IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.435-SB of 1997 Date of decision: 11th January, 2010 Narinder Singh … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None for the Appellant. Mr. A.S. Jattana, Additional Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Narinder Singh appellant has challenged his conviction recorded in case FIR No.49 dated 15.04.1994 registered at Police Station Dhariwal under Sections 452/364/366/171/323/368/506/120-B IPC. He was tried along with two other accused, namely Ravinder Singh son of Mangal Singh and Meetal Singh son of Mehnga Singh. The trial Court acquitted Meetal Singh and Ravinder Singh and found the appellant guilty of offences under Section 452, 363, 366 and 323 IPC. The appellant was sentenced to undergo rigorous imprisonment for one year under Section 452 IPC. He was further sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/- under Section 363 IPC. In default of payment of fine he was ordered to further undergo rigorous imprisonment for six months. The appellant was also sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default of payment of fine to further Criminal Appeal No.435-SB of 1997 undergo rigorous imprisonment for six months under Section 323 IPC. All the sentences were ordered to run concurrently. Nagina Singh made a statement Ex.PA before SI Balbir Singh on 15th April, 1994 at 10.20 a.m. on the basis of which, formal FIR Ex.PA/2 was registered. In his statement, Nagina Singh stated that he is an agriculturist and resident of Sanghar. On 13th April, 1994 at about 9.30 p.m. he was present in the house when Narinder Singh son of Kashmir Singh Jat resident of village Sanghar, armed with pistol, after scaling over the boundary wall of Kulwant Singh, brother of the complainant, opened the main door. Ravinder Singh son of Mangal Singh, who was armed with a rifle and was known to the complainant earlier, came through the main door accompanied by three other persons. In the FIR, description of other three persons was given. Out of four persons, two persons stood near the wall of the house and other two remained standing in the courtyard. Narinder Singh is said to have given kick blows to the door of the room and called upon Kartar Kaur wife of Kulwant Singh and Rajwant Kaur daughter of Kulwant Singh. As stated earlier, Kulwant Singh is the elder brother of complainant Nagina Singh. At that time, Kulwant Singh was not present in the house. Kartar Kaur, sister-in-law of the complainant and niece Rajwant Kaur came out of the room. Nagina Singh also came in the courtyard. Narinder Singh left a threat that in case they raise noise, the result will be bad. At that time, a vehicle bearing No.PB-02-C 777 was standing near the Phirni. The driver of the vehicle was named Sukhdev Singh. The accused forcibly made Kartar Kaur, Rajwant Kaur and Nagina Singh sit in the car and car was driven away. When the car reached at the Focal Point of village Shekhwan, Nagina Singh was dropped from the car and was given blows with the but of the rifle at his knees, back and other parts of the body. Both Kartar Kaur and Rajwant Kaur were taken away in the car forcibly. Complainant searched Kartar Kaur and Rajwant Kaur, but they 2 Criminal Appeal No.435-SB of 1997 could not be traced. Complainant was going to lodge the report when SI Balbir Singh met him and he got his statement recorded, which was read over to him and he appended his signatures on the statement, same being correct. The matter was investigated and report under Section 173 Cr.P.C. was submitted. The appellant, along with his co-accused Ravinder Singh and Meetal Singh was charged by the Court of Additional Sessions Judge, Gurdaspur under Section 452, 364, 366, 171, 323, 368, 506, 120-B IPC. They pleaded not guilty and claimed trial. Prosecution examined nine witnesses, namely Nagina Singh PW-1, Kartar Kaur PW-2, Dr.Satnam Singh PW-3, Rajwant Kaur PW-4, MHC Sardul Singh PW-5, Janak Singh PW-6, ASI Daljit Singh PW-7, Sukhjinder Singh, Judicial Magistrate (1st Class), Amritsar PW-8 and SI Balbir Singh PW-9. It will be necessary to give the gist of deposition made by the witnesses. Nagina Singh PW-1 reiterated what was stated before the police and which has been noticed above. In cross examination, the witness stated that he got himself treated for the injuries on 14th April, 1994. He was accompanied by his brother Kulwant Singh and Amar Singh when his medico legal examination was conducted. This witness in cross examination admitted that Narinder Singh has filed civil suit against him, his brother Kulwant Singh, Amar Singh and Rajwant Kaur for permanent injunction. He further stated that it was not in his knowledge that accused Narinder Singh had obtained warrants for search of Rajwant Kaur under Section 97 Cr.P.C. The witness denied the suggestion that marriage of Narinder Singh accused was solemnized with Rajwant Kaur on 19th March, 1994. 