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2024 DIGILAW 261 (UTT)

Kamaljeet Kaur v. State of Uttarakhand

2024-04-18

PANKAJ PUROHIT

body2024
JUDGMENT : Pankaj Purohit, J. Heard learned counsel for the parties. 2. This is an appeal preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as ‘Cr.P.C.’) against the judgment and order dated 23/24.09.2008 passed by learned Sessions Judge, Dehradun in Sessions Trial No.199 of 2007 State Vs. Kamaljeet Kaur and Another, whereby, the appellant was convicted under Sections 328 and 403 IPC and was sentenced five years’ rigorous imprisonment with fine of Rs.10,000/-, with default stipulation of additional six months’ rigorous imprisonment under Section 328 IPC and was sentenced one year’s rigorous imprisonment under Section 403 IPC. Both the sentences were directed to run concurrently and the period undergone by the appellant during the trial shall be set off with the sentences so imposed. 3. A First Information Report was lodged by Gurpreet Singh S/o Nirmal Singh R/o V.P.O. Baddonwal, Police Station Sadar, District Ludhiana, Punjab against the unknown persons stating therein that on 11.07.2007, he along with his wife Smt. Kamaljeet Kaur D/o Sh. Jagmohan Singh R/o House No.1961, Mohalla Gujra Anarkali, Bajaar Jagraon, District Ludhiana, came to Mussoorrie for honeymoon. They stayed in Himalayan Club Hotel, Picture Palace, Mussoorie. On 11.07.2007, at about 10:00 PM, his wife went away with some other person taking all the belongings, because, at 03:00 AM, when he awoke, he did not find his wife on the bed. On asking hotel attendants, they told that at about 10:00 PM, his wife left the hotel with one boy; she bolted the room from outside; the door of the room was opened by the hotel attendants. On the basis of this, a Case Crime No.19 of 2007, was registered as NCR in Police Station Mussoorrie on 12.07.2007 at about 07:10 AM under Section 498 IPC. Subsequently, a detailed report was also given by the informant Gurpreet Singh to the police (Ext.Ka1) detailing the incident as under:- “Informant Gurpreet Singh with his wife Smt. Kamaljeet Kaur (appellant) came for honeymoon to Mussoorie on 11.07.2007; when they reached near Ambala, his wife said that her brother worked in a bank, who he is a resident of Mussoorie and we should accompanied him with us; he would help us visit Mussoorie properly. At this, my wife called him through phone and we all three persons went for Mussoorie; 3-4 Kms. At this, my wife called him through phone and we all three persons went for Mussoorie; 3-4 Kms. before Mussoorie, he got down of the vehicle saying that he was a resident of nearby village and he would take them next day with him on being called over phone and would visit Mussoorie and after that would have a lunch at residence. It is contended that after that the informant together with the appellant (his wife) reached Mussoorie and took a room No.42A in Hotel Himalayan Club and lodged there. The informant asked his wife as to why she took that boy in vehicle. His wife accepted her mistake and promised not to repeat such mistake in future. After sometimes, the informant called the room boy and ordered for dinner and went in bathroom for taking a bath. After having a bath, the informant came in room; his wife offered him cold drink; after having it, the informant felt giddiness; his wife asked him to take rest as he was driving the vehicle since morning. At 03:00 AM, when the informant awoke, he did not find his wife in the bed and all their belongings were also missing from the room, the details of which were also given in the first information report with a request to lodge the report.” 4. The police registered a Case Crime No.47 of 2007 under Sections 498, 406, 420, 307 and 120B IPC in Police Station Mussoorie and after investigation, charge sheet was submitted against the appellant-Smt. Kamaljeet Kaur and Binder @ Balvinder @ Ravi under Sections 498, 406, 420, 307 and 120B IPC. 5. It is pertinent to mention that during trial co-accused Binder @ Balvinder @ Ravi expired on 12.01.2008, and, accordingly, vide order dated 21.04.2008, the proceedings of the trial was abated against him. During trial, charges were framed against the appellant under Section 328 and 406 IPC, which she denied and claimed for trial. 6. The prosecution examined PW1 Gurpreet Singh (informant), PW2 A.S.I. Dalpat Sharma and PW3 Investigating Officer Anil Kumar Joshi to substantiate and prove the charges against the appellant. Apart from this, the documentary evidence in the shape of FIR Ext.Ka-1 & Ext.Ka-2, Site Plan Ext.Ka-3, Carbon copy of written report Ext.Ka-4 & Ext.Ka-5, Charge Sheet Ext.Ka-6, Carbon copy of FIR Ext.Ka-7 and Copy of report Ext.Ka-8, Ext.Ka-9 and Ext.Ka-10 were also produced. 