Proper application of mind by the courts at the stage of summoning and the need for evidence to support allegations.

Mr. Ashwani Kumar Singh, J.

1. These two application under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C.") have been filed challenging the order dated 15th March, 2013 passed by the learned Judicial Magistrate 1st Class, Danapur, Patna in Complaint Case No. 1258(C) of 2012 whereby, finding a prima facie case to be made out for the offences under Sections 323 and 379 of the Indian Penal Code, cognizance has been taken and summons have been issued against the petitioners of both the cases and one more accused named in the complaint petition.

2. According to the complainant, on 4th November, 2012 at about 5.00 p.m. while the complainant was supervising the construction work of his house, the petitioners and 15-20 unknown persons came there and on the point of pistol they took out money from the pocket of the complainant. They also assaulted him causing injury on his person. They damaged the property and took away 80 bags of cement, iron rod and other articles. The complainant further alleged that due to the injuries caused on his person, he was taken to a doctor for treatment. He had severe bodyache and the doctor provided him medical treatment.

3. It is submitted by the learned counsel for the petitioners that the entire case of the complainant is false and concocted. He submitted that there are several inconsistencies and contradictions in the statement of the witnesses examined in course of inquiry. Even the doctor, who is alleged to have treated the complainant, was not examined and no medical report in support of any treatment given to the complainant was filed before the Magistrate during inquiry.

4. On the other hand, learned counsel for the opposite party no. 2 submitted that there is no error in the order passed by the learned Magistrate. He submitted that the complainant Pokhan Sao and the two inquiry witnesses, namely, Yugal Kishore Sao and Arjun Sao have fully supported the case of the complainant. He submitted that non-production of medical evidence or non-examination of the doctor at the stage of inquiry would be of no consequence.

5. I have heard learned counsel for the parties and carefully perused the complaint petition, statement of the complainant on oath and the statements of the witnesses recorded in course of inquiry under Section 202 of the Cr.P.C.

6. On perusal of the aforesaid documents, I notice several inconsistencies, which are as under :-

(i) In the complaint petition, it is alleged that the occurrence took place at 5.00 p.m. on 4th November, 2012 whereas inquiry witness no. 1 Yugal Kishore Sao in course of examination under Section 202 of the Cr.P.C. stated that the alleged occurrence took place at 3.00 p.m.

(ii) It is alleged in the complaint petition that 80 bags of cement were taken away by the accused persons, whereas inquiry witness no. 2 Arjun Sao submitted during inquiry that only 75 bags of cement were taken away.

(iii) In the complaint petition the complainant has alleged that Rs.15,000/- was taken out from his pocket by petitioner Deo Narayan Sao whereas in his statement on oath, he has stated that accused Shankar Sao took out the money from his pocket.

(iv) The complainant stated on oath that all the named and 15-20 unknown accused assaulted him whereas inquiry witness no.2 Arjun Sao stated that it was only the petitioner Deo Narayan Sao who assaulted the complainant with iron rod causing injury to the complainant.

7. Apart from the glaring inconsistencies noted above, I find that no medical evidence to corroborate the oral allegation of assault has been brought on record. Even the name of the doctor who is alleged to have treated the complainant has not been disclosed. Furthermore, the complainant has not only tried to suppress the factum of ongoing land dispute between the parties in his statement made on oath but has also tried to misled the learned Magistrate by answering the court's question that the accused persons are not his agnates whereas witness no. 1 Yugal Ki