3 Criminal Appeal No.435-SB of 1997 Kartar Kaur PW-2 reiterated what was stated by Nagina Singh PW-1 and further added that she along with her daughter was detained at Chandigarh for four days. Thereafter, Narinder Singh took them from Chandigarh to Qadian in a bus and kept them there for two days and they were recovered by the police later. In cross examination, this witness was confronted with her previous statement Ex.DA, in which she has not specifically stated that they were detained at Chandigarh and Qadian. She denied the suggestion that the marriage of Rajwant Kaur was performed with Narinder Singh accused on 19th March, 1994. She also denied the suggestion that she and Rajwant Kaur had voluntarily accompanied Narinder Singh to Chandigarh. Rajwant Kaur appeared as PW-4. She stated that on the day of occurrence, she, her mother Kartar Kaur and uncle Nagina Singh were taken in a car. Nagina Singh was thrown away, out of the car after accused have given him beating. Her mother was further dropped after the car had covered some distance. She alone was taken at Chandigarh by Narinder Singh. She was kept at Chandigarh for four days. Thereafter, she was brought at Qadian where she was kept in a room and was recovered by the police later. She further stated that she is only able to recognize Narinder Singh, who was present in the Court and other accused were not identified by her. In cross examination, she admitted that she was a matriculate. She further stated that the letters Mark DB and DC were neither written by her nor signed by her. She further denied the photographs Mark DD, DE and DF. She also denied that she had filed any criminal complaint against her father Kulwant Singh under Section 323/506 IPC on 16th February, 1994. She denied that she got herself married with Narinder Singh and that she is deposing falsely under the influence of her parents. She admitted that she was brought from Chandigarh to Qadian in a bus, which started from Chandigarh at about 4.00 a.m. She further 4 Criminal Appeal No.435-SB of 1997 admitted that her mother had also accompanied her in the Court complex at Gurdaspur, when her statement was recorded before the Magistrate. Dr.Satnam Singh Basra PW-3 medico legally examined Nagina Singh on 15th April, 1994 at 12.45 p.m. He found five blunt simple injuries on the person of Nagina Singh. In cross examination, he stated that possibility of injuries being self suffered or caused by friendly hand cannot be ruled out. Narinder Singh appellant was also medico legally examined by this witness on 23rd April, 1994 at 8.45 p.m. Nine simple blunt injuries were found on the person of Narinder Singh. Moharrar Head Constable Sardul Singh appeared as PW-5. He proved DDR entry No.20 dated 30th April, 1994, according to which LC Narinder Singh No.1885 left the Police Station at 7.00 p.m. along with police officials. But on the same day, at 11.00 p.m. he was found absent from the duty. PW-6 Janak Singh Dhanjal, Draftsman had prepared scaled site plan of the spot Ex.PD. ASI Daljit Singh PW-7 on 20th April, 1994 arrested Meetal Singh (Sital Singh) accused and recovered police uniform from him. He further stated that on 21st April, 1994, accompanied by SI Balbir Singh he reached Qadian Town, where Narinder Singh accused had taken a house on rent. On search of the house, of the accused, Rajwant Kaur and Kartar Kaur were recovered and a memo Ex.PJ to this effect was prepared. In cross examination, this witness stated that at the time of recovery of Rajwant Kaur and Kartar Kaur, no public witness was present. No independent witness was joined even though, Qadian was having a Municipal Committee. Sukhjinder Singh, Judicial Magistrate (1st Class), Amritsar appeared as PW-8. He stated that on 26th April, 1994, he was posted as Judicial Magistrate (1st Class), Gurdaspur. On that day, an application Ex.PH was moved by SI Balbir Singh for recording statement of Rajwant Kaur under Section 164 Cr.P.C. He proved Ex.PC statement of 5 Criminal Appeal No.435-SB of 1997 Rajwant Kaur recorded under Section 164 Cr.P.C. This witness further admitted that civil litigation was pending between the parties in his Court. PW-9 Inspector Balbir Singh stated that on 15th April, 1994, he had recorded statement of Nagina Singh. On 20th April, 1994 he spotted a Fiat car which was driven by Sital Singh and Ravinder Singh was traveling in the car. Both were arrested. On 21st April, 1994 Rajwant Kaur was recovered from the house at Qadian. She was accompanied by her mother Kartar Kaur. In cross examination, he admitted that on 22nd April, 1994, Narinder Singh was produced by Lambardar, whose name he could not remember. This witness identified Rajwant Kaur from photographs Mark DE, DD and DF. He further stated that he had correctly recorded statement of Nagina Singh Ex.PA, supplementary statement Ex.DA and statement of Kartar Kaur Ex.DB. Thereafter, prosecution closed its evidence and all incriminating circumstances were put to the