7. Apart from this, the documentary evidence in the shape of FIR Ext.Ka-1 & Ext.Ka-2, Site Plan Ext.Ka-3, Carbon copy of written report Ext.Ka-4 & Ext.Ka-5, Charge Sheet Ext.Ka-6, Carbon copy of FIR Ext.Ka-7 and Copy of report Ext.Ka-8, Ext.Ka-9 and Ext.Ka-10 were also produced. 7. After prosecution evidence, the statement of appellant was recorded under Section 313 of Cr.P.C., in which, it was stated that she was innocent and all the proceedings against her were concocted and forged. On completion of trial, the trial court convicted and sentenced the appellant as mentioned in paragraph 2 of this judgment. 8. The star witness of the case is Gurpreet Singh, the informant. Gurpreet Singh was examined during trial as PW1. In his deposition before the Court, he stated that he was married with appellant-Kamaljeet Kaur, D/o Sh. Jagmohan Singh R/o House No.1961, Mohalla Gujra Anarkali, Bajaar Jagraon, District Ludhiana, on 01.07.2007 with the consent of both the families. On 11.07.2007, he and his wife-Kamaljeet Kaur left for Mussoorie for honeymoon in a car. They took Ambala-Jagadhari road to Mussoorie; at about 12:00 PM at noon, when they reached near Ambala, his wife Kamaljeet Kaur called someone through his mobile No.9855665098 saying that she called her brother who is resident of Mussoorie and worked in a bank in Ambala and called him. That man was waiting for them at Ambala road; his wife boarded him in the car and all three left for Mussoorie from there. 3 to 4 Kms. before Mussoorie, that man alighted from the car about 06:30 PM saying that his village is nearby and they would call him in the morning; he would come to pick them and would have lunch together and visit Mussoorie properly. After that, he and his wife-Kamaljeet Kaur went to hotel Himalayan Club, where they took one room No.42A and stayed there. According to PW1, they took all the belongings and luggage out of the car and took that to the hotel, which includes one golden set of 6.5 tola which was given by him to his wife, one golden chain of 4.5 tola, one golden kada of 4 tola, one golden ring of 1 tola and other gold items, mobile phone Nokia N-7 and cash Rs.17,000/-, six shirts and six pants (trousers), two night suits, two pairs of shoes and cosmetics and some personal articles, were kept in the room. They lodged in the room of hotel at about 08:00 PM. Car in which they came, was driven by him and was parked in parking of the hotel. After reaching the room of the hotel, he and his wife had a talk and he asked her as to why she took that boy in car from the way. She told that it was a mistake and would not be repeated. After this, he ordered for dinner and went to have a bath. When he came back after having a bath, his wife offered him one glass of cold drink, which was taken (purchased) by the said man whose name was later known as Binder @ Balvinder @ Ravi, and she also took it. After having cold drink, he felt giddiness and his wife Kamaljeet Kaur asked him to take rest as he was driving the vehicle since morning and as he would be tired. After that, he became unconscious. At about 03:30 AM, when he awoke, he did not find his wife on the bed; all the articles were found missing. When he tried to open the door, the same was bolted from outside. On intercom of the room, he called hotel attendants who took him out of the room. He further deposed that out of the luggage, which was kept in room, only one pant and shirt, which he wore, in which he felt unconscious, was there in the room. Rs.27,000/- which was kept in his pocket, was also missing. PW1 Gurpreet Singh made a call to Gurdeep Kaur, who is Bua of Kamaljeet Kaur, from the phone of waiter of the hotel and informed her about the whole incident. Bua and family members of Kamaljeet Kaur threatened him and asked him to come back and not to report the matter. PW1 reported the matter to the police on 12.07.2007 in the morning. On the basis of which, the case crime No.19 of 2007, was registered as NCR in Police Station Mussoorrie. According to PW1, on 13.07.2007, he had given a typed copy of report to Police Station Mussoorie (Ext.Ka-1). PW-1 in his deposition stated that during investigation, police brought Gurdeep Kaur, father and family members of Kamaljeet Kaur to police station Mussoorie, where, they told police that Kamaljeet Kaur might be in the house of friend of Balvinder at Kashipur. According to PW1, on 13.07.2007, he had given a typed copy of report to Police Station Mussoorie (Ext.Ka-1). PW-1 in his deposition stated that during investigation, police brought Gurdeep Kaur, father and family members of Kamaljeet Kaur to police station Mussoorie, where, they told police that Kamaljeet Kaur might be in the house of friend of Balvinder at Kashipur. During investigation, it came to knowledge of PW-1 that Kamaljeet Kaur lived with Balvinder at Kashipur and they had physical relationship; he was the same Balvinder Singh who sat in his car from the way. He denied that he did not know as to when Kamaljeet Kaur and Balvinder Singh were arrested, but, he came to know that charge sheet was issued against Kamaljeet Kaur and Binder @ Balvinder @ Ravi in the Court. Apart from this witness, other witnesses are police witness. 