Punjab-Haryana High Court
Dilbagh Singh And Others vs State Of Haryana on 22 August, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal appeal No. S-471-SB of 2001
Date of decision: 22.8.2014
Dilbagh Singh and others ....Appellants
vs.
State of Haryana ....Respondent
CORAM: - HON'BLE MR. JUSTICE HEMANT GUPTA
Present: - Mr. Naveen Mahajan, Advocate for
for the appellants.
Ms. Shubhra Singh, DAG, Haryana.
.....
HEMANT GUPTA, J (Oral)
Challenge in the present appeal is to an order dated 1.3.2001, convicting and sentencing the appellants for the offence under Section 364 and 34 of the Indian Penal Code (IPC) to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 1000/- each.
Brief facts of the case are that a report No. 23 was lodged by Akhraj on 20.12.1999 in respect of missing of his grandson Dheeraj Kumar son of Raj Kumar. Akhraj-complainant made a statement Ex. P.A. As per his statement, Dheeraj Kumar, aged 8 years was studying in 2nd standard, Sarswati School, Ellenabad. It was pointed out that on 20.12.1999, at about 6.30 p.m Dheeraj Kumar had gone in the street in front of the house for urination but did not return even after 10-15 minutes. However, the whereabouts of Dheeraj Kumar could not be known after searching PREETI 2014.08.26 11:04 I attest to the accuracy and integrity of this document Chandigarh Criminal appeal No. S-471-SB of 2001 -2- in the neighborhood. At about 8.15 p.m. they lodged a report in respect of missing of Dheeraj Kumar. Apprehension was expressed that Dheeraj Kumar might have kidnapped with the intention to kill him. The complainant-Akhraj in his statement (Ex-P.A) disclosed the identification of the boy and about the clothes which he was wearing at the time of kidnapping. A ruqa (Ex. PA/1) was sent to the police station, whereupon a formal FIR (Ex. PA/2) was lodged. On 21.12.1999, the complainant along with the other police officials made search of his grand son Dheeraj Kumar. When they reached near the Neem Ki Dhani on the Ghaggar Nali bridge, Dheeraj Kumar was found tied with an iron chain in the bushes. Dheeraj Kumar was taken into custody and was identified by the complainant. Dilbagh Singh one of the accused was arrested from the place, where the child was found. One bed containing two quits, one blanket, one chain, one kirpan was also taken into possession vide recovery memo (Ex PC). Custody of Dheeraj Kumar was handed over to grand father vide memo Ex. PD. From the place of occurrence one empty plastic bottle of liquor was also taken into possession vide recovery memo Ex. PC. During the course of investigation, Dilbagh Singh disclosed that he along with Jagtar Singh has kidnapped Dheeraj Kumar. It was on 29.12.1999 the other accused Jagtar Singh made a disclosure statement that he lifted Dheeraj Kumar from Ellenabad on 20.12.1999. On the basis of disclosure statement, one bicycle and one axe were recovered which were lying in Tooriwala Kotha. In another disclosure statement (Ex PK), suffered by Jagtar Singh, he Criminal appeal No. S-471-SB of 2001 -3- identified the place of kidnapping and also got recovered the bicycle and axe vide recovery memo (Ex. PL).
On completion of the investigation, report under Section 173 of the Criminal Procedure Code, 1973 (for short 'Cr. P.C') was filed. Both the accused were charged for the offence punishable under Section 364 read with Section 34 of the IPC. The prosecution in support of its case examined Dheeraj Kumar as PW1 aged 8 years after being satisfied that the child was competent witness to be examined. He identified both the accused and deposed that both of them took him in the jungle and after kidnapping him from the street in front of his house. The child was recovered from the custody of the accused Dilbhag Singh in the presence of PW-2 Akhraj- grandfather. Police also proved the recovery of articles i.e. bed (Ex. P1), chain (Ex. P2), lock (Ex. P3), kirpan (Ex. P4) from the site in his presence and also the Axe and bicycle (Exs. P5 and P6). Prosecution in support of their case also examined PW3 Mohan Lal, PW4 Sat Narain, SI and PW5 Madan Lal and PW6 Chhabil Das respectively.
In the statement recorded under Section 313, Cr. P.C., appellants denied the allegations levelled against them. Dilbag Singh- accused raised a plea that he has been implicated falsely on the instance of Sohan Singh-Ex-Sarpanch. The stand of the accused-Jagtar Singh was that he used to wear kirpan being an Amrit Dhari Sikh. The said kirpan was allegedly removed by the police and he has been falsely implicated in the present case.
Criminal appeal No. S-471-SB of 2001 -4- Learned trial Court found that FIR (Ex. PA/2) was lodged on 21.12.1999 at about 10.35 a.m., after the child was missing on 20.12.1999. The Court found delay of 16 hours in lodging the FIR as inconsequential as the complainant earlier lodged a rapat No. 23 dated 20.12.1999 regarding missing of the child and the fact that the family members were making an attempt to find out the boy, thereafter lodged the report.
PW-1 Dheeraj Kumar has made a categorical statement that two sikh gentlemen shut his mouth when he was in the street. Both took him in a jungle and kept in the bushes. Two quilts were brought there and he was made to sit there. After about four hours, the police came along with his grandfather-Akhraj. PW-2 Akhraj supported the prosecution story. The child was recovered from Neem Ki Dhani on the Ghaggar Nali Bridge and also recovered iron chain, quilts, one blanket, one shawl, one sword, one empty bottle of whisky, one iron chain and one lock. The Court found that the testimony of the child aged 8 years is that of a reliable witness and that he has identified both the accused. The Court also found that the accused has failed show that there was any enmity with the complainant or had any other reason to implicate them in the present case. The child was recovered on the very next day of kidnapping and there was a threat for the life of the child. The Court concluded that the prosecution has led the flawless evidence and has clearly established the manner in which the accused had kidnapped the child with an intention to murder, whereas the child was recovered from the Criminal appeal No. S-471-SB of 2001 -5- site and there is a direct evidence to show the motive for which the child was kidnapped.
The accused were admitted to bail on 25.7.2001. I find that the ground taken is that no identification parade was conducted by the prosecution qua Jagtar Singh despite the fact that he was not present at the site on the day of recovery of the child and that FIR was lodged after a delay of 16 hours and the prosecution has failed to prove the motive behind the incident.
Learned trial Court has recorded the cogent reasons to hold delay of 16 hours in lodging of the FIR. As a matter of fact, rapat No. 23 was lodged by the grandfather on the day i.e. 20.12.1999 when the child went missing at about 6.30 a.m. It is normal for the family members to search for the missing person firstly in the neighborhood at some places. The fact that child was recovered on the next day in the company of Dilbagh Singh, one of the accused along with many articles shows that the allegation against them stands proved. The recovery of quilts and beds corroborates the testimony of PW1-Dheeraj Kumar, aged 8 years. There is no reason that the child of such tender age would try to implicated the present appellants. There is no motive for him to depose against the appellants. He has identified both the accused. The holding of the test identification parade is not relevant in the present case as the child has identified both the accused in court. The child was recovered in the presence of the grand father who Criminal appeal No. S-471-SB of 2001 -6- has appeared as PW2- Akhraj and deposed that Dilbagh Singh was found with the child at the place of occurrence.
In view thereof, I do not find any error apparent in the judgment of conviction and order of sentence dated 1.3.2001 passed by the learned trial Court.
Dismissed.
(HEMANT GUPTA) JUDGE 22.8.2014 preeti