Present: Mr. S.S. Dinarpur Advocate with Vs. State of Haryana - Court Judgment

CRA not S-972-SB of 2001 - 1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA not S-972-SB of 2001 Decided on: July 30”

1. Paramjit Singh s/o Ronak Singh resident of Village Jawaharpur.

2. Gurdial Singh s/o Ronak Singh resident of Village Jawaharpur 3. Aflatoon Mohd. @ Kola son of Mehar Din, resident of Village Pabhat, Police Station Sohana, District Ropar.

4. Ashok Kumar s/o Agya Ram, resident of Village Singwal, P.S. Mukerian, District Hoshiarpur.

5. Sarman Bahadur s/o Kalu Bahadur resident of Village Shera, P.S. & District Dathlag (Nepal) .....Appellants Versus State of Haryana ..... Respondent CORAM: HON'BLE MR. JUSTICE S.P. BANGARH ***** Present: Mr. S.S. Dinarpur, Advocate with Mr. Amol Partap Singh Mann, Advocate for the appellants. Mr. G.S. Sandhu, AAG, Haryana for the respondent. ***** S.P. BANGARH, J The case of the prosecution is that on 28.01.1997, Rajinder Singh son of Labh Singh was going to Manimajra from Barwala in jeep bearing registration not DL-4C 9976.When at 12 noon, he reached near kotvilla bridge, a van of blue colour crossed him and stopped in front of his jeep. There were five occupants in jeep, namely Paramjit Singh, Gurdial Singh, Ashok Kumar, Aflatoon and Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 2- driver Sarman Bahadur (appellants herein). They gave beatings to Rajinder Singh and took him to Chandigarh. When he reached near Kotvilla bridge, one Amar Singh, who was going on scooter signaled him to stop and then a van had crossed him. Meanwhile, a van crossed him whose registration number was CH 01.0272. At Chandigarh, Rajinder Singh was taken to House No.209-A, Sector 29, a government house occupied by Paramjit Singh (appellant No.1) and was given severe beatings by all the five appellants, who also forced him to drink half bottle of liquor, that he did not consume. It is further the case of the prosecution that all the appellants had poured liquor in the mouth of Rajinder Singh but he did not consume the same. Someone had informed the police and a police party reached at the spot. On medical examination 13 injuries were found on the person of Rajinder Singh. On seeing the police party all the appellants ran away. He (Rajinder Singh) also came out of the room and police met him and his statement Ex.PA (supra) was recorded by the police, that was read over and explained to him. From police station, he (Rajinder Singh) was taken to General Hospital, Sector 16, Chandigarh, where he was medically examined. Since the occurrence had taken place in the State of Haryana, he was sent to Police Station Chandimandir along with a Constable, where formal FIR Ex.PE was recorded on the basis of statement Ex.PA of Rajinder Singh. Before, he (Rajinder Singh) went to Police Station Chandimandir, Amar Singh had already lodged the FIR. On 24.01.1997, Paramjit Singh (appellant No.1) came to his house in an inebriated condition. He asked him to leave him Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 3- Chandigarh. When he brought out his jeep to leave him Chandigarh, when he was present outside his house, Paramjit Singh (appellant No.1) went inside the house to make telephone call. His wife was present inside the house. Paramjit Singh (appellant No.1) caught his wife and also grappled with her. A Panchayat was convened, where Paramjit Singh (appellant No.1) had tendered written apology. In the Panchayat, brothers of Paramjit Singh (appellant No.1) namely Gurdial Singh (appellant No.2) and Jarnail Singh had undertaken that no such incident shall be repeated in future. To take revenge of that incident, Rajinder Singh was abducted on 28.01.1997. On 29.01.1997 jeep was recovered from the house of Paramjit Singh (appellant No.1) by the police in the presence of Rajinder Singh and Amar Singh vide memo Ex.PB, that bears his signatures. Rajinder Singh accompanied the police party in search of the appellants and went to different places. The van was not recovered in the presence of Rajinder Singh. However, he was called in the police station to identify the van. Rough site plan of place of recovery of jeep Ex.PG was prepared by the Investigating Officer, that was seized vide memo Ex.PB. On, 30.01.1997 Gorakh Lal ASI went to Chandigarh and recorded the statement of Bant Singh ASI. On 06.02.1997, Aflatoon (appellant No.3) was arrested from Labour Chowk, Panchkula. On 26.02.1997, Ashok (appellant No.4) and Sarman Bahadur (appellant No.5) were arrested from a van bearing registration not CH 0.0272 from Labour Chowk, Panchkula, that van was seized vide memo Ex.PH. On 27.02.1997 Paramjit Singh (appellant No.1) was arrested Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 4- from Section 19, Panchkula. Gurdial Singh (appellant No.2) was formally arrested in this case and joined in investigation, as he was granted anticipatory bail in this case. After completion of investigation, Station House Officer of Police Station City, Chandimandir, instituted police report under Section 173 Code of