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2004 DIGILAW 1309 (PNJ)

Davinder Singh v. State Of Punjab

2004-12-02

S.N.AGGARWAL

body2004
Judgment S.N.Aggarwal, J. 1. Davinder Singh and Mukhwant Singh have filed separate appeals against the judgment dated 22.12.1992 vide which the appellants were convicted and sentenced under Section 363 read with Section 120-B of the Indian Penal Code. Davinder Singh was released on probation, while Kukhwant Singh was sentenced to undergo rigorous imprisonment for various terms. 2. As per the prosecution case, Amandeep Kaur, Gurjit Kaur and Rajinder Kaur, aged between 13 years to 16 years, residents of Village Verka were student of 8th class in Salwan Middle School, Verka. They got missing from the School on 29.5.1990 during interval. The parents of these girls came to know that Davinder Singh (appellant in Appeal No. 174-SB of 1993) along with his companions had kidnapped these girls to some unknown place. The parents of the girls also apprehended that the said Davinder Singh might have taken them to the residence of Sarvjit Singh Gill son of Jaswant Singh resident of 17/314 Kalyan Puri, New Delhi. Hence, they filed the complaint before the police on 30.5.1990 and prayed that their daughters be restored to them. 3. Accordingly, a case under Sections 363/36 of the Indian Penal Code, was registered and the investigation was initiated by the police. 4. Amandeep Kaur and Gurjit Kaur along with Davinder Singh appellant were apprehended on 1.6.1990 from Railway Station, Amritsar. During investigation Mukhwant Singh (appellant in appeal No. 8-SB of 1993) was also found to be in conspiracy with Davinder Singh (appellant in appeal No. 174-SB of 1993) and both of them were challaned for having committed offences punishable under Sections 363/366 read with Section 120-B of the Indian Penal Code. 5. Both the accused were charged for having committed offences punishable under Section 120-B read with Section 363 of the Indian Penal Code while Davinder Singh appellant was also charged under Section 366 IPC. 6. To prove its case, the prosecution examined 8 witnesses. Out of them material evidence is being discussed. Dr. Vijay Bhalla, Radiologist, S.G.T.B. Hospital, Amritsar PW-1 who had examined radiologically Gurdip Kaur, Amandeep Kaur and Rajinder Kaur on 3.6.1990 and had opined vide his report Ex. PA, Ex. PB and Ex. PC and their ages were determined to be between 14 to 16 years respectively. Tarlok Singh, father of Amandeep Kaur appeared as PW-2. He is the complainant and author of the first information report. PA, Ex. PB and Ex. PC and their ages were determined to be between 14 to 16 years respectively. Tarlok Singh, father of Amandeep Kaur appeared as PW-2. He is the complainant and author of the first information report. He also proved the date of birth of his daughter Amandeep Kaur to be 28.9.1976 and proved her birth certificate as Ex. PD. He also proved having filed a joint application Ex. PE to the police regarding the missing of his daughter Amandeep Kaur and her two class fellows namely Gurjit Kaur and Rajinder Kaur on 29.5.1990. He also proved that Amandeep Kaur and Gurjit Kaur were recovered from Railway Station, Amritsar along with Davinder Singh (appellant) on 1.6.1990. Similarly, Amrik Singh PW-3 father of Gurjit Kaur also corroborated him. 7. Amandeep Kaur one of the minor girl abducted appeared as PW-5. She proved that on 29.5.1990 she along with her class mates Gurjit Kaur and Rajinder Kaur were studying on the roof of the school when they were called by Mukhwant Singh alias Baba that they were called by Davinder Singh on which they came down and accompanied Davinder Singh who allured her with marriage and gifts of costly clothes. He hired three-wheeler Scooter and took her and the other two girls to Railway Station from where they were taken to Delhi. They were taken to a residential house where they stayed over night. Thereafter, the house inmates recognized Rajinder Kaur alias Pinki and retained her in their house while she and Gurjit Kaur along with Davinder Singh were asked to leave their house. Similar statement has been made by Gurjit Kaur alias Pinki PW-6. Rajinder Kaur PW-7 did not support the prosecution case and was declared hostile. 8. Both the accused in their statements under Section 313 of the Code of Criminal Procedure pleaded innocence. However, they led no defence. 9. On the basis of this evidence, the learned trial court convicted both the accused for having committed offences punishable under Section 363 read with Section 120-B of the Indian Penal Code, vide judgment dated 22.12.1992. Davinder Singh was ordered to be released on probation under Section 4(3) of the Probation of Offenders Act for a period of three years, under the supervision of the District Probation Officer, Amritsar and he was also burdened with an amount of Rs. 3,000/- as costs of litigation. Davinder Singh was ordered to be released on probation under Section 4(3) of the Probation of Offenders Act for a period of three years, under the supervision of the District Probation Officer, Amritsar and he was also burdened with an amount of Rs. 3,000/- as costs of litigation. However, Mukhwant Singh appellant was sentenced to undergo rigorous imprisonment for a period of 5 years besides the fine amount of Rs. 5,000/- under Section 363 IPC. In default of payment of fine he was to further undergo rigorous imprisonment for a period of one year. He was also sentenced to undergo one year rigorous imprisonment besides the final amounting to Rs. 1,000/- under Section 120-B of the Indian Penal Code. In default of payment of fine he was to further undergo RI for a period of three months. Hence, the present appeals. 