Punjab-Haryana High Court
Mohammad Sadiq vs State Of Punjab on 3 September, 2014
Author: K.C. Puri
Bench: K.C. Puri
CRA No. S-1700 SB of 2013 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRA No. S-1700 SB of 2013(O&M)
Date of decision : 3.9.2014
...
Mohammad Sadiq
................Appellant
vs.
State of Punjab
.................Respondent
Coram: Hon'ble Mr. Justice K.C. Puri
Present: Sh. D.S. Kahlon, Advocate
for the appellant.
Sh. K,.D. Sachdeva, Additional Advocate General,
Punjab
Sh. Vipin Mahajan, Advocate for the complainant
...
K.C. Puri, J.
Challenge in this appeal is the judgment and order dated 30.3.2013 passed by Sh. Rajiv Kalra, Additional Sessions Judge, Pathankot, vide which the accused-appellant was convicted under Section 364 IPC and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo rigorous imprisonment for 6 months.
The brief facts of the case, as enumerated from the record is that on 21.9.2005 the police party led by SI Kashmiri Lal was present at Lighta Wala Chowk and the police party was approached BANITA CHUGH 2014.09.10 16:35 I attest to the accuracy and integrity of this document chandigarh CRA No. S-1700 SB of 2013 -2- by Seeta Ram Mahajan. Seeta Ram Mahajan made the statement to the police party that the he has retired as Assistant Engineer from Public Health Department. He has two daughters and one son namely Raman Kumar. His son was aged around 33 years and was a government contractor. On 21.09.2005, the said Raman Kumar at about 12.30 p.m. went to Saharanpur near Taragarh on his maruti car No. PB-35-B-6667 in connection with his work. At about 2.00 PM the elder brother of Seeta Ram Mahajan received a telephonic call from Raman Kumar and he apprised his uncle that he had threat to his life. Raman Kumar asked his uncle to arrange Rs.30 lakhs otherwise he would be done to death and he was kept in a captivity by some unknown persons. The said Baij Nath apprised Seeta Ram Mahajan at around 5/6 p.m. when Seeta Ram Mahajan went to Aggarwal Bhawan, Dhangu road, Pathankot. The complainant accompanied by his brother proceeded to report the matter to the police.
After recording statement of Seeta Ram Mahajan, a formal case under Section 364 IPC was registered. SI Kashmiri Lal informed the then SHO PS Division No. 1 Pathankot. A police party led by the then SHO reached at the place and started investigation. In connection with this case, a meeting was called by SP Pathankot of all Station Head Officers of the Police Stations. SHO PS Division No.1 Pathankot as well as, Inspector Sukhwinder Singh, Incharge CIA Staff Pathankot were entrusted with the task to accompany complainant in civil dress. They were to visit the place where the kidnappers had asked the complainant to keep demanded money. The complainant BANITA CHUGH 2014.09.10 16:35 I attest to the accuracy and integrity of this document chandigarh CRA No. S-1700 SB of 2013 -3- kept the money bag at the place disclosed by the kidnappers and after sometime two kidnappers came there and tried to pick the bag. Those kidnappers were challenged by SHO PS Division No.1 and Inspector Sukhwinder Singh. Those kidnappers opened fire upon them with intention to kill them. An encounter took place between police party and the gang of kidnappers. As a result of the encounter, two kidnappers Rajinder Singh @ Vicky and Arun Masih died at the spot. One police official namely LC Hem Raj also received bullet injuries. The police party succeeded to get victim Raman Kumar freed from the clutches of the kidnappers. One accused Avinash Kohli was arrested and a separate case bearing FIR No. 66 of 20.9.2005 for offence punishable under Sections 307, 148, 149 IPC read with Section 25 Arms Act was registered against them.
During interrogation, the co-accused Avinash Kohli disclosed the names of gang member as Rajinder Singh @ Vicky, Arun Masih, Gurpreet Singh @ Preet, Mohammad Sadiq @ Sonu @ Lund and Bodh Raj @ Bodha. The accused Avinash Kohli was arrested on 29.09.2005. The accused Bodh Raj @ Bodha was arrested on 04.10.2005. The accused Gurpreet Singh @ Preet and present accused Mohammad Sadiq could not be arrested and they were got declared proclaimed offenders.