Criminal Procedure (Cr.P.C-for short) against the appellants, before the learned Illaqa Magistrate to the effect that it appeared that they have committed offences punishable under Section 364 read with 149 of the Indian Penal Code and under Section 148 of the Indian Penal Code (IPC - for short). On presentation of police report, copies of documents, as required under Section 207 Cr.P.C. were furnished to the appellants by the learned Illaqa Magistrate, who later committed the case to the Court of Session, that was entrusted to learned trial Court, where charges under Sections 364 read with 149 IPC and under Section 148 IPC were framed against the appellants, whereto, they pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned. At the trial, the prosecution examined, as many as, six witnesses whose testimonies are as under: - PW-1 Rajinder Singh, complainant of this case testified that on 28.01.1997, he was going to Manimajra from Barwala in jeep bearing registration not DL 4.9976; when at 12.00 noon, he reached near Kotbilla bridge, appellants came in blue colour van and after crossing him, they stopped the van in front of his jeep and gave him beatings and put him in the van and took him to Chandigarh. He Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 5- also testified that when he reached near Kotbilla bridge, one Amar Singh was also going on scooter and he had signalled him to stop and meanwhile, the van bearing registration not CH 01.0272 crossed him and then he was taken to Chandigarh to House No.209- A, Sector 29, Chandigarh, occupied by Paramjit Singh (appellant No.1), who is a Constable in UT Police. He (PW-1) further testified that at Chandigarh he was given severe beatings by all the appellants. He was forced to drink, they also poured liquor in his mouth but he did not consume the same. Someone informed the police and the police reached at the spot and on his medical examination, 13 injuries were found on his person. He also testified that he was beaten in the house (supra). He also testified that on seeing the police party, all the appellants ran away and he also came out of the room, when police met him. His statement Ex.PA was recorded by the police and then he was taken to police station from where he was taken to Chandigarh General Hospital, where he was medically examined. He further testified that since the occurrence had taken place in the State of Haryana, he was sent to Police Station Chandimandir along with a Constable and on MLR, his signatures were obtained by the doctor. He further testified that before he had gone to Police Station Chandimandir, Amar Singh had already lodged the FIR. He also testified that his truck and the truck of Paramjit Singh (appellant No.1) were in Derabassi Truck Union. He (PW-1) further testified that on 24.01.1997, Paramjit Singh (appellant No.1) came to his house in an inebriated condition. Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 6- He asked him to leave him Chandigarh and he brought out his jeep to leave him to Chandigarh, when he was present outside his house, Paramjit Singh (appellant No.1) went inside the house to make telephone call. His wife was present inside the house. Paramjit Singh (appellant No.1) caught his wife and also grappled with her. A Panchayat was convened, where Paramjit Singh (appellant No.1) had tendered written apology. In the Panchayat brothers of Paramjit Singh (appellant No.1) namely Gurdial Singh (appellant No.2), Jarnail Singh and Kaka had undertaken that no such incident shall be repeated in future. He also testified that to avenge that incident, he was abducted on 28.01.1997. He also testified that on 29.01.1997 jeep was recovered from the residence of Paramjit Singh (appellant No.1) by the police in his presence, as also, in the presence of Amar Singh and that was seized vide memo Ex.PB, which bears his signatures. He also testified that he accompanied the police party in search of the appellant and went to difference places; van was not recovered in his presence. However, he was called in the police station to identify the van. PW-2 Amar Singh also testified that on 28.01.1997, he was returning to his village from his fields in village Chhoti Kohri and on his way, he went to Barwala to meet Rajinder Singh (PW-1), where he was told that Rajinder Singh (PW-1) had gone to Panchkula and, therefore, he started for going to Panchkula and when he reached near Kotbilla, he found Rajinder Singh (PW-1) going towards Panchkula side in a jeep and he signalled him to stop and he Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 7- stopped his jeep at a distance of 10-15 paces from the place where he (PW-2) stopped his scooter and meanwhile, a blue colour van with black glasses came from Barawala side and stopped near the jeep of Rajinder Singh (PW-1) and five persons alighted from the van. Paramjit Singh (appellant No.1) dragged Rajinder Singh (PW-1) from the jeep and put him in the van and when he reached near the van, the appellants ran away along with Rajinder Singh (PW-1) and jeep was