Punjab-Haryana High Court
Dinesh Kumar @ Montu vs State Of Punjab on 10 August, 2011
Crl. Appeal No. 753 DB of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 753 DB of 2006
Date of decision: August 10, 2011
Dinesh Kumar @ Montu
...Appellant
Versus
State of Punjab
...Respondent
CORAM:- HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE GURDEV SINGH
Present: Mr. Aseem Rai, Advocate,
for the appellant.
Mr. Suvir Sehgal, Additional Advocate General,
Punjab.
1. To be referred to the Reporter or not ?
2. Whether the judgment should be reported in the Digest ?
GURDEV SINGH, J.
1. The appellant/accused, Dinesh Kumar @ Montu son of Jai Pal, has preferred this appeal against the judgment dated 6.6.2006 passed by the Sessions Judge, Fatehgarh Sahib, vide which he was convicted for the offences under Sections 302, 364-A and 120-B IPC and was sentenced as under:-
Section Sentence Fine In default 302 IPC Life ` 10,000/- RI for one year imprisonment 364A IPC Life ` 10,000/- RI for one year imprisonment 120-B Life for ` 10,000/- RI for one year imprisonment Crl. Appeal No. 753 DB of 2006 2
2. Briefly stated, the prosecution case is that Gurdial Singh, complainant, (PW-4) had five daughters but no son and he had adopted Nishan Singh deceased son of one of his married daughter, Sukhwinder Kaur. His 5th daughter Deepika Rani (PW-5) was still unmarried and had been residing with him. On 19.9.2003, he had sold one of his properties for ` 8 lakh, vide sale deed dated PW12/A. On 14.10.2003 at about 5/5.30 p.m. the deceased, who was about 13 years old, went out of the house to play and thereafter never came back. The complainant and the other family members searched for him in the houses of their neighbours but he could not be traced. At about 9.30 p.m. a telephone call was received by Deepika Rani from telephone No. 500388. The caller told them that their child was with them and asked for a ransom of ` 2 lakh. All the family members with the help of neighbours and relatives searched for the deceased but he could not be found. Thereafter, the complainant went to the Police Station, Mandi Gobindgarh and got lodged FIR Ex. PE/2, which was recorded by Ajaib Singh, ASI (PW-15), who conducted the initial investigation. He went to the place of occurrence and after inspecting the same prepared rough site plan Ex. PW15/A with correct marginal notes and recorded the statements of the witnesses. The subsequent investigation was conducted by Amarjit Singh, Inspector (PW-17). During the investigation, it was found that the telephone from where call for ransom was made by the kidnapper was installed in the PCO of Satpal (PW-3). On 19.10.2003, he was joined in the investigation by the SHO, who had received an information that Vinod Rai and Surjit Rai were present at the Railway Station, Gobindgarh. The SHO, accompanied by the other police officials and Satpal, went to that place and that Satpal identified both those accused as the same persons, who had come Crl. Appeal No. 753 DB of 2006 3 to his PCO for making the call. During the interrogation by the SHO, it was disclosed by Vinod Rai-accused that he had conspired with Surjit Rai and in pursuance of that conspiracy kidnapped the deceased from outside of his house on 14.10.2003 at about 4/4.30 p.m. and took him to Bhakra canal, where his arms were held by Surjit Rai and he, after strangulating him to death, threw his dead body in the bushes about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement, the accused got recovered the dead body of the deceased, which was duly identified by Gurdial Singh. The same was taken into possession, vide memo Ex. PW9/C. When Surjit Rai was interrogated by the SHO, he suffered a disclosure statement Ex. PW9/D that Vinod Rai had taken the deceased on a bi-cycle and that bi-cycle has been kept by him and could get the same recovered. In pursuance of that disclosure statement that accused got recovered that bi-cycle make 'Hero jet' from the tenanted quarter of Dinesh accused. That bi-cycle was taken into possession, vide memo Ex. PW9/E. The SHO prepared the inquest report Ex. PC in respect of the dead body of the deceased and sent the same to Civil Hospital, Fatehgarh Sahib, for post-mortem examination, alongwith his application Ex. PB. That dead body was produced before Dr. Parshottam Dass (PW-2) on 20.10.2003, who found the same to be highly putrefied. He referred the dead body to Forensic Expert, Rajindera Hospital, Patiala, by making his endorsement Ex. PB/2 on the application Ex. PB. On the same day, autopsy was conducted on the dead body by a Board of Doctors, consisting of Dr. S.S. Oberoi (PW-1) and Dr. Amardeep Singh. A ligature mark was found around the neck and it was opined by the doctors that the cause of death was asphyxia due to ligature strangulation, which was ante-mortem in nature. Crl. Appeal No. 753 DB of 2006 4 On that very day, the SHO recorded the statement of Narinder Kumar (PW-
