Punjab-Haryana High Court
Dev Raj vs State Of Haryana on 20 January, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Naresh Kumar Sanghi
Criminal Appeal No. 437-DB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH
Criminal Appeal No. 437-DB of 2007
Date of Decision: 20th January, 2012
Dev Raj ..Appellant
Versus
State of Haryana ..Respondent
Criminal Appeal No. 442-DB of 2007
Jagga ..Appellant
Versus
State of Haryana ..Respondent
Criminal Appeal No. 693-DB of 2007
Satyawan @ Lila ..Appellant
Versus
State of Haryana ..Respondent
and
Criminal Appeal No. 712-DB of 2007
Jagtar Singh and others ..Appellants
Versus
State of Haryana ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Ms. Pooja Chopra, Advocate
for the appellant ( Criminal Appeal No. 437-DB of 2007)
Mr. Vaneet Soni, Advocate
for the appellant (Criminal Appeal No. 442-DB of 2007)
Mr. Harsh Bungar, Advocate
for appellant Satyawan ((Criminal Appeal No. 693 DB of 2007)
Mr. R.N.Kush, Advocate
for remaining appellants (Criminal Appeal No. 712-DB of 2007)
Mr. S.S.Randhawa, Additional Advocate General,
Haryana, for the respondent-State.
Criminal Appeal No. 437-DB of 2007 2
RAJIVE BHALLA, J.
By way of this judgment, we shall dispose of four appeals, i.e., Criminal Appeal Nos.437, 442, 693 and 712-DB of 2007 as they arise out of the same impugned judgment and order dated 10.4.2007 and 13.4.2007, respectively passed by the Additional Sessions Judge, Fatehabad.
The appellants have been convicted by the Additional Sessions Judge, Fatehabad vide judgment dated 10.4.2007, under sections 364-A read with section 34 and section 506 of the Indian Penal Code. The appellants have been sentenced vide order dated 13.4.2007, to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/-each, under section 364-A of the Indian Penal Code. In default of payment of fine, to further undergo rigorous imprisonment for three months each. The appellants have also been sentenced to undergo rigorous imprisonment for three months each, under sections 323 read with section 34 and section 506 of the Indian penal Code. All sentences have been ordered to run concurrently.
Jagdish Singh, PW 5, the complainant, made a statement at 2.30 P.M., on 13.3.2002 at Police Station, Tohana, that his sons Labh Singh and Jagdev Singh, aged 18 and 16 years, respectively, and their cousin Sanjay son of Gurdeep Singh, student of class-I, aged 7-8 years, study in Sharda Montessory School in classes 10th and 7th, respectively. On 13.3.2002 Sanjay returned from school at 2.30 P.M., and told him that, two persons arrived in the school at about 10.30 A.M., and have taken away Johny @ Jagdev Singh, on a scooter. Jagdish Singh and his brother Gurdeep Singh rushed to Criminal Appeal No. 437-DB of 2007 3 the school and enquired from the teacher Jaswinder Kaur and Sulakshna, a Clerk, about the whereabouts of Johny @ Jagdev Singh. The teachers informed them that at about 10.30 A.M., two unknown persons came to the school. One of them, remained standing near a scooter, parked in the street, whereas the other one entered the school and made a request that as Labh Singh's father has suffered injuries, Labh Singh has been called back home. She allowed Johny @ Jagdev Singh to leave with this person. Jagdish Singh informed the police that he apprehended that his son has been kidnapped with an intention to kill him. The statement led to the registration of an FIR No. 71 dated 13.3.2002 at Police station City Tohana, under sections 364, 364-A, 342, 323 and 506/34 IPC.
