Punjab-Haryana High Court
Kamal Singh vs State Of Punjab on 22 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.619-SB of 1997
Date of decision: 22nd February, 2010
Kamal Singh
... Appellant
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr.H.P.S. Rahi, Advocate for the appellant.
Mr. J.S. Bhullar, Assistant Advocate General, Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Kamal Singh son of Chattar Singh resident of village Badla, Police Station Hajipur, Tehsil Mukerian, District Hoshiarpur has instituted the present appeal challenging the judgment rendered by Additional Sessions Judge, Hoshiarpur dated 8th August, 1997, whereby the appellant was held guilty of offence under Section 364, 420 read with section 34 IPC. He was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 364 IPC. The appellant was further sentenced under Section 420 read with section 34 IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. All the sentences were ordered to run concurrently.
Criminal Appeal No.619-SB of 1997 2
Counsel for the State has filed affidavit of Baljinder Singh Gill, Superintendent, District Jail, Hoshiarpur and has submitted that the appellant has already undergone actual sentence of one year three months and one day out of the sentence awarded to him.
Surjeet Kumari complainant PW-2, along with Harbans Singh Lamberdar of the village, approached Jagtar Singh SI/SHO Police Station Hajipur on 3rd November, 1996 at 1.15 p.m. At that time, SI/SHO Jagtar Singh was present along with his companion police officials in connection with patrol duty at Link Road Sohra Kandi, Dasuya Hajipur Road. Surjeet Kumari made statement Ex.PB. The statement, when translated into English, reads as under:
"Stated that I am resident of Bambowal. About two years ago, I was married with Karanvir Singh resident of village Sohra Kandi and out of this wedlock from my womb, one son, who is now aged ten months, was born. Kamal Singh Salerian resident of Baladda and Raj Kumar son of Nanak Chand of my village used to often come to our house. They told to my husband Karanvir Singh that there is no use of slogging in India, we will take you to Saudi Arab. They got his passport prepared. On 22nd May, 1996, both the above said persons, giving inducement to my husband of taking him abroad, took him from home. Later on 2nd June, 1996 Raj Kumar came to our house and told that Karanvir Singh is lost in Bombay. Then my brother Sarabjit Singh and Onkar Singh Subedar resident of village Ittian, who had become god- brother of my husband, went to Bombay. They searched for Karanvir Singh but they could not find his whereabouts. We have been enquiring from various persons regarding Karanvir Singh but no clue has been found. I have a belief that the above said persons have murdered my husband Karanvir Singh, as he was in possession of Rs.10,000/- and a demand draft amounting to Rs.31,062/-. Today, I taking along Harbans Singh Lamberdar was going to the Police Station to lodge report, when you have met me. I have recorded my Criminal Appeal No.619-SB of 1997 3 statement. I have heard the same, which is correct. Action be taken."
A perusal of the above said FIR reveals that on 22nd May, 1996, Karanvir Singh, husband of the complainant left his house in the company of present appellant and one Raj Kumar, who has been declared as proclaimed offender. On the basis of statement Ex.PB, SI/SHO Jagtar Singh had appended endorsement Ex.PB/1 and the formal FIR Ex.PB/2 was registered.
Mr.H.P.S. Rahi, Advocate appearing for the appellant and Mr.J.S. Bhullar, Assistant Advocate General, Punjab, have stated that till today Karanvir Singh has not been found.
The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted against the accused. Raj Kumar co- accused was declared as proclaimed offender. The appellant was charged by the Court of Additional Sessions Judge, Hoshiarpur. The charge stated that the appellant along with Raj Kumar, proclaimed offender, had common intention that Karanvir Singh might be murdered and thereby he committed offence punishable under Section 364 IPC. Second charge stated that the appellant along with Raj Kumar in furtherance of common intention, had dishonestly cheated Karanvir Singh and induced him to deliver Rs.10,000/- in cash and a demand draft of Rs.31,062/- and thus, committed an offence punishable under Section 420 read with section 34 IPC. The appellant pleaded not guilty and claimed trial.
Prosecution examined C.L. Sambar, Assistant Manager, Punjab National Bank, Old Grain Market, Dasuya as PW-1. He produced the record regarding the demand draft issued. This witness stated that on 10th May, 1996, Karanvir Singh got prepared a draft for Rs.31,000/- and Rs.62/- were charged as bank charges. He proved Ex.PA as correct Criminal Appeal No.619-SB of 1997 4 photocopy of the draft and Ex.PA/1 as receipt. In cross examination, he stated that as per the record, Branch of Punjab National Bank, from where the draft was prepared had not received any intimation from Bombay regarding encashment of the draft in question.
