Punjab-Haryana High Court
Hardip Singh And Others vs State Of Punjab on 8 July, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA-S-1226-SB-2000 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-1226-SB-2000 (O&M)
Date of Decision: July 8, 2013
Hardip Singh and others
...Appellants
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. K.S. Sidhu, Senior Advocate, with
Mr. Tarundeep Kumar, Advocate,
for the appellants.
Mr. Sandeep Chhabra, DAG, Punjab,
for the respondent.
NARESH KUMAR SANGHI, J.
1. Challenge in this appeal is to the judgment of conviction and the order of sentence, dated 6.12.2000, passed by the learned Additional Sessions Judge, Ferozepur, whereby the appellants, namely, Hardip Singh, Jaswinder Singh, Jang Singh and Rajinder Singh, were held guilty for the offences punishable under Sections 342, 364, 419 and 506, IPC, and ordered to undergo the following sentences:
Under Section Sentence (R.I.) Fine (in `) In Default (R.I.) 342, IPC 6 months each - -
364, IPC 3 years each 1,000/- each 2 months each
419, IPC 2 years each - -
506, IPC 6 months each - -
Kapoor Prashant
2013.08.07 10:34
I attest to the accuracy
of this order
CRA-S-1226-SB-2000 (O&M) 2
2. All the sentences were ordered to run concurrently.
3. As per the statements suffered by the learned counsel for the parties at bar, during pendency of the appeal, appellant No. 1, Hardip Singh, has died on 21.6.2005 and accordingly the appeal qua him stands abated.
4. Brief facts of the case are that the complainant-
Lakhbir Singh (since deceased) presented an affidavit (Ex. P1), dated 7.5.1994, before the Senior Superintendent of Police, Ferozepur, alleging that on 5.5.1994 at 12 o'clock midnight (intervening night of 5-6 May, 1994), their canter vehicle was proceeding towards Zira from Milk Plant, Mallanwala. When the said vehicle reached near the canal, within the jurisdiction of Village Bharhana, a gypsy bearing registration No. PB-10-0089, with red beacon, was found stationed there. A person gave signal to the vehicle of the complainant to stop and disclosed his identity to be an official from the office of the District Transport Officer, Ferozepur. At that point of time, Sukhbir (PW-2) was driving the canter while Godi Singh (not examined) was the cleaner and Master Tarlok Singh (PW-1) was also present in the canter. Sukhbir Singh (PW-2) was asked by the imposter to show the papers of the canter. Sukhbir Singh (PW-2) told to him that the papers of his vehicle were lying in the office of the Milk Federation, Mallanwala, whereupon the imposter took the driving licence of Sukhbir Singh (PW-2) and in lieu thereof asked to pay Rs. 500/- as the District Transport Officer was in a different mood. The imposter extended a threat that if the demanded amount of Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 3 Rs. 500/- was not paid then the vehicle being driven by Sukhbir Singh (PW-2) would be impounded. In the meantime, Godi Singh, the cleaner of the canter, recognized the imposter and told him that he was the son of Pala Singh, Mazhabi, of Village Markhai, whereupon the imposter started abusing Sukhbir Singh (PW-2) and Godi Singh and also grappled with them. In the meantime, Master Tarlok Singh (PW-1) alighted from the canter and approached the so called District Transport Officer and recognized him as his ex-student, Hardip Singh, of village Markhai. When the accused learnt that they had been identified, then Master Tarlok Singh (PW-1) was made to sit in the gypsy and carried him towards village Zira in order to kill him. Sukhbir Singh and Godi Singh followed the gypsy. The occupants of the canter got the complainant, Lakhbir Singh, wake up while he was sleeping in his plastic factory near Zira Petrol Pump, at about 1.00 a.m. Lakhbir Singh was apprised that the appellants had abducted Master Tarlok Singh (PW-1) and took him away in their gypsy. Lakhbir Singh, Sukhbir Singh and Godi Singh followed the gypsy and forced it to stop by obstructing its passage with their canter vehicle and got released Master Tarlok Singh (PW-1). While leaving the spot, the appellants extended threat that they would kill the complainant if any application was moved against them. Immediately thereafter, the Station House Officer of Police Station, Zira, was informed, who immediately rushed to village Markhai and apprehended Bahal Singh, father of Hardip Singh (since deceased). Hardip Singh, his three co-accused and the Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 4 gypsy were intercepted at 3.15 a.m. from village Rataul Rohi, in the area of Police Station, Zira.
5. On the basis of the above affidavit, FIR No. 53, dated 10.5.1994 (Ex. P6), for the offences punishable under Sections 419 and 506 read with Section 34, IPC, was registered at Police Station, Mallanwala.