18) under Section 161 of Cr.P.C. In that statement, he stated that on that date itself at about 10 a.m. he was standing in front of Civil Hospital, Gobindgarh, in connection of his personal work when a boy; named, Dinesh Kumar, who was very nervous, came to him and told him that he had very close friendly relation with Surjit Rai, who was a tenant of Gurdial Singh. He further told him that it was disclosed by Surjit Rai that Gurdial Singh had sold his plot a few days back for ` 8 lakh and that information had been collected by him from his son Nishan Singh. Dinesh Kumar further told him that thereafter both of them conspired with Vinod Rai for kidnapping Nishan Singh and making a demand of ` 2 lakh from Gurdial Singh as ransom and that for executing that plan, they fixed date as 14.10.2003. After making that plan for kidnapping of Nishan Singh, when he would be playing, he told his co-accused that they should take away Nishan Singh after kidnapping and they accordingly took him on their bi-cycle and he started waiting for them in Guru Nanak colony near PCO of Satpal. Dinesh Kumar further told him that at about 9.15/9.30 p.m., both those accused came to him and disclosed that after kidnapping Nishan Singh, they had thrown his dead body in the bushes on the left side of Sirhind canal/floating restaurant. Thereafter, all three of them made a telephone call from the PCO of Satpal to Gurdial Singh and made a demand of ` 2 lakh and that thereafter bi-cycle was given to him by his co-accused, which was taken by him to his house. He made a request to this witness Narinder Kumar to produce him before the police but he asked him to bring the other accused with him and then he would produce them before the court. On 22.10.2003, the SHO arrested Dinesh Kumar accused. In the course of investigation, the Crl. Appeal No. 753 DB of 2006 5 statements of other witnesses were recorded and the map on scale Ex. PW13/A was got prepared from Gurmail Singh, Halqa Patwari (PW-13). After completion of the investigation, the challan was put in before the JMIC, Amloh, against Dinesh Kumar accused only, as the other accused were found juveniles and the challan against them was presented before the Juvenile Justice Board. The JMIC committed the the case to the Court of Session, vide his order dated 30.1.2004, on the ground that the offences were exclusively triable by that Court.
3. On appearance of the accused, in the Court, mandatory provisions of Section 207 of Cr.P.C. were complied with by supplying him the copies of the documents sent alongwith the police report and relied upon by the prosecution. From the perusal of those documents and after hearing PP for the State and the accused in person, the learned Sessions Judge found sufficient grounds for presuming that the accused committed offences punishable under Section 364A, 302 and 120B IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial.
4. To prove the guilt of the accused, the prosecution examined Dr. S.S. Oberoi, (PW-1), Dr. Parshottam Dass (PW-2), Sat Pal (PW-3), Gurdial Singh, complainant (PW-4), Deepika Rani (PW-5), Devinder Singh, (PW-
6), Gurcharan Kaur (PW-7), Vinod Kumar (PW-8), Tara Singh, ASI (PW-
9), Vipan Kumar (PW-10), Bachan Singh (PW-11), Sukhjinder Singh (PW-
12), Gurmail Singh, Patwari Halqa (PW-13), Gurcharan Singh, (PW-14), Ajaib Singh, ASI (PW-15), Bhag Singh (PW-16), Amarjit Singh,Inspector (PW-17) and Narinder Kumar (PW-18).
5. After the closure of the prosecution evidence, the accused was examined by the trial court and his statement was recorded under Section Crl. Appeal No. 753 DB of 2006 6 313 of the Cr.P.C.. All the incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence and false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence.
