Crl.AppealNo.267-DB of 1998 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.AppealNo.267-DB of 1998 Date of Decision:13.01.2009 Vinod Kumar son of Parshotam Lal son of Babu Ram, resident of 65, Bharat Nagar, Ludhiana. .... Appellant Versus The State of Punjab .... Respondent 2. Crl. Appeal No. 271-DB of 1998 Pardeep Kumar alias Banti son of Yash Pal son of Mohan Lal, resident of village Patti, Amritsar. ... Appellant. Versus The State of Punjab .... Respondent 3. Crl. Appeal No. 346-DB of 1998 1. Davinder Singh alias Joginder Singh son of Teja Singh son of Sewa Singh, resident of village Sunet, Ludhiana. 2. Satpal son of Kartar Singh son of Piara Singh, resident of Punjab Housing Board Colony, H. No. J- 631, Ludhiana. 3. Ashwani Kumar alias Ribiro son of Ram Rattan son of Ralla Ram, resident of 182/2, Bharat Nagar, Ludhiana. 4. Gursharan Singh alias Lambu son of Surjan Singh son of Bir Singh, resident of village Sunet, Ludhiana. ... Appellants. Crl.AppealNo.267-DB of 1998 --2-- Versus The State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vinod Ghai, and Mr. D.S. Pheruman, Advocates for the appellants, in all the criminal appeals. Mr. V.K. Jindal, Additional Advocate General, Punjab, for the respondent-State, in all the criminal appeals. **** Sham Sunder, J. This judgment shall dispose of Crl. Appeal No. 267-DB of 1998, filed by Vinod Kumar, Crl. Appeal No. 271-DB of 1998, filed by Pardeep Kumar alias Banti, and Crl. Appeal No. 346-DB of 1998, filed by Davinder Singh alias Joginder Singh, Satpal, Ashwani Kumar alias Ribiro and Gursharan Singh alias Lambu, accused ( now appellants ), arising out of the judgment of conviction dated 18.05.1998, and the order of sentence dated 19.05.1998, rendered by the Court of Additional Sessions Judge, Ludhiana, vide which it convicted and sentenced them, as under: Crl.AppealNo.267-DB of 1998 --3-- Names of the accused (now appellants) The offence for which conviction was recorded. Sentence awarded 1 Vinod Kumar, Pardeep Kumar @ Banti, Davinder Singh @ Joginder Singh, Satpal Singh, Ashwani Kumar @ Ribiro and Gursharan Singh. U/S. 148 IPC Rigorous imprisonment for one year each. 2 Vinod Kumar, Pardeep Kumar @ Banti, Davinder Singh @ Joginder Singh, Satpal Singh, Ashwani Kumar @ Ribiro and Gursharan Singh. U/S 364 IPC for abducting Inderjit Singh in order that he may be murdered. Rigorous imprisonment for five years each. Fine of Rs.2000/-each. In default of payment of fine to undergo rigorous imprisonment for three months each. 3 Vinod Kumar, Pardeep Kumar @ Banti, Davinder Singh @ Joginder Singh, Satpal Singh, Ashwani Kumar @ Ribiro and Gursharan Singh. U/S 364 IPC for abducting Amarjit Singh in order that he may be murdered. Rigorous imprisonment for three years each. Fine of Rs.1000/-each. In default of payment of fine to undergo rigorous imprisonment for two months each. 4 Vinod Kumar, Pardeep Kumar @ Banti, Davinder Singh @ Joginder Singh, Satpal Singh, Ashwani Kumar @ Ribiro and Gursharan Singh. U/S 368 IPC for confining Inderjit Singh & Amarjit Singh in the house of Satpal, accused after abducting them from their house. Rigorous imprisonment for three years each. Fine of Rs.2000/-each. In default of payment of fine to undergo rigorous imprisonment for three months each. 5 Vinod Kumar, Pardeep Kumar @ Banti, Davinder Singh @ Joginder Singh, Satpal Singh, Ashwani Kumar @ Ribiro and Gursharan Singh. U/S 302 IPC read with section 149 IPC Life Imprisonment. Fine of Rs.5000/- each. In default of payment of fine to undergo rigorous imprisonment for six months each. 6 Vinod Kumar, Pardeep Kumar @ Banti, Davinder Singh @ Joginder Singh, Satpal Singh, Ashwani Kumar @ Ribiro and Gursharan Singh. U/S 323 read with Section 149 IPC Rigorous imprisonment for six months each. Crl.AppealNo.267-DB of 1998 --4-- The substantive sentences of all the accused were ordered to run concurrently. 2. The law was set in motion, by Harbhajan Kaur, mother of Inderjit Singh ( now deceased ). According to her, Amarjit Singh and Inderjit Singh, her sons, served in the Eastman Company, for 3-4 months, the owner whereof, at the relevant time, was Vinod Kumar, accused. On 13.02.1992 at about 9.00 AM, Harbhajan Kaur alongwith Gurmeet Kaur, Amrjit Singh and Inderjit Singh was present in her house, in the area of Sham Nagar, Ludhiana when Vinod Kumar, Ashwani Kumar @ Robirio, Joginder Singh son of Teja Singh resident of village Sunet, Pardeep Kumar son of Yaspal Sharma, Lambo, Satpal and Deepak came in one Maruti Van, the number of which was recorded as 37, which she could not properly read. There was another Maruti vehicle, the number whereof also could not be read by Harbhajan Kaur. The aforesaid