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2004 DIGILAW 183 (PNJ)

Major Singh v. State of Haryana

2004-02-17

NIRMAL SINGH

body2004
JUDGMENT Nirmal Singh, J. - This appeal is directed againt the judgment/order dated 18.12.1991/14.1.1992 passed by the Sessions Judge, Sirsa vide which the appellant has been convicted and sentenced rigorous imprisonment for a period of ten years and to pay fine of Rs. 5,000/- under Section 364 Indian Penal Code. In default of payment of fine to undergo rigorous imprisonment for two years. 2. The prosecution story, in brief, is that Kartar Singh @ Tari was working as driver of truck No. HYN 4555 which was owned by Major Singh and Jagir Singh sons of Jagtar Singh. Both of them alongwith three more persons came to the house of the complainant Gurmeet Kaur and asked Kartar Singh to accompany them as the truck was loaded with cotton and was to be taken to Sardulgarh Tehsil Mansa district Bathinda. Kartar Singh showed his inability to accompany them as his children were ill but Jagir Singh and Major Singh took him away with them. Kartar Singh did not come back to his house for about 14 days. Gurmeet Kaur PW-4 went to the house of the accused and inquired about her husband. Accused did not give any satisfactory reply but Jagir Singh accused told her that his brother Major Singh had accompanied the truck and returned after much difficulty and, thus, saved his life. The complainant failed to know the whereabouts of her husband. Thereafter she made a complaint Ex. PB on the basis of which a case against the appellant was registered and FIR Ex. PB/1 was recorded. 3. During investigation, it reveled that Major Singh accused lodged FIR Ex. PD in police station Lambi, District Faridkot on 5.1.1990 under Section 382 Indian Penal Code and 25 of the Arms Act to the effect that on 3.1.1990 at about 11.00 P.M. while the truck was driven by Kartar Singh, he was sitting by his side and while they were passing through the area of village Sikhwala, four unknown persons took the truck alongwith the driver. It is also revealed during investigation that the report lodged by Major Singh was false. The truck was taken into possession by SI Ram Chander PW-1 of Sirsa Police on 7.5.1990 in connection with the investigation of present FIR. After completion of the investigation, the challan was presented before the Illaqa magistrate. It is also revealed during investigation that the report lodged by Major Singh was false. The truck was taken into possession by SI Ram Chander PW-1 of Sirsa Police on 7.5.1990 in connection with the investigation of present FIR. After completion of the investigation, the challan was presented before the Illaqa magistrate. As the offence was exclusively triable by the Court of Session, therefore, the case was committed to the said Court. 4. From a perusal of the documents relied upon by the prosecution and hearing the learned counsel for the parties, the accused were charge sheeted under Sections 302, 364 read with Section 34 Indian Penal Code to which they pleaded not guilty and claimed trial. 5. To prove its case the prosecution has examined SI Ram Chander as PW-1, SI Darshan Singh as PW-2, ASI Nand Lal as PW-3, Gurmeet Kaur complainant as PW-4, Joginder Singh as PW-5, SI Risal Singh as PW-7, MHC Narinder Singh as PW-8 and ASI Des Raj as PW-9 and closed its evidence. 6. When the appellant was examined under Singh 313 Criminal Procedure Code he denied simplicitor and pleaded false implication. He took the plea as under :- "I am innocent. I have been falsely implicated in this case to show the case as worked out by the police." 7. The appellant was called to lead evidence in defence but he did not lead any evidence in defence. 8. The learned trial Court, after appreciating the evidence on record acquitted both the accused persons under Section 302/34 Indian Penal Code but sentenced them as stated in paragraph one of the judgment, aggrieved by which the present appeal has been preferred. 9. Shri Baldev Singh, learned Senior counsel for the appellant assailed the judgment of conviction and sentence on the ground that the learned trial Court has not appreciated the evidence in right perspective. He submitted that there is no evidence on the record to show that Kartar Singh was kidnapped by the appellant. He contended that even (if) the version of PW-4 Gurmeet Kaur and complaint Ex. PB are taken as it is even then no offence under Section 364 Indian Penal Code is made out. He submitted that as per Gurmeet Kaur, Kartar Singh was employed with the appellant as truck driver. He contended that even (if) the version of PW-4 Gurmeet Kaur and complaint Ex. PB are taken as it is even then no offence under Section 364 Indian Penal Code is made out. He submitted that as per Gurmeet Kaur, Kartar Singh was employed with the appellant as truck driver. Major Singh and Jagir Singh came to her house and asked Kartar Singh to take the truck as it has been loaded with cotton. He pointed out that as per the version of Gurmeet Kaur, Kartar Singh refused to go with the accused as his children were ill but the accused took him away. He contended that if an employer asked the employee to do an act and he accompanied the employer, no offence under Section 364 Indian Penal Code is made out. He contended that the learned Sessions Judge has given a finding that no offence under Section 302 Indian Penal Code is made out against the appellant. Once there is no proof regarding the murder of Kartar Singh by the appellant, he cannot be convicted under Section 364 Indian Penal Code. 10. On the other hand Shri K.S. Chauhan, learned DAG appearing on behalf of the State of Haryana submitted that once the appellant has forcibly taken Kartar Singh away from his house in the presence of Gurmeet Kaur PW-4, then it is for the appellant to disclose his whereabouts. He further contended that Jagir Singh, co-accused of the appellant, has lodged false report in police station, Lambi that the truck has forcibly been taken away by some unknown person. This report lodged by Jagir Singh, after investigation, was found to be false. Therefore, the offence of kidnapping has been proved against the appellant, for which the learned Sessions Judge, Sirsa, has rightly convicted and sentenced him. 11. I have given my thoughtful consideration to the submissions made by the counsel for the parties and perused the record. 