On completion of investigation Challan against accused Avinash Kohli and Bodh Raj @ Bodha was presented before the Court. It is pertinent to mention here that Avinash Kohli was found to be juvenile and separate proceedings were initiated qua him. The BANITA CHUGH 2014.09.10 16:35 I attest to the accuracy and integrity of this document chandigarh CRA No. S-1700 SB of 2013 -4- accused Bodh Raj @ Bodha faced trial bearing Sessions case No. 162/1 of 29.11.2005 and vide judgment and order dated 18.02.2008, the accused Bodh Raj @ Bodha was held guilty and sentenced for offence punishable under Section 364 IPC. The accused Gurpreet Singh @ Preet was arrested on 23.02.2008 by Incharge CIA Staff Pathankot and on completion of investigation qua him, supplementary Challan was presented before learned Area Magistrate. The case was committed to the Court of Sessions.
During the course of trial against accused Gurpreet Singh @ Preet, accused Mohammad Sadiq @ Sonu was arrested on 09.10.2009 and on completion of investigation, supplementary Challan was submitted. Trial against both accused Gurpreet Singh and Mohammad Sadiq started together in this case.
On finding a prima-facie case charge against both the accused was framed for offence under Section 364 IPC to which the accused pleaded not guilty and they claimed trial.
Initially during trial against accused Gurpereet Singh only, the prosecution has examined PW1 Kashmiri Lal and the examination-in-chief of PW2 Seeta Ram Mahajan was recorded. Thereafter the accused Mohammad Sadiq was joined in the trial and thereafter the prosecution has examined the following witness:
1) Seeta Ram Mahajan PW2;
2) ASI Kuldip Singh PW3;
3) Dr. Surjit Singh PW4;
4) Dr. Harash Mahajan PW5;BANITA CHUGH
2014.09.10 16:35 I attest to the accuracy and integrity of this document chandigarh CRA No. S-1700 SB of 2013 -5-
5) Inspector Sulakhan Singh PW6;
6) SI Darshan Lal PW7;
7) Raman Kumar Mahalan PW8 (wrongly recorded as PW-7)
8) PHC Gurdev Singh PW9;
9) Inspector Rajan Parminder Singh PW10;
10) Navjot Pal Singh Randhawa the then SDM, Dhar Kalan PW11;
11)SP Mukhwinder Singh Bhuller, SP HQ Jalandhar; PW-12;
12)Kashmiri Lal (Retired Inspector) PW13 and
13)Inspector Lalit Kumar PW14.
During the course of trial, accused Gurpeet Singh died and proceedings against him were abated on 2.3.2012.
After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. and all the incriminating evidence was put to him to which he denied and pleaded false implication. The accused was called upon to lead his defence evidence but he had chosen not to lead any evidence in his defence.
Learned trial Court, after appraisal of the evidence held the accused guilty under Section 364 IPC and sentence him to undergo imprisonment and fine as narrated above.
Feeling dissatisfied with the abovesaid judgment and order dated 30.3.2013 passed by Sh. Rajiv Kalra, Additional Sessions Judge, Pathankot, the accused appellant has preferred the present appeal.
BANITA CHUGH2014.09.10 16:35 I attest to the accuracy and integrity of this document chandigarh CRA No. S-1700 SB of 2013 -6-
Learned counsel for the appellant has submitted that no test identification parade was conducted. The identification of the accused for the first time in the Court cannot be the basis of conviction.
Learned counsel for the appellant has further submitted that according to the prosecution story demand of Rs.30 lacs was made by the accused. The complainant alongwith police party in civil dress went alongwith money at the agreed place. Two persons came to take the money. On seeking the police party, they attacked the police party. Rajinder Singh @ Vicky and Arun Masih were killed in that encounter and Head Constable received fire arm injuries. A separate offence under Section 307 IPC was registered against the present appellant and others. The accused have been acquitted in that case. So, it is submitted that accused be acquitted in the present case also.
Learned counsel for the appellant has further contended that as per the conviction slip, the appellant has already undergone incarceration for a period of 2 years, 11 months and 25 days, including remission of 2 months and 20 days, out of the substantive sentence of 5 years under Section 364 IPC. So, prayer has been made for taking a lenient view regarding quantum of sentence, keeping in view the sentence awarded to the other co-accused. To support this contention, learned counsel for the appellant has relied upon the authorities reported as Ajmer Singh vs. State of Haryana 2010 (3) SCC 746 and Harbans Singh vs. State of Uttar Pradesh and others (1982) 2 Supreme Court Cases 101.