6. After thorough investigation, the charge-sheet (report under Section 173, Cr.P.C.) for prosecution of the accused for the offences punishable under Sections 419, 342 and 506 read with Section 34, IPC, was prepared and presented before the learned Area Judicial Magistrate. The copies of the report under Section 173, Cr.P.C., in consonance with Section 207, Cr.P.C., were supplied free of cost to the accused. At the time of consideration of charges, learned Assistant Public Prosecutor moved an application to the effect that from the facts and circumstances of the case, ingredients of Section 364, IPC, were also disclosed and after receiving reply to the said application, the learned Magistrate found, prima facie, that mischief of Section 364, IPC, was attracted, therefore, he committed the case to the Court of Session, since Section 364, IPC, was exclusively triable by the later Court. After commitment, the learned Additional Sessions Judge, Ferozepur, to whom the case was entrusted for trial, framed the charges against the appellants in the following manner.
● Hardip Singh was charge-sheeted for the offence punishable under Sections 364, 342 and 419 IPC; Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 5 ● Jaswinder Singh, Jang Singh and Rajinder Singh were charge-sheeted under Section 419 read with Section 34, IPC; and ● All the accused including Hardip Singh were also charge-sheeted for the offence punishable under Section 506, IPC.
7. In order to substantiate its allegations, the prosecution examined the following witnesses:-
● Master Tarlok Singh (PW-1) - an aggrieved person, who was allegedly abducted/kidnapped by the accused. He deposed in consonance with the facts disclosed in the initial part of this judgment;
● Sukhbir Singh (PW-2) - was the driver of the canter vehicle and he also deposed about the incident as propounded by the prosecution; ● Gurmeet Singh (PW-3), Clerk - He deposed that he remained posted as a Clerk in the office of the District Transport Officer, Ferozepur, from May, 1990 to June, 1995. He produced the record relating to the driving licence (Ex. P3) of Sukhbir Singh (PW-2);
● Manvesh Singh (PW-4) - He deposed that from May, 1992 to August, 1994, he remained posted as District Transport Officer, Ferozepur, but he did not check any vehicle on Zira - Ferozepur Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 6 road during the night of 5.5.1994;
● SI Cheta Singh (PW-5) - He had investigated the matter and deposed about the investigation conducted by him;
● Sarabjit Singh (PW-6) - deposed that he was the registered owner of the gypsy bearing Registration No. PB-10-0089. In the month of August, 1991, the said gypsy was sold by him to Hardip Singh. However, he failed to disclose the name of the father of Hardip Singh and even failed to identify said Hardip Singh in the Court.
8. Thereafter the learned Additional Public Prosecutor closed the prosecution evidence. The statements of the appellants were recorded in terms of Section 313, Cr.P.C. By and large, they denied the incriminating evidence appearing against them. However, Hardip Singh (since deceased) took the stand that Master Tarlok Singh (PW-1) was working as a Drawing Teacher at the Government High School, Wakilanwala, and his (Hardip Singh) father was also posted there as a Headmaster. The relations between the father of Hardip Singh and Master Tarlok Singh were strained and the same gone to the extent of calling of bad names. The father of Hardip Singh recorded adverse remarks in the Annual Confidential Report of Master Tarlok Singh and due to that grudge, Hardip Singh was falsely implicated in the present case.
9. Harbans Singh (DW-1), deposed that in the year Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 7 1981-82, he was posted as a teacher in the Government High School, Wakilanwala, Tehsil Zira. Master Tarlok Singh was also working as a Drawing Teacher in the year 1981-82. Bahal Singh was the incharge of the school. Master Tarlok Singh, Drawing Teacher, was in the habit of coming late and due to the said reason, Bahal Singh directed Master Tarlok Singh to come in time. Due to the said reason, there used to be a quarrel between them. Headmaster of the school had to record the annual confidential reports.
10. Karamjit Singh (DW-2), Clerk, Government High School, Wakilanwala, deposed that he had brought the summoned record of the said school. In the year, 1981-82, Bahal Singh was incharge of the Government High School, Wakilanwala. Tarlok Singh was Drawing Teacher in those days. Harbans Singh (DW-1) was posted as Math Teacher during the said period. The ACRs of the teachers were being forwarded by the incharge/headmaster to the District Education Officer.