Surjeet Kumari complainant appeared as PW-2. Examination in chief of this witness can be reproduced as under:-
"About three years back, I was married with Karamvir Singh. I know accused Kamal Singh present in the Court. I also know accused Raj Kumar, who is PO in this case. Raj Kumar belongs to our village. Both Kamal Singh and Raj Kumar used to come to our house. They asked my husband Karanvir Singh that he should get his passport prepared for going to foreign country. Accused got passport of Karanvir Singh issued from Passport Office.
On 22.5.1996, Kamal Singh and Raj Kumar took my husband from our village for sending him to foreign country. On 2.6.1996, Raj Kumar (since PO) came to our house and informed us that Karanvir Singh is missing from Bombay. Upon which my brother Sarbjit Singh and Onkar Singh Subedar resident of Itian, went to Bombay to search Karanvir Singh but he could not be found. Rs.10000/- in cash and a draft of Rs.31000/- was also with him. Neither we received the amount nor my husband had come back. I suspect that he may not have been killed by Kamal Singh accused and Raj Kumar accused, who is PO in this case.
On 3.11.1996, I along with Harbans Singh Lambardar went to inform the police. The police met us at bus stand Ransota where SI Jagtar Singh, SHO, PS Hajipur recorded my statement Ex.PB, which was read over to me and I signed the same in token of its correctness."
In cross examination, this witness stated that village of Kamal Singh appellant is at a distance of 4/5 kms away from the village of the witness. She had never gone to the house of appellant. She further stated that he used to frequently visit her house. Raj Kumar belonged to Criminal Appeal No.619-SB of 1997 5 Baradari of the witness. She further admitted that Raj Kumar had gone abroad and it was not in her knowledge that Raj Kumar was working as a Travel Agent. She further stated that Raj Kumar had told her on 2nd June, 1996 that he and Kamal Singh took Karanvir Singh to Bombay for sending him abroad, but he had been lost. She further stated that she had stated to the police that on 2nd June, 1996 Raj Kumar told her that he along with Kamal Singh accused took Karanvir Singh to Bombay for sending him abroad, where he had been lost. The witness was confronted with her statement Ex.PB, where this was not specifically mentioned. This witness further stated that Panchayats were collected 7/8 times and the accused kept making promises for 4/5 months about the return of Karanvir Singh. The suggestions put to the witness were denied.
Satya Devi mother of Karanvir Singh, appeared as PW-3 and corroborated the testimony of Surjeet Kumari complainant PW-2. This witness, in cross examination, stated that Panchayat was convened and police had also come to the Panchayat. She further stated that police had taken away Kamal Singh accused. The accused took time from them and thereafter, accused was released by the police. After 15 days, again they went to the Police Station. Kamal Singh accused was called by the police there. Again he was released after inquiry.
Sarwan Singh appeared as PW-4. He deposed that he knew the accused present in Court. On 22nd May, 1996, he had gone to Mukerian to purchase grocery. In Mukerian Bazar, Karanvir Singh, Raj Kumar and Kamal Singh appellant met him. On asking Karanvir Singh told that Raj Kumar and Kamal Singh accused are sending him to Saudi Arab. In cross examination, this witness stated that Karanvir Singh was son-in-law of his mother's sister.
Criminal Appeal No.619-SB of 1997 6
Surinder Kumar Draftsman appeared as PW-5. He had prepared a site plan Ex.PC.
Jagtar Singh SI PW-6 proved recording of statement Ex.PB of Surjeet Kumari complainant, registration of the formal FIR Ex.PB/2 and preparation of rough site plan Ex.PD. This witness further stated that on 7th November, 1996, he had arrested present appellant.
Thereafter, prosecution closed its evidence. The appellant denied all the incriminating circumstances and pleaded false implication. No witness was examined in defence.
From prosecution evidence, following two incriminating circumstances have surfaced against the appellant:
(a) Surjeet Kumari complainant PW-2 and Satya Devi PW-3 have stated that on 22nd May, 1996 Kamal Singh appellant and Raj Kumar took Karanvir Singh from his house in the village, on the pretext of sending him abroad. On the same day, Kamal Singh appellant and Raj Kumar were seen along with Karanvir Singh by Swaran Singh PW-4 in Mukerian Bazar.
(b) On 2nd June, 1996, Raj Kumar co-
accused, proclaimed offender, came to the house of Surjeet Kumari complainant PW-2 and stated that Karanvir Singh had accompanied him and Kamal Singh appellant, and was lost at Bombay.
Mr.H.P.S. Rahi, Advocate appearing for the appellant, has made following three submissions:
Criminal Appeal No.619-SB of 1997 7
(i) It is not discernible from the prosecution evidence that when Karanvir Singh husband of the complainant accompanied the accused, there was an intention to commit his murder or liquidate him.
