Delhi District Court
Shivpati vs Sho Ps Mianwali Nagar And Others on 7 April, 2016
SHIVPATI V. SHO PS MIANWALI NAGAR AND OTHERS
CC NO. 109/1/12
P.S. Mianwali Nagar
07.04.2016
Present: None.
1.Brief facts of the case are that the accused persons entered into the house of the complainant and beaten up her sons and daughter in law causing miscarriage of the daughter in law.
2. The 156(3) Cr.P.C application of the complainant was dismissed as in the status report it was submitted by the police officials PS Mianwali Nagar that on receipt of DD no. 45A police officials reached at the spot and found that four persons namely Ajay, Rajender, Raj Kumar @ Bablu and Satish were exchanging abuses and threatening each other. The said persons failed to maintain the peace in the area and accordingly got arrested in the sections u/s 92/93/97 D.P. Act. All of them were examined at Sanjay Gandhi Memorial Hospital which revealed liquor in the blood of Raj Kumar, son of the complainant. No injury was found on the person of any of them. As per the status report kalandra u/s 92/93/97 D.P. Act was filed before evening court where all the accused persons including son of the present complainant pleaded guilty.
3. At pre summoning stage complainant has examined two witnesses in total. Complainant has examined herself as CW-1 and her neighour Smt. Pratima as CW-2.
4. Complainant/CW-1 deposed that on 15.07.2012 at about 10.00 - 10.30 PM she was in her house along with Poonam, her daughter, Raj Kumari, her daughter in law, Satish and Raj Kumar, her two sons. It is stated by her that suddenly around 20-25 persons entered into her house forcibly and started assaulting her and her family members. It is stated that the CC no. 109/1 PS Mianwali Nagar Page 1 of 6 accused persons were carrying bat, hockey, knife, sticks and bricks. It is further stated that her son Raj Kumar was assaulted by one Chandan and Ajay on his head by bat. He was also assaulted on his chest, waist, shoulder and thigh by hockey. It is stated that when her son namely Satish tried to intervene to save Raj Kumar, he was also assaulted by Chandan with knife at his hand. It is stated that her daughter in law namely Rajkumari was pregnant at that time she was also assaulted by Chandan and Ajay at her stomach due to which her miscarriage took place. It is stated that her daughter namely Poonam was also carrying a six months baby and was assaulted by knife at her forearm by accused Ajay. It is stated that she was also assaulted on her shoulder and back. It is stated that out of all the accused persons she recognized one Sadhuram, father of Chandan, who was holding her son Raj Kumar. Complainant also identified the accused Neeraj, Rajinder, Maan Singh and Rajesh. It is stated that the other accused persons were family members of the accused persons. It is stated that on the day of incident, the accused Ajay was flashing light on her daughter Geeta to which his son Raj Kumar objected. It is stated that her daughter Geeta had called police by dialing 100 number. It is stated that accused persons ran away when police came at the spot. It is stated that police took her sons to Sanjay Gandhi Hospital for treatment. It is stated that still accused persons taunt her and her family members every day. It is stated that accused persons also tried to outrage the modesty of the females of her family and threatened to kill the family members if she go to police. It is stated that accused persons threatened to falsely implicate her sons in false case. It is stated that even two years ago the accused persons had inflicted the injuries on her daughter by a knife. Even at that time police had not taken any action. She exhibited complaint made to the police as Ex. CW1/A (OSR) and complaint to various authorities. Copy of the complaint made to various authorities is Ex. CW1/B. CC no. 109/1 PS Mianwali Nagar Page 2 of 6
5. CW-2 Smt. Pratima deposed that she is the neighbour of Geeta. It is stated that about 3-4 years ago in the evening accused Ajay, Man Singh, Rajesh and Rajender along with other 15-20 persons entered into the house of Geeta. It is stated that accused persons were carrying hockey and sticks in their hands. It is stated that she came out of her house on hearing the noise. It is stated that the the fight had started in the steet and thereafter the accused persons entered in the house of Smt. Geeta.
