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2007 DIGILAW 758 (PNJ)

Ajay Kumar v. State of Punjab

2007-03-29

H.S.BHALLA

body2007
JUDGMENT H.S. Bhalla, J.:- This appeal is directed against the judgment dated 18.9.1995 passed by Additional Sessions Judge, Amritsar, whereby he convicted the appellant under Sections 363/366 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years on both the counts. He was ordered to pay a fine of Rs.200/-; in default thereof, he was further directed to undergo rigorous imprisonment for two months only under Section 363/34 of the Indian Penal Code. Both the substantive sentences were ordered to run concurrently. However, remaining accused, namely, Ajay Kumar alias Dimpy son of Hargopal, Narinder Kumar alias Bitta, Anil Kumar @ Babbu son of Surinder Kumar and Dharminder Kumar were acquitted of the charges framed against them. 2. Briefly stated the facts of the prosecution case are that on 4.11.1991 Sub Inspector Kabal Singh posted in Police Station ‘E’ Division, Amritsar alongwith other police officials was present at Chowk Malkan Statue in connection with patrol duty. In the meantime, Sardari Lal son of Piara Lal, resident of Gali lallanwali, Katra Ahluwalia, Amritsar, met him there and got recorded his statement, Ex. PA, before Sub Inspector Kabal Singh stating therein that he is the resident of Gali lallanwali, Kt. Ahluwalia, Amritsar. He has two sons and one daughter. Sunil Kumar aged about 26 years is the eldest. Sonia Aggarwal, aged 15 years, is younger than Sunil Kumar. Sham Lal, aged 13 years, is the youngest. He had gone to Calcutta in connection with his business. On 10.10.1991 when he came back to his house, he came to know that Rakesh Kumar alias Rocky son of Yash Pal Sharma, resident of 23-B, New Vijay Nagar, Jalandhar City, has kidnapped his daughter Sonia Aggarwal with intent to marry her. He searched for his daughter and Rakesh Kumar at various places, i.e., Jalandhar, Dera Beas, Ludhiana and Delhi. Bittu and Raja sons of Pannu Ram, residents of Gali Mohd. Shah, near old Market, Bazar malkan, had got rented their one room to Rakesh Kumar alias Rocky at the rate of Rs. 150/- per month for about 11 months and the said Rakesh Kumar alias Rocky had left the room after living therein for about five months. Bittu and Raja sons of Pannu Ram, residents of Gali Mohd. Shah, near old Market, Bazar malkan, had got rented their one room to Rakesh Kumar alias Rocky at the rate of Rs. 150/- per month for about 11 months and the said Rakesh Kumar alias Rocky had left the room after living therein for about five months. The above named persons, namely, Bittu and Raja, Rody son of Shambhu Nath, resident of Chokkatra Ahluwalia, and Dimpi son of Hari Ram, resident of Gali Lallanwali, frequently used to visit Rakesh Kumar alias Rocky in the said rented room and he has suspicion that Bittu, Raja, Dimpy and Rody got abducted his daughter Sonia Aggarwal on 9.10.1991 by Rakesh Kumar alias Rocky son of Yash Pal, resident of 23- New Vijay Nagar, Jalandhar. Statement, Ex. PA, was read over to Sardari Lal, who signed the same after admitting the contents thereof to be correct. Sub Inspector Kabal Singh sent the same to the police station vide his endorsement Ex. PA/1 for registration of the case against the accused and on its basis, formal FIR. Ex. PA/2 was recorded by Assistant Sub Inspector Santokh Singh. Sub Inspector Kabal Singh recorded the statements of the witnesses. He arrested all the accused except Dimpy. During investigation, Rakesh Kumar accused was declared as proclaimed offender. After completion of the investigation, accused were sent up for trial under Sections 363,366,368/120-B IPC. 3. Appellant was charge sheeted under Sections 363/366 read with Section 34of the Indian Penal Code, to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution has examined as many as six witnesses, namely, Sardari Lal (PW-1), Lalit Kumar (PW-2), Sub Inspector Kabal Singh (PW-3), Sub Inspector Lakhwinder Singh (PW-4), and Ribin G.Ram (PW-5) and closed its evidence. 5. In his statement recorded under Section 313 of the Code of Criminal Procedure, he denied all the prosecution allegations levelled against him and pleaded that he has been falsely implicated in the present case. However, he did not adduce evidence in his defence and closed the same. 6. I have heard the learned counsel for the parties and have also gone through the record of the case minutely. 7. It is an admitted case of the parties that Sardari Lal (PW-1) lodged a report that his daughter Sonia Aggarwal had eloped with Rakesh Kumar on 10.10.191. 6. I have heard the learned counsel for the parties and have also gone through the record of the case minutely. 