death of Jitendra Giri was about 7 to 8 p.m., in the evening/night of 1.1.2001. Just before that time accused persons were seen with Jitendra Giri by witnesses P.W. 1 Sharda Devi, P.W. 6 Hawaldar Giri and P.W-8 Vindresh Giri. P.W. 8 Vindresh Giri had proved that he had seen Jitendra Giri with three accused, including appellant, at about 7-8 p.m. when they were going towards tube-well; and then after one hour three accused came back, but Jitendra was not with them. These facts lead to only conclusion that three accused persons had committed murder of Jitendra Giri because none else was with Jitendra who could have opportunity to inflict fatal injuries in such small span of time. This fact is also supported by evidence of P.W. 10 Constable Satya Deo Prajapati, P.W. 11 S.S.I. Satish Chandra Shuka, Investigating Officer and also of P.W. 7 Subedar Giri before whom appellant had not only confessed murder of Jitendera Giri but had also pointed out and helped in recovery of blood stained shirt and murder weapon knife. The said knife was soaked with human blood as per report Ex.Ka-16 of Forensic Science Laboratory. Thus, from the perusal of evidences adduced by prosecution side before the trial court, it is proved beyond doubt that appellant Kamlesh Giri had committed murder of Jitendra Giri with the help of other co-accused persons.

The trial court had also considered the evidences adduced before it as well as the facts and circumstances; and thereafter reached to the conclusion that accused Kamlesh Giri had committed murder of Jitendra Giri on 1.1.2001 in village Gauri, P.S. Khanpur, district Ghazipur. The judgment of trial court in this regard contains detailed discussion of facts and evidences, on the basis of which finding and conclusion regarding guilt of appellant was reached. These findings of trial court are found correct, which are hereby confirmed. Therefore, it is held that charge for offence punishable under Section 302/34, I.P.C. against accused Kamlesh Giri has been proved beyond doubt. Therefore, appeal against the order of conviction is liable to be dismissed.

During proceedings of present appeal appellant Kamlesh Giri had taken plea of his juvenility at the time of occurrence on 1.1.2001. Document relating to passing of high school shows that his date of birth is 15.3.1984. These facts were verified by respondent/prosecution side. Learned A.G.A. was helpful in enquiry relating to alleged plea of juvenility of appellant Kamlesh Giri. The counter-affidavit filed on behalf of the State is on record, which supports the claim of appellant side. On this point according to documents of High School examination, in which appellant Kamlesh Giri had appeared, his date of birth is found to be 15.3.1984. This leads to a conclusion that on 1.1.2001 the age of appellant was less than 17 years. Therefore, his claim of juvenility is accepted and it is declared that he was ''juvenile in conflict with law'' in accordance with provisions of Juvenile Justice (Care and Protection of Children) Act, 2000.

In the present case, appellant Kamlesh Giri is in jail since year 2001, and in present case his much more time than three years of maximum period of detention for any juvenile in conflict with law has been passed in jail. Therefore, in the present matter there is no propriety to send the case of appellant again before Juvenile Justice Board for retrial of his case, after quashing the order of punishment of the appellant Kamlesh Giri, because more than maximum period of punishment of detention has already been inflicted over him. In these circumstances, ends of justice would meet properly when appellant be released on bail immediately.

So for the reasons discussed above, the appeal of Kamlesh Giri against conviction for the charge under Section 302, I.P.C. read with 34, I.P.C. is hereby dismissed. But for the reasons discussed above, sentence of punishment passed by trial court in the aforesaid offence is amended for the period of detention already undergone, because the appellant was a juvenile in conflict with law at the time of commission of the charged offence and had been in detention for more than the maximum period prescribed for his detention.

The Superintendent, Central Jail, Varanasi is ordered to release the accused-appellant Kamlesh Giri, son of Dashrath Giri forthwith from detention of case relating to S.T. No. 124 of 2001, State v. Kamlesh Giri, Case Crime No. 2/2001 under Section 302/506, I.P.C., P.S. Khanpur, district Ghazipur. A copy of this judgment be sent to Central Jail, Varanasi and to Sessions Judge, Ghazipur for ensuring compliance under intimation to this Court.