6. No other witness was examined by the complainant, hence, at her request pre summoning evidence was closed.
7. It is argued on behalf of the complainant that accused persons have committed offence punishable u/s 308/312/325/326/448/450/506/34 IPC and they may be summoned for the same.
8. Arguments have been heard, file has been perused by the undersigned.
9. The following judgment of Hon'ble Supreme Court of India has some bearing on the present case.
In Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749, it was observed:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The magistrate has to carefully scrutinies the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.CC no. 109/1 PS Mianwali Nagar Page 3 of 6
10. It has been observed by Hon'ble Supreme Court in above stated case that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused.
11. In the present case CW-1 has categorically stated that accused persons entered her house, assaulted and had beaten her family members and CW-2 also stated that accused persons entered into the house of the complainant, however, testimonies of these witnesses cannot be accepted as gospel truth due to following reasons:
(i). It is stated by CW-1 that accused persons misbehaved with her daughter Geeta and when Raj Kumar stopped them they started beating, however, neither Geeta nor Raj Kumar have been examined as complainant witnesses in the present case to prove the factum of misbehaviour and initiation of the quarrel.
(ii). It is alleged that accused persons had beaten Raj Kumar and when other son of the complainant Satish Kumar tried to rescue him one of the accused inflicted injury by knife on his hand, neither Raj Kumar nor Satish Kumar have been examined before court to prove such beating and injuries. The alleged MLC of Satish Kumar and Raj Kumar have not been proved on record.
(iii). It is alleged that daughter of the complainant namely Poonam was also assaulted by knife due to which she received injuries on her hand. It is also alleged that pregnant daughter in law of the complainant namely Raj Kumari was beaten up by the accused persons resulting into the miscarriage of the baby. For the reasons best known to the complainant neither Raj Kumari nor CC no. 109/1 PS Mianwali Nagar Page 4 of 6 Poonam have been examined before court. No MLC or any other medical record regarding the injuries received by Poonam or the miscarriage caused to Raj Kumari have been proved on record.
(iv). The complainant made a bald allegation that the accused persons tried to outrage the modesty of the woman of the house of the complainant, however, the exact action amounting to outraging the modesty of the woman have been described. Similarly, bald allegation have made that accused persons threatened to kill the complainant and her family members however it has not been described which one of the accused stated what which would have amounted to criminal intimidation.
(v). In respect of the alleged incident a kalandra u/s 92,93/97 DP Act was prepared by the police officials wherein sons of the complainant namely Raj Kumar and Satish were also shown as the accused in that kalandra both sons of the complainant pleaded guilty before the court, were accordingly convicted and sentenced to pay fine. Apparently, this is the reason none of the son of the complainant have been examined by her before the court as they have already admitted their guilt before the court regarding fighting in public place falsifying the contention of the complainant that the incident had taken place inside her house.
12. From the above stated discussion, it is established that the witnesses are not telling the truth before the Court and their testimonies are motivated. Further, for the reasons best known to the complainant she did not examine the best witnesses i.e. the persons (Raj Kumar, Satish, Raj Kumari, Poonam and Geeta) who have received the injuries. No medical document has been proved on record to show that they were actually assaulted and received such injuries. There is no medical document filed on record regarding alleged miscarriage caused to Smt. Raj Kumari.
13. In view of the above stated discussion, this Court is of considered opinion CC no. 109/1 PS Mianwali Nagar Page 5 of 6 that there is no reliable evidence on record to summon the accused persons to face trial for commission of offences punishable 308/312/325/326/448/450/506/34 IPC. The complaint is accordingly dismissed. Original documents, if any, be returned. File be consigned to Record Room after due compliance.
(GAJENDER SINGH NAGAR) MM-04:West:THC:Delhi 07.04.2016 CC no. 109/1 PS Mianwali Nagar Page 6 of 6