7. It is an admitted case of the parties that Sardari Lal (PW-1) lodged a report that his daughter Sonia Aggarwal had eloped with Rakesh Kumar on 10.10.191. The present appellant is the brother of Rakesh Kumar. The main accused Rakesh Kumar could not be apprehended and he was declared as a Proclaimed Offender. 8. It is crystal clear that appellant is not named in the First Information Report Ex. PA registered at the instance of complainant Sardari Lal. Moreover, the fling of a criminal complaint dated 2.12.1991 by complainant Sardari Lal, Annexure P-1, has added another nail to the coffin of the prosecution case since I find from the complaint that the present appellant has not been cited as an accused. No explanation has come forward as to why Sardari lal (PW-1) has not cited the present appellant Ajay Kumar as one of the accused in the criminal complaint. All this shows that neither the present appellant was named in the First Information Report, Ex. PA, which was registered on 4.11.1991, nor was he cited as an accused in the complaint case, which is dated 2.12.1991 and the learned trial Court has relied only on the testimony of Lalit Kumar (PW-2) for convicting the appellant. After having gone through the statement of Lalit Kumar (PW-2), I find that the same does not inspire confidence and no reliance can be placed on his satement. 9. Lalit Kumar (PW-2) deposed during his examination-in-chief recorded on 18.3.1994 that after 3-1/2 months of the elopment, i.e., in the month of January, 1992, he had seen the girl Sonia with 4-5 boys. He identified appellant in the Court, but failed to identify the other accused. He was declared hostile by the learned trial Court on the request made by the learned Public Prosecutor for not supporting his statement recorded under Section 161 of the Code of Criminal Procedure, where he has specifically named all the accused, including the appellant during the course of crossexamination. He disclosed that he had seen Ajay Kumar for the first time on that day and no identification parade was conducted. I find that the statement of Lalit Kumar (PW-2) was also recorded during preliminary evidence in the complaint case. He disclosed that he had seen Ajay Kumar for the first time on that day and no identification parade was conducted. I find that the statement of Lalit Kumar (PW-2) was also recorded during preliminary evidence in the complaint case. In the said statement dated 26.3.1992, he deposed that on 9.10.1991, he had seen girl with one stranger and he had not named appellant in this statement. Menaing thereby that, he mentioned the name of the appellant along with other co-accused in his statement recorded by police on 9.5.1992, which was, in fact, recorded after inordinate delay of 4 months of the girl being seen with the appellant and co-accused in the month of January, 1992, but he is not naming the appellant in his preliminary evidence recorded in the complaint case, is again fatal to the case of the prosecution. Moreover, there are material contradictions/discrepancies in the statement of Lalit Kumar (PW-2) recorded before the trial Court in the FIR case and in the complaint case. He deposed that he saw the girl on 9.10.1991, whereas in his statement before the learned trial Court, he had stated that he saw the girl in the month of January, 1992. He identified the appellant, but failed to identify the other accused in his statement made before the learned trial Court on 18.3.1994. He also deposed that he had seen the appellant for the first time on that day. In such like circumstances, mentioning of the name of the appellant and other co-accused in his statement recorded under Section 161 of the Code of Criminal Procedure, totally demolishes his credibility. In such like circumstances, no reliance can be placed on the testimony of Lalit Kumar (PW-2) and it appears that he is in the habit of changing his stand and was introduced at a later stage in order to implicate the appellant. 10. Seen from every angle, I find that the prosecution has miserably failed to bring home the guilt against the accused, particularly when the appellant was not named in the First Information Report dated 4.11.1991 and was not cited as an accused in the complaint case dated 2.12.1991. There are no other allegations of abduction, inducement or of facilitating the main accused against the appellant and in view of this, testimony of Lalit Kumar (PW-2) has to be discarded. There are no other allegations of abduction, inducement or of facilitating the main accused against the appellant and in view of this, testimony of Lalit Kumar (PW-2) has to be discarded. In the light of what has been discussed above, appeal succeeds and is allowed. By giving him the benefit of doubt, appellant is acquitted of the charges framed against him. Conviction and sentence recorded by the learned trial Court is set aside. Bail bonds and surety bonds of the appellant are discharged. ——————————————