Learned State counsel has supported the judgment of the BANITA CHUGH 2014.09.10 16:35 I attest to the accuracy and integrity of this document chandigarh CRA No. S-1700 SB of 2013 -7- trial Court.
I have considered the submission made by counsel for both the sides and have also gone through the record of the case.
So far as the submission made by counsel for the appellant that since the identification parade has not been conducted and on that account, the appellant is entitled to acquittal, is concerned, that submission is without any substance. Victim Raman Kumar, who has been kidnapped, has identified the appellant in the Court. There was no reason to discard his sworn testimony. Otherwise also, even according to the appellant the other two accused have been convicted in the present case.
Mere acquittal for offence under Section 307 IPC makes no case for acquittal in the present case. It is settled law that in a criminal case, the accused can be convicted only in case the offence is proved beyond reasonable doubt against the accused. In offence under Section 307 IPC the appellant was acquitted for lack of evidence. However, in the present case, the victim has identified the appellant. So, the conviction recorded by the trial Court under Section 364 IPC does not call for any interference and as such the same stands affirmed.
So far as argument advanced by counsel for the appellant that since the other two co-accused have been sentenced for a lessor period and as such the appellant is entitled to be treated in the same manner, is concerned, that submission is without any substance. This aspect of the case has been elaborately dealt with by the trial Court in BANITA CHUGH 2014.09.10 16:35 I attest to the accuracy and integrity of this document chandigarh CRA No. S-1700 SB of 2013 -8- paragraph No. 53 of the judgment. The accused in Sessions case No. 68 of 19.12.2006, was sentenced to undergo rigorous imprisonment for two years with fine of Rs.5,000/- on the ground that daughter of that accused was suffering from certain disease and nobody was in the family to look after her. The other co-accused Bodh Raj has made a voluntarily confessional statement. The present accused evaded the process of law and he remained proclaimed offender for a period of four years. Otherwise also, the allegation against the appellant is that he alongwith others has kidnapped Raman Kumar, victim and has demanded a ransom of Rs.30 lacs. So, the offence on the face of it falls within the ambit of Section 364-A IPC, but however, since the prosecution has not made any request for framing charge under Section 364-A IPC and has not filed any appeal for conviction of the appellant under Section 364-A IPC and as such the conviction of the appellant under Section 364 IPC, which is a lessor offence, stands maintained.
The case of the prosecution stands proved beyond reasonable doubt. Two accused namely, Rajinder Singh @ Vicky and Arun Masih have challenged the police party, when they came to take the amount of Rs.30 lacs at the agreed place. They were killed at the spot in cross firing. The victim was got released at that time. The victim has supported the case of the prosecution on all material particulars besides other witnesses. The sentence of 5 years on the facts of the present case cannot be stated to be excessive in any manner. So, far as authority in Harbans Singh's case (Supra) is concerned, the BANITA CHUGH 2014.09.10 16:35 I attest to the accuracy and integrity of this document chandigarh CRA No. S-1700 SB of 2013 -9- Hon'ble Apex Court in that case has held that similar situated accused to be treated in the same manner regarding awarding sentence of death. So, far as authority in Ajmer Singh's case (Supra) is concerned, that authority also does not help the case of the accused, rather helps the case of the prosecution. The ratio of the said judgment is that principle of parity in criminal cases apply where the case of the accused is similar in all aspects as that of co-accused. It was further observed in the said ruling that the other co-accused convicted under separate trial cannot claim parity. There must be single trial to claim the parity. The accused in Sessions case No. 68 was given lessor sentence as his daughter was suffering from certain disease and nobody was there in the family to look after her. So, the appellant cannot claim parity with the said accused as it is not the case of the appellant that his daughter is also suffering from any disease and moreover, he has admitted his fault. So, the principle of pre-bargain was available to that accused. The principle of pre- bargain was also available to Bodh Raj, accused, as he has also admitted his guilt at the very beginning. So, in view of the above discussion, no ground for interference in the quantum of sentence is also made out.
Consequently, the appeal is without any merit and the same stands dismissed.
( K.C. Puri ) 3.9.2014 Judge chugh BANITA CHUGH 2014.09.10 16:35 I attest to the accuracy and integrity of this document chandigarh