11. Bahal Singh (DW-3), deposed that during the years 1981-82 and 1983, he remained incharge/headmaster in the Government High School, Wakilanwala. Tarlok Singh (PW-1), was also known as Talok Singh. Tarlok Singh (PW-1) remained posted as Drawing Teacher under him (Bahal Singh) during the said period at Wakilanwala. Tarlok Singh was in the bad habit of coming late to the school and when Bahal Singh asked him to come in time, then Tarlok Singh used to quarrel with him. In spite of repeated requests, Tarlok Singh continued to come late Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 8 and used to quarrel with Bahal Singh. As incharge/headmaster, Bahal Singh recorded adverse remarks in the ACRs of Tarlok Singh and the same were sent to the District Education Officer, Ferozepur.
12. Thereafter the defence evidence was closed, arguments were heard and the learned Additional Sessions Judge, Ferozepur, convicted and sentenced the appellants, as has been mentioned herein above.
13. Learned counsel for the appellants has made the following contentions:
● There was huge delay in reporting the matter to the police. The alleged occurrence had taken place in the intervening night of 5-6 May, 1994, while the FIR was registered on 10.5.1994. Five days' delay in reporting the matter to the police goes to the root of the case and the benefit of the same be extended to the appellants;
● The complainant, Lakhbir Singh, on whose affidavit the FIR was registered, has not been examined. Therefore, the contents of the affidavit (Ex. P1), cannot be looked into by the Courts; ● The complainant, Lakhbir Singh, and the appellants were residents of the same village or nearby area. In spite of that he failed to disclose the names of the appellants, namely, Jaswinder Singh, Jang Singh and Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 9 Rajinder Singh. According to the contents of the affidavit, a son of Pal Singh was also present at the spot at the time of the alleged occurrence, but none of the appellants has a father in the name of Pal Singh; ● In the affidavit it was mentioned that the appellants were apprehended along with the gypsy on the wee hours of 6.5.1994 by the police, but according to the case of the investigating agency, the appellants were arrested on 11.5.1994 and, thus, material contradiction in the prosecution version goes to the root of the case;
● Appellant Nos. 2 to 4, namely, Jaswinder Singh, Jang Singh and Rajinder Singh, were identified for the first time during deposition of prosecution witnesses in the court, therefore, the said part of the evidence of the witnesses cannot be given any credence; ● Hardip Singh, who alleged to have impersonated himself, has died and no other appellant had impersonated as an officer belonging to the office of the District Transport Officer, Ferozepur. Therefore, the mischief of Section 419, IPC, was not attracted qua them;
● It has nowhere appeared on the file in the substantive evidence that Tarlok Singh (PW-1) was abducted or kidnapped with an intention of causing his murder. Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 10 Therefore, the basic ingredient of Section 364, IPC, was lacking and, as such, the conviction and sentence of the appellants for the offence punishable under Section 364, IPC, is not sustainable; ● Prosecution witnesses, especially Tarlok Singh (PW-1) and Sukhbir Singh (PW-2), have materially improved their statements while deposing before the Court. Therefore, their statements should not be given any credence; and ● Deposition of the defence witnesses clearly spells out that Tarlok Singh (PW-1) had deep rooted enmity with the father of Hardip Singh (since deceased) and he (Tarlok Singh) had every motive to falsely implicate Hardip Singh and his known persons.
14. On the basis of the above submissions, Mr. M.S. Sidhu, learned counsel for the appellants, assisted by Mr. Tarundeep Kumar, prayed for acquittal of the appellants by accepting the present appeal while setting aside the judgment of conviction and the order of sentence passed by the learned Additional Sessions Judge, Ferozepur.
15. Learned counsel for the State vehemently opposed the submissions made by the learned counsel for the appellants. He submitted that there was no delay in reporting the matter to the police. The occurrence had taken place in the intervening night of 5-6 May, 1994 and immediately on the next day, i.e. 7.5.1994, Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 11 the complainant, Lakhbir Singh, got prepared his affidavit and presented the same to the Senior Superintendent of Police on 8.5.1994 and all the facts essential for decision of the case were disclosed in the said affidavit, on the basis of which the FIR was registered on 10.5.1994. Therefore, there was no delay in reporting the matter to the police. He also submitted that according to Tarlok Singh (PW-1) and Sukhbir Singh (PW-2), the matter was reported to the police in the wee hours of 6.5.1994 and if the investigating agency has concealed the said fact, then the benefit of the same cannot be extended to the appellants. He further asserted that the appellants were duly identified by the witnesses in the Court, therefore, there was no question to extend the benefit to the appellants on the score that there was no identification parade. He further submitted that there was no occasion for the prosecution witnesses to falsely implicate the appellants. He also contended that the statements suffered by the prosecution witnesses were consistent, natural and believable, and that is why the learned Trial Court had returned the verdict of guilt, passed the judgment of conviction and the order of sentence. Therefore, no interference by this Court is called for.
16. I have heard learned counsel for the parties and with their active assistance perused the material available on record.