(ii) It has only surfaced in the statement made by co-accused Raj Kumar that Karanvir Singh had accompanied him and the present appellant. It is submitted that any admission made by Raj Kumar co-
accused cannot be used against the appellant.
(iii) Lastly, it has been submitted that on 2nd May, 1996, Karanvir Singh had left with the present appellant and was seen in the Mukerian Bazar, therefore, mere 'last seen' will not fasten the present appellant with liability of offence of abduction.
Counsel for the appellant has relied upon 'Upendra Nath Ghose v. Emperor' 42 Cr.L.J. 1941 285. In the case of Upendra Nath Ghose (supra) Abala had accompanied Upendra. Upendra had come to the house of Abala and had taken her along. A Division Bench of Calcutta High Court observed as under:
"To establish an offence punishable under s. 364, I.P.C., it must be proved that the person charged with the offence had the intention at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered. In this case, the prosecution had to prove that Upendra at the time when he took away the girl Abala, had this particular Criminal Appeal No.619-SB of 1997 8 intention. Now this element of the offence was not properly placed before the jury. The learned Judge nowhere told the jury that they must be satisfied that this was the state of mind of Upendra at the time of the alleged abduction. He should have told them that they could not find, Upendra guilty unless there was evidence to establish beyond all doubt that at the time he took Abala from her house he had the intention that she should be murdered or be put in danger of being murdered. Now what are the circumstances proved in this case ? The evidence given on behalf of the prosecution is that on Friday, Upendra asked the girl's mother to come with him to witness the festivities at his house and that it was only after the mother had refused that Upendra suggested that the girl should come with him. This is a circumstance which negatives the case that Upendra had at that time any intention to have the girl murdered or to put her in danger of being murdered."
In case of Upendra Nath Ghose (supra) a dead body was recovered but it could not be conclusively proved that the dead body was of Abala. In these circumstances, it was further observed as under:
"Now, in this case unless it is proved that Abala has been murdered, there is nothing whatsoever to show that the motive for abducting her was to murder her or put her in danger of being murdered: and the only evidence given to prove that she has been murdered is the evidence that the skeleton was that of Abala. The learned Judge was therefore quite wrong in telling the jury that it was not essential to prove beyond doubt that the body was the body of Abala."
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"We do not think, that the circumstances proved in this case can lead to the conclusion that the girl was murdered by Upendra. They are capable of many reasonable explanations which would be consistent with his innocence. We are, however, not concerned at present with the charge of murder inasmuch as the jury have found Upendra not guilty of that Criminal Appeal No.619-SB of 1997 9 charge. As regards the charge under s. 364, I.P.C., it seems to us that the circumstances established are very far from establishing it. No motive has been shown as to why Upendra should want to abduct the girl in order to get her murdered; it would be ridiculous to assume that he intended to murder her in order to get possession of five gold madulis which are of not much value and which he could have secured without adopting this elaborate method. No circumstance has been proved which would indicate that Upendra wanted to murder the girl or get her murdered at or before the time that he took her away. If all the circumstances sought to be proved are accepted as having been proved it raises at most a suspicion that Upendra had taken away the girl for some improper purpose. They are certainly not sufficient to establish a charge under s. 364, I.P.C.
This prosecution is one of the many instances in which we have found that the provisions of s. 364 I.P.C., have been misused. When the case for the prosecution is that the person abducted has been murdered by the abductor there can be no scope for a charge under this Section. The abductor should be charged with murder pure and simple. We have noticed however in such cases where the evidence to establish the charge of murder is weak or inconclusive the prosecution is prone to adopt this device of adding or preferring a charge under s. 364, I.P.C. in the hope that a jury which may hesitate to find the accused guilty of murder on such slender evidence may be induced to find against him on the lesser charge. We need hardly point out the unfairness and impropriety, to use no stronger term, of this procedure and we are determined so far as lies in our power to stop this abuse of the provisions of s. 364, I.P.C. It was the duty of the learned Judge in this case to refuse to frame a charge under this Section. We find that there is really no evidence to bring home this charge to the appellant and we accordingly set aside the order of conviction and sentence and acquit him. He shall be released forthwith."Criminal Appeal No.619-SB of 1997 10
Counsel for the appellant has further submitted that the draft of Rs.31000/- was not encashed and to say that for Rs.10000/-, the present appellant had abducted Karanvir Singh is not probable. It has come in evidence that the appellant along with Raj Kumar co-accused used to frequently visit the house of Karanvir Singh. They were on friendly terms. Karanvir Singh had left the house along with the present appellant and Raj Kumar co-accused. Learned counsel has further submitted that possibility cannot be ruled out that from Mukerian, Karanvir Singh left alone. There can be many possibilities. There is no evidence with the prosecution that when the accused came to the house of Karanvir Singh, he had any intention to abduct Karanvir Singh for committing his murder. Further reliance has been placed upon 'Tondi and others v. The State of U.P.' 1975-(081)-CRLJ-0950-ALL, wherein a Single Judge of Allahabad High Court observed as under:
"11. The question, therefore, arises whether the evidence on record is sufficient to warrant a conviction under Section 364, I.P.C. Section 364, I.P.C. runs as follows:-
'Whether kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in damage of being murdered, shall be punished with imprisonment for life ........... and shall also be liable to fine.'
