Criminal Misc. No. M-30706 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-30706 of 2010 Date of decision:- 26.04.2011 Rajesh Kumar ...Petitioner Versus State of Punjab ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. P.S. Ahluwalia, Advocate for the petitioner. Mr. Guninder S. Brar, AAG Punjab for the respondent-State. RITU BAHRI J. The petitioner has sought setting aside of the order dated 13.11.2009 passed by the Court of Additional Chief Judicial Magistrate, Hoshiarpur whereby the petitioner has been summoned to face trial by virtue of Section 319 Cr.P.C. On 22.9.2005 Kamlesh Kumar and Balraj Kumar received injuries in a scuffle. For the alleged incident an FIR No.380 dated 02.10.2005 under Sections 323,324 and 452 IPC read with Section 34 IPC was registered at Police Station Sadar, Hoshiarpur at the instance of Kamlesh Kumar. He received four injuries. Three injuries were caused by blunt weapon and one was caused by sharp edged weapon. As per the FIR Kamlesh Kumar was residing with his four sons. Balraj Kumar was getting pension from the Army and was habitual drunker. On 22.9.2005 Balraj Kumar alongwith his wife Anupama Rani, brother Criminal Misc. No. M-30706 of 2010 -2- Sanatan Kumar had entered into the house of Kamlesh Kumar and inflicted injuries upon him. Balraj Kumar was nursing grudge against Kamlesh Kumar that he had taken a house on lease from the cousin brother of Balraj Kumar and stated that they wanted to get the house forcibly vacated from Kamlesh Kumar. A cross-version in FIR No.380 for offence under Sections 325,323,342,148 and 149 IPC was recorded at the instance of Balraj Kumar. Statement of Balraj Kumar was recorded on 2.10.2005 after a gap of ten days. Anupama Rani wife of Balraj Kumar was a witness to the entire incident. She has made complaint to the investigating agency narrating the entire incident. The first application was sent by Anupama Rani on 23.9.2005 (Annexure P-3). The allegation in the complaint is that Kamlesh Kumar and his four sons namely Ashwani, Johny, Manoj and youngest Rajesh Kumar @ Bita gave beatings to her husband. Petitioner Rajesh Kumar was not named nor any role was attributed to him. The second complaint was made by Anupama Rani on 30.09.2005 to the Superintendent of Police, Headquarters. No role was attributed to the petitioner in the second application. However, a reference is made to another incident dated 30.09.2005 at about 8 AM when it is alleged that present petitioner Rajesh Kumar with one Manoj had threatened her not to take any police action. Mr. P.S. Ahluwalia, Advocate counsel for the petitioner has argued that petitioner's name has been figured in the cross-version, which is an after thought. On his application to the Deputy Superintendent of Police, Hoshiarpur, he was declared innocent vide report dated 15.3.2006. The DSP Hoshiarpur had found Anupama Rani wife of Balraj Kumar and Sanatan Kumar brother of Balraj Kumar to be innocent. The name of petitioner does not figured in the statement of Lachhman Dass, who is an eye witness to the occurrence. The order dated 13.9.2009 is liable to be set aside on the ground that as per the inquiry report of DSP dated 15.3.2006 evidence of eye witness Lachhman Dass, the petitioner cannot be forced to face criminal trial. The law laid down by Michael Machado Criminal Misc. No. M-30706 of 2010 -3- and another versus Central Bureau of Investigation and another 2000 (2) RCR (Criminal) 75 is fully applicable to the facts of the present case and order dated 13.11.2009 is liable to be set aside. Mr. Guninder S. Brar, AAG Punjab has argued that after presentation of the challan in the cross version of FIR No.380 dated 2.10.2005 the petitioner was kept in column No.2. He has been rightly summoned by the Additional Chief Judicial Magistrate, Hoshiarpur under Section 319 Cr.P.C. on the basis of statement made by Balraj Kumar. I have heard learned counsel for the parties and have gone through the case file carefully. In the FIR No.380 dated 02.10.2005 it has been specifically mentioned that Balraj Kumar had come on 22.09.2005 at 8.30 PM in front of the shop of Kamlesh Kumar complainant, alongwith his wife Anupma Rani and brother Sanatan Kumar. They forcibly entered into the house and gave beatings to Kamlesh Kumar. As per the FIR, Balraj Kumar has been attributed four Datar blows, three blows from the reverse side of Datar and 4th blow from sharp side which hit Kamlesh Kumar on right ankle. Sanatan Kumar gave fist blows. All the sons of