also taken by Paramjit Singh (appellant No.1). He also testified that he went to the house of Rajinder Singh (PW-1) and informed his father Labh Singh and when he and Labh Singh were going to lodge the report with the police, then police party met them near Majri Chowk, where his statement Ex.PC was recorded. PW-3 Bant Singh ASI testified that on 28.01.1997, he was posted as Duty Officer, Police Station Industrial Area, Chandigarh and at about 1.15 p.m., a message was received from the control room regarding some dispute in House No.209-A, Sector 29, Chandigarh and he after making an entry in the DDR register went to the spot accompanied by a Constable and Rajinder Singh (PW-1) was present outside the house and he recorded his statement Ex.PA and on that statement, he made his endorsement Ex.PA/1. Then he was sent to General Hospital, Sector 16, Chandigarh for medical examination through the Constable accompanying him and an application Ex.PD for his medical examination was moved and after medical examination, they came back to the police station. He further testified that since the occurrence had taken place within the Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 8- jurisdiction of police station Chandimandir, Rajinder Singh (PW-1) was sent to that police station alongwith that report. PW-4 Gorakh Lal ASI also testified that on 28.01.1997 he was officiating as SHO, Police Station Chandimandir and on that day, at about 6.00 p.m. he was going towards Barwala-Ramgarh on patrol duty and when he reached at Majri Chowk, a person stopped his vehicle after giving signal and that person was Amar Singh (PW-2) and he made his statement Ex.PC regarding kidnapping of Rajinder Singh (PW-1) and he sent the statement alongwith his endorsement Ex.PC/1 to police station through UGC Bagicha Singh for registration of the case, on the basis, thereof, formal FIR EX.PE was recorded by Karam Chand MHC. He further testified that he accompanied by complainant and Labh Singh went to the spot, where he met Dayala, Baldev and Mantu Yadav and he recorded their statements and after inspecting the site, he prepared the site plan Ex.PF and when they returned back to Police Station Chandimandir, they found Rajinder Singh (PW-1) injured in the police station, who was brought by Bant Singh ASI of Chandigarh Police and Rajinder Singh (PW-1) was handed over to him alongwith his MLR and copy of the DDR by Bant Singh ASI. He also testified that the Chandigarh Police had also recorded the statement of the injured-Rajinder Singh and that statement was also handed over to him (PW-4) and he (PW-4) again recorded the statement of the injured-Rajinder Singh (PW-1) and on the next day, he accompanied by the injured-Rajinder Singh (PW-1) and Labh Singh went to the House No.209-A, Sector 29, Chandigarh where Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 9- the injured-Rajinder Singh (PW-1) was kept and the jeep was standing outside that house and the key of that jeep was with the injured-Rajinder Singh (PW-1), that was produced by the latter, before him. Injured-Rajinder Singh also produced before him papers of the vehicle, that were seized alongwith the jeep vide memo Ex.PB and rough site plan Ex.PG of the place of recovery was prepared. PW-4 Gorakh Lal ASI also testified that on, 30.01.1997 Gorakh Lal ASI went to Chandigarh and recorded the statement of Bant Singh ASI. On 06.02.1997, Aflatoon (appellant No.3) was arrested by him from Labour Chowk, Panchkula. On 26.02.1997, Ashok (appellant No.4) and Sarman Bahadur (appellant No.5) were arrested by him from a van bearing registration not CH 0.0272 from Labour Chowk, Panchkula, that van was seized vide memo Ex.PH. He also testified that on 27.02.1997, Paramjit Singh (appellant No.1) was arrested from Sector 19, Panchkula and Gurdial Singh (appellant No.2) was formally arrested in this case and joined investigation, as he was granted anticipatory bail in this case. He also testified that he recorded the statements of other witnesses under Section 161 Cr.P.C. PW-5 Mantu Yadav also testified that on 28.01.1997, he was present outside the office situated at Bhanu village and a jeep was being driven by Rajinder Singh (PW-1), who was going from Barwala to Panchkula side and a truck loaded with stones was standing near a culvert near his office in break down condition and a maruti van bearing not CH 0.0727 came from Barwala side and stopped by the side of the jeep and the truck, wherein, there were Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 10- five occupants, who all alighted from the van and started pulling Rajinder Singh (PW-1) from the jeep and one of the occupants of the van was armed with hockey and remaining were armed with dandas. They gave beatings to Rajinder Singh (PW-1) and put him in the van and drove away. He also testified that one of the occupants of the van took the jeep and he recognized only one of them who had driven the jeep. His statement was recorded by the police. PW-6 Dr. Balbir Singh found following injuries on the person of Rajinder Singh:

1. Reddish contusion 3cms x 2cms on the left side of the forehead just above the left eye brow.

2. Reddish diffused swelling on lower lip.

3. Diffused swelling around the nose. Tenderness was positive and x-ray was advised.

4. Reddish contusion 5 cms x 3 cms obliquely placed on right side of neck.

5. Reddish contusion 7 cms x 3 cms transversely placed on anterior aspect of neck just below the injury No.4.

6. Reddish contusion 6 cms x 3 cms on the antero lateral aspect of lower part of neck just below the injury No.5.

7. Complaint of pain both sides of chest. There was no extenral mark of injury.

8. Reddish contusion 10 cms x 10 cms on back of left side of chest. Tenderness was positive and x-ray was advised.

9. Reddish contusion 3 cms x 2 cms on posterior aspect of right forearm just below the elbow. 10.Abraded contusion 3 cms x 2 cms on lateral aspect of left knee joint. X-ray was advised. 11.Complaint of pain both ankle joint. There was no external mark of injury. Sunder Sham 2013.08.05 15:23 12.Reddish contusion 6 cms x 2 cms on the posterior I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 11- aspect of right leg just below the right knee joint. 13.Complaint of pain medial aspect of right thigh. There was no external mark of injury. PW-6 Dr. Balbir Singh, further testified that injuries Nos. 1, 2, 4, 5, 6, 7, 9, 11, 12 and 13 were declared simple in nature. While injuries nos. 3, 8 and 10 were subjected to x-ray; probable duration of these inuries was within 6 hours and all the injuries were caused by blunt weapon. He proved the copy of MLR Ex.PJ.He also proved the police request for medical examination Ex.PD. Thereafter, prosecution evidence was closed. After the closure of prosecution evidence, appellants were examined under Section 313 Cr.P.C, wherein, they denied the allegations of the prosecution, pleaded innocence and false implication in this case. Aflatoon (appellant No.3) gave his own version that he has been implicated being a relative of Paramjit Singh (appellant No.1). Paramjit Singh (appellant No.1) also gave his own version that, in fact, it was Rajinder Singh (PW-1) who had come to him house in an inebriated condition and at that time, he was not present at his house. He further stated that he, (Rajinder Singh/PW-1) forcibly entered in his house and used obscene language against his wife and after seeing this his children called him and after his arrival, he telephonically informed the police control room, Chandigarh and they took away Rajinder Singh (PW-1) from his house and before his arrival at his house, Rajinder Singh (PW-1) was given beatings by his neighbourers, who had gathered at the spot. He further stated Sunder Sham that Rajinder Singh (PW-1) is being tried under Sections 354 an”