12. After a careful scrutiny of the evidence on the record I do not find any reliable evidence to show that Parasram was abducted so that he might be murdered. The prosecution case as mentioned above is to the effect that Parasram was deceived to the extent that a marriage was proposed to be settled by the accused-appellants. It was on this representation that he made arrangements for funds and thereafter proceeded for a marriage. To establish a charge of abduction in order to murder, when the case is one of abduction by deceitful means, it is not enough for the prosecution merely to prove certain circumstances under which the abducted person was induced to go, nor even to Criminal Appeal No.619-SB of 1997 11 prove a misrepresentation. The prosecution has to prove firstly that there was a misrepresentation and secondly, that that particular misrepresentation was a plan to murder and thirdly that it was the plan by which the abducted person was himself deceived and was induced to go. From a careful scrutiny of the evidence on record, I find that there is no evidence to indicate that the alleged misrepresentation was the result of a plan to murder Parasram. In the absence of reliable evidence on this question, I am of the opinion that the appellant cannot be held guilty of the charge under Section 364, Indian Penal Code. In this very connection reference may be made to a decision reported in Upendra Nath Ghosh v. Emperor, AIR 1940 Cal 561. In that case it has been held that:-
'To establish an offence punishable under Section 364, it must be proved that the person charged with the offence had the intention at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered.' I am in respectful agreement with the decision of the Calcutta case. There is again nothing on the record to indicate that the accused-appellants had the intention at the time they made a so-called deceitful misrepresentation that Parasram should be murdered or would be so disposed of as to be in danger of being murdered. In this view of the matter, it is not possible to uphold the conviction of the accused-appellants."
Further reliance has been placed upon 'Alla Rakha v.
Emperor' 28 Criminal Law Journal (1927) 758. Counsel for the appellant has also relied upon 'In re. Veerana Kone' 40 Criminal Law Journal (1939) 849, wherein it was observed as under:
"The conviction under s. 364, Indian Penal Code, cannot be supported. There is no evidence of the commission of this offence except the statement Ex.K made by the appellant to the Sub-Inspector of Police. I cannot Criminal Appeal No.619-SB of 1997 12 agree with the learned Sessions Judge that the whole of this statement was admissible under s. 27, Evidence Act. The preamble in which the appellant alleges that accused Nos. 2 and 3 instigated him to take the deceased to the hills in order that he might be murdered cannot be said to have any relation to the discovery of the corpse in the borehole latrines. The sole evidence relevant under s.364 is that of P.W. No.4 who merely says that the appellant accompanied her son when he was going to Vellaikundram. I therefore set aside the conviction under s. 364, Indian Penal Code, and the sentence of ten years' rigorous imprisonment. It is quite possible - indeed highly probable - that the accused did kidnap the deceased, but there is no legal evidence of it and therefore this appeal must be allowed in regard to that offence. The convictions under ss. 201 and 202, Indian Penal Code, are correct. The sentences are not excessive; they are confirmed."
In the present case also, sole evidence which emerges against the appellant is that the complainant Surjeet Kumari PW-2 and Satya Devi PW-3 say that appellant had accompanied Karanvir Singh. The alleged admission made by co-accused Raj Kumar proclaimed offender, cannot be relied against the appellant. Therefore, case of In re. Veerana Kone (supra) applies on all force.
Abduction has been defined under Section 362 IPC. It states that whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Section 364 IPC states that whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished under Section 364 IPC.
When Karanvir Singh accompanied the present appellant, there was no intention to murder or to put him in danger of being Criminal Appeal No.619-SB of 1997 13 murdered. Even the complainant PW-2 Surjeet Kumari had only raised suspicion. In the case of circumstantial evidence, prosecution must complete the chain that no other inference can be drawn, except that the accused is guilty of the offence. As stated earlier, from the evidence of 'last seen', it is not conclusively established that the appellant had accompanied Karanvir Singh in order to murder him or to put him in danger of being murdered. Therefore, ingredients of the offence are lacking and the conviction of the appellant for offence under Section 364 IPC cannot be sustained.
Hence, present appeal is accepted, conviction and sentence awarded upon the appellant is set aside and he is acquitted of the charges.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 22, 2010 rps