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2000 DIGILAW 934 (PNJ)

Dhian Singh v. State Of Punjab

2000-08-17

V.K.BALI

body2000
Judgment V.K.Bali, J. 1. This revision has been directed against order of conviction and sentence recorded by the Additional Chief Judicial Magistrate, Kapurthala dated January 23, 1988 vide which petitioners, Dhian Singh and his wife Darshan Kaur was held guilty for offences under Sections 365/323/34 IPC and sentenced to undergo RI for two years and to pay fine of Rs. 2000/- each, or in default thereof to further undergo RI for six months, under Section 365 IPC. They were also sentenced to undergo RI for six months under Section 323 read with Section 34 IPC. All the sentences were, however, ordered to run concurrently. The appeal that came to be preferred against order of conviction and sentence, as referred to above, was dismissed by learned Additional Sessions Judge, Kapurthala, vide order dated September 24, 1988. 2. Prosecution of the petitioners is based on the facts that Ranbir Kaur, aged 18 years, daughter of Joginder Singh, was residing in village Ibban in the house of her maternal grand-father. The house of the petitioner was in the neighbourhood and there used to be some dispute between the parties on the question of smoke which came out from the hearth of the petitioners and the complainant and other members of the family objected to it. On May 3, 1985 at about 4 P.M., Ranbir Kaur and her friend Manjit Kaur came to their house from the fields and when they were near the house of petitioners, they were found standing in the door of their house. The petitioner Darshan Kaur caught hold of Ranbir Kaur from her hand and on the instigation of petitioner Dhian Singh, Ranbir Kaur was dragged inside the house by Darshan Kaur petitioner. Dhian Singh also stated that she would be taught a lesson for picking up quarrels. Ranbir Kaur was pulled in the house of petitioners. Darshan Kaur then gave teeth bite on the left cheek of Ranbir Kaur, who fell down and then she was given injuries with Sota on other parts of the body by Dhian Singh. Ranbir Kaur raised hue and cry and this attracted Nasib Kaur and Dial Singh, who got the door opened and rescued Ranbir Kaur. She was medically examined by Dr. Deepak Sanan and matter was subsequently reported to the police. 3. Ranbir Kaur raised hue and cry and this attracted Nasib Kaur and Dial Singh, who got the door opened and rescued Ranbir Kaur. She was medically examined by Dr. Deepak Sanan and matter was subsequently reported to the police. 3. In its endeavour to bring home the offence against the petitioners, prosecution examined PW1 Hari Krishan Lal Bhalla, draftsman as PW1, who only stated that on June 20, 1985, he prepared scaled plan Ex.PA at the instance of Ranbir Kaur with correct marginal notes. Ranbir Kaur, injured witness, was examined as PW2. She deposed in tune with the FIR that came to be lodged, reference whereof has already been given above. In her cross-examination, she admitted that prior to the occurrence in question, they used to exchange abuses over smoke and that they had been asking Darshan Kaur to put her hearth some where else since three months prior to the occurrence. She further stated that she along with others was aggrieved from the smoke of hearth as the ashes from smoke used to fall on them. She further stated that Dhian Singh was on leave in those days but she did not know his station of posting at the relevant time. She, however, admitted that he was a military personnel. She further stated that when Manjit raised an alarm, petitioners started dragging her and at that time they were in the street and no body came there. Petitioners were sitting in the courtyard of their house and main gate was open. She admitted that they had exchanged abuses at that time but changed it by saying that petitioners only had abused her. The lane, in which the petitioners were standing, had only two houses, one belonging to the petitioners and the other to them. She further stated that she was going to her house when the petitioners dragged her to their house in the small lane. She admitted that petitioners had opened a door in their lane forcibly and that they had fixed a Parnala on the wall of their house forcibly and that they wanted that petitioners should close their door at also Parnala. She, however, denied the suggestion that she had quarrelled with Darshan Kaur only and it is during this scuffle that she had received injuries in the main street. 4. Dr. She, however, denied the suggestion that she had quarrelled with Darshan Kaur only and it is during this scuffle that she had received injuries in the main street. 4. Dr. Deepak Sanan, PW3 stated that on May 3, 1985 he had medically examined Gurmit Kaur d/o Joginder Singh and had found following injuries :- (i) Semi-circular abrasion with multiple teeth mark 2.5 cm x .25 cm on the left cheek raddish contusion 2.5 cm x 3 cm on the left cheek with overlying three abrasions 0.5, 1 cm 0.75 cm in length. This contusion also covered semi-circular abrasions. (ii) Reddish contusion 6 cm x 4 cm over the right scapula region, 5 cm from the right inferior angle of scapula. (iii) Abrasions 13 cm x 4 cm on the posterior aspect of right arm, 4 cm from the right elbow joint. (iv) There was diffuse swelling of left gluteal region with overlying reddish vertical contusion 21 cm x 3 cm extending from anus to the left anterior superior illac spine. (v) There was diffuse swelling covering area of 14x8 cm with reddish vertical contusion 12 cm x 2 cm on the postero-lateral aspect of left thigh 16 cm above the left knee joint. 