2013. 08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 12- IPC by the Court of JMIC, Chandigarh and just to conceal his guilt, Rajinder Singh (PW-1) has got false case registered against him in connivance with Chandigarh and Chandimandir police. Gurdial Singh (appelant No.2) also gave his own version that he was falsely implicated in this case being brother of Paramjit Singh (PW-1) and on the day of alleged occurrence, he was not present at Chandimandir; rather he was present at Kanpur in his unit, where he was serving. Sarman Bahadur (appellant No.5) also gave his own version that in fact, at the time of alleged incident, he was holding a learner's licence and was not knowing driving and he was arrested from taxi stand, where he used to go to wash the vehicles. He also stated that he was never a driver on van bearing registration not CH 0.0272. Ashok Kumar (appellant No.4) also gave his own version that the case against him false. Appellants were called upon to enter in defence and they examined five witnesses in their defence, who testified as under:- DW-1 Dev Kumar @ Baldev testified that he was running a tea shop at village Kotbilla in 1987 and that shop was demolished in 1987 itself by the military authorities. He further testified that in the year 1997, he had no shop at village Kotbilla and he was not aware about the facts of this case and no occurrence took place in his presence. He also testified that he does not knot any of the appellants present in Court. DW-2 Basant Singh also testified that he has been the Sarpanch of village Isanpur since 1983 and he knows Rajinder Singh Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 13- (PW-1) present in Court and no occurrence took place in the month of January 1997 involving wife of Rajinder Singh (PW-1). He further testified that he did not get any such dispute compromised and he does not knot any of the appellants present in Court. He was, neither examined in this case, not any statement was recorded. He further testified that he does not knot about any case, wherein, Rajinder Singh (PW-1) and the appellants of this case were involved. DW-3 Anil Kumar, Criminal Ahlmad brought the file of criminal case filed by Shamshad wife of Paramjit Singh (appellant No.1) against Rajinder Singh (PW-1) under Sections 323, 354, 504 and 506 IPC; that complaint was instituted on 18.02.1997. Rajinder Singh (PW-1) had been summoned to face trial for the commission of offences punishable under Sections 354 and 506 IPC vide order dated 19.05.1997 and that complaint is still pending. DW-4 Pavnesh Kumar ASI brought the copy of crime register of police control room, UT Chandigarh and testified that on 28.01.1997 at 1.10 p.m. a telephonic message was received in the police control room from Paramjit Singh (appellant No.1) resident of House No.209-A, Sector 29, Chandigarh requesting for sending police. He had informed on telephone that a drunkard person was creating nuisance. On receiving message, they sent PCR vehicle. At 1.25 p.m. PCR vehicle reported back to the control room that one Rajinder Singh resident of Village Shahpur, District Patiala came there in an inebriated condition in a jeep bearing registration not DL 4.9976 and misbehaved with Sonu wife of Paramjit Singh (appellant No.1). True copy of the relevant entry Ex.DA was also proved by Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 14- him. DW-5 Capt. Manish Srivastava also brought the summoned record. He testified that the original record has been destroyed, as per the regulations of the Army and proved the certificate Ex.DX, whereon, he identified the signatures of Maj. Jasvinder Singh, who had issued the certificate Ex.DX. He also brought the original letter dated 05.03.1997 and proved the copy, thereof, Ex.DX/1 and he also identified the signatures of Maj. A Saini on the original letter dated 05.03.1997. He also brought the certified copy of the Parade State Rolls of January, 1997, as well as 25.01.1997 and proved the attested copies, thereof, Ex.DX/2 and Ex.DX/3. He also brought the original letter dated 21.02.1999 issued by Maj. S.S. Sahi to the Court of Shri S.K. Gupta, Addl. District & Sessions Judge, Ambala and copy of the letter Ex. DX/4 was proved by him, whereon, he identified the signatures of Maj. S.S. Sahi. He also brought the original letter dated 21.02.1997 issued by Maj. A Saini to the Senior Superintendent of Police Panchkula; vide this letter, application of Gurdial Singh (appellant No.2) was forwarded to the Superintendent of Police, Panchkula and copy of the said letter Ex.DX/5 and covering letter of the said letter Ex.DX/6 were also proved by him. He identified the signatures of Maj. A. Saini on covering letter Ex.DX/6. He also testified that as per record, Gurdial Singh (appellant No.2) had joined the unit on 25.01.1997 and remained present in the unit upto 06.02.1997. He also testified that the presence of Gurdial Singh (appellant No.2) was shown in the Daily Parade State Rolls Ex.DX/3. He also testified that Gurdial Singh Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 15- (appellant No.2) had proceeded on leave on 19.01.1997, which is mentioned in the Daily Parade Roll Ex.DX/2. Thereafter, defence evidence was closed. Learned counsel for the appellants contended that Rajinder Singh (PW-1) was picked up by the appellants, as per prosecution version, from near Kotbilla bridge and given beatings and, thereafter, put in a van and brought to Chandigarh, where he was again given injuries is highly doubtful. While on the other hand, the presence of Rajinder Singh (PW-1) in the house of Paramjit Singh (appellant No.1) where the former had come to misbehave with the wife of the latter, had been proved through the testimony of Anil Kumar (DW-3) and Pavneesh Kumar ASI (DW-4) and it was also contended that a criminal complaint was instituted by the wife of Paramjit Singh (appellant No.1) against Rajinder Singh (PW-1) and the latter has been summoned to face trial for commission of offences punishable under Sections 323, 354, 504 and 506 IPC. Learned counsel for the appellants also contended that there is a delay of lodging in the FIR, that has not been explained by the prosecution. He also contended that there was no motive for the appellants to commit the crime alleged against them. He also contended that the statements of the prosecution witnesses are highly