12. Before considering the rival contentions, it will be appropriate to notice Section 364 Indian Penal Code which reads as under :- "364. Kidnapping or abducting in order to murder. 11. I have given my thoughtful consideration to the submissions made by the counsel for the parties and perused the record. 12. Before considering the rival contentions, it will be appropriate to notice Section 364 Indian Penal Code which reads as under :- "364. Kidnapping or abducting in order to murder. - Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." 13. A perusal of the abovesaid Section shows that for a conviction under this Section, it is necessary for the prosecution to prove that the abductor had the intention, at the time of abduction, that the abducted person may be murdered or his body may be disposed of as to be put in danger of being murdered. 14. In the light of the above ingredients, the evidence is to be scrutinised. Gurmeet Kaur is the star witness of the prosecution. She has deposed in her statement that her husband was the driver of truck owned by Major Singh and Jagir Singh that about one year and seven months back, five persons including the accused came to her house and asked her husband to take the truck to Sardulgarh as it was loaded with cotton. Her husband expressed his inability to take the truck to Sardulgarh as his child and wife were ill. Major Singh said that her husband is making false excuse and nobody is ill. The accused ultimately took her husband with them. She waited her husband for several days but he did not come back. After 14 days, she went to the house of the accused where Jagir Singh alone met her. On her enquiry Jagir Singh told that he had gone with truck and had not come back. He also told her that the truck alongwith her husband had been taken away by the thieves and he and Major Singh have returned with great difficulty after saving their lives. He also told her that a report about the incident has been lodged by them at police station Lambi. She then returned to the house, went to her relatives and FIR Ex. PB was lodged. 15. He also told her that a report about the incident has been lodged by them at police station Lambi. She then returned to the house, went to her relatives and FIR Ex. PB was lodged. 15. No doubt, PW-4, Gurmeet Kaur, in her statement, has deposed that her husband ahs been murdered by the accused because he had refused to accompany them. This version given by her is an improved version. Rather, she has improved her version on each and every point. In her statement, she has deposed that she has got recorded in her application, Ex. PB, that her husband had just come with the medicine for her ailing child. She was confronted with Ex. PB, where it was not so recorded. She also deposed that she has got recorded that Major Singh and Jagir Singh asked her husband to take th truck to Sardulgarh as it was loaded with cotton. She was confronted with Ex. PB, where it was not so recorded but it was recorded that two accused alongwith three more persons came to the house of the complainant. They asked her husband to go to Sardulgarh as the truck was loaded with cotton. She stated that in the application, Ex. PB, she has got recorded that Major Singh said that her husband was making a false excuse whereas none was ill. She was confronted with Ex. PB, where it was not so recorded. She stated that in the application Ex. PB she had stated that Jagir Singh told her that he and his brother had come back with great difficulty after rescuing their lives. She was confronted with Ex. PB, where the name of Jagir Singh was not mentioned. She has also deposed that she recorded in her statement that Jagir Singh had told her that he has got lodged a report in Police Station, Lambi. She was confronted with Ex. PB, where it was not so recorded. She also deposed that she had stated in Ex. PB that Joginder Singh and one more boy were tenants in the same house. She was confronted with Ex. PB, where it was not so recorded. She has also got recorded in Ex. PB that since her husband was reluctant to accompany the accused, he had been murdered. She was confronted with Ex. PB, where the earlier portion of the statement was not recorded. She was confronted with Ex. PB, where it was not so recorded. She has also got recorded in Ex. PB that since her husband was reluctant to accompany the accused, he had been murdered. She was confronted with Ex. PB, where the earlier portion of the statement was not recorded. So from the evidence of PW-4, Gurmeet Kaur, it has not been established that the accused had kidnapped Kartar Singh with the intention to kill him. Admittedly, Kartar Singh was driver of the truck of the appellant and the truck was standing at Sardulgarh loaded with cotton. If the owner of the truck went to the house of the driver, which he had to take at the destination, then no offence is made out. Even no motive is alleged in the complaint or in the evidence of PW-4 Gurmeet Kaur that as to why the appellant will kidnap and kill Kartar Singh. The learned trial Court convicted and sentenced the appellant simply on the ground that Major Singh has lodged a false report in Police Station, Lambi that his truck has been taken away by the thieves. This cannot be considered as a ground for convicting the appellant as it has been noticed above that no motive has been alleged against the appellant. There was no dispute between Kartar Singh and the appellant prior to the alleged kidnapping. Under these circumstances, the conviction and sentence, as awarded by the learned trial Court, cannot sustain. Accordingly, the appeal is accepted and the conviction and sentence, as awarded by the learned trial Court, is set aside and the appellant is acquitted of the charges levelled against him. He is on bail. His bail bonds and surety bonds stand discharged. Appeal allowed.