5. Injury Nos. 1 was kept under observation but later it was declared as simple. Remaining injuries were also simple in nature. Probable duration of injuries was within 24 hours. Dial Singh was examined as PW4. He stated that on May 3, 1985 at about 4 PM he was present in his house along with his wife Nasib Kaur when he heard the noise from the house of Dhian Singh. They then went to the house of petitioners. The door of the house of petitioners was closed. He gave a knock at the door of the house of petitioners, whereupon Dhian Singh petitioner open the door. He was armed with a Sota at that time. They saw that Darshan Kaur had caught hold of Rani in front of kitchen of their house. He then rescued her from the petitioners and took her to the house of Ajit Singh. In cross-examination, he stated that Pappu PW had met them on the spot when they reached there and that Ranbir Kaur was sitting in the courtyard of house of Dhian Singh. PW5 Manjit Kaur supported the prosecution version. He then rescued her from the petitioners and took her to the house of Ajit Singh. In cross-examination, he stated that Pappu PW had met them on the spot when they reached there and that Ranbir Kaur was sitting in the courtyard of house of Dhian Singh. PW5 Manjit Kaur supported the prosecution version. In her cross-examination, she stated that she had not seen the petitioners giving injuries to Ranbir Kaur and that part of her statement given in the examination-in-chief was wrong. She further stated that she had not returned at the spot after running away being afraid. There is no need to give details of the statement made by the investigating officer in the context of the arguments, raised by learned counsel for the petitioners before this Court. 6. Mr. Rahi, learned counsel for the petitioners, vehemently contends that besides the fact that evidence with regard to taking Ranbir Kaur into the room and locking the same, is absolutely discrepant, assuming the same to be correct, no offence under Section 365 IPC is made out in this case. He contends that kidnapping or abduction has to be with the intent to secretly and wrongfully confining a person. Assuming, in the case in hand, kidnapping or abduction, by taking Ranbir Kaur into a room and locking her there, can be said to be wrongful, in the facts and circumstances of the present case, it cannot be said to be secretive as well. The offence is not complete unless abduction is with intent to confine a person, both wrongfully and secretly. The counsel relies upon provisions of Section 365 IPC which read thus :- "365. Kidnapping or abducting with intent secretly and wrongfully to confine person :- Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined (Emphasis supplied) shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 7 After hearing learned counsel for the parties, I find considerable merit in the only contention raised by learned counsel for the petitioners. The facts of this case do clearly reveal that petitioners and injured Ranbir Kaur are next door neighbourers. There was simmering discontent between the parties over smoke emitted from the hearth of the petitioners. The facts of this case do clearly reveal that petitioners and injured Ranbir Kaur are next door neighbourers. There was simmering discontent between the parties over smoke emitted from the hearth of the petitioners. PW2 injured in the incident, candidly admits not only the dispute mentioned in the FIR pertaining to smoke coming from the hearth of the petitioners but also of wrongfully opening door and parnala in their lane. The wordy dual was going on between the parties for over three months immediately preceding the date of occurrence. The injured Ranbir Kaur was returning from the fields and it is in front of the two houses in the lane that she was confronted by petitioners. Initially, Ranbir Kaur admitted a wordy dual at her instance also but she later on changed the stand to say that it is only the petitioners, who had abused her. It is at that place that some injuries were given to Ranbir Kaur when she was taken in the room to receive some more injuries at the hands of the petitioners. All this happened in the presence of PW5 Manjit Kaur and Ranbir Kaur was rescued within a matter of minutes. I do find evidence with regard to confining Ranbir Kaur in the room after locking it to be discrepant. However, even if the finding with regard to bolting the door for few minutes, which was admittedly opened by the petitioners themselves, are taken to be correct, no case of kidnapping or abduction, as envisaged under the provisions of Section 365 IPC shall be made out. The element of secretly confining Ranbir Kaur would be certainly missing. As mentioned above, it is in the presence of so many persons that Ranbir Kaur was taken into the room and given beating there as well. As mentioned above, when there was a knock at the door, it was opened and Ranbir Kaur came out of the room, when she was taken for medical treatment. In over-all facts and circumstances of the case, as referred to above, the petitioners could not be held guilty for the offence under Section 365 IPC. Their conviction under Section 365, therefore, cannot possibly sustain and the same is set aside. 8. Insofar as charge against the petitioners, with regard to beating Ranbir Kaur and, thus, committing an offence under Section 323 IPC is concerned, the same stands fully established. Mr. Their conviction under Section 365, therefore, cannot possibly sustain and the same is set aside. 8. Insofar as charge against the petitioners, with regard to beating Ranbir Kaur and, thus, committing an offence under Section 323 IPC is concerned, the same stands fully established. Mr. Rahi, in his all fairness, has not raised any contention with regard to conviction and sentence of the petitioner under Section 323 IPC. 9. In view of what has been said above, this petition is partly allowed. Conviction and sentence of the petitioners under Section 365 IPC is set aside and they are acquitted of the said charge. Insofar as, however, the order of conviction and sentence under Section 323 IPC, is concerned, the same is upheld. However, since the matter pertains to the year 1985, interest of justice would be met if the sentence of petitioners under Section 323 IPC is reduced to the one, already undergone by them. It is made out from the records of the case that petitioners have already undergone substantive sentence of about five months.