Delhi High Court
Surjit Kaur vs D.S. Kapoor & Ors. on 3 June, 2011
Author: V.K. Shali
Bench: V.K. Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. No.111/2007
Date of Decision : 03.06.2011
SURJIT KAUR ...... Petitioner
Through: Petitioner in person
Versus
D.S. KAPOOR & ORS. ...... Respondents
Through: Mr.Sudhir Kumar, Adv.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? NO
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J. (oral)
1. This is a criminal leave to appeal against the order passed by
the learned Metropolitan Magistrate on 05.06.2007 acquitting
all the four respondents for an offence under Section
506/452/323/34 IPC. This leave to appeal has been filed by
the appellant in person in respect of an alleged incident
purported to have taken place more than 27 years ago. The
matter has already gone right up to the Apex Court on two
occasions and still the appellant has felt dissatisfied and has
been pursuing the matter.
2. Briefly stated the facts of the present case are that one
Waryam Singh husband of the appellant Surjeet Kaur filed a
complaint against the respondents namely, D. S. Kapoor,
Crl.L.P. No.111/2007 Page 1 of 11
Manjeet Kapoor, Raj Kapoor, and Javed Ahmed. It was
alleged that all the four accused persons forcibly entered into
the house of Waryam Singh bearing No. Z-2, Hauz Khaz, New
Delhi and gave beatings to him and his wife and thus
committed an offence under Section 452/323/506 read with
section 120B IPC. The appellant/complainant in support of
her case has examined the six witnesses at the pre
summoning stage. Vide order dated 13.12.1986 all the
aforesaid four accused persons were summoned to face the
trial. After the respondents put in their appearance, pre
charge evidence was adduced and Waryam Singh
(complainant - since deceased) got himself examined as PW-2
and his wife Amrit Kaur as PW-1. Thereafter, Waryam Singh
expired and vide order dated 06.09.1997 the present
appellant Surjeet Kaur was permitted to be brought on record
to pursue the case and she was examined afresh as CW-1 at
the pre charge stage. The learned Magistrate discharged all
the four accused persons vide order dated 16.07.1999.
3. It may be pertinent here to mention that standard of proof
which is required in a complaint case, for the purpose of
framing of charges is much higher than for the purpose of
framing charges then in a State case. While as in the State
case, the prosecution has to show only a prima facie case but
in a complaint case the nature of evidence, which is adduced
Crl.L.P. No.111/2007 Page 2 of 11
at the pre charge stage, must be of such a nature that would
if left unrebutted it would lead to their conviction.
4. It was on the basis of the aforesaid facts and the quantum of
proof required in a criminal complaint that the learned
Magistrate had discharged all the four accused persons.
5. The appellant feeling aggrieved by the said order of discharge
of all the four respondents herein, preferred a revision
petition in the Court of Sessions which was dismissed vide
order dated 16.07.1999 qua the respondent nos. 1 to 3 i.e.
D.K. Kapoor, Manjeet Kapoor and Raj Kapoor. So far as the
respondent no. 4 accused Javed Ahmed is concerned, it was
allowed with the direction that a charge against him be
framed for the aforesaid offence. The present appellant
preferred a fresh petition against the order dated 16.7.1999
discharging the three accused respondents. So far as the
respondent no. 4 accused is concerned, he also preferred a
revision petition in the High Court against the order of the
Court of Sessions directing the framing of charge. The
revision petition which was filed by the appellant was
dismissed and a cross revision petition was filed by the
respondent no. 4 accused which was dismissed as withdrawn
before the High Court.
6. The appellant feeling aggrieved from the order of the High
Court preferred a Special Leave Petition (Crl.) bearing no.
111/2001 against the dismissal order of her revision in the
Crl.L.P. No.111/2007 Page 3 of 11
High Court. The SLP (Cri.) was dismissed by the Supreme
Court on 28.09.2011 and thus it attained finality, so far as
the discharge of respondent nos. 1 to 3 is concerned.
However, the Apex Court while dismissing the special leave
petition had observed that in case during the recording of
evidence by the learned Trial Court any evidence comes on
record justifying the proceedings against the respondent nos.
1 to 3 then the Trial Court would take appropriate action
against the respondent nos. 1 to 3/accused persons in
accordance with law.
7. The present appellant, accordingly, filed an application before
the learned Trial Court after examining herself as CW-1
whereupon the learned Trial Court on 22.11.2002 summoned
respondent nos. 1 to 3 as accused persons to face the trial.
Vide order dated 22.07.2004, the charges, were framed.
