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2012 DIGILAW 508 (PNJ)

Man Mohan v. Santosh

2012-03-28

NIRMALJIT KAUR

body2012
JUDGMENT Ms. Nirmaljit Kaur, J.: - By this common Order, both the revision petitions bearing Nos.1818 of 2011 and 3137 of 2011 shall stand disposed of as the impugned Order, under challenge, in both the cases is same. 2. The present revision petitions have been filed against the Order dated 15.05.2011 passed by the Additional Sessions Judge, Rohtak, vide which, the application filed by the complainant/prosecution under Section 319 of the Cr.P.C for summoning of Santosh wife of Sh. Dharampal as an additional accused has been dismissed. 3. While impugning the said Order, learned counsel for the petitioner submitted that the respondent be summoned to face trial as specific role has been assigned to Santosh. Both the witnesses have spelt out the role played by Santosh. Still, the application has been dismissed. 4. Learned counsel for the respondent, on the other hand, submitted that the respondent was found innocent during investigation. The statements of the witnesses PW-2 and PW-3 i.e Manmohan and Ashok Kumar, respectively are only the repetition of the FIR. There was no fresh evidence. Thus, the said application has been dismissed on the basis of the well settled proposition of law that Section 319 of the Cr.P.C should be exercised with restraint and only if the said evidence was sufficient to convict the person to be called as an additional accused. 5. Heard. 6. There is no doubt with the well settled proposition of law as laid down in the cases of Michael Machado and another vs. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, Krishnappa vs. State of Karnataka 2004(4) RCR (Criminal) 678, as well as, Sarabjit Singh and another vs. State of Punjab and another 2009 (3) RCR (Criminal) 388. 7. Hon’ble the Supreme Court in the case titled as Suman vs. State of Rajasthan reported as [2009(6) Law Herald (SC) 3902] : 2009(4) RCR(Criminal) 908 dismissed the appeal challenging the order under Section 319 Cr.P.C., wherein, the sister-in-law was found innocent during investigation but was summoned under Section 319 Cr.P.C by holding as under :- “17. 7. Hon’ble the Supreme Court in the case titled as Suman vs. State of Rajasthan reported as [2009(6) Law Herald (SC) 3902] : 2009(4) RCR(Criminal) 908 dismissed the appeal challenging the order under Section 319 Cr.P.C., wherein, the sister-in-law was found innocent during investigation but was summoned under Section 319 Cr.P.C by holding as under :- “17. In the light of the above, we shall now consider whether the learned Judicial Magistrate was justified in taking cognizance against the appellant under Section 498- A IPC or the satisfaction recorded by him for issuing process against the appellant under Section 319 Cr.P.C is vitiated by any legal infirmity and the learned Sessions Judge and High Court committed an error by refusing to quash the order passed by him. In the complaint filed by her, respondent No.2 alleged that after one week of the marriage, her mother-in-law – Rukmani Devi and nanad – Suman (the appellant herein) told her that in the marriage, items like scooter, fridge, air-conditioner etc. have not been given and the marriage party was not served well; that mother-in-law – Rukmani Devi and nanad – Suman forcibly took the complainant to a lady doctor and got implanted Copper-T so that she may not give birth to any child; that nanad – Suman started instigating the husband of the complainant either on phone or otherwise and thereupon, he not only used to assault, but also humiliate and torture the complainant; that on 7.4.2002 the husband gave beating with the belan and nanad – Suman snatched her hair and forcibly removed the rings. In her statement made before the police under Section 161 Cr.P.C., respondent No.2 reiterated all the allegations. The father and mother of respondent No.2 and 4 other persons, whose statements were recorded under Section 161 Cr.P.C., clearly spelt out the role played by the appellant in harassing respondent No.2 and instigating her husband to inflict torture upon her. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand for dowry or harass respondent No.2 because she was living with her husband, Mahendra Pal at Bikaner. In her statement recorded under Section 164 Cr.P.C., respondent No.2 again made specific allegations against the appellant. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand for dowry or harass respondent No.2 because she was living with her husband, Mahendra Pal at Bikaner. In her statement recorded under Section 164 Cr.P.C., respondent No.2 again made specific allegations against the appellant. While deciding the application filed under Section 319 Cr.P.C., the learned Judicial Magistrate noticed the allegations made by respondent No.2 in the complaint that her mother-in-law, Smt. Rukmani Devi and sister-in law, Suman had castigated her for insufficient dowry and subjected her to physical and mental harassment and that the sister-in-law had instigated her husband to inflict physical torture, which were supported by the statements recorded by the police under Section 161 Cr.P.C. The learned Judicial Magistrate further noted that in her statement under Section 164 Cr.P.C., the complainant has clearly spelt out the role played by the appellant in the matter of demand of dowry, physical and mental harassment and the fact that the complainant had made a specific mention about this in the letters written to her parents and opined that prima facie case was made out for issuing process against the appellant.” 8. The guidelines as laid down by Hon’ble the Apex Court in the above mentioned judgments require to be tested in the facts of the present case. The statement of PW2-Manmohan son of Sh. Ghanshyam Dass reads as under :- “ That on 02.10.2009 at about 6.30 p.m., I came at my house and that Dharampal gave iron rod blow on my head. My wife Santosh also gave two-three iron rod blows on my head. I got unconscious. Thereafter, Santosh again gave two three rod blows on my head. I started bleeding profusely.” 9. The said statement is supported by PW-3. The Medico Legal Report dated 02.10.2009 was recorded, wherein, the main injury was mentioned as profusely bleeding. The Doctor specifically mentioned that other injuries will be added during treatment. The petitioner was re-examined on the next day by the panel of doctors and total 11 injuries were found on the person of the petitioner. The duration of the injuries was mentioned as 72 hours by the panel of doctors. The said Medico Legal Report is placed on record as Annexure P-5. 10. The petitioner was re-examined on the next day by the panel of doctors and total 11 injuries were found on the person of the petitioner. The duration of the injuries was mentioned as 72 hours by the panel of doctors. The said Medico Legal Report is placed on record as Annexure P-5. 10. Moreover, the police proceedings reveal that Santosh, too, had received injuries and MLR No.65 pertains to the injuries suffered by Santosh. The said proceedings recorded by the police read as under :- “ Today I , SI and Ct. Pawan Kumar reached PGIMS Rohtak and GH Rohtak and got from P.S. Civil Line a MLR No. and Doctor’s ruqa of Dharampal s/o Mani Ram SK 64, Santosh SK65, Indira Devi SK66 in which doctor has opined three injuries KUO BlUNT ADV X-RAY ORTHO OPINION, 2 injuries KUO BLUNT ADV. SURGEON OPINION, 3 injuries KUO BLUNT SIMPLE.” 11. The above injury on person of Santosh has not been explained. It, in any case, shows the participation of the respondent. 12. Thus, it is evident from the above that the allegations are specific and the statements seem to corroborate the Medico Legal Report (Annexure P-5). The proceedings recorded by the police with respect to the Medico Legal Report of Santosh also support the version. Thus, at this stage, the above evidence cannot be ignored on the basis of which, if proved, is likely to result in conviction. 13. Accordingly, both the revision petitions are allowed. The Order dated 15.05.2011 passed by the Additional Sessions Judge, Rohtak is, hereby, set aside and the respondent is ordered to be summoned under Section 319 of the Cr.P.C to face trial. 14. However, the observations made herein shall have no bearing on the merits of the case. 15. A photocopy of this Order be placed on the file of another connected case.