CRA No.D-484-DB of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.D-484-DB of 2006 Decided on .12.2012 Dilbagh Singh s/o Sh.Surinder Singh, r/o Ruru Wala, Police Station, Harike, Distt. Amritsar. ........Appellant Versus State of Punjab .........Respondent AND CRA No. D-528-DB of 2006 Paramjit Kaur w/o Balwinder Singh, r/o Chohla Sahib, Distt. Amritsar. ........Appellant Versus State of Punjab .........Respondent AND CRA NO.D-527-DB OF 2006 Gursahib Singh @ Saba s/o S.Joginder Singh, r/o Sabhra, Distt. Amritsar. ........Appellant Versus State of Punjab .......Respondent CRA No.D-484-DB of 2006 2 AND CRA NO.963-DB OF 2006 Pargat Singh s/o Joginder Singh, r/o Chohla Sahib, Tehsil Patti, Distt. Amritsar. .........Appellant Versus State of Punjab .........Respondent CORAM HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present Mr.Vinod Ghai, Senior Advocate (amicus curiae) with Mr. Sanjeev Sharma, Advocate for appellant Pargat Singh in Crl. Appeal No.D-963-DB of 2006. Mr. Vaneet Sharma, Advocate, for appellant Dilbagh Singh in Crl. Appeal No. D-484-DB of 2006. Mr. D.S.Pherumen, Advocate, for appellants Paramjit Kaur and Gursahib Singh @ Saba in CRA No. D-528-DB of 2006 and CRA No. D-527-DB of 2006 respectively. Mr.P.S.Thethi, Additional Advocate General, Punjab for respondent. S.P.BANGARH, J Since all the appeals i.e CRA No. D-484-DB of 2006, titled Dilbagh Singh v. State of Punjab, CRA No.D-528-DB of 2006, titled Paramjit Kaur v. State of Punjab, CRA No. D-527-DB of 2006, titled Gursahib Singh @ Saba v. State of Punjab and CRA No. D-963-DB of 2006, titled Pargat Singh v. State of Punjab, have arisen from the common impugned judgment and order, these shall be decided by this common judgment. CRA No.D-484-DB of 2006 3 The appellants in all the appeals have assailed the judgment of conviction and order of sentence dated 03.06.2006, passed by the learned Additional Sessions Judge (Adhoc), Amritsar, in Session Case No. 57/FTC/2005/2006, Trial No. 6/2006, emanating from FIR No.78 dated 22.04.2005, under Sections 364-A, 302, 201, 212, 216 and 120-B of the Indian Penal Code ('IPC' for short) of Police Station, Patti, whereby, they were convicted for commission of offences punishable under Sections 120-B, 364, 302 read with Section 34 and 201 IPC and sentenced to undergo imprisonment for life each and to pay fine of `2,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of two months each for commission of offence punishable under Section 302 read with Section 120-B IPC. Since, they had been sentenced under Section 302 IPC, the learned trial Court in the impugned order of sentence observed that there is no need to pass separate sentence under Section 364-A IPC. Case of the prosecution is that about two years prior to the registration of the case, Balbir Singh complainant had gone to Uttar Pradesh after selling his three acres of land. He has two daughters and one son. His eldest daughter Rani is aged 14 years and his son Gurbhajan Singh is younger to her and aged 12/13 years at the time of registration of the case. Before going to Uttar Pradesh, he had left his children with his elder sister Bhajan Kaur wife of Karaj Singh at Algaon. His son was studying in a school at village Algaon. Complainant stayed in Uttar Pradesh for about one year, but he could not purchase the land there at cheaper rates and, therefore, he alongwith his wife came back and started residing with his brother Malkiat Singh at Patti. He also purchased one plot and started construction, thereon. His son had CRA No.D-484-DB of 2006 4 passed third standard. On 18.04.2005, at about 08:30 a.m, son of the complainant alongwith his mother Kuldip Kaur went to the shop of his uncle for making telephone call on PCO, as the wife of the complainant was to talk to her elder sister Bhajan Kaur at Algaon Kothi. As the telephone call could not be made because of lines being busy, wife of the complainant came back to her house leaving her son on the PCO booth with his aunt Balwinder Kaur. After some time, Balwinder Kaur sent message to his wife that phone line was clear and as such, his wife went to PCO to talk on telephone. When she reached there, she found her son Gurbhajan Singh missing from that place. Thereupon, she informed him (the complainant) and the complainant and others searched for Gurbhajan Singh, but he could not be traced out. Gurbhajan Singh was having wheatish complexion, cut hair and black mole on the right side of the chin. He was wearing read coloured T-shirt and black trouser. At that time, the complainant did not suspect anyone. On 20.04.2005, a telephone call was received on the PCO of his brother Malkiat Singh