Court No. - 87
Reserved on 30.11.2021 Delivered on 21.12.2021 Case :- CRIMINAL APPEAL No. - 3718 of 2021 Appellant :- Surajpal And 6 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Sangam Lal Kesharwani, Ajay Kumar Tiwari Counsel for Respondent :- G.A., Jai Prakash Singh
Hon'ble Mrs. Sadhna Rani (Thakur), J.
Present appeal has been preferred by the appellants against the order dated 25.02.2021 passed by the Additional Sessions Judge/Special Judge (SC/ST Act), Court No. 2, Shahjahanpur passed in complaint case No. 7 of 2020 (Ram Kishan Vs. Narvir and others). By the impugned order, the appellants have been summoned to face the trial under Sections 452, 323, 325, 504 I.P.C. and Section 3 (1) Da, Dha of SC/ST Act, 1989.
The facts germane to this appeal are that on 10.01.2020, the opposite party no. 2 Ram Kishan moved a misc. application under Section 156 (3) Cr.P.C. before the Special Judge (SC/ST Act), Shahjahanpur that on 28.08.2019 at about 5.30 hours Narvir passed through his chaupal carrying cow dung many times. When he checked him then he hurled caste based abuses and Narvir along with Surajpal, Amit, Hariom, Mahipal and their relatives Ram Kumar and Gautam equipped with lathi danda entered in his house and assaulted him with lathi and danda, used caste based abuses and gave threat of life. On his hue and cry, his son Ajit Singh neighbors Pappu and Raghubir came and could hardly save him. The accused persons warned him of dire consequences if they are again stopped from passing through the chaupal. The applicant is the only harijan in the village and considering him to be of lower caste and poor he has been beaten by the accused persons. In this incident, he got his right hand fractured. The accused persons are influential persons, who have their influence in the area. At the police station on 29th August, 2019 his written complaint was taken but neither any action was taken nor his injuries were got examined then on 31st August, 2019 he himself got x-ray of his wound done wherein the fracture was found in the right hand. He got himself treated in Ruhelkhand Hospital. When any step was not taken against the accused persons he sent a letter to the Superintendent of Police, Shahjahanpur on 06.01.2020 by registered post but till now his report has not been registered.
This application of opposite party no. 2 was registered as complaint vide order dated 12.02.2020. The statement of opposite party no. 2, complainant under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C. were recorded and finally the appellants accused persons were summoned by the court concerned to face the trial under Sections 452, 323, 325, 504 I.P.C. and Section 3 (1) Da, Dha of SC/ST Act, 1989 by the impugned order.
The present appeal has been filed against this summoning order dated 25.02.2021 on the ground that the impugned order is against the evidence on record and is purely illegal, arbitrary and has been passed without appreciation of the evidence. The court concerned has not applied its judicial mind and has passed the order dated 25.02.2021 on the basis of conjectures and surmises. No documentary evidence or medico legal report has been placed before the court to prove that the hand of opposite party no. 2 was fractured. The appellants are wholly innocent and they have been falsely implicated only to mount a pressure to extract handsome money from the appellants. The incident is said to have taken place on 28.08.2019 and the present complaint was filed on 10.01.2020. No plausible explanation has been given for such delay of more than four months and no first information report was lodged, so, for the first time the complaint is made to Superintendent of Police, Shahjahanpur on 06.01.2020 i.e. after more than four months of the incident, which creates doubt about the genuineness of the prosecution version. The appellants Amit Kumar and Hariom are minors. Their date of birth is 09.06.2005 and 09.06.2004 respectively. They are the students. The age of appellant- Ram Kumar @ Ram Kumar Singh is about 60 years which is shown to be 20 years in the body of the complaint. This also creates doubt about the presence of Ram Kumar @ Ram Kumar Singh on the place of incident. The appellants - Ram Kumar @ Ram Kumar Singh and Gautam son of Prithviraj are residents of another village situated at the distance of about 8 kms. from village Jaitipur and they have been falsely implicated being the relatives of Surajpal and Narvir. The appellants are having no criminal history to their credit nor they are previous convict. So the impugned order which is bad in law deserves to be set aside otherwise the appellants will suffer great irreparable loss and injury and their life and personal liberty will be jeopardized.
Heard Sri Sangam Lal Kesharwani, learned counsel for the appellants and learned A.G.A. on appeal.
None has put in appearance for the opposite party no. 2 – Ram Kishan, inspite of sufficient service.
Reiterating the grounds of appeal, learned counsel for the appellants argued that they are innocent and have been falsely implicated. Two minor persons and two residents of other village have also been made party. No medical report has been filed. The opposite party no. 2 has made chaupal after encroaching upon the public thoroughfare and the complaint has been filed with great delay, hence, the appeal is prayed to be allowed and the impugned order is prayed to be set aside.
Learned A.G.A. has submitted that the impugned summoning order has been passed on the basis of statements recorded under Sections 200 Cr.P.C. and 202 Cr.P.C. which exist on the record and at this stage only prima facie case is to be seen. As the sufficient evidence exists on record, so the order of lower court is well founded and passed on the basis of evidence on record, therefore, there is no perversity in the order, hence, the appeal is liable to be dismissed.
If we go through the application under Section 156 (3) Cr.P.C. it is mentioned therein that the complainant submitted his complaint of the incident on the very next day of the incident i.e. on 29.08.2019 in the concerned police station. His complaint was received but neither his report was lodged nor his medical examination was conducted so he had to get himself examined privately. In the x-ray report, his bone of right hand was found fractured. When he got the information that no step has been taken by the police then only he sent a registered letter to the Superintendent of Police concerned and filed this application in the court.
In support of his allegation in the complaint he has deposed in the statement under Section 200 Cr.P.C. that when he stopped Narvir passing through his chaupal then he hurled caste based abuses and all the accused persons equipped with lathi and danda entered in his house hurling wild abuses and caste based abuses and assaulted him. In this incident he got his right hand fractured and on his hue and cry his son and neighbors Pappu and Raghubir could hardly save him. He was also given threat of dire consequences if he further stopped the appellants from passing through the chaupal.
The version of the complainant has been supported by the on oath statements of his neighbors Pappu and Raghubir and also by the statement of his son Ajit Singh. All these are mentioned in the complaint itself as eye witness. It is true that no medical examination report appears to have been filed by the opposite party no. 2 in the lower court as the same is not mentioned in the impugned order but the version of the fracture mentioned in the statement of complainant under Section 200 Cr.P.C. is supported by the statements of the witnesses which are registered on oath. There was no boundation on the opposite party no. 2 to mention this incident of just before the day when he moved an application to the Superintendent of Police and moved the application under Section 156 (3) Cr.P.C. but he did not do the same and has mentioned the incident dated 28.08.2019 i.e. four months prior to filing of the present application under Section 156 (3) Cr.P.C. As at the stage of summoning, only the prima-facie facts are to be seen and the evidence in support of these statements can be filed later on at the stage of 244 Cr.P.C. On the basis of statement of the complainant and his witnesses the prima facie case under Sections 452, 323, 325, 504 I.P.C. and 3(1) da & dha of SC/ST Act appears to have been made out against the appellants.
In my opinion, the summoning of the appellants in the mentioned sections cannot be said to be against the evidence on record. Hence, the appeal of the appellants being devoid of merit is hereby dismissed.
The impugned order dated 25.02.2021 passed by the Special Judge, SC/ST Act, Shahjahanpur, is confirmed.
Order Date :- 21.12.2021 gp