6. We have heard learned counsel for both the sides.
7. Learned defence counsel assailed the conviction and sentence of the accused recorded by the trial court. He submitted that the evidence produced by the prosecution points towards the guilt of Vinod Rai and Surjit Rai accused and there is not an iota of admissible evidence against the present accused. No direct evidence has been produced by the prosecution. It has failed to prove the circumstances alleged against the accused. Sat Pal (PW-3) was examined by the prosecution for proving that this accused accompanied by the other accused came to his PCO on 14.10.2003 and made a call. During his cross-examination, he stated that he cannot identify the present accused. Therefore, it cannot be held that this accused had ever gone to the PCO of this witness to make such a call. Vinod Kumar (PW-8) has deposed only to the effect that on 14.10.2003, this accused had come to Surjit Rai. It is not his statement that the accused was ever seen with the deceased just before his death. The dead body of the deceased is stated to have been recovered in pursuance of the disclosure statement of Vinod Rai accused, but he never stated that this accused was with him in the commission of the crime. The prosecution tried to project one of the circumstance that bi-cycle, on which the deceased was kidnapped, was recovered from the tenanted quarter of this accused, but according to Amarjit Singh, Inspector (PW-17) who proved the disclosure statement of Crl. Appeal No. 753 DB of 2006 7 Surjit Rai, in pursuance of which that bi-cycle was recovered, stated that this bi-cycle was got recovered by Surjit Rai from his own house. The main evidence against the present accused was the extra-judicial confession alleged to have been made before Narinder Kumar (PW-18), but that witness never supported the prosecution case in the Court and he was duly discredited by the Public Prosecutor himself by cross-examining him after getting him declared hostile from the Court. In these circumstances, the conviction and sentence so recorded by the trial court cannot be sustained and is liable to be set aside.
8. On the other hand, it has been submitted by the learned State counsel that from the statements of Gurdial Singh (PW-4), Deepika Rani (PW-5) and Gurcharan Kaur (PW-7), it stands proved that Nishan Singh deceased had been adopted by Gurdial Singh, who was kidnapped on 14.10.2003, when he was playing outside his house and that on the same day, a telephone call was received from the PCO of Satpal and the caller had made a demand for ransom of ` 2 lakh. No doubt, the prosecution had not produced any direct evidence for proving the guilt of the accused, but the trial court concluded that fact from the following circumstances which were proved by leading cogent and convincing evidence:-
(i) On the day when deceased was kidnapped, while he was playing with Surjit Rai, the present accused had come to meet Surjit Rai.
(ii) Just 15 days before the date of present occurrence Gurdial Singh complainant had sold his property for ` 8 lakh, vide sale deed Ex. PW12/A.
(iii) The accused had accompanied Surjit Rai and Vinod Rai Crl. Appeal No. 753 DB of 2006 8 to the PCO of Sat Pal from where telephone call was made at the house of the complainant in which the demand for ransom of ` 2 lakh was made.
(iv) Surjit Rai in pursuance of his disclosure statement before the SHO got recovered the bi-cycle which was used for carrying the deceased from the tenanted house of the accused.
(v) The accused made an extra-judicial confession before Narinder Kumar (PW-18) that he and the other co-
accused conspired to kidnap the deceased and committed his murder.
9. All these circumstances exclude the hypothesis of the innocence of the accused. It can easily be inferred from these circumstances that the present accused alongwith his co-accused kidnapped the deceased and committed his murder.