from mobile phone no. 98550-63853 of an unknown person at the evening time, that his son Gurbhajan Singh was in their custody and this person demanded ransom of ` 5,00,000/- for releasing his son. The said call was heard by Comrade Bachhitar Singh and he had talked to him also. Complainant and his wife also had a talk with Gurbhajan Singh @ Sonu. Complainant made request that he is a poor person and is not in a position to arrange huge amount of `5,00,000/-. Thereupon, the person on the other side of telephone, asked him to arrange, whatever, he could and told that he will call again. Threat was also given to him against reporting the matter to the police, failing which, CRA No.D-484-DB of 2006 5 his son will be done to death. Complainant consulted his family members and did not talk to anyone. On 21.04.2005, again call was received on PCO from the same mobile number at 10:00 p.m telling that if the money had been arranged, they could come near village Bhagupur on the road, and not more than two persons should come. They should not bring any weapon or inform the police otherwise bad results will follow. The said call was again heard by Comrade Bachhitar Singh and complainant and they were even allowed to talk to his son. Again, the matter was not reported to the police. Complainant alongwith Bachhitar Singh started on motor cycle with an amount of ` 1,90,000/-,which he had arranged, and both of them reached Bhagupur on pucca road. Comrade Bachhitar Singh contacted these persons from his mobile phone and they were instructed to come to village Kirtowal. As such, they went to village Kirtowal and from there, they were instructed to reach village Gandiwind and when they reached there, they were instructed to reach near Chaube near Palli and they reached there. They were asked to leave money there and go back and told that at some distance from tubewell, they will find their son. As such, the complainant left bag of orange colour containing `1,90,000/-, whereon his name had been written. Then, they started towards tubewell and one person came and took away bag of money and went towards riverbed and they saw that person in the light of motorcycle and one of the persons was aged 24/25 years, having yellow patka on his head and having cut hair and beard. When complainant reached at the tubewell, his son was not there. He and Bachhitar Singh tried to contact those persons on phone, but could not be contacted. Then, they started towards Police Station to CRA No.D-484-DB of 2006 6 report the matter and in the way, police met them and statement of the complainant Ex.PC was recorded, on the basis of which, formal FIR Ex.PC/2 was recorded in Police Station Patti. Initial occurrence had taken place on 18.04.2005 in the area of Patti at about 08:30 a.m. Initially FIR Ex.PC/1 was registered on 22.04.2005 at 06:30 p.m under Section 364-A IPC, later on 24.04.2005, offence under Section 302 IPC was added vide Ex.POO. Investigating Officer collected records regarding mobile phone from the office of Spice, Amritsar. He visited the place of the occurrence on 22.04.2005, prepared rough site plan and recorded statements of the witnesses. On examination of the record of spice, it was found that Prem Singh @ Raja, distributor of Goindwal had issued said telephone. Therefore, Investigating Officer went to Goindwal and got record from Prem Singh and same was taken into possession vide memo Ex.PO. Telephone was in the name of Inderjit son of Rachhpal Singh, Jat, resident of village Bhall, however, no person was found of the said name in the village Bhall. As per description given by Prem Singh, sketch of the person was prepared in the office of Senior Superintendent of Police. Darshan Singh, Ex-Sarpanch resident of village Chugian Batha Singh met police party at Patti and his statement was recorded and from the sketch, he identified Pargat Singh, appellant (accused). On 24.04.2005, raid was conducted at the house of Pargat Singh appellant (accused) and he alongwith Gursahib Singh appellant (accused) was apprehended. Herohonda motorcycle was recovered on that date, which was taken into possession vide memo Ex.PV. In the presence of Birpal Singh, Sub Divisional Magistrate, Tarn Taran, recovery of the corpse of Gurbhajan CRA No.D-484-DB of 2006 7 Singh @ Sonu was effected on the identification of the appellants, on the basis of disclosure statements made by them. Photographs of the corpse were taken. Compact disc was also prepared. Inquest report of the corpse of Gurbhajan Singh @ Sonu was prepared and the same was sent to the mortuary of Civil Hospital Patti for autopsy. On 25.04.2005, Gursahib Singh and Pargat Singh appellants were interrogated and pursuant to the disclosure statements, Gursahib Singh got recovered `90,000/-, while Pargat Singh got recovered `93,000/-, which were taken into possession by the police. After the postmortem examination, clothes of the deceased were produced by Hira Singh, HC before Investigating Officer Station House Officer and those were made into a parcel, which was sealed and seized vide memo. On 26.04.2005 Gursahib Singh and Pargat Singh appellants were again interrogated and pursuant to their disclosure statements, they got recovered mobile phone having no.98550-63853 from the house of Paramjit Kaur appellant (accused), located in village Chohla Sahib which was taken into possession. On 27.04.2005, offences under Sections 212, 216 and 120-B IPC were added. On 29.04.2005 Ex-sarpanch made a statement that he had heard appellants (accused) talking about the occurrence. Paramjit Kaur appellant (accused) suffered disclosure statement, which was recorded and pursuant, thereto, she got recovered `3,500/- from her house, which were taken into possession. Dilbagh Singh appellant also suffered disclosure statement and pursuant, thereto, he got recovered `3,500/- from his house and one black coloured trouser, which Gurbhajan Singh was wearing, was also taken into possession. On 02.05.2005, Mangal Singh, Photographer produced the CRA No.D-484-DB of 2006 8 photographs and compact disc, which were taken into possession. On 06.05.2005, bills of PCO were also produced and taken into possession. After completion of investigation, Station House Officer of Police Station Patti, District Tarn Taran instituted police report under Section 173 of the Code of Criminal Procedure ('Cr.P.C' for short) before the learned Illaqa Magistrate to the effect that it appears that the appellants have committed offences punishable under Sections 364-A, 302, 201, 212, 216 and 120-B IPC. On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were furnished to the appellants and the case was committed to the Court of Session for trial, which was entrusted to learned Additional Sessions Judge (Adhoc), Amritsar, who, on receipt of Sessions case, framed charge under Sections 120-B, 364, 302 read with Section 34 and 201 IPC against all the appellants, whereto, they pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned. At the trial, prosecution examined as many as twenty two witnesses, whose deposition is as under:- PW1 Dr.Gurpreet Singh Rai, Medical Officer, Civil Hospital, Patti conducted autopsy on the corpse of Gurbhajan Singh @ Sonu and found following injuries on the same:- 1. Multiple abrasion present on front and both sides of neck. On dissection under line muscles lacerated, trachea larynx and pharynx congested, sub continuous tissue ecobymosed; 2. An abrasion 3 cm x 2 cm on top of left shoulder joint; 3. An abrasion 3cm x 2 cm on right side of fore-head, right eye swollen and congested and CRA No.D-484-DB of 2006 9 4. An abrasion 4cm x 3 cm on lateral side of left leg just below knee. PW1 further testified that sutured loosened on scalp, brain matter liquefying, walls ribs and cartilage's of thorax putrefying pleura congested, lungs congested, right side of heart full of blood. Paretonial putrefying. Stomach, a part of small intestine, piece of liver, spleen and one kidney sent to chemical Examiner, Patiala. He also testified that in the opinion of the medical board, the cause of death in the case appears to be asphyxia due to injury no.1, which was sufficient to cause death in ordinary course of nature. He also testified that all the injuries were ante mortem in nature and caused by blunt weapon. PW1 also testified that probable time between injuries and death was immediate and between death and postmortem was three to five days. He also testified that on receipt of report of Chemical Examiner to Govt. Punjab, alcohol was detected in the contents Ex.I, II and III. No poison or alcohol was detected in Ex.IV. He brought the original autopsy report and proved copy, thereof, Ex.PA. He also proved the report of the Chemical Examiner Ex.PB. PW2 Balbir Singh testified that Gurbhajan Singh, aged 12 years at the time of his death, was his son and Malkiat Singh, his brother, is running a PCO at his house and four months prior to 18th of the month, his wife along with her son Gurbhajan Singh went to PCO of his brother Malkiat Singh at 08:30 a.m to make call to his sister at Algaon Kothi, but she could not be contacted and after leaving Gurbhajan Singh at the PCO, she came back and after 5/6 minutes, she received a message from Balwinder Kaur, through a lady neighbourer, CRA No.D-484-DB of 2006 10 that