Sunder Singh And Anr. vs State And Ors.
1985 Latest Caselaw 457 Del

JUDGMENT

Charanjit Talwar, J.

1. By this petition the two petitioners are seeking quashing of charges framed against them on 29th March, 1985 by Shri Babu Lal, Metropolitan Magistrate, Delhi. The said charges are as follows:

"I, Shri Babu Lal M.M. Delhi do hereby charge you Sunder Singh S/o Shri Kartar Singh (2) Gurvinderpal Singh S/o Kesar Singh as follows:

The both of you along with Kesar Singh (now deceased) in furtherance of your common intention committed criminal house trespass at H. No. 12/46C, Tilak Nagar which was in possession of Charanpal Singh with the intention to cause injuries to him on 3.8.1982 at about 3.15 P.M. and thereby committed an offence punishable under Section 452/34 IPC and within my cognizance.

Secondly, on the above said date, time and place both of you along with Kesar Singh (now deceased) in furtherance of your common intention voluntary caused grevious injuries to Charanpal Singh and thereby committed an offence under Section 325/34 IPC and within my cognizance.

And I hereby direct you that you be tried by the said court before me for the above said offence.

Sd/- M.M.

29.3.1985"

2. Mr. K.S. Bindra learned counsel for the petitioners has urged that there is no material whatsoever collected by the prosecution in support of their allegations either of house trespass or the accused having caused any injury to the complainant Charanpal Singh. His submission is that the prosecution has been actuated by malafide and, therefore, this court in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure ought to quash the pending prosecution. And according to the counsel, those proceedings are an abuse of the process of the court. To appreciate the contention of Mr. Bindra a few facts of the prosecution case may be noticed.

3. On 8th March, 1981 the complainant Charanpal Singh got recorded a report in the Daily Diary of police station Tilak Nagar at 2.15 P.M. regarding house trespass and having been given beating by Kesar Singh and his companions. The petitioners have annexed the translation of that Daily Diary bearing No. 48/B as Annexure 'A' with the petition. Learned counsel for the complainant Mr. D.C. Mathur has no objection to the annexures with the petition being read in support of this petition. He says that translation of the above report and translation of the other statements by the petitioners which have been annexed are more or less correct translation of the statements recorded in vernacular. In that report the complainant stated that he did not want to be medically examined. As Mr. Bindra is relying on that statement, it is useful to quote the same:

"Charanpal Singh s/o Jagjit Singh r/o 12/57, Tilak Nagar, Delhi information 2.15 P.M., he himself presented at the police station and lodged that I am residing at the address given above and doing the business. About 1.45 P.M. I was sitting in a rented house 12/46, Tilak Nagar. Then Kesar Singh, owner of the house, his brother Sunder Singh and a son of Kesar Singh whose name I do not know and two other companions whose name I do not know but know by face, they first abused me and without reason they started beating and thrown me on the ground. I ran to my own house. They beat me and my wife and said that you vacate my house, otherwise, he will kill me. I have danger of my life and property. I want help and do not want my medical examination. Statement heard which is correct.

Sd/-

Charanpal Singh"

4. According to that report owner of house No. 12/46 was one Kesar Singh. I may note here that Kesar Singh died during the investigation of the case. It is admitted case of the parties that part of house No. 12/46 had been rented to the complainant Charanpal Singh. According to the complainant the incident occurred at that place and thereafter he was again given beating at his own house i.e. No. 12/57 by the accused yet there was no visible injury on his person as per the note of the duty officer recorded on the said report.

5. It appears that a copy of above Daily Diary report was handed over to Head Constable Dharampal Singh who proceeded to the place of occurrence along with the complainant. On reaching there Charanpal Singh was abused by one Sardar Avtar Singh stated to be a relation of the accused. he was also threatened. This took place at about 3.15 P.M. on 8th March, 1981 in the presence of the Head Constable Dharam Pal Singh and other constable accompanying him. Thereupon a first information report regarding this incident was lodged by the complainant. A copy of the same is Annexure 'G' to the petition. It is in that report that the complainant requested to be medically examined although he has not alleged that he was given any beating in the incident which occurred at 3.15 P.M. The statement of Head Constable Dharam Pal Singh recorded under Section 161 of the Code clarifies the position. He has stated that at that time in his presence no beating was given to the complainant yet on investigation he found that in the earlier incident some sort of quarrel had taken place. According to him that started "when Charanpal Singh made a hole in the common wall of Kesar Singh". Thus it was the damage done to that wall which started the dispute. Dharam Pal Singh further says that it was during the second occurrence that Charanpal Singh advised to get medically examined by Jagjit Singh Dharam Pal Singh found that in fact to beating was given to the complainant either in the house in dispute or anywhere outside it. It is found from his statement that the S.H.O. had in fact prepared a report under Sections 107/150 of the Code of Criminal Procedure against Charanpal Singh as well as Kesar Singh.

