Crl. Misc. No. 506 MA of 2009(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH -.- Crl. Misc. No. 506 MA of 2009(O&M) Date of Decision :- 31.8.2010 Ram Kali .... Applicant/Appellant Vs. Urmila & Ors. .... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH. Present:- Mr. J.S.Virk, Advocate, for the applicant/appellant. Mr. Sushil Bhardwaj, Advocate, for respondents No. 1 to 3. Mr. Parminder Singh, Advocate, for respondent No.4. Mr. S.S.Sidhu, Advocate, for respondent No.5. Ms. Shalini Attri, DAG, Haryana. Gurdev Singh, J Heard. The applicant-complainant – Ram Kali filed complaint under Sections 364 and 120 B IPC against respondents No. 1 to 5/accused – Urmila and others. She contended therein that Rameshwari – accused was having illicit relations with Ramesh – accused and all the accused had the apprehension that Shiv Kumar, her brother, who was married to Urmila was a hurdle in their way. A divorce petition was filed by Urmila with the help of the other accused against Shiv Kumar in which a compromise was effected. After the compromise Shiv Kumar started living with her. The Crl. Misc. No. 506 MA of 2009(O&M) -2- accused were not satisfied with the said compromise and they wanted to remarry Urmila with some rich person. All of them came to her house and forcibly took Shiv Kumar with them with intention to murder him. After two months thereof she accompanied by her husband went in search of him and they learnt that Shiv Kumar had been sent to Hari-ka-Pattan, Ferozepur with intention to commit his murder. After the preliminary evidence was produced by the complainant, all the accused were summoned to stand their trial for the above said offences. After their appearance before the Magistrate, the case was committed to the Court of Sessions on the ground that offence under Section 364 was exclusively triable by that Court. They were charged for the offence under Section 364 read with Section 120 IPC. In order to prove the guilt of the accused, the complainant examined herself as PW1 and Ved Parkash as PW2. After she closed the evidence, statements of the accused were recorded under Section 313 Cr.P.C wherein they pleaded innocence. They produced certified copies of the orders dated 17.9.1997, 12.8.1999 and 9.1.2001 Ex. D1 to D3 respectively and attested copy of enquiry report dated 24.1.2002 Ex. D4, in their defence. After hearing Public Prosecutor for the State and defence counsel for the accused, the Learned Additional Sessions Judge, Karnal acquitted the accused for the aforesaid offences. The complainant has filed this application under Section 378 (4) Cr.P.C for leave to file appeal against that judgment of acquittal. I have heard learned counsel for both the sides. Crl. Misc. No. 506 MA of 2009(O&M) -3- It has been submitted by learned counsel for the petitioner that the petitioner/complainant PW1 as well as Ved Parkash PW2 made categorical statements before the trial Court that all the accused entered a criminal conspiracy and kidnapped Shiv Kumar with intention to commit his murder. Their statements were brushed aside by the trial Court without assigning any reason. Those statements are sufficient to sustain their conviction and as such leave to file appeal be granted. It is not the statement of Ved Parkash PW-2 that the accused had kidnapped Shiv Kumar. His statement is only to the effect that he had the suspicion that it were the accused, who kidnapped Shiv Kumar. No doubt that prosecution cae was supported by the complainant PW-1. However, she totally demolished the case by making some admissions. During her cross-examination she admitted that at the time the compromise was entered into between Shiv Kumar and Urmila they had only one child and that two more children were born out of their wedlock. She has stated that one child was born after the compromise and the second child was born after two and a half years of the compromise. In this way, there was possibility of her going to Kurukshetra in the year 2001 and at that time Shiv Kumar was living with his wife. If that is the position, there was no question of the accused having been kidnapped in the year 1999. The documentary evidence produced by the accused in the defence, which includes the orders passed by the Magistrate in the criminal case under the Excise Act, itself shows that Shiv Kumar was being produced in custody before the criminal Crl. Misc. No. 506 MA of 2009(O&M) -4- Court upto 9.1.2001. That altogether rules out the possibility of his kidnapping in 1999. When such is the case it cannot be held that findings recorded by the trial Court, while acquitting the accused, cannot be sustained. There is not ground for granting the leave to appeal against that judgment. Application is dismissed accordingly. August 31, 2010 (Gurdev Singh) tripti Judge