Dharam Singh, Inspector, and Jagdish Singh, along with other police officials, reached the school. Sulakshna and Jaswinder Kaur were questioned. They reiterated their statement made to Jagdish Singh and also described the features of the alleged kidnappers. The Investigating Officer prepared a site plan, Ex. P14, and began investigation. On the next day, investigation was handed over to Dalbir Singh, the Station House Officer, who received information that the appellants are hiding in a tubewell of one Ram Kumar Saini at Jamalpur road, where they have detained Johny @ Jagdev Singh. The police party, accompanied by Jagdish Singh, reached the tubewell of Ram Kumar Saini and over heard the appellants conversing that if Johny's father does pay Rs.10 lac, they will kill him (Johny). The police party raided the kotha and apprehended the appellants. Johny @ Jagdev Singh was recovered Criminal Appeal No. 437-DB of 2007 4 from a pit, inside a room. Rajesh Kumar, photographer, who was called to the spot to photograph the place of recovery. The police took possession of a bucket, a khurpa, a plastic bag, a plastic sheet and pieces of bricks. A rough site plan of the place of recovery was prepared and the statements of the witnesses were recorded. Johny @ Jagdev Singh was medico-legally examined by Dr. Satish Garg of General Hospital. The case property was deposited with the moharrir head constable on 15.3.2002. Dalbir Singh, SHO, moved an application for conduct of an identification parade of the accused Jagtar and Dev Raj before the Sub Divisional Magistrate, Tohana, but Jagtar Singh refused to participate in the identification parade. On 16.3.2002 Dharam Chand, SI, visited village Ram Pura and recovered scooter bearing registration no. PB-11G-4203.
Upon completion of other formalities, challan was presented before the Sub Divisional Judicial Magistrate, Tohana, who committed the case to the court of Session for trial.
The Additional Sessions Judge, Fatehabad, framed charges under sections 364, 323 read with section 34 and 506 of the Indian Penal Code. As the appellants pleaded not guilty and claimed trial, the prosecution was directed to lead evidence.
The prosecution has examined PW 1 Dr. Satish Garg, who medico-legally examined Johny @ Jagdev Singh on 14.3.2002 and found two abrasions on his person and has deposed that Johny @ Jagdev Singh complained of pain in the cervical region of the spine.
PW 2 Girish Kumar, Draftsman, has deposed with respect to preparation of the site plan, Ex. P4.
Criminal Appeal No. 437-DB of 2007 5
PW 3 Constable Janak Ram has deposed that he forwarded the FIR to the Ilaqa Magistrate and other higher police officers.
PW4 Shri Pardeep Kumar, Chief Judicial Magistrate,Tohana, has deposed that an application, Ex.P3, was filed before him for conduct of a test identification parade of Jagtar Singh @ Tari, but as the latter refused, the application was rejected.
PW 5 Jagdish Singh, complainant, father of Johny @ Jagdev Singh, has deposed with respect to the lodging of the complaint and other material particulars, including the raid by the police, the arrest of the appellants and the recovery of Johny. He has, however, candidly admitted that he did not receive any demand for ransom or any threat that Johny would be killed if demand for ransom is not met.
PW 6 Sulakshna, is a Secretary in Sharda Montessory School, Tohana. She has deposed that at about 10.30 A.M., Jaswinder Kaur, a teacher of Maths and Social Studies, came to her office and told her that some one has come to take Johny. Upon enquiry, this person stated that as Johny's father had suffered a head injury, Johny has been called home. His father is being brought home on a tractor trolley and he has to take Johny upto the railway crossing gate. She believed his statement and allowed him to take Johny with him. She identified the persons, who came to the school as Jagtar @ Tori and Dev Raj, appellants.