6. During investigation statement of one Prakash Bhalla was recorded. Shri Bhalla was working as an accountant with the complainant and is said to be an eye witness of the occurrence. According to him, House No. 12/46, Tilak Nagar had been rented out to Charanpal Singh and House No. 12/57 which is opposite to the said house is owned by him (complainant). According to this eye witness on 8th March, 1981 he saw Charanpal Singh running from the side of House No. 12/46 towards his house and two Sardars, Kesar Singh and Sunder Singh whom he knew by face were chasing him. Charanpal Singh entered his house 12/57 and those two persons namely Kesar Singh and Sunder Singh also followed him inside the house. Sunder Singh was having a stick in his hand. They gave 2/3 fist blows to Charanpal Singh. In the mean time the complainant's wife come from inside the house and began to shout. That woman was also given fist blows on which she fell down. The accused caught hold of Charanpal Singh; pulled him out side the house and threw him on the ground. This statement was recorded on 22nd September, 1981. A copy of the same is Annexure 'J' to the petition. The statement of Smt. Ranbir Kaur wife of Charanpal Singh was also recorded during investigation. A copy of that statement is Annexure 'K' to the petition. She has stated that her husband came running from house No. 12/46 on 8th March, 1981 at about 1.30 P.M. He was chased by Kesar Singh, his son Gurvinderpal Singh and his brother Sunder Singh. It is useful to quote her. She says as soon as my husband entered in his house 12/57, they also entered the home. They caught my husband and started beating him. When I tried to save my husband, and then Sunder Singh who had stick in his hand had beaten. They pulled my husband out of the house and thrown him. In the meantime several residents of the area gathered out but she could not tell their name. Only Prem Parkash employee as Accountant was working in the house who witnessed the incident...."

7. The report under Section 173 of the Code of Criminal Procedure was filed on 26th December, 1981. The offence is alleged to have been committed by the accused were under Sections 452, 325 read with Section 34 of the Indian Penal Code.

8. Mr. Bindra's contention that no case under Section 452 of the Code has made out against the petitioners herein cannot be upheld at this stage. The argument that supplementary statement of the complainant and the statements of Prem Parkash Bhalla and Smt. Ranbir Kaur are liable to be rejected firstly as all of them were interested witnesses and secondly those were recorded belatedly is to be rejected at this stage. The said statements definitely create suspicion of house trespass by the accused and as such the said charge cannot be said to be groundless. I may note that Mr. Bindra's submission is that the house in which the trespass took place, according to the statement of Prem Parkash Bhalla and Smt. Ranbir Kaur, was House No. 12/57 whereas in the charge the number of the house mentioned is 12/46. As I have noticed above, the later house is the house which was rented out to the complainant by Kesar Singh and according to the statement of the complainant it was (SIC) that house that he was given beating initially. It is not for this court at the stage to assess the facts and to correct any error in the charge. The defect of the error, if any, in the charge may be looked into by the learned Magistrate. At this stage while deciding the petition under Section 482 of the Code of Criminal Procedure it is not open to this court to come to the conclusion that the charge as framed even assuming for the sake of arguments, being different from the charge as laid in the report under Section 173 of the Code has resulted in the failure of justice.

9. Now reverting to the second charge which is under Section 325 of the Code, Mr. Bindra learned counsel for the petitioners drew my attention to the medical evidence led by the prosecution. He contended that according to PW 4 Dr. S. Choudhary, who at the relevant time was posted at police hospital, the injury caused to Charanpal Singh was simple. According to her, injured was kept under observation for three days and then referred to radiologist on 10th March, 1981. In her report Ex. 4/B she opined that the injured had not suffered any fracture. However, according to PW 2 Dr. J. Chatterjee who examined the complainant on 3rd April, 1981 "Charanpal Singh had suffered a fracture of the left transverse process of P4 vertebra seen with any displacement".

10. Mr. Bindra has criticised the evidence of Dr. J. Chatterjee and also the statements of PW 1 Dr. G.S. Garkal who had examined X-ray plate of the injured and had found a fracture in the vertebra. PW 1 also noticed "Early changes of lumber spondylosis.

11. It is urged that examination by Dr. Garkal as well as by Dr.Chatterjee has been manoeuvred and, therefore, to be ignored completely. According to Mr. Bindra, the police officers had no jurisdiction to refer the case for second opinion to Willington Hospital and that the opinion of Dr. Garkal who was approached by the complainant himself was at any rate of no value. It is alleged that these two doctors are contradicting PW 4 Dr. Choudhary whose statement ought to be preferred as she was the one who had at the first instance examined the injured and had found no fracture. The plea is that incase opinion of Dr. Choudhary is accepted the offence, if any, would fall within the purview of Section 323 of the Indian Penal Code cognizance of which offence could only of the case, be taken on complaint.

12. The point urged on this aspect of the case, it seems are attractive. However, at this stage all the pleas made in this court are pre-mature. The contradiction, if any, in the statements of various doctors cannot at this stage be assessed as the complainant and the other witnesses are still to be examined. From the medical evidence which has been produced it cannot be held at this stage that Charanpal Singh had no fracture when he was examined by Dr. Garkal on 12th March, 1981 or by Dr. Choudhary on 3rd April, 1981. It is for the learned Magistrate to find whether the said fracture was caused by the accused in the incident of 8th March, 1981. As at present advised it has to be held that there is a suspicion that the accused have committed the said offences. It cannot be said that any of the charges framed is groundless.

13. In the result the petition fails and is dismissed. The lower court records be sent immediately.

14. The observations made above are not to be construed as having any bearing on the merits of the case. Those have been made for the decision of this petition only.

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