Surjit Kaur vs D.S. Kapoor & Ors.
2011 Latest Caselaw 3010 Del

*              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,

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

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

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

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

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

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."

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

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.

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

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