discrepant and contrary and, therefore, no implicit reliance could be placed, thereon. He also contended that the medical evidence did not corroborate the ocular evidence. So, the learned counsel for the appellants contended that the latter may be acquitted of the offences for which they have been Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 16- convicted and sentenced by the learned trial Court by according them benefit of doubt. On the other hand, learned Assistant Advocate General of Haryana contended that the case against the appellants has been proved beyond shadow of reasonable doubt and, therefore, no alternative had been left with the learned trial Court, save to convict and sentence the appellants vide impugned judgment of conviction and order of sentence and those, being without any illegality or infirmity, may be upheld and affirmed. Thoughtful consideration has been given to the contentions raised by learned counsel for the parties, as also, with their assistance evidence and documents placed on the record of the learned trial Court have been perused. It is the case of the prosecution that Paramjit Singh (appellant No.1) misbehaved and grappled with the wife of Rajinder Singh (PW-1) at the resident of latter, in village Isanpur. This has not been mentioned in the FIR or in the first statement of Rajinder Singh (PW-1) Ex.PA. It may be mentioned here that this incident has been denied by the appellants. This version seems to be afterthought being a motive for alleged abduction of Rajinder Singh (PW-1) on 28.01.1997. If the things had happened in this manner, Rajinder Singh (PW-1) would have associated his wife during investigation for giving her statement before the police and eventually during trial. Non-examination of wife of Rajinder Singh (PW-1) by the police during investigation, as also, during trial causes considerable doubt in the prosecution version regarding motive of alleged abduction of Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 17- Rajinder Singh (PW-1). It is the case of the prosecution that regarding episode of misbehaviour by Paramjit Singh (appellant No.1) with the wife of Rajinder Singh (PW-1); a Panchayat was convened, wherein, Paramjit Singh (appellant No.1) offered written apology in the presence of Basant Singh (DW-2). This version is also not made out from the facts, stated in the statement Ex.PA of Rajinder Singh (PW- 1), as also in the FIR. It may be mentioned here that the appellants have denied the gathering of Panchayat, wherein, Paramjit Singh (appellant No.1) tendered apology. In view of the above, the learned trial Court rightly held that the alleged written apology was not brought on the record. Although, it was sought to be produced in the Court for the first time. Prayer in this regard for placing the alleged apology of Paramjit Singh (appellant No.1) on the record of the learned trial Court was repelled by the latter, that order of rejection of placing on record the alleged written apology of Paramjit Singh (appellant No.1) in the presence of Basant Singh (DW-2) was not challenged in revision and, therefore, that order became final. The fact remains that in the absence of written apology on the record, the version of the respondent-State, that Paramjit Singh (appellant No.1) misbehaved with the wife of Rajinder Singh (PW-1) and the alleged written apology furnished by Paramjit Singh (appellant No.1) before Basant Singh (DW-2) that psychologically hurt him and in order to avenge that hurt, the alleged incident took place, is not made out from the record. Only Basant Singh (DW-2) was the person, who could come in support of the prosecution Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 18- version to state that Paramjit Singh (appellant No.1) had tendered written apology in his presence in the Panchayat making repentance of the episode regarding his misbehaviour and grappling with the wife of Rajinder Singh (PW-1). It may be mentioned here that Basant Singh appeared in the defence of the appellants, as DW-2 and testified that no such incident ever took place in the month of January, 1997 regarding the alleged misbehaviour by Paramjit Singh (appellant No.1) with the wife of Rajinder Singh (PW-1). It is arduous to repel the testimony of Basant Singh (DW-2), that could not be shattered during examination and on the basis, thereof, it must held that no incident, on 24.01.1997, regarding the misbehaviour by Paramjit Singh (appellant No.1) by the wife of Rajinder Singh (PW-1) ever took place. Rajinder Singh (PW-1) was allegedly abducted by the appellants from Kotbilla bridge in a van in the presence of Amar Singh (PW-2) (maternal uncle of Rajinder Singh-PW-1 and Mantu Yadav-PW-5) and taken to House No.209-A, Sector 29, Chandigarh alongwith his jeep driven by one of the appellants, where he (Rajinder Singh-PW-1) was allegedly beaten. Strange enough, presence of PW-2 (Amar Singh) and PW-5 (Mantu Yadav) was not mentioned by Rajinder Singh (PW-1) in his first statement made before the police Ex.PA. On the other hand, it is the case of the appellants in defence that Amar Singh (PW-2) and Mantu Yadav (PW-5) did not see the the alleged incident; rather Rajinder Singh (PW-1) went to the house (House No.209-A, Sector 29, Chandigarh) of Paramjit Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 19- Singh (appellant No.1) in an inebriated condition in the absence of the latter and misbehaved with his wife, who was caught hold by the neighbourers and beaten. Paramjit Singh (appellant No.1) informed the police control room describing the incident. This version has been supported by ASI Pavnesh Kumar (DW-4), who in candid word testified that none of the appellants was present at the residence of Paramjit Singh (appellant No.1) from where Rajinder Singh (PW-1) was recovered. Even, it has come in his evidence that Paramjit Singh (appellant No.1) was not at his house when Rajinder Singh (PW-1) entered his house in an inebriated condition. Evidence of ASI Pavnesh Kumar (DW-4) has already been reproduced in the earlier parts of this judgment, wherein, he categorically testified that on 28.01.1997 at 1.10 p.m. a telephonic message was received in the police control room from Paramjit Singh (appellant No.1) resident of House No.209-A, Sector 29, Chandigarh requesting for sending police, as one person in an inebriated condition was creating nuisance. He also testified that on receiving message, they sent PCR (Police Control Room) vehicle and that vehicle at 1.25 p.m. reported back to the Police Control Room, that one Rajinder Singh (PW-1) resident of village Ishanpur, District Patiala came there under the influence of liquor in a jeep bearing registration not DL 4.