JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Challenge in this appeal is judgment and order dated 11.02.2019 in Sessions Trial No.165 of 2009, State vs. Francis @ Jugal Kishore and others, passed by the Court of learned Ist Additional Sessions Judge, Dehradun. By the impugned judgment and order the appellants have been convicted under Section 302 read with 34 IPC, 394 read with 34 IPC, 411 IPC and 201 read with 34 IPC and sentenced as hereunder:-

(i) Under section 302 read with 34 IPC imprisonment for life and a fine of Rs.5,000/- each. In default of payment of fine to undergo imprisonment for a further period of two months.

(ii) Under Section 394 read with 34 IPC rigorous imprisonment for five years and a fine of Rs.2000/- each. In default of payment of fine to undergo imprisonment for a further period of two months.

(iii) Under Section 411 IPC rigorous imprisonment for two years.

(iv) Under Section 201 read with 34 IPC rigorous imprisonment for two years and a fine of Rs.2000/- each. In default of payment of fine to undergo imprisonment for a further period of two months.

All the sentences were directed to run concurrently.

2. Briefly stated, according to the prosecution deceased Swami Asthey (father Samuel Francis) was in-charge of an Ashram situated near Chota Rampur Town within Police Station, Sahaspur, District Dehradun. This Ashram was run by Catholic Diocese of Meerut. The deceased Swami Asthey was staying there for about 18-19 years, prior to the date of his death. In the same Ashram, a lady, named Mercy was also staying for her treatment and prayers. They both were killed and an information to this effect was given to the police Station Sahaspur on 22.09.2008 at 10:28 AM by Kukku son of Johnson. This information was telephonic, which was entered into GD of Police Station at report no.18 time 10:28 hours on 22.09.2008. Based on this information, when police reached at the spot, two dead bodies were spotted. Inquest was prepared. Thereafter on the same day at 01:50 p.m. a report was lodged by PW1 Alban Mendoca. Based on which, a chik FIR under Section 302 IPC was lodged. Post-mortem of both deceased Swami Asthey and Mercy was conducted on 22.09.2008 in the evening.

3. During investigation police suspected involvement of appellant Francis alias Jugal Kishore, who was interrogated and based on his information, appellants Bablu alias Vipin Kumar, Arun Kumar and co-accused Mukesh Kumar Singh were further interrogated by the police. According to the prosecution on 08.10.2008 from the possession of appellant Arun Kumar, a mobile phone, which belonged to deceased Mercy, was recovered. On the same day at the instance of appellants and co-accused, Mukesh Kumar Singh a bag was recovered near a bridge on Selaqui River on Dehradun Ponta Road. The bag contained identity card etc. of the deceased. It is further the case of the prosecution that the appellants confessed to have committed the crime and it was also confessed by the appellants that the jewellery was kept with appellant Arun Kumar. On 14.10.2008, Police team reached in the village of appellant Arun Kumar in District J.P. Nagar, Uttar Pradesh. On 15.10.2008 from the courtyard of appellant Arun Kumar, at the instance of appellants and co-accused, jewellery was recovered.

4. According to the prosecution, from the scene of crime, finger print impressions were lifted from a telephone receiver and a glass tumbler. They were sent for forensic examination. These finger prints matches with the finger prints of appellant Arun Kumar. After investigation charge sheet under Section 302, 201, 394 and 411 IPC was submitted against the appellants and one more co-accused Mukesh Kumar. Cognizance taken and the case committed for trial. Charges under Sections 302 read with 34, 394 read with 34, 411 and 201 read with 34 IPC were framed against the appellants and co-accused Mukesh, to which they denied and claimed trial. It appears that during pendency of the trial, the file of co-accused Muk