Ajay Kumar vs State of Punjab

Hemant Gupta, J.—Appellants Ajay Kumar alias Jyoti and his brother Vijay Kumar, both sons of Baldev Chand have filed the present

appeal against the judgment dated 23.12.1998 convicting them under Sections 364-A and 307/34 IPC and sentencing them to undergo

imprisonment for life for abducting Vicky alias Parminder Singh and threatening to cause death of his person.

Vicky alias Parminder Singh is son of Paramjit Singh since deceased and Gurjit Kaur. Said Vicky alongwith his elder sister and mother are

residing together with Piara Singh, brother of Paramjit Singh who is working as Property Dealer at Ludhiana.

The prosecution case was set in motion on the statement of Piara Singh when he lodged report Ex.PA to the effect that his nephew Vicky was

playing at 4.30 p.m. on 15.6.1996 outside the house when some unidentified persons came in white Maruti Van and forcibly abducted Vicky.

However, they received a phone call at 6.30 p.m. and again at 7.30 p.m. from unidentified persons at his house with a demand of Rs. 2 lacs of

releasing Vicky with the instructions that the time and place will be disclosed later on. This statement was given at mid-night to the police officials

on the basis of which First Information Report was registered at 1.25 a.m. under Sections 365 and 387 Indian Penal Code.

On 16.6.1996, PW-3 Nachhatar Singh while coining back from a fair of village Talan, he found a child lying therein in unconscious condition

having injuries on various parts of his body. The child was handed over to Paramjit Singh Inspector. Child was admitted in Daya Nand Medical

College and Hospital and on medical examination, the following injuries were found on his person:

Multiple cut wounds on both the hands.

Lacerated wound on the tongue in anterior part.

Local swelling in the neck with strangulation mark just above the thyroid cartilage.

State of Parminder Singh alias Vicky was recorded on 20.6.1996 by Gurpreet Singh, Incharge Police Post Atam Park i.e. day on which he was

declared fit to make statement by the doctor. As per the statement of Parminder Singh he was playing at about 4.30 p.m. along with 5-6 children

in front of house of Nirmal Singh when accused Jyoti came and asked him that he would give him small glass balls (Bantas) if he would accompany

him. Vicky knew Jyoti accused earlier. He went with the accused Jyoti who took him by the side of turning, where Maruti car was lying parked.

Accused Jyoti and Vijay Kumar forcibly took him towards Ludhiana in the Maruti car. Subsequently, accused alighted him from the van and

boarded a bus. They took him to their house at Jalandhar where mother of accused and one Happy were present in their house. Happy is the

brother of accused Jyoti and Vijay Kumar.

Vicky was made to wake up in the morning. The accused got made Vicky talk on telephone ""Hallo Hallo"" at his house and they were putting

him in the fear of injuries with the help of knife. The accused were saying on telephone that in case life of Vicky is to be saved then they should pay

Rs. 2 lacs. The accused took him to various villages and ultimately to village where a fair was being held. Vicky was left with the accused Vijay

while accused Jyoti alias Ajay Kumar and Happy went towards city and they came back after about 2 hours. Jyoti alias Ajay Kumar was feeling

enraged and he put a rope around his neck and tied the rope around the neck with force. He raised shrieks. When he was weeping, accused

Happy and Vijay Kumar caught hold of him. Accused Jyoti tried to chop off his tongue with knife and gave injury on his tongue as well as on the

hand and thereafter, he was thrown away on the railway track and accused went away. He become unconscious as a result of injuries and tying of

his neck with the rope.

During investigations of the case accused Vijay Kumar along with Ajay Kumar alias Jyoti and Harvinder Kumar alias Happy and his mother

Sheela Devi made extra judicial confession to Kashmira Singh, Councillor, Municipal Corporation Ludhiana on 19.6.1996. Accused were

challaned under Sections 307/34 and 120-B Indian Penal Code.

Initially charge was framed under Sections 365/387/307/324 read with Section 120-B Indian Penal Code as well as u/s 34 Indian Penal Code.

However, after conclusion of the trial, the prosecution, moved an application for the amendment of charge u/s under Section 364-A Indian Penal

Code which was allowed by the trial Court. The prosecution and the accused gave statements that no further evidence is required to be led or

witnesses already examined need not be further cross-examined. Consequently, charge was allowed to be amended.

The prosecution has produced PW-1 Piara Singh, the informant, PW-2 Gurjit Kaur, mother of the victim Vicky alias Parminder Singh apart

from a number of witnesses to prove the charge under Sections 364-A, 307 and 120-B Indian Penal Code. The accused were examined u/s 313

Criminal Procedure Code, where the accused Ajay Kumar alias Jyoti alleged that his brother Vijay Kumar had gone to Jalandhar but was detained

by the police on the basis of suspicion. However, the police took him to Jalandhar where his mother was not found present. However, the police

mistook their tenant as his sister and took her away and committed rape with her. He and his family members were falsely implicated in this case so

that no one should be spared to raise voice the police excesses.

Although the police has produced many witnesses but the entire case hinges around the testimony of child witness Parminder Singh alias Vicky,

who is alleged to have been abducted by the accused and also spent considerable time with the accused before he was left unattended near

railway track.