accused and their statements under Section 313 Cr.P.C. were recorded. Narinder Singh in his statement under Section 313 Cr.P.C., gave the following version: “I am innocent. Infact Rajwant Kaur got married with me on 19.3.94 according to the Sikh rites whereas her mother and uncle Kartar Kaur and Nagina Singh wanted to marry her with some other person and on this, they planted a false case against me and my co-accused.” The accused in defence examined Sandeep Kumar, Photographer, Khosla Studio, Qadian as DW-1. He stated that in the winter season of 1993-94, in the Gurudwara located near his shop, a marriage had taken place and he had taken photographs. He had prepared the album. He proved the negatives and the photographs. Bawa Singh, Granthi (Priest) appeared as DW-2 and stated that he has seen photographs Ex.DG/2 and DG/3. He had performed the ceremony of Anand Karaj in November, 1993 in Gurudwara Qadian. S.S. Salhopuria, 6 Criminal Appeal No.435-SB of 1997 Advocate, District Courts, Gurdaspur appeared as DW-3. He proved affidavit Ex.DH. He further stated that he had identified Rajwant Kaur, who was known to him personally and affidavit was attested by Gian Singh, Notary Public. In cross examination, this witness stated that he had been appearing for Narinder Singh in civil cases against Rajwant Kaur. DW-4 Gian Singh, Advocate, District Courts, Gurdaspur stated that he has seen affidavit Ex.DH. It was produced by Rajwant Kaur, who was accompanied by S.S. Salhopuria. He has attested the affidavit on the identification of S.S. Salhopuria. Affidavit Ex.DH has been sworn by Rajwant Kaur, in which she stated that she is aged 19 years and 4 months, and she had married Narinder Singh according to Sikh rites, out of her own free will and without any undue influence. The accused also relied on the certified copy of order passed by Civil Judge, Junior Division, Gurdaspur, Ex.DI. It will be apposite here to reproduce following portion of the order passed by the Civil Judge, Junior Division, Gurdaspur on 15th January, 1996: “5. Ld. counsel for the applicant has argued that the marriage of the applicant with respondent No.4 was performed as per Sikh rites on 15/11/93. On the other hand respondents No.1 to 3 have denied the performance of any marriage of respondent No.4 with the applicant. To make out prima-facie case, applicant has placed on record certificate of Sarpanch of the village regarding the solemnization of marriage of the applicant with respondent No.4 along with photostat copies of certain photographs taken during the marriage ceremony. Besides it applicant has also placed on record statement of respondent No.4 Smt. Rajwant Kaur in complaint u/s 323 Cr.P.C. filed by her admitting her marriage with the applicant. She has stated that she is living with the applicant as his wife but Kulwant Singh respondent No.1 is against the marriage and is threatening her. Applicant has also placed on record the photostat copy of the search warrants issued against 7 Criminal Appeal No.435-SB of 1997 Kulwant Singh at the instance of complaint moved by her u/s 97 Cr.P.C. 6. All these facts shows that the applicant is husband of respondent No.4 and a prima-facie case in favour of the applicant is made out. An irreparable loss will cause to the applicant if respondents No.1 to 3 performs the second marriage of respondent No.4 with someone else because that injury cannot be compensated in terms of money. Therefore, respondents No.1 to 3 are restrained from performing the marriage of respondent No.4 during the pendency of the case. Anything said or observed in the disposal of the application shall not be taken as an expression of opinion on the merits of the case. Sd/- Announced. Civil Judge (Junior Divn.) 15/1/96 Gurdaspur.” The accused also relied upon the statement made by Rajwant Kaur before Judicial Magistrate (1st Class), Gurdaspur on 24th February, 1994. The statement has been exhibited as Ex.DJ. A perusal of the same reveals that it was stated by Rajwant Kaur that she was married with Narinder Singh about three moths ago. She was aged 20 years. She is residing as wife with Narinder Singh according to her own free will and her husband is employed in Punjab Government. She further stated that on 13th February, 1994, she was standing with Narinder Singh at Dhariwal bus stand when Kulwant Singh came there. He was annoyed with the marriage. He caught hold of hair of Rajwant Kaur, dragged her and gave pushes. This statement was made in support of the complaint filed by Rajwant Kaur against her father Kulwant Singh under Section 323/506 IPC. The trial Court noticed the fact that there was delay of 37 hours in recording of the statement of Nagina Singh, which led to registration of the FIR. It further noticed that Nagina Singh was medico legally examined on 15th April, 1994 and not on 14th April, 1994 as stated 8 Criminal Appeal No.435-SB of 1997 by the witness. The trial Court, after considering the