Kamaljeet Singh alias Bhola vs State of H.P

Surjit Singh, J.—This revision petition, by Kamaljeet Singh, is directed against the judgment dated 25.5.2004, of learned Additional Sessions Judge, whereby, dismissing his appeal, his conviction and sentence for offences under Sections 451, 323 and 365 IPC, as awarded by the trial Magistrate, has been upheld.

A report u/s 173 Code of Criminal Procedure was presented against 14 persons, including the present petitioner, by Kangra police, alleging that those 14 persons (hereafter referred to as accused) tres-passed into the house of Prem Chand on 19.6.1995, around 9 P.M. and intimidated the occupants of the house, including PW-1 Parveen Kumar and his brother PW-3 Surinder Kumar, and also threw stones at their house, damaging the window panes and the property, kept inside the house. It was also alleged that on the next following day, i.e. 20th June, 1995, around 8 P.M., all the accused, led by accused Kirpal Chand, again went to the house of Prem Chand and hurled abuses at members of the household and also forcibly took away PW-3 Surinder Singh with them, by bundling him into one of the five taxis, by which they came.

All the accused were charged with offences under Sections 147, 427, 452, 323, 365, 506 read with Section 149 IPC. They pleaded not guilty. They were put on trial. Prosecution examined number of witnesses to prove the charge.

At the end of trial, learned trial Magistrate held that all the 14 accused, except one, namely Sandla Devi, were guilty of various offences. Present petitioner and Kirpal Chand, who was leading the unlawful assembly, were held guilty of offence u/s 365 IPC, in addition to various other offences, while other accused were acquitted of the charge u/s 365 IPC. Present petitioner and Kirpal Chand were sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 5000/-. All other accused, as also the present petitioner, were given benefit of probationary provisions of law, with regard to rest of the offences, they were held guilty of.

Appeal was filed by the present petitioner and his accomplice Kirpal Chand, in the Court of learned Sessions Judge, which was dismissed, vide the impugned judgment.

I have heard learned Counsel for the petitioner, as also learned Assistant Advocate General, and gone through the record.

It is submitted by the counsel for the petitioner that there was absolutely no evidence on record, establishing identity of the revision petitioner, as one of the members of the unlawful assembly and that he has been held to be a member of the assembly and one of the persons, responsible for kidnapping / abducting PW-3 Surinder Kumar, just by guess work.

In the earliest version, which had been given to the police vide FIR Ex.PW-1/A, names of the accused, except that of Kirpal Chand, who was heading the unlawful assembly, are not mentioned. Present petitioner was identified only during the trial, with the description that among members of the unlawful assembly, there was one Sardar (a Sikh gentleman) and that that Sikh gentleman was the present petitioner. In the FIR, there is no mention that any Sardar (a Sikh gentleman) was in the unlawful assembly. Also, nobody stated that the present petitioner was among those particular accused persons, who had kidnapped/ abducted Surinder Kumar, PW-3. Even Surinder Kumar, PW-3 himself did not say that the present petitioner was among those accused persons, who had abducted him. He made a general type of statement that he had been abducted by the accused persons and taken to a place in Dharamsala, where he was confined in a room. Similarly, Parveen Kumar, who was present in the house, being son of Prem Chand, also did not say that present petitioner had abducted his brother Surinder Kumar.

There being no evidence at all, indicating that the present petitioner played any role in the abduction of Surinder Kumar, he could not have been held guilty of offence u/s 365 IPC, as is the finding of the two Courts below, in respect of rest of the accused persons, barring Kirpal Chand.

Also, there being no reference to any Sardar (a Sikh gentleman) in the FIR and the witnesses, identifying the petitioner only in the Court for the first time, that too, because of his being the only Sardar (a Sikh gentleman) amongst the accused, possibility cannot be ruled out that he was identified as one of the accused, only because of his being of distinct identity as a Sardar (a Sikh gentleman).

For the foregoing reasons, revision petition is allowed. Judgments of the two Courts below, convicting and sentencing the petitioner, are set aside and he is acquitted. Fine, if already paid, shall be refunded to the petitioner.