PW 7 Johny @ Jagdev Singh, the victim of the kidnapping, apart from corroborating the statement made by PW 6 Sulakshna, has testified that he was brought out of the school. Dev Raj Criminal Appeal No. 437-DB of 2007 6 appellant, was already standing near a scooter. He knew Dev Raj as he is a co-villager and a labourer. He was directed to sit between the two on scooter and driven towards Ratia road. About a KM, later, he realised that he has been kidnapped and therefore, raised an alarm, but the person sitting behind him gagged his mouth and put a blanket over him. He was taken to the field near a tubewell room where Satyawan, Jagga, and Suresh appellants were also present. They locked him in a room meant for storing fodder. They, thereafter, took him to another room, which contained a motor. The appellants then dug a pit in the fodder room and at about 1.30 A.M.; brought him back to the fodder room. He was asked to get into the pit but as he started crying, Jagtar Singh and Dev Raj pushed him into the pit and threatened him that his father would have to pay Rs.10 lac for his release. He asked the appellants to let him to talk to his father, but they replied that they would talk to his father themselves. He pleaded that he should be allowed to come out of the pit, but to no avail. He was rescued at about 1.00/1.15 P.M. and the appellants were apprehended. He identified the appellants in court as the persons who kidnapped him, confined him and deposed that he knew their names as they were calling out each other's name in his presence. He also deposed that he received injuries when he was thrown into the pit.
PW 8 Sube Singh, Inspector, completed the investigation and filed a report under section 173 of the Code of Criminal Procedure.
PW 9 Gurdeep Singh, a cousin of Jagdish Singh, has Criminal Appeal No. 437-DB of 2007 7 corroborated the latter's statement and identified the appellants.
PW 10 Dharam Chand, Inspector, has corroborated the statement of PW 5 Jagdish Singh and has deposed about the rescue of Johny and the arrest of the appellants. He has also deposed that he over-heard the appellants conversing that if Johny's father gives Rs.10 lacs, they would release him, otherwise, kill him.
PW 11 Shri Dalbir Singh, DSP, the Investigating Officer of the case.
PW 12 Rohtash Kumar @ Rajesh is the photographer, who photographed the place where Johny @ Jagdev Singh was confined.
Upon conclusion of prosecution evidence, the incriminating circumstances appearing in the evidence, were put to the appellants. They denied their involvement and pleaded false implication. Dev Raj appellant pleaded that the complainant wanted to purchase a house which he had purchased from one Jagan. The complainant was pressurising him to cancel the purchase and has, therefore, falsely implicated him.
After considering the evidence on record and arguments addressed by the Public Prosecutor and the defence, the trial court held that the prosecution has proved its case beyond reasonable doubt and, therefore, convicted and sentenced the appellants.
Counsel for the appellants submits that the prosecution story is inherently unbelievable. As admitted by the complainant, two of his sons are studying in the school. If the story of the teachers is to be believed, then both children, i.e., Johny and Labh Singh, his elder brother, should have been allowed to go home. PW 6 Criminal Appeal No. 437-DB of 2007 8 Sulakshna, a Secretary in the school, has not produced any visitors' register or record, to establish that one of the appellants entered the school. It is surprising that a child has been allowed to walk out of the school with a stranger without an entry in any register. It appears that the child slipped out of school, and when this fact was discovered, a story of kidnapping was cooked up so as to save the family from embarrassment. It is further submitted that if the appellants had kidnapped the child for ransom, in that case they would have been in possession of weapons and the mobile phones . As no weapons or cell phones were recovered from the appellants, it proves the falsity of the prosecution story. It is further submitted that as Jagdish Singh, complainant, PW 5, has admitted that he did not receive any demand for a ransom or any threat to kill the child, the offence under section 364-A of the Indian Penal Code is not made out. Even if the prosecution story is accepted, the absence of any evidence of a demand for ransom accompanied by a threat to kill or cause hurt, does not constitute an offence under section 364- A or 364 of the Indian Penal Code. The story set up by the police that before they recovered the child, they over heard the appellants conversing that they would kill the child if they were not paid Rs.10 lac, is a crude attempt by the police to concoct evidence. Even otherwise, as the statement did not lead to the commission of an offence, the appellants cannot be convicted under sections 364 or 364-A of the Indian Penal Code. The depositions by PW 9 Gurdeep Singh, PW 10 Dharam Chand, Inspector and PW 11 Dalbir Singh, DSP, the Investigating Officer, about having over heard the Criminal Appeal No. 437-DB of 2007 9 appellants conversing amongst themselves with respect to a demand for ransom, are concocted, as they are not aware as to who spoke these words and Johny @ Jagdev Singh who was with the appellants, has not deposed that the appellants made any such statement.