We have heard Shri J.B.S. Gill, learned counsel for the appellants and Shri S.S. Randhawa. Deputy Advocate General, Punjab for the State

and with their assistance have gone through the records of the case.

The first and foremost question which arises is whether the child witness was able to make statement in an intelligible and coherent manner and

that the child is able to give rational answers to the questions put to him. At this stage, it would be relevant to reproduce the questions put by the

trial Court and the answers given by the witness before the trial Court administered oath in the name or God before recording statement of witness:

Q. 1 How many brothers and sister you have got ?

Ans. I have one brother and one sister.

Q.2 What is the name of your school ?

Ans. The name of my school is Dashmesh Elementary School.

Q.3 How many students are studying in your class ?

Ans. Forty Four (44).

Q.4 Whether it is wrong to speak the truth or not ?

Ans. It is correct to speak the truth. The witness has been administered oath in the name of God.

Section 118 of the Indian Evidence Act lays down that all persons shall be competent to testify unless the Court considers that they are

prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age,

disease, whether of body or mind, or any other cause of the same kind.

A reading of the Section 118 would show that all persons are competent to depose in Court unless the court comes to conclusion that such

persons are not in a position to understand the questions or to formulate rational answers to the questions because of their tender age. It is well

settled that child witness is... competent witness. The court should look for corroboration to ensure that the child witness has not deposed under

the influence of any person because of his tender age and if the court comes to the conclusion that the testimony of the child witness inspires

confidence and has not been shaken in cross-examination and finds corroboration from other circumstances then there is no bar on the part of the

law courts to act upon the testimony of a child witness. The admissibility of testimony a child witness has been discussed by the Hon''ble Supreme

Court in Suresh Vs. State of U.P., and State of U.P. Vs. Anil Singh,

The learned trial Court before recording the testimony of PW-4 Parminder Singh has satisfied itself with the rational answers given to the

questions put by the Court. While going through the questions put by the Court and the answers given by the child, we are of the opinion that the

answers are intelligible and rational and therefore, Parminder Singh alias Vicky was competent to depose before the Court.

In the present case the child is not only a witness to the occurrence but a victim thereof. He has seen all the accused in close proximity, spent

time with them and therefore, statement of such a witness if found intelligible and rational cannot be brushed aside simply because his statement is

that of a child witness. The witness has suffered trauma of the presence of the accused, of fear and coercion and subsequently of injury, therefore,

the impression of his mind cannot be washed away.

Accused Jyoti was not a stranger to witness Parminder Singh alias Vicky as he was running a kiryana shop in the Mohalla-of this witness and

the child used to purchase articles from the shop of the accused. The child could accompany Jyoti on his representation that he would be given

Bantas i.e. small glass balls. However, Maruti Van was lying parked at the side of turning where Jyoti and Vijay Kumar forcibly took him in the

said Maruti Van towards Ludhiana city. PW Parminder Singh alias Vicky has deposed that the accused Jyoti gave a telephonic call at their house

at Ludhiana and got his ""Hello Hello"" on telephone at his house while putting him in the fear of injuries with the help of knife. Accused was saying

that they would give blow with the knife in his abdomen. The accused were, saying on telephone that in case the life of Vicky is to be saved, they

should pay Rs. 2 lacs. The accused took him in many villages and ultimately in a village where a fair was being held. Accused Jyoti put a rope

around his neck and rope was tied around his neck with force. Accused Jyoti tried to chop off his tongue with knife and gave injury on his tongue

as well as on his hands.

The child of 10 years was cross-examined at length but apart from minor inconsequential discrepancies the accused could not shatter the

statement of victim. Statement of such a witness is corroborated by medical evidence which found injuries on the person of the witness as

mentioned above.

PW-9 Dr.Atul Kumar and PW-5 Dr. Sanjiv Uppal have also supported the injuries on the person of Vicky but also given details of future line

of treatment as well.

PW-1 Piara Singh and PW-2 Gurjit Kaur have supported the story of the prosecution of abduction of Vicky in the manner and time Suggested

by the prosecution. It is not unnatural for the children of that tender age to play in front of their residential house. The uncle of victim was a

Property Dealer whereas the appellants were running Karyana shop in the same locality under the tenancy of PW-6 Sat Pal. As per the statement

of Sat Pal (PW-6) it was Vijay Kumar who was tenant in the shop. Thus, it is proved that appellants were running Karyana shop in the same

locality.

There is no enmity either of Piara Singh or that of Gurjit Kaur to falsely implicate the appellants. No reason has been disclosed as to why a

child of 10 years should depose in a exhaustive manner against the appellant. The child has been cross examined at length but the witness has

stood the test of lengthy cross examination. The motive suggested by the accused against the appellants to falsely implicate the appellants is too far

fetched and not made out from the record. It has not been proved that either Piara Singh or Gurjit Kaur have deposed against the appellants at the

instance of the Police. Mere allegation that tenant of mother of accused at Ludhiana was involved in some unsavoury controversy does not lead to

an inference that the prosecution against the appellant is tainted. Consequently, we are of the opinion that prosecution was able to prove the

charges against the appellants beyond doubt. Keeping in view the entire facts and the circumstances of the case, we do not find any illegality or

irregularity in the findings recorded by the trial Court. Consequently, we dismiss the appeal. Intimation in this respect be sent to Chief Judicial

Magistrate and Jail Authorities.