Dalip Singh and Another vs State of Punjab

K.C. Puri, J.—Dalip Singh and Bohar Singh accused-Appellants have directed the present appeal against the judgment and order dated 17.2.2000 passed by Shri Jaspal Singh, learned Additional Sessions Judge, Ferozepur, vide which accused/Appellants have been convicted u/s 364 read with Section 34 of the Indian Penal Code ( in short -the IPC ) and sentenced them to undergo rigorous imprisonment for a period of four years each and to pay fine of Rs. 1500/-each and in default of payment of fine to further undergo rigorous imprisonment for six months each.

Briefly stated, law was set in motion on the statement made by Gurnam Kaur-complainant on 12.5.1990 before SI Darshan Singh to the effect that she is resident of village Thatha Dalel Singh Wala and has two sons, namely, Daya Singh and Baljit Singh. Daya Singh is married and they used to reside in a house constructed in the fields. Yesterday evening, at about 7.30 p.m. they all were present in their house and her elder son Daya Singh was serving fodder to the cattle. One car stopped on the way in front of their house and three persons alighted from the car and came to their house, two of them were wearing kurta-payjamas and one was wearing shirt and chadar and all the three were having turbans on their heads. They were young and the persons who was wearing shirt-chadar, was armed with a gun. They all took her son Daya Singh near the car. They forced Daya Singh to sit in the car, but Daya Singh refused to sit in the car, but they forcibly made Daya Singh to sit in the car and they took the car towards village Thatha Kishan Singh Wala. Due to fear, the complainant did not come out of the house and in the morning at about 9.30 a.m. she got recorded her statement. SI Darshan Singh made his endorsement on the statement of Gurnam Kaur and sent the same to police station, on the basis of which formal FIR was recorded. SI Darshan Singh investigated the case. He visited the place of occurrence and prepared rough site plan. He also recorded supplementary statement of Gurnam Kaur-complainant wherein she named the accused and their parentage and further stated that Joginder Singh son of Gurbachan Singh (since dead) was armed with .12 bore gun. She further stated in her supplementary statement that fourth person Dalip Singh remained sitting in the car.

It has been further stated that on the same day i.e. 12.5.1990 SI Darshan Singh received a wireless message from the Station House Officer of Police Station Makhu that they have arrested four persons along with Daya Singh in a Fiat car, whereupon SI Darshan Singh went to the police station Makhu and arrested all the accused in this case. He also got prepared scaled site plan.

After completion of the investigation the challan was presented in the court of Illaqa Magistrate, who committed the case to the Court of Sessions. Accused Jagtar Singh and Ram Singh had died before presentation of the challan before the Illaqa Magistrate, as such both the present accused Dalip Singh and Bohar Singh faced the trial.

The trial Court framed charge u/s 364/34 IPC against the accused, to which they pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined PW-1 Sunder Singh, Draftsman, PW-2 Daya Singh, PW-3 Gurnam Kaur -complainant, PW-4 Inspector Darshan Singh, PW-5 Inspector (retired) Daljit Singh and closed the prosecution evidence.

The accused were examined u/s 313 Code of Criminal Procedure and all the incriminating evidence was put to them, to which they denied and complained of false implication. Accused Dalip Singh further stated that he is innocent and has been falsely implicated in this case as his daughter deposed against Daya Singh and his other relatives who were got arrested because of suspicion. Accused Bohar Singh also stated that he has been involved much later in this case after making him sit in police station, Makhu, for about 4 days. The accused Examined DW-1 LC Sarvjit Singh and closed the defence evidence.

The learned trial Court, after hearing the learned Counsel for the parties, convicted and sentenced the accused/Appellants vide judgment and order dated 17.2.2000 , as aforesaid.

Feeling dissatisfied with the aforesaid judgment and order, the Appellants have preferred the present appeals. I have heard learned Counsel for the parties and have gone through the records of the case.

Learned Counsel for the Appellant has submitted that there is delay in lodging the FIR. According to the prosecution, the occurrence took place at 7.00p.m. on 11.5.1990 but the FIR was registered on 12.5.1990 at 9.30 a.m. i.e. after more than 12 hours. The explanation given by Gurnam Kaur complainant does not appeal to the reason. I have carefully considered the said submission but do not find any force in the said submission.