- 9976 and misbehaved with Sonu wife of Paramjit Singh (appellant No.1) resident of House No.209-A, Sector 29, Chandigarh. It was also reported that ASI Bant Singh (PW-3) had already reached at the spot. He proved the copy of the relevant entry Ex.DA. The evidence Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 20- of this witness during cross-examination could not be shattered. It stands established that Rajinder Singh (PW-1) in an inebriated condition went to the house of Paramjit Singh (appellant No.1) and possibly the people who had gathered in the house of Paramjit Singh (appellant No.1) would have beaten Rajinder Singh (PW-1), who was found drunk. Possibility cannot be ruled out that injuries, that were suffered by Rajinder Singh (PW-1) would have been given by the neighbourers of Paramjit Singh (appellant No.1). Even, it has come on record that the police of Police Station Industrial Area, Chandigarh did not believe the story of Rajinder Singh (PW-1) and due to that reason only, the FIR was not registered. PW-3 ASI Bant Singh recorded the statement Ex.PA of Rajinder Singh (PW-1). If this statement would not have been false, in that event, the FIR would have been registered by the Chandigarh Police. It has come in evidence that Rajinder Singh (PW-1) was found in an inebriated condition outside the house of Paramjit Singh (appellant No.1). Indeed, he has admitted the influence of liquor by stating that the liquor was forcibly put in his mouth. This statement has not been corroborated by any person near the house of Paramjit Singh (appellant No.1). It appears that when the police refused to register the case on the basis of statement Ex.PA of Rajinder Singh (PW-1), then FIR was got lodged from Amar Singh (PW-2) vide his statement Ex.PC. Rajinder Singh (PW-1) was advised by the police to go to the Police Station Chandi Mandir. On arrival in that police station, he got Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 21- recorded statement Ex.DA, wherein, he made improvement in his earlier statement Ex.PA to show the presence of PW-2 (Amar SIngh) at the place of occurrence. Even the jeep of Rajinder Singh (PW-1) was recovered from the house of Paramjit Singh (appellant No.1), but the keys were with Rajinder Singh (PW-1). When the keys were with Rajinder Singh (PW-1), possibly, he himself would have taken the jeep to that place. The alleged incident had taken place at 11.30/12.00 noon on 28.01.1997, while the FIR was got registered at 7.30 p.m. by PW- 2 (Amar Singh) real uncle of Rajinder Singh (PW-1). When, PW-2 (Amar Singh) allegedly saw Rajinder Singh (PW-1) being abducted by the appellants, it was required of Amar Singh (PW-2) to rush to the police station immediately after the incident to lodge FIR regarding the alleged incident. His complacency on the matter of alleged abduction of Rajinder Singh (PW-1) by the appellants, whereon, he should have acted with utmost alacrity by reporting the alleged incident to the police, is indeed intriguing and that delay in reporting the matter to the police must make the prosecution version doubtful. Even, the presence of Amar Singh (PW-2) is doubtful, as Rajinder Singh (PW-1), who was allegedly abducted by the appellants in his earlier statement Ex.PA, that was recorded by ASI Bant Singh (PW-3) who found him standing outside the house of Paramjit Singh (appellant No.1) at 1.15 p.m. did not mention the presence of said Amar Singh (PW-2), who even did not make any attempt to intercept the alleged abduction of Rajinder Singh (PW-1) Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 22- by the appellants. If Amar Singh (PW-2) would have seen the alleged incident, he would not have kept silent and he would have followed the jeep, wherein Rajinder Singh (PW-1) was being allegedly abducted and he would have reached the alleged place of confinement of Rajinder Singh (PW-1) at House No.209-A, Sector 29, Chandigarh belonging to Paramjit Singh (appellant No.1). There is delay of 7 hours in lodging the FIR by PW-2 (Amar Singh), that could be held to have been explained, if PW-2 (Amar Singh) had testified that he started following the victim being abducted by the appellants in the jeep and due to this reason, he could not report the matter to the police, immediately after seeing the alleged incident. When, PW-2 (Amar Singh) had not followed the jeep, wherein, Rajinder Singh (PW-1) was being abducted by the appellants, then why he did not report the matter to the police immediately after seeing the incident. Delay on his part in reporting the matter to the police would show that he is not a natural witness of this occurrence. Probably this witness was created in reporting the matter to the police for lodging FIR, when Chandigarh Police refused to register the FIR on the basis of statement Ex.PA of Rajinder Singh (PW-1), that was recorded by PW-3 (ASI Bant Singh). Even the presence of Mantu Yadav (PW-5) was not mentioned by Rajinder Singh (PW-1) in his statements Ex.PA and Ex.DA. Even, PW-2 (Amar Singh) in his statement that formed the basis of FIR, did not mention the presence of Mantu Yadav (PW-5). Even, Mantu Yadav (PW-5) during trial only identified Paramjit Singh Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 23- (appellant No.1) and he could not identify other appellants being the accomplices of Paramjit Singh (appellant No.1). This testimony makes the presence of Mantu Yadav (PW-5) at the place of incident utterly doubtful, as if he would have been present at the place of incident, in that event, he would have been able to identify all the appellants in the Court, who allegedly kidnapped Rajinder Singh (PW-1) on the day of incident. According to Mantu Yadav (PW-5), appellants were armed with dandas and hockeys. This evidence is repugnant to the evidence of Rajinder Singh (PW-1) and Amar Singh (PW-2), who no where testified that the assailants were armed with dandas and hockeys. Even, police during investigation did not recover those weapons. If, PW-1 (Rajinder Singh) had not been raising ruckus in the house of Paramjit Singh (appellant No.1) in an inebriated condition, the former would not have informed the police. DW-4 (ASI Pavnesh Kumar) confirmed the version of the appellants that Rajinder Singh (PW-1) under the influence of alcohol misbehaved with the wife of Paramjit Singh (appellant No.1). The evidence of DW-4 (ASI Pavnesh Kumar) falsifies the version of the prosecution and that is why FIR at the instance of Rajinder Singh (PW-1) was not registered by the Chandigarh Police. As per the testimony of DW-4 (ASI Pavnesh Kumar) no other accused was found at the place of incident from where Rajinder Singh (PW-1) was recovered. Even, Paramjit Singh (appellant No.1) was also not at his home, when Rajinder Singh (PW-1) turned to the Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 24- house of Paramjit Singh (appellant No.1) in an inebriated condition. The explanation given by Rajinder Singh (PW-1) to ASI Pavnesh Kumar (DW-4), who was accompanied by other police officials that the accused had run away from the spot on seeing the police, is not made out from the record. Rajinder Singh (PW-1) is an interested witness, his evidence in this regard could be relied upon only, if the same would have been corroborated by any other evidence. PW-4 (ASI Gorakh Pal) recovered the jeep, which was allegedly used for abduction of Rajinder Singh (PW-1) near the house of Paramjit Singh (appellant No.1). The keys of the said jeep were with Rajinder Singh (PW-1). It is the case of Rajinder Singh (PW-1) that the jeep was driven to the house of Paramjit Singh (appellant No.1) by one of the accused at the time of his abduction. The keys of the jeep would have been in possession of one of the appellants, who allegedly drove the jeep after abducting Rajinder Singh (PW-1) to the house of Paramjit Singh (appellant No.1). On the contrary, the keys of the jeep were with Rajinder Singh (PW-1) himself and that reveals that he himself drove the jeep to the house of Paramjit Singh (appellant No.1) in an inebriated condition, on 28.01.1997, where he misbehaved with his wife and the police was called. It is proved on the record that Shamshad wife of Paramjit Singh (appellant No.1) filed a complaint in the Court of Judicial Magistrate Ist Class, Chandigarh against Rajinder Singh (PW-1) under Sections 323, 354, 504 and 506 IPC, wherein, the latter was summoned vide order dated 19.05.2007 to face trial for alleged Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 25- commission of offences punishable under Sections 354 and 506 IPC. So, the incident dated 24.01.1997 propounded by Rajinder Singh (PW-1), that Paramjit Singh (appellant No.1) misbehaved with his wife and later tendered apology, is not made out from the record. While from the testimony of DW-3 (Anil Kumar), it is made out that Rajinder Singh (PW-1) went to the house of Paramjit Singh (appellant No.1) in an inebriated condition and attempted to outrage the modesty of his wife. This incident was confirmed vide order dated 19.05.1997, whereby, the learned Magistrate summoned Rajinder Singh (PW-1) for facing trial for commission of offences punishable under Sections 354 and 506 IPC, on the basis of complaint filed by the wife of Paramjit Singh (appellant No.1), as can be seen from the testimony of DW-3 (Anil Kumar), whose testimony during cross-examination could not be shattered. Possibility cannot be ruled out that counter the incident, that had taken place in the house of Paramjit Singh (appellant No.1), where Rajinder Singh (PW-1) in an inebriated condition misbehaved with the wife of Paramjit Singh (appellant No.1), Rajinder Singh (PW- 1) got registered the case in Police Station Chandi Mandir, as his version was not accepted to be veritable by Chandigarh Police, that was reported by him vide statement Ex.PA. Gurdial Singh (appellant No.2) was posted as Havaldar at Kanpur at the relevant time, where he was very much present on 28.01.1997, as can be seen from the testimony of DW-5 (Capt. Manish Srivastava, 15 Punjab Patiala). He testified that Gurdial Singh (appellant No.2) had proceeded on leave on 19.01.1997 and joined the unit on 25.01.1997 at Kanpur and was Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 26- there incessantly uptil 06.02.1997. The incident had taken place on 28.01.1997. No departmental action was taken by the Army against Gurdial Singh (appellant No.2), after registration of the instant case. There is nothing on the record that his pension was denied to him due to pendency of case against him. The documents Ex.DX, DX/1, DX/2, DX/3, DX/4, DX/5 and DX/6, that have been proved by DW-5 (Capt. Manish Srivastava) would prove the presence of Gurdial Singh (appellant No.2) at his unit at Kanpur, which was his place of employment, on the alleged day of incident. Evidence of DW-5 (Capt. Manish Srivastava) during cross- examination could not be shattered. One fails to understand, as to why his testimony was repelled by the learned trial Court. In view of the testimony of DW-5 (Capt. Manish Srivastava) presence of Gurdial Singh (appellant No.2) at the place of alleged incident on 28.01.1997 becomes highly doubtful and that must make the prosecution version utterly doubtful. Even the offence under Section 364 IPC is not made out, as there were only simple hurts with blunt weapon on the person of Rajinder Singh (PW-1). When the appellants were not armed with lethal weapons at the time of alleged abduction of Rajinder Singh (PW-1), it cannot be said that they intended murder of Rajinder Singh (PW-1). It , thus, follows that the prosecution has not been able to prove its case against the appellants beyond shadow of reasonable doubt. The learned trial Court, thus, wrongly convicted and sentenced the appellants vide impugned judgment of conviction and Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA not S-972-SB of 2001 - 27- order of sentence, that ought to be set aside. Resultantly, appeal succeeds and is, hereby allowed; impugned judgment of conviction and order of sentence are set aside and the appellants are acquitted of the offences, wherefor, they were convicted and sentenced by the learned trial Court by according them benefit of doubt. Personal bonds and surety bonds of the appellants shall stand discharged, after the expiry of three months. (S.P. BANGARH) JUDGE July 30, 2013 sham Sunder Sham 2013.08.05 15:23 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh