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2016 DIGILAW 2515 (PNJ)

Suresh Kumar v. State of Punjab

2016-09-08

DAYA CHAUDHARY

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JUDGMENT Mrs. Daya Chaudhary, J.:- The present petition has been filed under Articles 226/227 of the Constitution of India for quashing of the order dated 27.09.2012 (Annexure P-2) passed by Principal Secretary, Home Affairs and Justice Department, Punjab, whereby the case of the petitioner for premature release has been rejected. A further prayer has also been made to re-consider the case of the petitioner in view of Government instructions dated 08.07.1991(Annexure P-1). 2. Learned counsel for the petitioner submits that the petitioner was sentenced to undergo rigorous imprisonment for life under Section 302 IPC and he has already undergone more than 14 years of actual sentence and 22 years of sentence including remissions whereas as per Government instructions dated 08.07.1991(Annexure P-1), the life convicts are required to undergo 12 years of actual sentence and 18 years including remissions. Learned counsel has also brought to the notice of this Court the decision delivered in Writ Petition (Criminal) No.48 of 2014 titled as Union of India vs. V. Sriharan @ Murugan and others, [2015(3) Law Herald (SC) 2321 : 2015 LawHerald.Org 1260] : on 23.07.2015 whereby, the earlier order dated 09.07.2014 has been modified to the extent that the President of India in exercise of his powers under Article 72 of the Constitution of India and the Governors of the States in exercise of their powers under Article 161 of the Constitution of India are not prevented from exercising their power. Learned counsel further submits that now after decision in the aforesaid Crl. Writ Petition by Hon’ble the Apex Court, the case of the petitioner is to be reconsidered in view of the clarification/modification of earlier interim order. 3. Learned counsel for the respondent-State has not disputed the submissions made by learned counsel for the petitioner and submits that the case of the petitioner for premature release was rejected on the ground that he had committed heinous crime and the authority concerned was also of the opinion that the premature release case of the petitioner on the basis of mercy would give a wrong signal to the society and there would be propensity for people to commit such offences. Learned State counsel also submits that in compliance of order dated 23.07.2015 passed by Hon’ble the Apex Court, the premature release case of the petitioner will be re-considered and the same is likely to be decided within two months. 4. Learned State counsel also submits that in compliance of order dated 23.07.2015 passed by Hon’ble the Apex Court, the premature release case of the petitioner will be re-considered and the same is likely to be decided within two months. 4. In view of the submissions made by learned counsel for the parties as well as keeping in view the order dated 23.07.2015 of Hon’ble the Apex Court in Sriharan @ Murugan’s case (supra), the present petition is disposed of with a direction to the respondent-State to re-consider the case of the petitioner within a period of two months from the date of receipt of copy of this order, failing which the petitioner shall be entitled for interim bail subject to furnishing bail/surety bonds to the satisfaction of CJM concerned Disposed of accordingly. ---------------------- Lakhvir Singh v. Mohinder Kaur 2016(5) Law Herald (P&H) 4319 : 2015 LawHerald.Org 3666 IN THE HIGH COURT OF PUNJAB AND HARYANA Before The Hon’ble Mrs. Justice Daya Chaudhary Crl. Misc. No. A-719-MA of 2014 (O&M) Lakhvir Singh v. Mohinder Kaur & Ors. {Decided on 10/08/2015} For the Petitioner: Mr. Shailendra Sharma, Advocate. Indian Penal Code, 1860, S.366--Kidnapping--Appeal against acquittal--Witnesses have not supported the prosecution case--Inquiry conducted by DSP, found accused innocent--No independent evidence to prove any kind of conspiracy or connivance of accused persons--Prosecution has failed to prove allegations against accused/respondent--Hence appeal dismissed. JUDGMENT Mrs. Daya Chaudhary, J.:- The present application has been filed under Section 378 (3) Cr.P.C. for grant of leave to appeal against judgment dated 16.5.2013 passed by Additional Sessions Judge, Fatehgarh Sahib, vide which, accused-respondents No. 1 to 3 have been acquitted of the charges levelled against them. 2. Accused, namely, Biru Ram, Desh Raj, Mohinder Kaur, Jagtar Singh and Sito faced trial in case FIR No. 171 dated 5.12.2009 for offences punishable under Sections 363,366-A,120-B and 506 IPC registered at Police Station Bassi Pathana. Accused-Mohinder Kaur, Jagtar Singh and Sitio were acquitted of the charges levelled against them for offences punishable under Section 120-B, 363 and 366 IPC. However, accused- Biru Ram and Desh Raj were convicted for offences punishable under Sections 120-B and 363 IPC but they were acquitted for offence punishable under Section 366 IPC vide judgment dated 16.5.2013. Accused-Mohinder Kaur, Jagtar Singh and Sitio were acquitted of the charges levelled against them for offences punishable under Section 120-B, 363 and 366 IPC. However, accused- Biru Ram and Desh Raj were convicted for offences punishable under Sections 120-B and 363 IPC but they were acquitted for offence punishable under Section 366 IPC vide judgment dated 16.5.2013. The present application for leave to appeal has been filed against the aforesaid judgment of acquittal by the complainant but no appeal against the judgment of acquittal has been filed by the State of Punjab. 3. Learned counsel for the applicant contends that the learned trial Court has not properly appreciated the evidence available on record as the daughter of applicant-complainant was minor and was kidnapped by accused-Krishan Kumar and could not be traced for a long period. Accused-Krishan Kumar was declared proclaimed offender and respondents No.1 to 3 were close family members of accused-Krishan Kumar. Learned counsel further contends that the learned Additional Sessions Judge has wrongly came to the conclusion that there was a dispute between accused-Biru Ram with his wife Mohinder Kaur and as litigation was pending in the Court, therefore, there was no chance of connivance of accused-Mohinder Kaur with other accused and to enter into conspiracy to kidnap minor daughter of the applicant. The trial Court did not appreciate the fact that the main accused-Krishan Kumar was in close relation of accused-respondents. He also contends that the complainant has specifically stated in his cross-examination that Jagtar Singh had kidnapped his daughter in the presence of other accused persons, namely, Mohinder Kaur and Sito. Even during cross-examination, it was specifically denied that he had involved the accused-respondents due to personal enmity. It is also the argument of learned counsel that the accused persons have failed to lead any evidence to show that they were residing separately from accused-Biru Ram and Krishan Kumar. 4. Heard the arguments advanced by learned counsel for the applicant and have also gone through the judgment of acquittal as well as relevant record available on the file. 5. Brief facts of the prosecution story are that applicantcomplainant- Lakhvir Singh moved an application to SSP, Fatehgarh Sahib levelling allegations that accused persona, namely, Krishan Kumar, Biru Ram, Desh Raj, Mohinder Kaur, Jagtar Singh and Sito Devi had kidnapped his minor daughter on 14.11.2009. 5. Brief facts of the prosecution story are that applicantcomplainant- Lakhvir Singh moved an application to SSP, Fatehgarh Sahib levelling allegations that accused persona, namely, Krishan Kumar, Biru Ram, Desh Raj, Mohinder Kaur, Jagtar Singh and Sito Devi had kidnapped his minor daughter on 14.11.2009. On the basis of complaint made by applicant-complainant, FIR No. 171 dated 5.12.2009 was registered under Sections 363,366-A, 120-B and 506 IPC at Police Station Bassi Pathana. During the investigation, Biru Ram, Desh Raj were arrested and accused Krishan Kumar was declared as proclaimed offender. Accused-Mohinder Kaur, Jagtar Singh and Sito Devi were declared innocent and were kept in column No.2. by the police. Challan was presented only against Desh Raj and Biru Ram. Accused-respondents, namely, Mohinder Kaur, Jagtar Singh and Sito Devi were summoned on the basis of an application moved by the prosecution under Section 319 Cr.P.C. The trial Court acquitted accusedrespondents of the charges framed against them vide judgment dated 16.5.2013. Now the present application for leave to appeal has been filed challenging the aforesaid judgment of acquittal by raising various arguments. 6. A specific finding has been recorded by the trial Court that there was no evidence against the accused-persons with regard to conspiracy or connivance. Even the applicant-complainant has failed to extract any material which would create doubt of connivance and conspiracy of aforesaid accused. It has also been mentioned in the findings by the trial Court that the prosecution has failed to prove the ingredients of offence punishable under Section 366 IPC against the accused-respondents. Not only the applicant-complainant but even other witnesses have not been able to prove involvement of the accused- respondents. During investigation, accused-respondents No.1 to 3 were found innocent and they were put in column No.2 of the challan and subsequently were summoned on an application moved under Section 319 Cr.P.C. Complainant himself has admitted that accused-Jagtar Singh, his wife-Sito Devi and his mother-Mohinder Kaur were found innocent by the police during inquiry conducted by DSP, Bassi Pathana. ASI Gurmail Singh while appearing as DW-2 has also proved the inquiry report Ex. D3. A perusal of cross-examination of the complainant would show that he himself has admitted that Mohinder Kaur had filed a complaint against her husband Biru Ram and he (complainant) stood surety for Biru Ram. There was no independent evidence with regard to prove conspiracy or connivance of aforesaid accused-persons. 7. D3. A perusal of cross-examination of the complainant would show that he himself has admitted that Mohinder Kaur had filed a complaint against her husband Biru Ram and he (complainant) stood surety for Biru Ram. There was no independent evidence with regard to prove conspiracy or connivance of aforesaid accused-persons. 7. From the findings recorded by the trial Court, it is apparent that the prosecution has failed to prove the allegations against accusedrespondents Mohinder Kaur, Jagtar Singh and Sito Devi and accordingly they were acquitted of the charges framed against them by the trial Court. Learned counsel for the applicant-complainant has not been able to show any evidence regarding involvement of accused-respondents in the offences and any illegality even in the findings recorded by the trial Court. 8. In view of what has been discussed above, there is no merit in the contentions raised by learned counsel for the applicant-complainant and as such the application for grant of leave to appeal is hereby dismissed.