10. The prosecution had succeeded to prove that Amandeep Kaur, Gurjit Kaur and Rajinder Kaur were minors being of the age ranging between 14 to 16 years. They were the students of 8th class in Salwan Middle School, Verka in which Mukhwant Singh was their class teacher. These facts were not disputed by the appellants. Therefore, these girls are proved to be minors. 11. There is over-whelming evidence that these girls were in the School. They were taken away by Davinder Singh appellant on 29.5.1990. They were allured and were taken to Delhi. It has been proved by Tarlok Singh PW-2 father of Amandeep Kaur and also by Amrik Singh PW-3 father of Gurjit Kaur. Both these witnesses have also proved their application Ex. PE which they had filed before the police and at that time also they had apprehended that their daughters had been abducted by Davinder Singh, appellant. 12. Another set of evidence consists of the statement of Amandeep Kaur PW-5 and Gurjit Kaur PW-6. Amandeep Kaur PW-5 had specifically deposed that Davinder Singh had allured her with marriage and gifts of costly clothes and after hiring a three-wheeler scooter he had taken her along with her two class fellows to Delhi. Thereafter, Davinder Singh accused had kept them for two days in Delhi and subsequently on 1.6.1990 he had brought her and Gurjit Kaur to Amritsar from where they were apprehended by the police. 13. Thereafter, Davinder Singh accused had kept them for two days in Delhi and subsequently on 1.6.1990 he had brought her and Gurjit Kaur to Amritsar from where they were apprehended by the police. 13. Therefore, there is over-whelming evidence that Amandeep Kaur, Gurjit Kaur and Rajinder Kaur were taken by Davinder Singh appellant on 29.5.1990 from the School. Two of these girls namely Amandeep Kaur and Gurjit Kaur were apprehended at Railway Station, Amritsar on 1.6.1990 while Rajinder Kaur was kept by her relatives in Delhi. 14. The learned trial Court has convicted Davinder Singh for having committed these offences and keeping in view the adolescent age of Davinder Singh he was released on probation with supervision. No appeal has been filed by the State. Keeping in view the nature of the offence committed by Davinder Singh, his conviction and sentence does not call for any intervention. 15. So far as Mukhwant Singh alias Baba appellant is concerned, there was no allegation against him in the application Ex. PE which was moved by the parents of these girls who were abducted. Even Tarlok Singh PW-2 has not deposed any thing against Mukhwant Singh nor there is any evidence against him in the statement of Amrik Singh PW-3, father of Gurjit Kaur. 16. The only evidence against Mukhwant Singh is in the statement of Amandeep Kaur PW-5 who deposed that during recess time in the School at about 10.30 A.M. when she and her classmates Gurjit Kaur and Rajinder Kaur were studying on the roof of the school they were called by Mukhwant Singh and told that Davinder Singh had called them on which they came down and found Davinder Singh standing there and they accompanied him. She was confronted with her previous statement recorded under Section 161 of the Code of Criminal Procedure where it was not stated by her, if they were called by Mukhwant Singh (appellant) or if he had told them that they were called by Davinder Singh. Similar is the case of Gurjit Singh PW-6. Meaning thereby that both Amandeep Kaur PW-5 and Gurjit Kaur PW-6 had not made any allegation against Mukhwant Singh in their statements recorded under Section 161 Cr.P.C. Thus while appearing in the court as witnesses, they have made categorical improvement regarding the involvement of Mukhwant Singh @ Baba. 17. Similar is the case of Gurjit Singh PW-6. Meaning thereby that both Amandeep Kaur PW-5 and Gurjit Kaur PW-6 had not made any allegation against Mukhwant Singh in their statements recorded under Section 161 Cr.P.C. Thus while appearing in the court as witnesses, they have made categorical improvement regarding the involvement of Mukhwant Singh @ Baba. 17. If Mukhwant Singh had played any role in the abduction of Amandeep Kaur, Gurjit Kaur and Rajinder Kaur with Davinder Singh appellant, thus these girls would have named Mukhwant Singh specifically in their statements recorded under Section 161 of the Cr.P.C. 18. Even if the statements of Amandeep Kaur PW-5 and of Gurjit Kaur PW-6, are believed, which is the only evidence against Mukhwant Singh, neither any conspiracy is proved nor any kidnapping is made out. If Mukhwant Singh had merely called those girls and told that they were called by Davinder Singh, that does not show if he had any conspiracy with Davinder Singh or if he had helped Davinder Singh in kidnapping those girls. 19. In view of the foregoing discussion, it is held that the prosecution has failed to prove its case against Mukhwant Singh beyond reasonable doubt. 20. Therefore, the appeal filed by Mukhwant Singh accused is accepted and he is acquitted of the charges framed against him by giving him the benefit of doubt. Accordingly the judgment of conviction and sentence is set aside qua him. But so far as Davinder Singh appellant is concerned his appeal is dismissed.