persons, started saying that gold had been stolen, from the house of Vinod Kumar. It was further stated by them, that, in the first instance, the gold was searched, in the house of Vinod Kumar, but the same was not found there. They further stated that they were suspecting that Amarjit Singh and Inderjit Singh, who were working, in their factory, had stolen the same. Harbhajan Kaur assured them that her sons were not Crl.AppealNo.267-DB of 1998 --5-- in the habit of committing thefts, but they were not satisfied. They forcibly took away Amarjit Singh and Inderjit Singh sons of Harbhajan Kaur, in the aforesaid maruti van and maruti car. Gurmit Kaur, daughter of Harbhajan Kaur, who was very much present, at that time, protested that her brothers should not be taken away by them. When Amarjit Singh and Inderjit Singh did not return home, nor any clue, with regard to them, was found, Harbhajan Kaur, entertained a belief, that her sons had been kept in a room at a remote place, with an intention to kill them. 3. On 14.02.1992, Ex.PE, statement was made by Harbhajan Kaur, narrating the aforesaid facts, before Kuldeep Singh, Assistant Sub Inspector, Police Station, Civil Lines, Ludhiana. It was read over and explained to her and after admitting the same to be correct, she signed it. Endorsement was also appended thereon, and the same was sent to the Police Station, for registration of the First Information Report, through Constable Amarjit , on the basis whereof FIR Ex.PE/2 was registered. 4. Thereafter, Kuldip Singh, Assistant Sub Inspector, alongwith Harbhajan Kaur and Gurmeet Kaur, went to the spot, and the same was inspected. He recorded the statements of Gurmit Kaur and Kartar Singh. He also made enquiries, from the persons, who were present there. Rough Crl.AppealNo.267-DB of 1998 --6-- site plan Ex.PM, after inspecting the spot, was prepared. The houses of the accused were raided, but they were not found present there. Thereafter, he came back to the Police Station. 5. On 15.02.1992, Kuldip Singh, Assistant Sub Inspector, was present in Bharat Nagar Chowk, alongwith other Police officials, at about 6 AM, when Amarjit Singh , brother of Inderjit Singh made a statement under Section 161 of the Code of Criminal Procedure. He was having injuries on his person on that day. He was sent for medical examination alongwith a request application. Thereafter, again the houses of the accused were raided. Davinder Singh alias Joginder Singh, accused, met the Police party. He was arrested. An enquiry was made from him, with regard to the dead body of Inderjit Singh. He stated that the dead body of Inderjit Singh had been concealed, in a shop of Maini building, near Kochhar Market, Ludhiana of which he only knew, and could get the same recovered. His disclosure statement Ex.PQ, in this regard, was recorded, which was signed by him and attested by the witnesses. In pursuance of the disclosure statement, he got recovered the dead body of Inderjit Singh, from the pre- disclosed place, and the same was taken into possession, vide memo Ex.PQ/1. Sada Ram, Constable, was summoned from the Police Station, and photographs of the dead body of Inderjit Singh were got taken. Sukhwinder Singh and Sucha Singh, Crl.AppealNo.267-DB of 1998 --7-- father of the deceased, reached the spot and identified the dead body as that of Inderjit Singh. The inquest report, Ex.PC of the dead body of Inderjit Singh, was prepared. The dead body, alongwith an application Ex.PD, was sent to Civil Hospital Ludhiana through Joga Singh, Constable , for post-mortem examination. 6. Thereafter, the houses of other accused were raided. Vinod Kumar and Pardeep Kumar, accused were arrested from Shalimar Hotel. Joga Singh, Constable, after the post-mortem examination, on the dead-body of Inderjit Singh, brought a parcel, containing the clothes of the deceased, which was taken into possession, vide memo Ex.PR. 7. On 18.02.1992, Vinod Kumar , accused, was taken out of the lock-up. He was interrogated in the presence of the prosecution witnesses. He disclosed that he had concealed an iron rod, underneath the grass, in Maini Building, of which he only knew, and could get the same recovered, by pointing out. His disclosure statement Ex.PS, was recorded, in this regard, which was signed by him, and attested by the prosecution witnesses. He led the Police party to the pre-disclosed place and got recovered an iron rod, Ex.P2, which was taken into possession vide memo Ex.PS/1, attested by the witnesses. Crl.AppealNo.267-DB of 1998 --8-- 8. On 17.02.1992, Ashwani Kumar, accused, surrendered in the Court and was remanded to judicial custody. He claimed participation, in the identification parade. On 26.02.1992, Kuldip Singh, Assistant Sub Inspector, went to the Jail alongwith the Executive Magistrate and other witnesses, for the purpose of holding identification parade of Ashwani Kumar, accused. However, Ashwani Kumar, accused, refused to participate, in the identification parade. On 28.02.1992 Rajinder Singh alias Deepak and Gursharan Singh alias Lamboo, accused were arrested from Mini Hotel, near the bus stand. On 29.02.1992, Ashwani Kumar, accused was arrested. Satpal , accused was arrested on 01.03.1992. 