Punjab-Haryana High Court
Sunil Devnath vs State Of Haryana on 13 March, 2012
Bench: Jasbir Singh, Sabina
CRIMINAL APPEAL NO. 126-DB OF 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: March 13, 2012
Parties Name
Sunil Devnath
...APPELLANT.
VERSUS
State of Haryana
...RESPONDENT
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Mr. H.S. Jaswal,
Advocate, for the appellant.
Mr. Pardeep Singh Poonia, Addl. A.G., Haryana
Jasbir Singh, J.
JUDGMENT
Vide judgment dated January 11, 2007, appellant was convicted for commission of offences under Sections 364-A and 365 IPC. On January 12, 2007, he was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/- with a default clause for commission of an offence under Section 364-A IPC. He was also sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- with a default clause for commission of an offence under Section 365 IPC. Hence this CRIMINAL APPEAL NO. 126-DB OF 2007 -2- appeal.
It was an allegation against the appellant that on February 27, 2005, he kidnapped Anju, aged about 4 ½ years for ransom, secretly and wrongfully confined the child with an intention to kill her.
The process of law was set in motion on a statement Ex. PA made by PW4 Sunil Kumar (father of Anju) on March 3, 2005. His statement was recorded by ASI Balwan Singh at 8.20 PM on the above date. An FIR Ex. PB was recorded in Police Station Barwala at 8.30 PM on March 3, 2005, against the appellant - accused.
As per case of the prosecution, on March 3, 2005, PW4 Sunil Kumar submitted an application to the Investigating Officer (PW7). The trial Judge has noted the following facts from that application:
"Submitted that I Sunil Kumar son of Thambu Ram Caste Jat, am a resident of village Panihari, District Hisar. I have installed a Flour Mill at my house. I employed one boy whose name is Sunil Devnath, resident of village Madhav Nagar, Post Office Kali Bazar, District South Tripura as my servant on monthly wages of Rs. 400/-. That boy worked with me for about 8 months. I have one son and three daughters who used to play with him at my residence. On 25.2.2005 my servant Sunil asked me to settle his accounts as he wanted to go back to his native place. I told him to wait till 1st March so that I might arrange funds. On 27.2.2005 around 9 O'clock my daughter Anju aged about 4- ½ years and my servant Sunil Devnath were not seen at my home. I enquired from my wife and she CRIMINAL APPEAL NO. 126-DB OF 2007 -3- also told me that Anju and the servant had not been seen for quite sometime. I searched for my daughter and the servant in the village but could not find them. Karan Singh son of Lal Chand, caste Jat, resident of Kheri Jalan told me that my servant and daughter were seen by him at Bus Stand Panihari at 8.00 AM and that my daughter was holding the finger of the servant. Then I searched for my daughter and servant in many cities but could not find him. On 28.2.2005 at STD telephone No. 240920 of Chandi Ram, who is my neighbour, a telephonic ransom demand was received. Today 3.3.2005 one telephone was received at the same STD booth and the caller demanded Rs. 1.5 lacs and threatened to kill my daughter in case money was not paid. From the caller ID it was found that telephone was received from telephone No. 384526929500. The caller had also threatened to kill my daughter in case the matter was reported to the police. I have been searching for my daughter Anju and the servant at my own level but could not find them and now you are requested to take legal action in the matter."
The name and address of the appellant - accused was specifically mentioned. On March 8, 2005, PW4 along with ASI Balwan Singh (PW7) and other police officials reached South Tripura and contacted SHO concerned regarding the above occurrence. The appellant - accused was arrested on March 9, 2005 and the minor child Anju was recovered from his custody. The child was handed over to her father (PW4). The CRIMINAL APPEAL NO. 126-DB OF 2007 -4- appellant - accused was brought to Hisar after getting a transit remand. The Investigating Officer recorded statements of the witnesses and on completion of investigation, final report was put in Court.
Copies of the documents were supplied to the appellant as per norms. Vide order dated May 11, 2005, case was committed to the competent Court for trial. The appellant - accused was charge-sheeted for commission of offences under Sections 364-A and 365 IPC vide order dated August 24, 2005. The prosecution produced seven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellant - accused was recorded under Section 313 Cr.P.C. Incriminating material was put to him, which he denied , claimed innocence and false implication. Despite opportunity given, he did not lead any evidence in defence. The trial Judge on appraisal of evidence found him guilty and he was convicted and sentenced as mentioned in earlier part of this order.
Counsel for the appellant has vehemently contended that the appellant - accused has falsely been implicated in this case. He was working with Sunil Kumar (PW4) as a labourer. For the last about eight months, his wages were not paid. To avoid payment, he was falsely named in this case. He further argued that conviction under Section 364-A IPC is absolutely not justified. There is nothing on record to prove that any ransom was demanded by the appellant - accused. The call detail demanding ransom was not produced on record. Even owner of STD booth, where ransom calls were allegedly received was not joined in the investigation. He prayed that the appeal be allowed, impugned judgment CRIMINAL APPEAL NO. 126-DB OF 2007 -5- and order be set aside and the appellant be acquitted of the charges framed against him.