8. After completing the evidence of the complainant/appellant,
the statement of the respondents under Section 313 Cr.P.C.
were recorded on 20.01.2007. None of the
respondents/accused persons adduced any evidence. The
learned Trial Court after hearing the arguments of both the
sides acquitted all the four accused persons of the offences
under Section 452/323/506/34 IPC. It may be pertinent
here to mention that so far as the respondent nos. 1 to 4 are
concerned, all of them were charged for an offence under
Section 452/323/34 IPC but the offence of criminal
Crl.L.P. No.111/2007 Page 4 of 11
intimidation under Section 506 IPC was not levelled against
the accused respondent no. 4 Javed Ahmed. The learned
Trial Court after examining the definition of the criminal
trespass as given in Section 441 IPC and house trespass
under Section 452 IPC, analyzed the evidence adduced by the
appellant and her witnesses including that of testimony of
PW-2 Waryam Singh, (since deceased) and came to the
conclusion that there was a great deal of variation in the
averments made in the complaint as compared to what has
been testified on oath by Waryam Singh PW-2 and the
appellant PW-1. It may be worthwhile to reproduce the
analysis of the evidence, which the learned Trial Court has
done in this regard of the matter in order to see as to whether
the offence of criminal trespass with a view to cause hurt,
assault or wrongful restraint is made out or not. This has
been given in para 13 to 18 of the impugned judgment which
reads as under:
"13. All the complainant witnesses deposed
before the Court to substantiate the
allegations as leveled in the complaint. The
crux of the matter is contained in para No.9
and 11 of the complaint which is reproduced
as under:
Para9 "That on 7.5.83 all the accused
persons assembled in front of the
house of the complainant and began
to abuse the complainant and his
family members after the departure
of SI AK Saxena and they said that
they will see Sardarjee."
Para11. "That at about 5:30 p.m.
the complainant and his wife was
Crl.L.P. No.111/2007 Page 5 of 11
present in the house then all the
accused persons came armed with
Dandas and Shri D.S. Kapoor said, "
Sardar Tanu Aaj Vekh Lenge" and
Zaved also repeated the same words
alongwith Manjit Singh and Mrs. Raj
Kapoor. Mrs. Raj Kapoor pulled the
hairs of Smt. Surjit Kaur then
Shrimati Surjeet Kaur ran into the
interior portion of the house but all
the accused persons forcibly entered
in the house and dragged her out of
the kitchen by breaking the gate.
The complainant hearing the said
words came there and he was
attacked by D.S. Kapoor and his son
(Manjeet Singh) got hold his hands
while Zaved Ahmed gave blows and
kicks to the complainant and his wife
also saying Zan Se Mar Do. In the
meanwhile S.S. Bhoria came and
Shir Akar Singh, Rajinder Singh
alongwith Shri Amrit Kaur also came
and rescued the complainant and his
wife from the clutches of the accused
persons.
14. A perusal of testimony of PW2 Waryam
Singh recorded on 15/9/93 reveals that he
deposed that on 8/5/1983 at evening time
Mr. D.S. Kapoor, Devika Kapoor, Manjeet
Kapoor and Javed Ahmed broke open the
jaali door of the kitchen and thereafter they
entered into the house of the complainant
whereas, para No.11 of the complaint
narrates the incident as that the accused
persons came armed with dandas and Mrs.
Raj Kapoor pulled the hairs of Smt. Surjeet
Kaur who ran into the interior portion of the
house. It is further mentioned that all the
accused persons forcibly entered in the house
and dragged Surjeet Kaur out of the kitchen
by breaking the gate.
15. It is clear that the testimony of PW-2
Waryam Singh contradict the sequence of
events as mentioned in the complaint. The
averments of the complaint indicate that the
accused persons had entered into the house
and thereafter they dragged Surjeet Kaur by
breaking open the jaali door of the kitchen
whereas PW-2 Waryam Singh categorically
Crl.L.P. No.111/2007 Page 6 of 11
deposed that the accused persons broke open
the jaali door of the kitchen and then entered
into his house. Apparently his deposition
does not corroborate the allegations leveled in
the complaint regarding manner of entry by
the accused persons in the house. On the
other hand, the testimony of Smt. Surjeet
Kaur recorded on 16.11.1998 contains the
fact that in the evening of 8.5.1983, the
accused persons entered into the house by
breaking the door and gave beatings to her.
She had not deposed anything regarding
breaking open of any jaali door of the kitchen
by the accused persons.
16. In these circumstances, it is not clear as
to how the accused persons entered into the
house of the complainant. Admittedly the
place of occurrence was not photographed by
the complainant so as to make the position
amply clear nor any site plant has been
annexed with the complaint.
17. It is also relevant to refer to document
EXP-2/4 i.e. a letter written by the
complainant to the then Prime Minister of
India about the alleged incident. A perusal of
the same also reveals that only the name of
the accused Javed Ahmed is mentioned
therein as the person responsible for breaking
upon the door of the house and beating of the
complainant and his wife. The document
EXP-2/4 was written on 11.5.1983 i.e. after
three days of the alleged incident but even
than the contents of the same are in stark
contradiction with the allegations as leveled
in the complaint. In these circumstances, a
doubt has been created as far as the
allegation pertaining to house trespass by all
the accused persons is concerned.