evidence, observed as under: “18. … … … … The perusal of this document shows that a civil suit was filed by Narinder Singh on 11.4.94 against Kulwant Singh, Amar Singh, Nagina Singh for restraining them from remarrying Rajwant Kaur. This document shows that relations of Narinder Singh were not cordial with Kulwant Singh and Nagina Singh and as such, Kartar Kaur could not accompany Narinder Singh taking along with her Rajwant Kaur. Now a reference may also be made to copy of letters mark DB and Ex. DC. These letters are shown to have been written by Rajwant Kaur. Both these letters contain facts regarding abduction of Rajwant Kaur. It has been mentioned in letter mark DB that she had gone along with Narinder Singh of her own sweet will and that Narinder Singh should not be accused for her abduction from the house of complainant party. Letter Ex.DC is shown to have been written on 18/4/94. These two letters go to show that Rajwant Kaur was with Narinder Singh during the period 13/4/94 to 18/4/94. The evidence on the file does not show that Kartar Kaur could take her daughter along with her to the house of Narinder Singh at Chandigarh or Qadian. The relations between the parties wee strained and Narinder Singh had filed a suit against the complainant party two days earlier and as such, the story of the prosecution appears to be natural and correct.” Finally, the trial Court concluded as under: “21. I have discussed above that Narinder Singh accused has not been able to prove that he was married to Rajwant Kaur. However, it appears from the evidence that something was going on between the two families and Narinder Singh was claiming Rajwant Kaur as his wife. It has been proved on the file that Narinder Singh file a suit against Nagina Singh, Kulwant Singh etc. on 11.4.94 for the grant of stay for restraining them from remarrying Rajwant Kaur. This fact shows that Rajwant Kaur and Kartar Kaur could not leave their house to accompany Narinder Singh of their own sweet will and on the other hand, from the statements of the PWs it 9 Criminal Appeal No.435-SB of 1997 stands proved that they were abducted on 13/4/94, injuries have been found on the person of Nagina Singh. the prosecution has also led evidence that Narinder Singh was absent from duty at the time of occurrence and as such, it stands proved that Rajwant Kaur was abducted by Narinder Singh.” Nobody has caused appearance for the appellant. A perusal of the evidence, the tenor of the cross examination and the documents relied by the defence makes it apparent that Rajwant Kaur was not a truthful witness and she was deposing in the Court under the influence of her parents. She could muster courage to deny her photographs. These photographs were put to the Investigating Officer PW-9 Inspector Balbir Singh. He identified Rajwant Kaur to be one, who was photographed with Narinder Singh. Rajwant Kaur further denied that she filed complaint against her father under Section 323/506 IPC. Her statement made before the Magistrate has been proved as Ex.DJ, in which she leveled allegations against her father that on the day of occurrence, i.e. on 13th April, 1994, she was caused simple injuries by her father. From her statement, it is evident that complaint was filed by Rajwant Kaur on 16th February, 1994, two months before the alleged occurrence. PW-3 Kartar Kaur stated that she was taken in the car along with Rajwant Kaur and she stayed at Chandigarh for four days and at Qadian for another two days. Whereas, Rajwant Kaur PW-4 stated to the contrary. She stated that after Nagina Singh was made to alight from the car, after some distance, Kartar Kaur was also dropped. Narinder Singh admittedly had taken a house on rent at Qadian, from where Kartar Kaur and Rajwant Kaur were recovered. These two witnesses have remained in the house at Qadian for a period of two days. It is also stated by these two witnesses that they had traveled in a bus from Chandigarh to Qadian. They had made no attempt to disclose to anybody that they have been forcibly abducted by the 10 Criminal Appeal No.435-SB of 1997 accused. Therefore, the version of Narinder Singh seems probable, when he stated that Rajwant Kaur was married with him and the parents were not reconciled to the marriage and they were taking active steps to wean away Rajwant Kaur from him. As per medico legal examination Nagina Singh had suffered simple injuries. According to the Doctor, these injuries can be self suffered or caused by a friendly hand. Nagina Singh was examined two days after the date of occurrence. Therefore, possibility of the false version having concocted by the complainant party to pressurize Narinder Singh to dissolve the marriage cannot be ruled out. Hence, as a matter of abundant caution, benefit of doubt is granted to the appellant and he is acquitted of the charges. With the observations made above, present appeal is accepted. [KANWALJIT SINGH AHLUWALIA] JUDGE January 11, 2010 rps 11