9. On 02.03.1992 Ashwani Kumar and Gursharan Singh, accused were interrogated, in the presence of Sukhwinder Singh and Hira Singh, Head Constable. Ashwani Kumar, accused, disclosed that he had concealed an iron rod in Maini Building and a car in a house at Ferozepur Road, of which he only knew, and could get the same recovered, by pointing out. His disclosure statements Ex. PF and Ex.PG were recorded, which were signed by him, and attested by the witnesses. Gursharan Singh, accused, also made a disclosure statement, that he had concealed a car, at Ferozepur road, of which he only knew, and could get recovered the same, by Crl.AppealNo.267-DB of 1998 --9-- pointing out. His disclosure statement Ex.PH was recorded, which was signed by him, and attested by the witnesses. Thereafter, Ashwani Kumar, accused got recovered the iron rod Ex.P14, which was taken into possession, vide memo Ex.PJ, attested by the witnesses. Ashwani Kumar, accused, also got recovered a car, alongwith the documents, which was taken into possession, vide memo Ex.PK, attested by the witnesses. Gursharan Singh, accused, also got recovered a car, alongwith documents, which was taken into possession, vide memo Ex.PL, attested by the witnesses. The rough sketches regarding the place of recovery Ex.PT, PT/1 and PT/2, were prepared. On 03.03.1992, Satpal, accused, was interrogated. He made a disclosure statement that he had concealed stove, bottle, glasses and jug in a house in the Housing Board Colony, Ferozepur Road. His disclosure statement Ex.PU, in this regard, was reduced into writing, which was signed by him and attested by the witnesses. Thereafter, he ( Satpal ) led the Police party to the pre-disclosed place, and got recovered Jug Ex.P15, bottles Ex.P16 and P17, glasses Ex.P18 to P21, and stove Ex.P22. Kuldip Singh, Assistant Sub Inspector, also prepared the rough site plan, Ex.PU/2, of the place of recovery. On 12.03.1992 Sada Nand, Constable, produced the negatives and photographs before Kuldip Singh, Assistant Sub Inspector. The same were taken into possession, vide memo Ex.PV. Site Crl.AppealNo.267-DB of 1998 --10-- plan Ex.PV/1, was also prepared by Kuldip Singh, Assistant Sub Inspector. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. 10. On their appearance, in the Committing Court, the accused were supplied the copies of all the documents, relied upon by the prosecution. After the case was received by commitment, charge under Sections 148, 364, 364, 368, 302/149, and 323/149 of the Indian Penal Code was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 11. The prosecution, in support of its case, examined Dr. G.P. Mangla, MBBS, Medical Officer, Civil Hospital, Ludhiana, ( PW-1 ), who on 15.02.1992 at about 11.45 AM, medicolegally examined Amarjit Singh son of Sucha Singh, 22 years, resident of H.No. 609/43 and found the following injuries on his person: 1. Lacerated wound 1/4”x1/3” scalp deep with swollen margins on the top of the vertex. Clotted blood was present. 2. Scab bed abrasion 1/3”x1/6” on the bridge of the nose. 3. Scabbed abrasion 1/2”x1/6” on the interior aspect of the right fore-arm, in its lower 1/3rd. All the injuries were simple in nature and were caused with a blunt weapon. The probable duration of the injuries was about 36 hours. Crl.AppealNo.267-DB of 1998 --11-- 12. Dr. U.S. Sooch, MBBS ( DTCD), Emergency Medical Officer, Civil Hospital, Ludhiana, ( PW-2 ), conducted the post mortem examination, on the dead body of Inderjit Singh son of Sucha Singh, resident of 609/43, Sham Nagar, Ludhiana, on 15.02.1992, at about 3.30 PM. The rigor mortis was present on all the limbs. He found the following injuries on his person:- 1. Red contusion 3”x4” on and behind the left pinna with diffused swelling of the left temporo rigion. 2. Abraided contusion 4”x3” with red scab on the left fron to parietal region. 3. Abraided contusion with red scab on area of 4”x4” on the right cheek. 4. Red contusion 5”x4” on the top of left shoulder, with red scabbed abrasion 1”x1” overlying the contusion. 5. Abrasion 1-1/2”x3/4” on the back of left elbow. 6. Red swelling 5”x3” on the back of left wrist. 