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Diwari Lal And Others. v. State Of U.P And Another - APPLICATION U/s 482 No. 8174 of 2005 [2006] RD-AH 17688 (13 October 2006)


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                    Crl. Misc. Application no.8174 of 2005

Diwari Lal and others . . . . .  . . . . . . . .  . . .  . . .   . .   . . . .Applicants.


State of U.P .and another . . . . . .  . .. .  . . . .  . . . . . .  . . . . Opp.Parties.                                                                                                                                                                                                                            


Hon'ble R.K.Rastogi,J.

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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