18. In view of aforesaid discussion, in my
considered opinion a serious doubt has been
raised in the complainant's version regarding
forceful entry by all the four accused persons
by breaking upon the door of the house of the
complainant."
Crl.L.P. No.111/2007 Page 7 of 11
9. The aforesaid analysis of the evidence by the learned
Magistrate is reasonable and plausible. In any case, the
appellant does not show beyond reasonable doubt as to how
the respondents had entered his house, rather there is a
contradiction however, the averments made in the complaint
and the evidence which was produced to substantiate charge.
The same creates a reasonable suspicion in the mind of any
reasonable person.
10. So far as the respondent nos. 1 to 3 are concerned,
additionally they were charged for an offence under Section
506 Cr.P.C. that is a criminal intimidation which has been
defined in Section 503 IPC and in this regard also the learned
Magistrate observed that neither in the entire body of the
complainant nor in the testimony of all the witnesses
including that of the complainant, there is any specific
allegation regarding extending the threat to the complainant
with an intention to cause any injury or bodily harm on his or
her person.
11. In this regard, the learned Magistrate has analyzed the
ingredients of Section 503 and 506 IPC and come to the
conclusion since the appellant has not mentioned allegation
of causing injury on the appellant or her husband Waryam
Singh coupled with the fact that none of them got themselves
examined by a doctor despite ample time being at their
Crl.L.P. No.111/2007 Page 8 of 11
disposal clearly shows that the averments were made by the
appellant were vague in nature and could not be believed.
12. The learned Magistrate has also referred to the testimony of
the present appellant where she has stated on 24.09.1999
that she had sufficient injury on her hand and she had
treated by herself by applying Iodex. In the absence of any
categorical averments with regard to the sufferance of any
bodily pain or the injury, the learned Magistrate observed that
it raised a serious doubt regarding the genuineness of the
appellant's version of the incident. The same was the
observation with regard to the testimony of Waryam Singh,
the diseased husband of the appellant.
13. Thus keeping in view the totality of circumstances including
the material contradictions in the averments made in the
complaint and the testimonies of the appellant and the other
witnesses, the learned Magistrate entertained serious doubt,
regarding the genuineness of the incident purported to have
taken place as a consequence of which the aforesaid
complaint came to be dismissed after acquittal of the
respondents.
14. The appellant feeling aggrieved by the aforesaid acquittal
order has filed the present leave to appeal against the
impugned order.
15. I have heard the appellant Surjeet Kaur as well as her son. I
have also heard the learned counsel for the respondent.
Crl.L.P. No.111/2007 Page 9 of 11
16. At the very outset, I must very candidly confess that the
submissions made by the appellant herself are in the nature
of incoherent submissions without any valid and legal
support and without understanding the niceties of law and
trying to find out as to why the learned the learned Magistrate
has disbelieved their testimony and acquitted all the four
accused persons/respondents. However, the appellant was
permitted by my learned Predecessor to file on record the
written submissions on 29.07.2008 which I have gone
through the same. I have also gone through the impugned
judgment passed by the learned Magistrate acquitting all the
four accused persons. The synopsis which is filed by the
appellants are more in the nature of questions rather than
the submission, which I prima facie find difficult to
comprehend and co-relate with the present case.
17. I feel that the present appellant on account of her abject
poverty neither has engaged a counsel nor prepared to accept
the one, which request was made to her with the condition
that it will be provided at the State expense but she wanted to
make submissions of her own without trying to understand
as to why the learned Magistrate has acquitted all the four
accused persons by giving them benefit of doubt. The benefit
of doubt which has been given to the respondents is on
account of the fact that the version which has been given by
the appellant and her deceased husband Waryam Singh, (who
Crl.L.P. No.111/2007 Page 10 of 11
was the original complainant) is completely at variance with
the averments made in the complaint. The learned
Magistrate has dealt with the same in extenso and referred to
the contradictions with regard to the genuineness of the
incident, which hit at the root of the matter itself. I feel that
the learned Magistrate has rightly disbelieved their testimony.
I too after having gone through the said judgment as well as
the testimony have absolutely no reason to hold to the
contrary what has been observed by the learned Magistrate.
The present appellant despite, 27 years having been gone by,
seems to be more addicted to litigation then trying to
reconcile to the fact that it is not a case worth where leave to
appeal ought to be granted because the judgment of the
learned Court is detailed, reasoned and quite logical.
18. For the reasons mentioned in above, I feel that there is no
merit in the contention made by the learned appellant which
may warrant giving leave to file an appeal against the
judgment dated 05.06.2007 acquitting all the four accused
persons/respondents by the Court. Both the parties are left
to bear their costs.
V.K. SHALI, J.
JUNE 03, 2011 KP Crl.L.P. No.111/2007 Page 11 of 11