7. Multiple scabbed red abrasions on the dorsum and medial border of left hand, varying in size 1” x 1/4”. 8. Four abrasions 3/4”x1/4” on the left iliac crest. 9. Red contusion 5”x3” on lateral side of left hip. 10.Red contusion 5”x3”on the mid front of left thigh. 11.Multiple scabbed abrasions 3/4”x 1/2” on the front of left shin. 12.Two abrasions 3/4”x 1/2” on the front of left knee. 13.Bluish contusion 3”x4” on the left lateral side of chest on its lower part. 14.Abrasion 1”x1/2” front of the right shoulder. 15.Abrasion contusion 2”x1” on the back of right shoulder. 16.Two abrasions 3/4”x 1/2” on the lateral side of right upper limb. 17.Multiple abrasions 1/4”z 1/2” on the dorsum of right hand. 18.Red contusion 8”x7” on the left scapular region. 19.Red contusion 10”x9” on the left buttock. 20.Red contusion 7”x6” on the right buttock. 21.24 abrasions varying in size 1/4” to 1” in diameter on the back of trunk. 22.Red contusion 3”x3” on the back of left knee. Crl.AppealNo.267-DB of 1998 --12-- 23.Red contusion 6”x 3” horizontal on the mid lateral side of right thigh. 24.Red contusion 4”x2” on lateral side of right knee. 25.Multiple discrete abrasions on the front and lateral side of right lower limb. 26.Charring of skin 1/2”x1/2” on multiple places on the dorsum of left hand, left foot and nose. According to the doctor, the cause of death, in this case, was hemorrhage and shock, caused by multiple injuries, which were sufficient to cause death, in the ordinary course of nature. He further stated that all the injuries were ante-mortem in nature. The probable time, between injuries, and death was about 24 hours, and between death and the post mortem was about 18 hours. 13. Harbhajan Kaur, ( PW-3 ), is the first informant, who deposed, in the terms of the prosecution version. Amarjit Singh son of Sucha Singh, ( PW-4 ), was abducted alongwith his brother Inderjit Singh. He, ultimately, slipped from the clutches of the accused, when they were sleeping. He deposed that the accused confined him and his brother illegally and caused injuries on his person, and on the person of his brother ( Inderjit Singh), which, ultimately, resulted into his death. 14. Satpal, Naib Tehsildar-cum- Executive Magistrate, ( PW-5 ), deposed that he went to the Central Jail, Ludhiana, for holding the test Crl.AppealNo.267-DB of 1998 --13-- identification parade, in respect of Ashwani Kumar alias Robirio son of Ram Rattan. However, he refused to participate in the identification parade, on the ground, that he had already been shown to the concerned persons, in Police Station, Division No.5, Ludhiana. 15. Sada Ram, Constable, ( PW-6 ), took the photographs of the dead body of Inderjit Singh, which was lying in a shop, in Maini Building. This witness also proved the photographs Ex.P3 to P7 alongwith negatives Ex.P8 to P12 of the dead body, as also of the market, and the building, where the same was lying. 16. Krishan Kumar Rana, Draftsman, ( PW-7 ), prepared the scaled map Ex.P13 on police request, of the place, where the dead body was lying. 17. Hira Singh, Assistant Sub Inspector, (PW-8), was a member of the Police party. Kuldip Singh, Assistant Sub Inspector, ( PW-9 ), is the Investigating Officer. Thereafter, the Public Prosecutor for the State closed the prosecution evidence. 18. The statements of the accused, under Section 313 of the Code of Criminal Procedure were recorded. They were put all the incriminating circumstances, appearing against them, in the Crl.AppealNo.267-DB of 1998 --14-- prosecution evidence. Vinod Kumar, accused, in addition to the general plea of false implication, taken by him, and the other accused, in their statements, also stated that he had no factory and the deceased was not his employee. It was stated by him that he was taken to the Police Station by the Police on 13.02.1992, on suspicion, and his brother had given telegram about his illegal detention. It was further stated by him, that one dead body was already in possession of the Police. It was further stated by him that no theft had taken place, in his house. He further stated that he was falsely implicated, at the instance of his enemy. 19. Ashwani Kumar son of Ram Rattan, accused, besides the general plea of false implication also stated that he had gone to Bombay to meet Nirmaljit Singh before 15.02.1992. It was stated by him that his father Ram Rattan gave telegram to this effect on 15.02.1992. He further stated that he was falsely implicated in a case under Section 307 of the Indian Penal Code, prior to the occurrence. It was further stated by him, that due to that reason, he was also involved in this case. Crl.AppealNo.267-DB of 1998 --15-- 20. The remaining accused, in their statements under Section 313 Cr.P.C., pleaded false implication. 21. In their defence, the accused examined Balkar Singh, Constable, DW.1. Thereafter, the accused closed the defence evidence. 22. Ravinder Singh alias Deepak, one of the accused, could not be arrested and he was ultimately declared as proclaimed offender. 23. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 24. Feeling aggrieved against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the appellants. 25. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 26. The Counsel for the appellants, at the very outset, submitted that the alleged occurrence took place on 13.02.1992 at about 9.00 AM, in the area of Crl.AppealNo.267-DB of 1998 --16-- Sham Nagar, Ludhiana, whereas, the Police Station, Division No.5, is at a distance of 1 KM, therefrom. They further submitted that the FIR was lodged on 14.02.1992 at 6.30 PM. They further submitted that there was an unexplained delay of 33 hours, in lodging the report, which was utilized to concoct a story, false implication of the accused and introduction of false witnesses. Inderjit Singh ( now deceased ) and Amarjit Singh had worked in the factory of Vinod Kumar, one of the accused. When both of them were taken away by the accused, Harbhajan Kaur, did not suspect any foul play. She, at that time, was of the opinion that after making inquiries, both her sons, shall be left. Under these circumstances, the natural human behaviour, which could be expected of a person, was that to wait for the return of the persons, taken away by the accused. She thought that her sons will return, in the evening, and there was no necessity, on her part, to lodge the report immediately. When her sons did not return, by the evening, she was left with no alternative than to report the matter with regard to the incident on 14.02.1992, which had taken place on 13.02.1992, at her house at about 9.00 AM, to the Police. It was, under these circumstances, that she did not lodge the report, Crl.AppealNo.267-DB of 1998 --17-- immediately. The explanation, for lodging the report, after some delay, is furnished by the aforesaid circumstances. It was held in Ravinder Kumar and another V.State of Punjab 2002(1) CCC 41 (SC) that there can be so many factors, leading to delay, in lodging the First Information Report. It was further held in the said authority, that rural people, might be ignorant of the need for informing the police of a crime, without any lapse of time, and it is also not too uncommon among urban people; lack of adequate transport facilities for them to reach the Police Station; kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sadativeness of temper for moving to the Police Station; persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting nebulous information about the incident and there can be no exhaustive catalogue of instances,which could cause delay, in lodging the First Information Report. The principle of law, laid down, in the aforesaid authority, is fully applicable to the present case. Even otherwise, mere delay in lodging the First Information Report, in itself, is not sufficient to throw away the case of the prosecution. In the face of delay in Crl.AppealNo.267-DB of 1998 --18-- lodging the First Information Report, the Court is required to scrutinize the evidence carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same is cogent, convincing and reliable, then delay pales into insignificance. The evidence of the prosecution witnesses, in the instant case, on scrutiny, has been found to be cogent, convincing, reliable and trust- worthy. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 27. It was next submitted by the Counsel for the appellants that the conduct of Harbhajan Kaur, PW-3 , mother of Inderjit Singh, ( now deceased ), was most unnatural and improbable. They further submitted that when her sons were being taken away by the accused and even protest was raised by her daughter, she did not raise hue and cry. They further submitted that she even did not inform the neighbourers. They further submitted that she did not go to the Police Station immediately after the incident. It was further submitted by them, that she did not inform the Constable, whose duty was at the chowk. They further submitted that she did not even report the matter to the Police Post, Bus Crl.AppealNo.267-DB of 1998 --19-- Stand, which is very near to her house. It was further submitted by them, that she did not even talk to anybody about the alleged incident. It was further submitted by them that since she had already been proceeded against under Section 109 of the Code of Criminal Procedure, it could not be said that she ( Harbhajan Kaur