Prayer made has vehemently been opposed by the State counsel, who by making reference to the statements made by PW4 Sunil Kumar, PW2 Karan Singh, PW5 D. Chandra Datta, PW6 ASI Gopal Chakraborty and PW7 ASI Balwan Singh argued that the commission of offences by the appellant - accused under Sections 364-A and 365 IPC is proved on record. The minor child was recovered from South Tripura near to the residential place of the appellant - accused. The appellant - accused has demanded ransom by making telephone calls to the father of the child, PW4 Sunil Kumar. He prayed that the appeal having no substance be dismissed.
After hearing counsel for the parties, this Court is of the opinion that so far as commission of offence under Section 365 IPC is concerned, it stands fully proved on record. The girl child aged about 4 ½ years went missing from her house on February 27, 2005. Admittedly, the appellant - accused was working as a labourer with PW4. He was very thick with the children of the family. PW2 Karan Singh has seen the appellant - accused on February 27, 2005, at Bus Stand of village Panihari with Anju. Thereafter the child was not traceable. It is an admitted fact that ASI Balwan Singh (PW7) along with complainant and other police officials went to South Tripura, contacted SHO, Police Station Monu Bazar, district South Tripura. The police came into action. The appellant - accused was arrested on March 9, 2005. The minor child was also recovered from his custody. The appellant - accused was brought to Hisar on a Transit remand. CRIMINAL APPEAL NO. 126-DB OF 2007 -6-
The process of investigation at South Tripura has been narrated by PW5 D. Chandra Dutta, SHO, Police Station Monu Bazar. He has brought on record arrest memo, recovery memos etc. The process of investigation in Tripura State has further been authenticated by PW6 ASI Gopal Chakraborty who made entry in Police Station Monu Bazar, regarding arrival of a police party from the State of Haryana. He has also brought on record copy of entry made in general diary Ex. PM showing arrest of the appellant - accused by PW5 SI D. Chandra Dutta. The further process of investigation has been proved by ASI Balwan Singh (PW7). He has deposed in Court the manner in which statement of PW4 was recorded, how the police party reached South Tripura, arrested the accused and recovered the child. This witness has further deposed that the appellant - accused was brought to Hisar under orders of the Court and the child was handed over to PW4 as per norms.
In view of above evidence, commission of offence under Section 365 IPC by the appellant - accused stands fully proved on record.
So far as commission of offence under Section 364-A IPC is concerned, virtually there is no evidence on record to prove the same. The child went missing on February 27, 2005. In his statement Ex. PA, Sunil Kumar (PW4) has stated that he received a telephone call from the appellant
- accused, demanding ransom, on February 28, 2005. The call was received in STD booth at telephone No. 240920, owned by Chandi Ram, situated in village Panihari. Thereafter second call demanding ransom of Rs. 1.5 lacs was received in the above STD booth on March 3, 2005. As per ID caller installed in the STD booth, the call was received from telephone No. CRIMINAL APPEAL NO. 126-DB OF 2007 -7- 384526929500. The appellant - accused threatened PW4 Sunil Kumar that in case an amount of Rs. 1.5 lacs is not paid, he would kill his daughter. On getting above threat, complaint was made to the police, whereas to the contrary, in the witness-box , PW4 has stated that demand was raised for an amount of Rs. 1,00,000/- and not Rs. 1,50,000/-. He has further stated that second call was received from Patna. Except above statement made by PW4, there is nothing on record to prove that any demand for ransom was raised by the appellant - accused. Chandi Ram, at whose STD booth, both the calls were allegedly received, was not associated in the investigation. The Investigating Officer made no attempt to ascertain whether any such call was received or not. Detail of the telephone calls received was not requisitioned from the concerned company to know the above fact. As per statement made by PW7 ASI Balwan Singh, ID caller was not installed in the above STD booth. At no time, an attempt was made by the Investigating Officer to know as to who is the owner of telephone number mentioned by PW4 in his complaint. No police party was sent to Patna to verify that fact. In witness box, PW7 has specifically admitted that statement of the STD booth owner was not recorded by him. PW4's family consists of his wife, one son and three daughters. Had the intention of the appellant - accused been to demand ransom, he would have kidnapped son and not daughter of the family. As per statement made by PW4, the appellant - accused was working with him as a labourer for the last about eight months. On February 25, 2005, appellant asked PW4 to settle his accounts as he wanted to go back to his home. He was told to wait till 1st of March so that PW4 may arrange the money. It appears that there may be some dispute regarding CRIMINAL APPEAL NO. 126-DB OF 2007 -8- payment of labour charges to the appellant - accused and under some mistaken belief or anger, he has kidnapped the minor child. There is nothing on record to show that his intention was to demand ransom from PW4.
In view of above, this appeal is partly allowed, conviction and sentence awarded to the appellant under Section 364-A IPC are set aside. However, conviction and sentence awarded to him under Section 365 IPC are maintained. As per information available, since from the date of his arrest, i.e., March 9, 2005, the appellant is in jail. If he has undergone the requisite period of sentence awarded for commission of an offence under Section 365 IPC, he be set at liberty.
( Jasbir Singh ) Judge ( Sabina) Judge March 13 , 2012 DKC