9. It is vehemently argued by the learned counsel appearing for the appellant that a NCR was lodged on 12.07.2007 and it is only thereafter on 13.07.2007, a first information report-a cognizable report/case was lodged, on the basis of which a case crime No.19 of 2007 was registered. 10. It is submitted by learned counsel for the appellant that there are huge contradictions in both the reports. It is further submitted by learned counsel for the appellant that there is no recovery of any articles as mentioned in the first information report from the possession of the appellant-Kamaljeet Kaur or even on her pointing out. The cold drink and the glass were never sent for chemical examination to prove the prosecution story. Thus, according to the learned counsel for the appellant, prosecution fails to prove its case against the appellant beyond all reasonable doubts. 11. It is also argued by the learned counsel for the appellant that in the entire record of the trial court, there is no iota of evidence about the marriage of the appellant with the informant-Gurpreet Singh neither the prosecution case is based on any evidence either direct or circumstantial. The conviction and the sentence recorded by the trial court in light of the aforesaid argument cannot be sustained. 12. Per contra, learned State Counsel supported the case of prosecution. 13. The conviction and the sentence recorded by the trial court in light of the aforesaid argument cannot be sustained. 12. Per contra, learned State Counsel supported the case of prosecution. 13. Having heard learned counsel for the parties and on perusal of the record, only this much is available on record that PW1 Gurpreet Singh narrated the entire details of turmoil as happened to him on 11.07.2007, when he came to Mussoorie for honeymoon. The evidence of PW1 though supports the theory given in the first information report and a subsequent report, but, except this, there is nothing on record to prove the guilt of the appellant to the hilt and beyond all reasonable doubts. 14. Section 328 IPC for which the appellant was convicted needs a look, before arriving at any conclusion. Section 328 is quoted below : “Section 328: Causing hurt by means of poison, etc., with intent to commit an offence.- Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 15. From perusal of Section 328 IPC, it reflects that there are the ingredients which require to prove the offence under Section 328 IPC. A person can only be convicted under Section 328 IPC, (1) who administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or (2) with intent to commit or to facilitate the commission of an offence or knowing it to be likely that such person will thereby cause hurt to the other, he can be punished under Section 328 IPC. Here in the case in hand, even this has not been proved that what poison or stupefying or intoxicating or unwholesome drug was administered to the informant. 16. As stated above, neither the remaining cold drink nor the glass was sent for chemical examination. Here in the case in hand, even this has not been proved that what poison or stupefying or intoxicating or unwholesome drug was administered to the informant. 16. As stated above, neither the remaining cold drink nor the glass was sent for chemical examination. In these circumstances, the prosecution could not prove that what was that poison, stupefying, intoxicating or unwholesome drug, which was administered to the informant. Apart from that, it has also not been proved that the articles which were described by the informant in the first information report were never recovered from the possession of the appellant. Rather nothing was recovered during investigation. 17. In the absence of these two ingredients, it cannot be safe to convict the appellant for the offence punishable under Section 328 IPC. 18. Further, the offence punishable under Section 403 of IPC cannot be made out as the articles, as described by the informant in the first information report, were not recovered. 19. In this view of the matter, it is safe to conclude that the prosecution failed to prove its case against the appellant Kamaljeet Kaur beyond all reasonable doubts. 20. The upshot of the aforesaid discussions is that the appeal deserves to be allowed. Accordingly, present appeal is allowed. Judgment and order dated 23/24.09.2008 passed by learned Sessions Judge, Dehradun in Sessions Trial No.199 of 2007 State Vs. Kamaljeet Kaur and Another, impugned in the present appeal is hereby set aside. The appellant is on bail. She needs not to surrender; her sureties be discharged. 21. Let a certified copy of this judgment, along with the TCR, be transmitted to the Court concerned for information/compliance.