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Diwari Lal And Others. v. State Of U.P And Another - APPLICATION U/s 482 No. 8174 of 2005  RD-AH 17688 (13 October 2006)
Crl. Misc. Application no.8174 of 2005
Diwari Lal and others . . . . . . . . . . . . . . . . . . . . . . . . .Applicants.
State of U.P .and another . . . . . . . .. . . . . . . . . . . . . . . . Opp.Parties.
This is an application under section 482 Cr.P.C. for quashing the proceedings of Crl. Case no.75 of 2005, Santosh Kumar Vs. Diwari Lal, under section 302 I.P.C. pending in the court of the Addl. Chief Judicial Magistrate, Court no.10, Etawah.
The facts relevant for disposal of this application are that on
4.6.2004 at 11.40 P.M. Santosh Kumar, O.P.no.2, accompanied by Karan Singh, Pradhan, and Harpal Singh went to police station Ekdil district Etawah and gave an intimation in his own hand writing at the police station. It was stated therein that he was resident of village Nagla Khufi P.S. Ikdil district Etawah. His father was a drunkard andin limine. he was absent from the house since noon of the previous day. He received an information from villagers that his father was lying below the bridge in the village. Then he went to that place along with his family members and found that his father was lying there dead, so he came to the police station to give this information.
On the basis of this intimation, police made an entry in the G.D. at Rapat no.30. Thereafter inquest report of the dead body was prepared. Five Panchas were appointed and in the opinion of the Panchas Hari Krishna was a drunkard and according to the information received by them he was sitting on that bridge after taking drink on 3.6.2004 and somehow he fell down from the bridge and died as a result of injury received by him. It was recommended that post-mortem of the dead body be performed. The dead body was sent for post-mortem. In the post-mortem examination it was found that there was a head injury with contusion on the back of skull 5cm x 4cm. and on dissection bleeding fluid was found present. There was contusion on the base of neck and cause of death was shock and haemorrhage as a result of anti-mortem injuries.
After the lapse of one month and 25 days from the incident the above named Santosh Kumar son of the deceased moved an application under section 156 (3) Cr.P.C. before the Chief Judicial Magistrate, Etawah against Diwari Lal, Sipahi Ram, Darshan and Daya Shanker with these allegations that Daya Shanker son of Diwari Lal had earlier attacked his father Hari Krishna and in respect of that incident a case was pending against the above named accused persons in the court. Since Hari Krishna was doing Pairvi in this case, the accused had enmity with him and on 3.6.2004 at about 4 P.M. all the above named four persons came to his house. At that time his mother Munni Devi, brother Rajuand uncle Mohar Singh etc. were present there. They took his father Hari Krishna with them stating that a Panchayat was to take place in respect of the above case and thereafter Hari Krishna will return back. When Hari Krishna did not return back for a long time then Santosh Kumar and his uncle Mohar Singh started to search Hari Krishna. They went to the house of Diwari Lal. Diwari Lal at first avoided to give any information but subsequently he stated that Santosh Kumar would never meet his father again, and he can do whatever he likes. Then on 4.6.2004 he saw the dead body of his father below the bridge. He had been perturbed on seeing the dead body. He then went to the police station to give its information but the police did not write correct facts. He had given an application before the S.S.P. Etawah on 8.6.2004 but no action was taken. Hence, he was moving this application. On this application the Magistrate called for a report from the police station vide his order dated 29.7.2004 and then a report was submitted by the police on 4.8.2004 in which i t was stated that on receipt of the application of Santosh Kumar from the office of the S.S.P. Etawah the matter was investigated but it was found that no offence had been committed. It was also stated in the report that Daya Shanker was not present in the village on the date of death of Hari Krishna and he was at Ahmedabad at that time. He had gone to Ahmedabad 4 -5 months ago and had not retuned back from there. The intimation regarding death of Hari Krishna was given by Santosh Kumar in his own hand writing and actually Hari Krishna had died due to fall from the bridge in drunk condition and Santosh Kumar had falsely implicated the accused concocting the story written in the application at the later stage, since there was previous enmity of his father with the accused persons. It was also stated in the report that a case under section 324, 504, 506 I.P.C. was pendinin limine.g against the accused in respect of beating of Hari Krishna.
Santosh Kumar filed affidavits of some persons in support of the application and after receipt of the report from the police station the Magistrate passed an order on 30.9.2004 directing the police to register a case in respect of death of Hari Krishna under section 302 I.P.C. against unknown culprits and to investigate the same.
After this order of the court, the police registered a case under section 302 I.P.C. and investigated the same and after investigation submitted a final report on 29.12.2004 confirming its earlier report dated 4.8.2004.
The complainant Santosh Kumar filed a protest petition against the above final report repeating the same allegations which were stated in the application under section 156(3) Cr.P.C. He examined himself under section 200 Cr.P.C. and also examined Sri Ram, Laxami Narain, Mohar Singh, Raju and Dr.S.K. Agrawal under section 202 Cr.P.C. The learned Magistrate after perusal of this evidence came to the conclusion that a prima facie case was made out against the accused persons under section 302 I.P.C. and so he summoned the accused. Aggrieved with that order, the accused have filed this application under section 482 Cr.P.C.
It was submitted by the learned counsel for the applicant that in this case informant Santosh Kumar had himself given in his own hand writing at the police station on 4.4.2004 that whereabouts of his were not traceable since the noon of 3.6.2004 and there was no allegation to this effect that the accused had taken his father from his house for Panchayat. He submitted that actually Hari Krishna was a drunkard and he fell down from the bridge in drunken condition and died as a result of the injuries received by him due to fall from the bridge and if actually the accused had taken Hari Krishna from his house and had murdered him, this fact must have been stated in the intimation which was given at the police station by Santosh Kumar on 4.6.2004. He submitted that the Magistrate had not considered the case in the right perspective and had simply relied upon the statements of the complainant and the witnesses recorded under section 200 and 202 Cr.P.C. and so the proceedings should be quashed.
A counter affidavit was filed by O.P. no.2. A rejoinder affidavit has also been filed.
I have gone through all the documents and have heard learned counsel for the parties
The learned A.G.A. and the learned counsel for the complainant -O.P. no.2 submitted that all the pleas taken by the accused applicants are factual and they can be properly taken before the trial court and there is no illegality in the order passed by the learned Magistrate.
After a careful perusal of the entire record I am of the view that in this case the Magistrate has simply summoned the accused persons on the basis of the statement of the complainant and his witnesses recorded under section 200 and 202 Cr.P.C. He has not referred to the back ground of the case and the previous conduct of Santosh Kumar who had given in his own hand writing on 4.6.2004 at the police station that his father was a drunkard and his dead body had been found below the bridge and at that time no allegation was levelled against the accused persons that they had taken Hari Krishna from the house of the informant. It is true that at the time of summoning the accused defence version is not to be considered and the criteria for summoning the accused is as to whether there is sufficient evidence against them, which if unrebutted, can result into conviction of the accused persons. If such evidence is there, the accused ought to be summoned, but if there is no such evidence they are to be discharged. The position in the present case is different. In this case there was no allegation against the accused at the very beginning of the case and their names have been disclosed at a later stage and there was no justification for not disclosing their names in the intimation dated 4.6.2004 if the accused had actually taken Hari Krishna Lal from the house of the complainant on 3.6.2004. The proper course in the present case for the learned Magistrate was to consider the conduct of Santosh Kumar from 4.6.2004 when he had given an application in writing regarding death of his father at the police station without implicating any person and the subsequent investigation that had taken place on his application under section 156(3) Cr.P.C. in which implication of the accused persons was found to be false by the police. Since the complainant and his witnesses have deposed against the accused persons in their statements under sections 200 and 202 Cr.P.C. it was necessary to assess their statements in the light of the previous investigation done by the police and the Magistrate should have passed an elaborate orderstaking into consideration the entire facts and circumstances of the case. It is true that evidence is not to be adjudged critically at the stage of summoning but there must be prima facie believable evidence in support of the prosecution case and if that evidence is of shaky nature, innocent persons should not be put to unnecessary harassment by passing summoning order. The proper course in the present case is that the Magistrate should consider the entire evidence and development of the case from the date 4.6.2004 and then he should pass a reasoned order in the matter. Since he has passed the order on the basis of the statements of the complainant and his witnesses under sections 200 and 202 Cr.P.C. only, and has not taken into consideration the above noted facts and circumstances, the order passed by him cannot be up-held and it is liable to be quashed.
The application under section 482 Cr.P.C. is, therefore, allowed and the order passed by the learned Magistrate summoning the accused persons is set aside. The Magistrate concerned is directed to reconsider the entire evidence in the light of the observations made above and then pass a reasoned order considering the entire facts and circumstances of the case.
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