a telephone call has come from his sister and his wife went to the PCO to attend the call, but she did not find Gurbhajan Singh there and they ran here and there; they tried to find him for 3/4 hours and then they went to Police Station Patti to lodge the report, which was lodged for missing of his son with the police. He further testified that on 20.04.2005, a telephone call was received on the PCO of Malkiat Singh at 09:30 p.m, when he happened to be present there, and that call was attended by him and maker of the call told him that his son Gurbhajan Singh was in their custody and they will release him on payment of `5,00,000/- and he requested the maker of the call that he being a poor person, was not in a position to make payment and he did not relent and fearing that Gurbhajan Singh be done to death, he did not inform the police; on 21.04.2005, a telephone call was received on the PCO of Malkiat Singh at 10:00 p.m and he attended the call and was requested by maker of the call to see them with the amount of ransom and they also made his son to talk to him and he informed the person that he has managed to have `1,90,000/- and they directed him to bring that amount at village Bhagupur. PW2 (complainant) took the amount and along with Bachhitar Singh went to that place and latter was having mobile at that time and they were present at village Bhagupur and the call was received by Bachhitar Singh that those persons required to see them at village Kirtowal and when they went to that village, they could not find the kidnappers and again telephone call was received by Bachittar Singh that those persons required them to reach the bridge of Chambewal; and they went to that place and were told to place the money; they placed a bag containing `1,90,000/- of yellow colour there, CRA No.D-484-DB of 2006 11 on which his name was written. PW2 further testified that they also asked them to see Gurbhajan Singh at a tubewell at a distance of one killa from that place. He further testified that they were on motorcycle and when they turned motorcycle towards tubewell, he saw a person wearing yellow patka who picked the bag and ran away, who was identified as Pargat Singh by this witness, who also testified that they could not find Gurbhajan Singh anywhere and, thereafter, they could not establish contact with kidnappers. He also testified that on 22.04.2005, they met the police at village Sangwan, where he got recorded his statement Ex.PC, which was thumb marked by him in token of its correctness. PW3 Bachhitar Singh also testified likewise and corroborated the testimony of PW2. PW4 Mangal Singh, Photographer testified that on 24.04.2005, he was called by Station House Officer, P.S, Patti at a place near village Chamba and in his presence, corpse of Gurbhajan Singh @ Sonu was got recovered by Pargat Singh and Gursahib Singh appellants, which they had kept buried and on that occasion, he took photographs, whose negatives are Ex.P1 to Ex.P10 and those photographs were enlarged, which are Ex.P11 and Ex.P20 and those were handed over to the Station House Officer by him on 02.05.2005, which were taken into possession vide memo Ex.PG. PW5 Darshan Singh also testified that on 18.04.2005, CRA No.D-484-DB of 2006 12 he was going on motorcycle from Patti to village Jhugian and on the way at 09:00 a.m, near Workshop of Roadways, Patti, Gursahib Singh and Pargat Singh appellants came from his back side on motorcycle, which was being driven by Pargat Singh appellant and he also saw Gurbhajan Singh @ Sonu son of Balbir Singh sitting on the motorcycle in between Pargat Singh appellant and Gursahib Singh appellant, who were previously known to him. He further testified that after 4/5 days, he learnt that Gurbhajan Singh son of Balbir Singh had been kidnapped and he met Malkiat Singh, brother of Balbir Singh and told him that he had seen Pargat Singh and Gursahib Singh appellants taking Gurbhajan Singh on motorcycle; after five days police also met him and he went to village Chamba with police and they saw Pargat Singh appellant at village Chohla Sahib on Herohonda motorcycle who was over powered by the police and interrogated for about three hours and he disclosed that he had kept buried the dead body of Sonu near the bridge and he took the police to the disclosed place and got recovered the corpse, which was identified by him and inquest report Ex.PS, on the corpse was prepared by police in his presence. PW6 Malkiat Singh testified that he runs PCO at his house at Patti and on 18.04.2005 at about 08:00 a.m, Baljit Kaur wife of his brother Balbir Singh along with her son Gurbhajan Singh (deceased) came to make