Counsel for the State of Haryana, however, submits that the prosecution has established its case in its entirety. The child was recovered from inside a pit, while he was in the custody of the appellants, thereby clearly establishing that they had kidnapped him, The arrest of the appellants at the spot and recovery of the child from their possession, has been established by adducing clear and cogent evidence. The appellants who took the child from the school, have been identified by the teacher and the Secretary of the school and by Johny @ Jagdev Singh. The appellants were apprehended from the spot and, therefore, cannot plead that they have been falsely implicated in the case. The story that the child may have skipped school and a false story of kidnapping was cooked up to avoid embarrassment is too far fetched. It is argued that as the child was threatened with death and as the witnesses heard the appellants threatening to kill him, in case their demand for ransom is not met, the offence under section 364-A of the Indian Penal Code is fully made out.
We have heard counsel for the parties; perused the impugned judgment and order passed by the trial court and appraised the entire record. The case in hand arises from the kidnapping of Johny @ Jagdev Singh. The witnesses produced by Criminal Appeal No. 437-DB of 2007 10 the prosecution to prove the kidnapping are - PW 6 Sulakshna, a Secretary in Sharda Montessory School, Tohana, PW Jaswinder Kaur, Math and SS, a teacher, (given up as unnecessary) and PW 7Johny @ Jagdev Singh. The other evidence relates to the recovery of the child from the possession of the appellants.
PW 6 Sulakshna, has deposed that on 13.3.2002, at about 10.30 A.M. Jaswinder Kaur, Math and SS teacher, informed her that some one has come to take Johny @ Jagdev Singh home. On enquiry from this person, she was informed that as Johnny's father has met with an accident and suffered a head injury, Johny has to be taken home. She has also deposed that she asked him where he would take Johny. This person replied that Johny's father is being transported to hospital in a trolley and he has to take Johny upto the railway crossing gate. She telephoned at Johny's house but no one answered her call. She called Johny @ Jagdev Singh and allowed him to go with this person. She noticed that another person was standing outside the school, with a scooter. Ms. Sulakshna identified Jagtar Singh as the same person who entered the school and took Johny out of the school. In her detailed cross-examination, the defence has failed to elicit any response that would discredit her deposition. Therefore, the other teacher, Jaswinder Kaur, has not been examined. PW 7 Johny @ Jagdev Singh has deposed that he was present in the school when Ram Kumar, a driver of the school bus, asked him to go to the room of Sulakshna, Secretary of the school. He entered the room and saw a person standing with Sulakshna and Jaswinder Kaur. The teachers told him that this Criminal Appeal No. 437-DB of 2007 11 person has come to take him to home as his father has suffered a head injury. Johny identified the person, who entered the school as the person wearing a sweater and a black cap, i.e, Jagtar Singh @ Tori, appellant. He has also deposed that when they came out of the school, he saw Dev Raj, standing near the scooter. He was made to sit between the two, on the scooter and driven to Ratia road. After they travelled a kilometer, he realised that he has been kidnapped and raised an alarm. Dev Raj gagged his mouth and covered him with a blanket. He was taken to a field near a tubewell room. Three other persons Satyawan, Jagga and Suresh were present. Johny @ Jagdev Singh, identified them in the court. He further deposed that he was taken to a room meant for storing fodder and kept there till mid night. After he was given meals, he was shifted to a tubewell room and kept there. Satyawan remained on guard. The accused dug a pit in the fodder room and at about 2.30 A.M., brought him back to the fodder room and asked him to get into the pit. As he started crying, accused Satyawan, Jagga and Suresh pushed him into the pit and stated that he would only be released if his father pays Rs.10 lac. He has further deposed that he asked the appellants to let him talk to his father as his father will pay the money, but the appellants stated that they alone would talk to his father. Despite repeated requests, he was not allowed to come out of the pit and was threatened. He was rescued on the next day at about 1/1.15 P.M. and the appellants were arrested at the spot. He has deposed that he became aware of the names of the appellants as they were calling out each other by these names. This witness Criminal Appeal No. 437-DB of 2007 12 was subjected about a detailed cross-examination, but remained firm while deposing about the essentials of his kidnapping; his confinement in a pit, the identity of the appellants; and all other relevant facts. The depositions of these witnesses, in our considered opinion are sufficient to establish that the appellants kidnapped Johny @ Jagdev Singh and confined him, as alleged by the prosecution.