10. The prosecution story in the court was unfolded by Gurdial Singh complainant (PW-4), on whose statement FIR Ex. PE/2 was recorded. He stated that he has five daughters and no son and had adopted Nishan Singh son of his daughter Sukhwinder Kaur, who was 13 years old. On 14.10.2003, at about 5/5.30 p.m. Nishan Singh had gone out for playing and thereafter he did not return back. At 9.30 p.m. one telephone call was received from telephone No. 257670, which was received by his daughter Deepika and the caller disclosed that their son was with them and made a demand of ` 2 lakh as ransom. He also stated that 15-20 days before the present occurrence, he had sold his plot for ` 8 lakh to Dhiman factory owner. The statement of the complainant about the adoption of Nishan Crl. Appeal No. 753 DB of 2006 9 Singh and his kidnapping on 14.10.2003 and receipt of the telephone call from telephone No. 257670, making a demand of ` 2 lakh ransom amount, has been fully supported by his wife Gurcharan Kaur (PW-7) and daughter Deepika Rani (PW-5). Learned defence counsel has not assailed their statements and from that evidence, it stands proved beyond any shadow of doubt that Nishan Singh was kidnapped from outside his house on 14.10.2003 and on the same day at 9.30 p.m. a telephone call was received from telephone No. 257670 and the caller had raised a demand of ransom of ` 2 lakh. The statement of the complainant that just 15-20 days before the present occurrence, he had sold his plot for ` 8 lakh stood corroborated by the statement of Sukhjinder Singh, Tehsildar (PW-12) who had registered the sale deed Ex. PW12/A, vide which that plot was sold.
11. Gurdial Singh (PW-4) did not state that Ghaniya father of Surjit Rai accused was one of his tenants and that fact was proved in the court by Vinod Kumar (PW-8). He stated that Gurdial Singh constructed several quarters which were given on rent and Ghanya Lal father of Surjit Rai had been residing in one of those quarters. That witness has also made a statement about one of the above enumerated circumstances. He stated that on 14.10.2003, at about 5.30 p.m. Surjit Rai and Nishan Singh were playing in front of his shop when Dinesh Kumar accused came to that place and after talking with Surjit Rai went away.
12. According to Bachan Singh (PW-11), who is an acquaintance of Gurcharan Singh, brother of Gharachan Kaur (PW-7), also stated that Nishan Singh was adopted by Gurcharan Kaur and was living with him. About two years back, at about 5 p.m., when he was coming from Morinda to Gobindgarh Sahib and reached near the petrol pump situated near Crl. Appeal No. 753 DB of 2006 10 floating restaurant, Bhakra Canal, he saw Vinod Rai taking Nishan Singh on a bi-cycle, who was sitting on the rod thereof and Jit Rai was sitting on the carrier of that bi-cycle and they were coming towards Bhakra canal. It was on 16.10.2003 that he came to know that Nishan Singh had been kidnapped for a ransom amount of ` 2 lakh.
13. When Vinod Kumar (PW-8) saw Nishan Singh and Surjit Rai playing at Gobindgarh at 5.30 p.m. there was no question of both of them having been spotted with Jit Rai, after kidnapping at 5.pm. It becomes very much clear from the statement of Bachan Singh (PW-11) that he is a made up witness and no reliance can be placed upon his testimony. At the time his statement was recorded only Dinesh Kumar was standing his trial and was present in the Court and he was identified by this witness as Jit Rai. It is not the case of the prosecution that this accused himself had kidnapped Nishan Singh and was sitting on the bi-cycle when Nishan Singh was being removed towards Bhakra canal. Therefore, it cannot be held that the prosecution has been able to prove the circumstance that Surjit Rai alongiwth Jit Rai were seen while removing the deceased on the bi-cycle towards Bhakra canal.
14. The main incriminating circumstance put forth against the present accused is that on 14.10.2003 at about 9.30 p.m. he alongwith his co-accused made a call from telephone No. 257670 from the PCO of Satpal (PW-3), at the telephone No. 500388 installed in the house of the complainant and raised a demand for ransom of ` 2 lakh for releasing Nishan Singh from their custody, after he had been kidnapped by them. About these facts Satpal (PW-3) made a statement in the court. Deepika Rani (PW-5) received the telephone call and she categorically stated that the Crl. Appeal No. 753 DB of 2006 11 caller had told that Nishan Singh was with them and that they had made demand of ` 2 lakh. Her statement was corroborated by Gurdial Singh (PW-
4) and Gurcharan Kaur (PW-7). The question to be determined is, whether that call was made by the present accused ? Satpal (PW-3) during his examination-in-chief stated that on 14.10.2003 at about 9.35 p.m., three persons came to his PCO and out of them two came inside and told that they wanted to make a telephone call and asked him to wait outside as they wanted to talk in private. Those persons made a call at telephone No. 500388 about which receipt Ex. PB was computerized. He also stated that Dinesh Kumar, who was present in the Court, when his statement was recorded, was one of those three persons, who had gone inside the PCO to make the telephone call. But during his cross-examination, he stated that he cannot identify the accused, who was present in the Court. He has gone to the extent of deposing that he can identify the other persons who had made the payment and in case the present accused is produced alongwith those persons he can identify this accused also. A perusal of his cross- examination makes it very much clear that he was not in a position to identify the accused independently and he was to see the other accused before identifying him. In such circumstances, it cannot held that he duly identified Dinesh Kumar as one of the persons who had made call at telephone No. 500388 from his PCO.