telephone call to the sister of her husband at Algaon Kothi and she went back leaving her son Gurbhajan Singh (deceased) there CRA No.D-484-DB of 2006 13 and after ten minutes, telephone call was received from his sister for Balbir Singh and he sent message to him and Baljit Kaur came there at the PCO and in the meantime, Gurbhajan Singh was found missing from the PCO and could not be found albeit efforts made by them. PW6 further testified that on 20.04.2005, at about 10:00 p.m, a telephone call was received on his PCO, when besides him, Balbir Singh and other family members were also present, which was heard by Bachhitar Singh, Balbir Singh and Baljit Kaur turn by turn and this telephone was made from mobile no.98550-63853 and on 20.04.2005/21.04.2005, he (PW6) again talked on the same mobile number and both Gursahib Singh and Pargat Singh appellants told that they have received `1,90,000/- and they shall release the boy after receiving the remaining amount and third call was made by him (PW6) after a minute requesting them not to kill the boy, as he will pay the remaining amount of ransom. He also testified that his trunk dialing number was 01851242551 and the bills of calls made from the PCO on the mobile of the accused are Ex.P21, Ex.P22 and Ex.P23, which were lateron handed over by him to police on 06.05.2005 and those were seized vide memo Ex.PH. PW7 Harjinder Singh, Constable testified that on 22.04.2005, he was posted at Police Station, Patti and on that day, special report of this case was entrusted to Gurmail Singh, ASI for delivery, thereof, to the Sub Divisional Judicial Magistrate, Patti on the same day, which was delivered to him at 11:00 a.m. PW8 Balwinder Singh, Constable testified that on 24.04.2005, he was posted at Police Station Patti, on which date, special report of the case was entrusted to him by SHO, Balbir Singh and on the CRA No.D-484-DB of 2006 14 same day, he delivered the same to the Illaqa Magistrate at 05:00 p.m. PW9 Karam Singh testified that he deals in the trading of cattle and Pargat Singh appellant was known to him who runs scooter repair shop at his village. He testified that on his request, loan of `15,000/- was given by him to Pargat Singh, in the month of November 2004 and the latter had promised to reimburse the same by 15.04.2005 and on the latter date, he went to his shop and demanded the loan amount ibid and he promised to repay the same on 20.04.2005 and on that day, he found his shop closed and, thereafter, he went to the house of Gursahib Singh appellant, who was not there; his mother was there, who told him that he and Pargat Singh appellant had gone to Delhi to purchase goods and on 21.04.2005, he went to the house of Pargat Singh in village Chohla Sahib, but he was not present at the house and met his mother, who told him that he had gone to the farm house of Paramjit Kaur and, thereafter, he went there and the door of the farmhouse was found open and he saw Pargat Singh, one lady Paramjit Kaur, one young man Dilbagh Singh, who is present in the Court and Gursahib Singh appellant there and he heard Pargat Singh and Gursahib Singh appellants talking with each other that they had demanded `5,00,000/- and Paramjit Kaur appellant was saying that the amount of `2,00,000/- be accepted and (he saw the boy aged 12 years at the house of Gursahib Singh appellant) and if something happens to the boy, they will have to suffer and Paramjit Kaur appellant was also saying to others that they had been leaving the boy with her and in case of his slipping away, she could be in trouble and Pargat Singh appellant suggested her that they will leave Dilbagh Singh at her house to guard the house and he saw Paramjit Kaur appellant torturing the boy inside CRA No.D-484-DB of 2006 15 the room; then he went inside the house and met Gursahib Singh appellant and demanded back amount borrowed from him and he promised to pay him the money in a day or two and after six days, he appeared before the Inspector General of Police and made statement. PW10 Rishi Ram Draftsman testified that scaled site plan Ex.PJ was got prepared from him by Bachhitar Singh PW9 at the spot. PW11 Satnam Singh, MHC tendered in evidence his affidavit Ex.PA. PW12 Hira Singh, HC tendered in evidence his affidavit Ex.PL. PW13 Balkar Singh, SI conducted investigation of this case and testified on the lines of investigation. PW14 Anokh Singh testified that on 29.04.2005 when was present at his house at 07:00 a.m, Paramjit Kaur and Dilbagh Singh appellants came to him and Paramjit Kaur appellant told him that they had kidnapped a boy from Patti on 25.04.2005, who later on was murdered by them and she also