The kidnapping finds further corroboration from the statement of Jagdish Singh, father of Johny @ Jagdev Singh, PW 5, Gurdeep Singh son of Puran Singh, brother of Jagdish Singh, PW 9, Dharam Chand, Inspector, PW 10, Shri Dalbir Singh, DSP, Crime Branch, Madhuban, Karnal, PW 11, who have deposed in unison that a secret informer gave information that the appellants have confined Johny @ Jagdev Singh at the tubewell of Ram Kumar Saini, at Jamalpur road. The informer pointed out the tubewell and as they approached the tubewell, they heard some one saying that if Johny's father gives them a sum of Rs.10 lac, they will release him, otherwise, they will kill him. The police surrounded the tubewell, apprehended the appellants and recovered Johny @ Jagdev Singh, from a pit in the fodder room. The appellants were arrested at the spot and the place of occurrence was photographed. These witnesses have identified the appellants as the persons who were arrested from the tubewell. The depositions of these witnesses clearly establish that Johny was kidnapped and confined by he appellants in a pit. The fact that the child was taken from the school on a pretext that his father had suffered a head injury, was confined Criminal Appeal No. 437-DB of 2007 13 in a fodder room, thereafter in the tubewell room and then pushed into a pit, to prevent him from escaping; the recovery of Johny from the pit, arrest of the appellants from the spot and their identification in the court by prosecution witnesses, in our considered opinion, establish the offence of kidnapping in its entirety The only point that remains is whether the prosecution has been able to establish whether an offence was committed under section 364-A of the Indian Penal Code. The trial court has convicted the appellants under section 364-A of the Indian Penal Code and sentenced them to life imprisonment under section 364-A of the Indian Penal Code.
Section 363 of the Indian Penal Code provides a punishment of seven years if a person is kidnapped from lawful guardianship whereas section 364 of the Indian Penal Code provides imprisonment for life or rigorous imprisonment for a term which may be extended to10 years to a person who kidnaps or abducts any person in order that such person may be murdered or may be so disposed as to be put in danger of being murdered. Section 364-A of the Indian Penal Code titled as Kidnapping for ransom etc. postulates that whoever kidnaps or abducts any person or keeps a person in detention and threatens to cause death or hurt to such person, or by his conduct give rise to a reasonable apprehension that such person may be put to death etc. for ransom shall be punished by death or imprisonment for life and shall be liable to pay fine. Section 365 of the Indian Penal Code provides for punishment of kidnapping or abducting with intent secretly and wrongfully to Criminal Appeal No. 437-DB of 2007 14 confine person.
We are conscious of our obligation to deal firmly with offences relating to kidnapping for ransom, but are also conscious of our obligation to ensure that where the offence is not made out or a different offence is made out the accused, howsoever, reprehensible his conduct, must receive punishment in accordance with his offence and not in accordance with probabilities or possibilities of what may or may not have happened if the accused had not been apprehended.
An offence under section 364-A of the Indian Penal Code, requires the prosecution to prove that the offender demanded ransom and threatened to cause death or hurt, to the kidnapped person or by his conduct gave rise to a reasonable apprehension that such person may be put to death or hurt, if his demand for ransom is not met. Apart from the ingredients of kidnapping, the prosecution is required to prove (a) a demand for ransom; (b) a threat to cause death or hurt and (c ) or a conduct that gives rise to a reasonable apprehension that such person may be put to death or hurt.