15. The only other circumstance alleged against the present accused by the prosecution was that he made an extra-judicial confession before Narinder Kumar (PW-18). That witness did not support the prosecution case in the Court. He stated that on 15.10.2003 at about 10 a.m. Dinesh Kumar accused came to him in a perturbed condition and told him that he Crl. Appeal No. 753 DB of 2006 12 had committed a mistake. That accused further stated that he had a friend residing at Amolh Road, Mandi Gobindgarh as a tenant and the landlord of that friend had sold a plot for consideration and that they kidnapped the son of that landlord and demanded from him ransom to the tune of ` 2 lakh and that they murdered his child. Faced with the situation that the witness was not supporting the prosecution case, the Public Prosecutor made a request to the trial court and got him declared hostile. Thereafter, he was allowed to put those questions which could have been put during cross-examination. Thereafter, he admitted that he had made his statement before the police on 20.10.2003 at 1 a.m. in which he had stated that Dinesh Kumar had a friend named Surjit Rai, who was a tenant of Gurdial Singh on Amloh Road, Mandi Gobindgarh and Vinod Rai had close relation with him and that house was sold by Gurdial Singh for ` 8 lakh about which information was given by his adopted son Nishan Singh. However, he did not admit the other facts stated by him in his statement under Section 161 Cr.P.C. Ex. PW18/A. He was discredited and discarded by the Public Prosecutor by duly confronting with different portions of his statement recorded under Section 161 Cr.P.C. It cannot be said that any part of his statement supports the case of the prosecution that the present accused made an extra-judicial confession before him that he, alongwith his co-accused, entered into a criminal conspiracy for kidnapping Nishan Singh for ransom and that in pursuance of that criminal conspiracy Nishan Singh was kidnapped by the other accused. Therefore, this statement of the witness is not of any use to the prosecution. Thus, the prosecution has failed to prove that any such extra-judicial confession was made by the accused before Narinder Kumar (PW-18).
Crl. Appeal No. 753 DB of 2006 13
16. Moreover, no evidence has been produced by the prosecution on the basis of which it may be held that there was any occasion for Dinesh Kumar accused to approach this witness and to make any such extra-judicial confession. It is most unnatural that an accused would make a confession before a stranger who was not to be of any help to him at any stage. This extra-judicial confession does not fit in the main story of the prosecution and rather runs counter to the same. As per the prosecution version, confessional statement was made by Vinod Rai accused that it was he and Surjit Rai accused who kidnapped Nishan Singh for ransom and committed his murder. Similar statement of Surjit Rai accused was also recorded. during the investigation and in that statement he stated that he himself and Vinod Rai kidnapped Nishan Singh. But none of them named the present accused Dinesh Kumar. Though the learned State counsel has tried to assert that it was the brain of Dinesh Kumar which was behind this crime, yet there is no trustworthy evidence produced by the prosecution for proving that fact. It has failed to prove the above discussed circumstances by convincing evidence; nor it can be said that the chain of the circumstances is complete so as to lead to the conclusion that it was the present accused who conspired with the other accused and in pursuance of that criminal conspiracy Nishan Singh was kidnapped for ransom and was murdered.
17. In the result, this appeal is hereby accepted. The conviction and sentence of the accused is set aside. The fine, if already deposited, be refunded to him.
(M.M. KUMAR) (GURDEV SINGH )
JUDGE JUDGE
August 10, 2011
prem
Crl. Appeal No. 753 DB of 2006 14