Kamlesh Kumar came out and caught hold Balraj Kumar. The police was informed and the FIR was registered. Efforts were made to settle the dispute between the parties and therefore, the FIR and the statement were recorded on 02.10.2005. Admittedly, two complaints were made by the wife of Balraj Kumar, first is Annexure P-3 dated 23.9.2005 and Annexure P-4 dated 30.9.2005. The petitioner's name does not figure that he was present when the alleged incident took place on 22.9.2005. In the complaint dated 30.09.2005 it has been mentioned that on 30.09.2005 the petitioner alongwith one Manoj had threatened the complainant not to take any police action. Subsequently, after police investigation he was found innocent on 15.3.2006. He has been summoned to face the trial on the statement made by Balraj Kumar where he Criminal Misc. No. M-30706 of 2010 -4- stated that Rakesh Kumar @ Sonu son of Surinder Kumar had made an attack with iron rod which hit on the legs of the complainant. It has been specifically mentioned by Kamlesh Kumar that when he was attacked by Balraj Kumar all his sons came out of the room and got him separate from them. The name of the sons of Kamlesh Kumar are Manoj, Ashwani, Ajay Kumar and the youngest is Rajesh Kumar. In the complaint, made by Anupama Rani wife of Balraj Kumar dated 30.09.2005 (Annexure P-4) there are specific allegations against the sons of Kamlesh Kumar that Manoj had slapped her, Ashwani, Johny and Bita sons of Kamlesh Kumar gave exhortation and threatened to kill her husband. No role has been attributed to Rakesh Kumar son of Surinder Kumar resident of Chadial, Tehsil and District Hoshiarpur for the alleged incident on 22.09.2005. In paragraph one of the complaint specific roles have been attributed to Ashwani, Johny, Manoj and Bita sons of Kamlesh Kumar. As far as the petitioner Rakesh Kumar is concerned, reference was made in paragraph No.2 that the petitioner Rakesh Kumar alongwith Manoj sons of Surinder Kumar had threatened Anupama Rani to stop taking police action. There is no confusion in the mind of the complainant that while mentioning Rakesh Kumar son of Surinder Kumar on the date of occurrence i.e. 22.9.2005 his name has not been mentioned as he was not found present on the date of occurrence i.e. 22.9.2005. It seems that while passing the order dated 13.9.2009 a confusion arose that accused Rakesh Kumar son of Surinder Kumar was present on the place of occurrence whereas it was Rajesh Kumar, who is the son of Kamlesh Kumar as referred to in paragraph No.3 of the order. In the FIR all the sons of Kalesh Kumar have been attributed roles of saving Kamlesh Kumar when he was attacked by Balraj Kumar. Even in the inquiry report Annexure P-5 it has been found that on the date of incident i.e. 17.9.2005 when Anupama Rani heard voice of her husband, she saw that Ashwani, Johny, Manoj and Bita sons of Kamlesh Kumar were tying her husband with rope and were taking him inside their house. During inquiry, it was found Criminal Misc. No. M-30706 of 2010 -5- that Rakesh Kumar son of Surinder Kumar was a neighbour and he came on the spot after the fight took place. As per inquiry the sons of Kamlesh Kumar Ashwani, Manoj and Rajesh Kumar came who inflicted the injuries on Balraj Kumar. After beating him they dragged him in the courtyard and closed the gate. As per the inquiry, Rakesh Kumar son of Surinder Kumar, who was a neighbour, came alongwith his uncle Raman Kumar and visited the spot alongwith other persons after the fight had taken place. After a detailed inquiry Anupama Rani wife of Balraj Kumar, Sanatan Kumar son of Jagdish Rak, brother of Balraj Kumar and Rajesh Kumar @ Sonu son of Surinder Kumar were found to be innocent. In the cross case as per the inquiry, the allegations under Sections 323 and 324 IPC were made out against Balraj Kumar on the statement of Kamlesh Kumar. After going through the detailed inquiry report, FIRs and complaints made by Anupama Rani (Annexure P-3) and (Annexure P-4) it is clear that petitioner Rakesh Kumar son of Surinder Kumar was not present on the site on the date of occurrence i.e. 22.9.2005. His presence is only recorded on 30.09.2005 when he alongwith Manoj had threatened Anupama Rani not to take police help. The presence of all the four sons of Kamlesh Kumar Ashwani, Johny, Manoj and Bita is not disputed. For the reasons recorded, the criminal miscellaneous petition is allowed and the order dated 13.11.2009 is hereby set aside. April 26, 2011 ( RITU BAHRI ) Vijay Asija JUDGE