The accused, according to the FIR were armed with weapons. So, in these circumstances, the delay in lodging the FIR stands fully explained.

Learned Counsel for the Appellants has further submitted that Gurnam Kaur has not given the name of assailants in the FIR. The supplementary statement of Gurnam Kaur was recorded after two days giving the name, parentage and address of the accused. The source of her information regarding their names and parentage has not been brought on the file. Admittedly, there was enmity between the parties. Daughter of Dalip Singh accused was allegedly kidnapped by father of Daya Singh. So, in these circumstances, the case of the prosecution is doubtful.

I have carefully considered the said submission but do not find any force in the said submission.

From the perusal of Ex.P-6 supplementary statement of Gurnam Kaur, it is revealed that same was recorded on the same day i.e. 12.5.1990. So, it cannot be said that supplementary statement was recorded two days after the occurrence.

So far as the enmity is concerned i.e. a double edged weapon and cut both ways i.e. prosecution as well as the accused. The enmity according to the record is that daughter of Dalip Singh was enticed away by one Lakha Singh and father of victim was also arrayed as accused. The story of prosecution is that in order to teach a lesson to the family of Gurnam Singh, Daya Singh has been kidnapped by the accused. So, the above said argument does not create any dent in the prosecution story.

Learned Counsel for the Appellant has further submitted that the accused have been acquitted u/s 25 of the Arms Act. The prosecution story becomes doubtful as the prosecution has failed in respect of recovery of weapon.

I have carefully considered the said submission but do not find any force in the said submission.

DBL gun was recovered from Jagtar Singh accused, who has since expired. The proceedings against him had been abated. So, the above said argument cannot be given much importance.

Learned Counsel for the Appellants has further submitted that prosecution has to prove ingredient of offence u/s 364 IPC. Daya Singh victim has not received any injury. So, it cannot be said that Daya Singh was kidnapped with an intention to kill. So, the ingredient of offence u/s 364 IPC remains unproved.

I have carefully considered the said submission but do not find any force in the said submission.

Dalip Singh was abducted along with deadly weapon. From bare reading of Section 364 IPC, it reveals that if a person has been abducted and put in danger of being murdered also attract ingredient of offence u/s 364 IPC. It is not necessary that there must be an injury. The police recovered the victim from the custody of the accused. So, ingredient of offence u/s 364 IPC are clearly made out.

Lastly, learned Counsel for the Appellants has submitted that Dalip Singh is aged 75 years whereas the other accused Bohar Singh is aged 55 years of age. It is further argued that occurrence relates to the year 1990 i.e. twenty one years ago. As per custody certificate both the Appellants have undergone incarceration for a period of four months and twenty nine days out of the substantive sentence of four years. The Appellants are on bail since the year 2000. So, prayer has been made for reduction in the sentence.

In this case, there were four accused namely Dalip Singh, Bohar Singh, Jagtar Singh and Ram Singh. However, accused Jagtar Singh and Ram Singh had died before the presentation of the challan before the Illaqua Magistrate. So, the proceedings against accused Jagtar Singh and Ram Singh stood abated. The charge in the present case was framed on 18.10.1994. Appellant Dalip Singh has given his age as 50 years on that day whereas Appellant Bohar Singh has given his age as 25 years. About 161/2 years have elapsed after the framing of charge against the Appellants. So, age of Dalip Singh and Bohar Singh would be 661/2 years and 411/2 years respectively. The occurrence took place on 11.5.1990 i.e. more than 20 years ago.

As per custody certificate Dalip Singh has undergone incarceration for a period of four months and twenty nine days ( say five months). The trial Court pronounced the judgment on 17.2.2000 and sentence of both the Appellants was ordered to be suspended on 27.3.2000 by this Court. So, in these circumstances, Bohar Singh Appellant also remained in custody for few months. Appellant Dalip is in the evening of his life and both the Appellants are on bail for the last about eleven years. So, keeping in view the totality of the circumstances, the sentence of imprisonment of both the Appellants stand reduced to the period already undergone. However, their sentence of fine of each of the accused stands enhanced to Rs. 20,000/-. The Appellants are directed to deposit the said amount of fine with the trial Court within two months from today, failing which they shall undergo the remaining part of their sentence.

With the modification in the sentence, the appeal stands disposed of accordingly.

A copy of this judgment be sent to the trial Court for strict compliance.