17. The alleged incident of kidnapping/abduction had taken place in the intervening night of 5-6 May, 1994, at about 11.30 p.m. The aggrieved person was got released from the Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 12 abductors within a short time. The complainant side had a vehicle with them. According to Tarlok Singh (PW-1), the police was informed at about 3.30 a.m. on 6.5.1994 and the Station House Officer had reached the hideout of the appellants and arrested them. Further, the gypsy used for committing the crime was also recovered. Being PW-1, the aggrieved person deposed that the report was entered into a register by the police officials. If it was the correct statement, then what was the hitch for the prosecution to conceal such material from the Court? If it was not such a position, then why the prosecution witnesses were over enthusiastic to improve their version to such an extent that the matter was reported to the police immediately after the occurrence? According to the investigating agency, FIR No. 53 of this case was registered on 10.5.1994 at Police Station, Mallanwala, District Ferozepur, on the basis of the affidavit (Ex. P1) executed by the complainant, Lakhbir Singh. The said Lakhbir Singh has not been produced, probably due to his death. But the fact remains that the contents of such affidavit cannot be read in favour of the prosecution. Only the factum of production of the said affidavit before the police can be taken care of. If according to the prosecution witnesses the matter was reported on 7.5.1995, as there is a noting of Senior Superintendent of Police, Ferozepur, available on the affidavit (Ex. P1), then also there was delay of approximately 48 hours in registration of the case. Be that as it may, the fact remains that the FIR was registered on 10.5.1994, i.e. after a delay of five days, and there Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 13 is no explanation for such a huge delay. The following considerations are to be kept in mind while considering the delay in reporting the matter to the police:
i. The occurrence had not taken place in the manner as alleged;
ii. The complainant side was waiting to arrange/introduce the witnesses, suitable to their version; and iii. The complainant side wanted to indict as many persons as accused, they liked.
18. In Lakshmi Singh and others v. State of Bihar, AIR 1976 SC 2263, Hon'ble the Supreme Court has held that un-explained delay in the prosecution case would entitle the accused to the benefit of doubt. The improvements, exaggeration and confabulation in the statements of the prosecution witnesses further create doubt with regard to the veracity of the prosecution case. The statement of Tarlok Singh (PW-1) is contradictory with the statement of Sukhbir Singh (PW-2). Thus, the benefit of the same has to be extended to the appellants.
While discussing this aspect, this Court is conscious that the minor contradictions, which do not change the very substratum of the case, have to be ignored because the same are bound to occur in the deposition of the truthful witnesses, but in the case in hand the contradictions and improvements are going to the root of the case, as the same would change the very nature of the allegations propounded by the prosecution. Reference can Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 14 be made to the statement of Tarlok Singh (PW-1), when he deposed that the matter was reported to the police within a short span of the incident and the appellants were apprehended in the wee hours of 6.5.1994. The investigation conducted clearly contradicts the above statement of Tarlok Singh (PW-1). The defence of Hardip Singh (since deceased) that his father was a headmaster and Tarlok Singh (PW-1) was a teacher in the same school and adverse remarks were recorded by his father in the annual confidential report of Tarlok Singh (PW-1), on the basis of which the department had taken action against him (Tarlok Singh) and, he had nourished a grudge to take revenge from Hardip Singh or his father and, therefore, he (Tarlok Singh) falsely implicated Hardip Singh and other appellants is probable. The statements of Harbans Singh (DW1), Karamjit Singh (DW-2) and Bahal Singh (DW-3), clearly substantiate the defence propounded by Hardip Singh (since deceased). Even otherwise, scanning of the whole evidence would show that the main ingredient of Section 364, IPC, that a person should be abducted for causing his death, is clearly missing in the present case.
19. Keeping in view the totality of the facts and circumstances of the case, the present criminal appeal deserves acceptance and the same is hereby allowed. The impugned judgment of conviction and the order of sentence, dated 6.12.2000, passed by the learned Additional Sessions Judge, Ferozepur, is set aside. Appellant Nos. 2 to 4, namely, Jaswinder Singh, Jang Singh and Rajinder Singh, are acquitted of the Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order CRA-S-1226-SB-2000 (O&M) 15 charges levelled against them. The fine imposed by the learned Trial Court, if deposited by the appellants, shall be returned to them in accordance with the provisions in that regard. The sapurdginama furnished by Hardip Singh and his surety for taking the gypsy on superdari , shall stand discharged.
20. The Registry is directed to return the lower Court record forthwith along with a copy of the judgment passed by this Court.
(NARESH KUMAR SANGHI) JUDGE July 8, 2013 PKapoor Kapoor Prashant 2013.08.07 10:34 I attest to the accuracy of this order