A detailed perusal of the deposition of prosecution witnesses reveals that, apart from Johny @ Jagdev Singh, none of the prosecution witnesses has deposed about a demand for ransom. PW 5 Jagdish Singh, father of the child, and other witnesses, have admitted that they did not receive any telephone call or message in any form or manner demanding ransom. However, in the depositions of witnesses, who were present at the Criminal Appeal No. 437-DB of 2007 15 time of the police raid which led to the recovery of the child, a reference appears as to a demand for ransom. PW5 Jagdish Singh, PW9 Gurdeep Singh, brother of the complainant, PW 10 Dharam Chand and PW 11 Dalbir Singh, DSP, have deposed that as they approached the tubewell where the kidnapped boy was confined, they over heard the appellants conversing that in case ransom of Rs.10 lac is not paid, they would kill Johny @ Jagdev Singh. We have perused these statements and have no hesitation in holding that this part of the statement is a crude attempt, by the prosecution to foist a demand of ransom and a threat to cause death so as to place the offence under sections 364 or 364-A of the Indian Penal Code. The prosecution witnesses have not identified the appellants who spoke these words and even otherwise, their depositions on this alleged demand for ransom, do not inspire confidence. The deposition of the kidnapped child Johny @ Jagdev Singh, however, does make a reference to a ransom as he has deposed that he was threatened by the appellants that they would release him only if his father pays Rs.10 lac whereupon, he asked the appellants to let him talk to his father as his father would pay the money. The reference to a ransom, in the statement made to Johny @ Jagdev Singh, in our considered opinion, is sufficient to raise an inference that the appellant kidnapped the child for ransom. The question that remains is whether the prosecution has established the other ingredients of section 364-A of the Indian Penal Code, namely, threat to kill or cause hurt or by conduct, give rise to a reasonable apprehension that the kidnapped persons would be put to death or hurt. Criminal Appeal No. 437-DB of 2007 16
The prosecution has not proved that the kidnapped child was threatened with death or hurt or the conduct of the appellant was such as to give rise to a reasonable apprehension that they would put the child to death. The mere fact that the child was confined in a room and thereafter pushed into the pit, would not raise an inference that the appellants intended to put him to death or cause hurt, as required under section 364-A of the Indian Penal Code. The deposition by Johny @ Jagdev Singh does not disclose any such threat, conduct, or statement that would give rise to an apprehension that he would be put to death or hurt if the demand for ransom is not met. The medical examination of the child has not disclosed any injury that would indicate beating or torture. Injuries on his person are simple and were apparently sustained when he was pushed into the pit. The mere fact that Johny was kidnapped and confined in a pit, in our considered opinion, does not fulfil the ingredients of section 364-A of the Indian Penal Code.
We would now consider under what provision of the Indian Penal Code does the offence fall. For an offence to fall under section 364 of the Indian Penal Code, there must be an intention to murder or put the kidnapped person to danger of murder. We have perused the evidence on record and find no evidence to suggest that Johny @ Jagdev Singh was kidnapped with an intention to murder him. We are, therefore, of the opinion that though the appellants are guilty of an offence of kidnapping, their offence does not fall under sections 364 or 364-A of the Indian Penal Code. The offence, in our considered opinion, falls within the mischief of Section 365 of the Criminal Appeal No. 437-DB of 2007 17 Indian Penal Code, which provides punishment for kidnapping or abducting with intent secretly and wrongfully to confine any person. The appellants kidnapped Johny @ Jagdev Singh and confine him in a pit and, therefore, guilty of the offence punishable under section 365 of the Indian Penal Code.
Consequently, while dismissing the appeal, we modify the judgment of the trial court and convict the appellants under section 365 read with section 34 of the Indian Penal Code and sentence each of them to undergo seven years' rigorous imprisonment under section 365 of the Indian Penal Code. The appellants shall pay a fine of Rs.5000/-each. In default of payment of fine, they shall undergo a further imprisonment for one year each. The remaining sentence awarded under sections 323 read with section 34 and 506 of the Indian Penal Code, shall remain unchanged.
( RAJIVE BHALLA )
JUDGE
( NARESH KUMAR SANGHI )
20th
January, 2012 JUDGE
VK