Delhi High Court
Surender Sulania vs State Of Nct Of Delhi on 23 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.Rev.P. No.243/2016 & Crl.M.A. No.4984/2016
Date of Decision : 23rd August, 2016
SURENDER SULANIA ..... PETITIONER
Through Mr.Neeraj Gupta, Adv.
versus
STATE OF NCT OF DELHI ..... RESPONDENT
Through Mr.Manjeet Arya, Additional
Public Prosecutor for the State with Sub-
Inspector Prisilla, Police Station
Sagarpur.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. The present petition under Section 397 read with Sections 401 &
482 of the Code of Criminal Procedure (Cr.P.C.) has been filed on behalf
of the petitioner for revision against the impugned order dated 15th
December, 2015 passed by learned Additional Sessions Judge-03,
PHC/NDD, Delhi, thereby framing charges against the petitioner under
Section 316 of the Indian Penal Code (IPC) in a case arising out of FIR
No.182/2013 registered at Police Station Sagarpur, Delhi.
2. A thumbnail sketch of the facts of the case is that on 6th July, 2013,
a PCR call was received in Police Station Sagarpur, New Delhi to the
effect that the wife of the caller, namely, Mrs.Prem, was admitted in
Mohanty Medical Clinic and her abortion was done on account of
miscarriage. The complainant Mrs.Prem in her complaint had alleged
that on 5th July, 2013, she along with her husband-Mr.Ram Manohar
visited the house of one of their relatives namely Mr.L.D. Sulania, for the
purpose of demanding their long outstanding amount of approximately
rupees eight lakhs when there arose a quarrel between her husband and
Mr.L.D. Sulania. It is submitted that Mr.Ram Manohar used to work
with Mr.L.D. Sulania as driver/labour for carrying malba from tractor
trolly. It was stated in the complaint that the said L.D. Sulania was a
Government contractor and was not giving their dues for a long time. It
is alleged that on being made a demand of money by the complainant and
her husband, Mr.L.D. Sulania remarked that had they not been their
relatives, he would have kicked them out. It is further submitted that in
the meanwhile, L.D. Sulania's son namely Surender Sulania (the present
petitioner) reached there and started abusing the husband of the
complainant upon which the complainant came and stood between them.
Thereafter, Surender Sulania pushed the complainant as a result of which
she fell down. The complainant is stated to be six months pregnant at
that time. Thereafter, the complainant and her husband returned to their
house. It is submitted that on the very next day i.e. 6th July, 2013, the
complainant felt stomach pain and her husband admitted her in Mohanty
Medical Clinic where ultrasound was done and her child was aborted.
3. The statement of Dr.C.L. Mohanty was recorded in which she
stated that the complainant visited her clinic with the complaint of pain in
abdomen. The doctor further stated that the complainant never stated her
in respect of history of assault, fall, injuries and violence. She further
stated that the ultrasound of the complainant revealed that she was
pregnant with evidence of open internal (OS) with gross Oligohy
Dramnios with presence of fluid in cervical canal with rupture of
membrane. She further stated that the spontaneous delivery of the foetus
in her clinic was conducted.
4. The post mortem of the foetus was conducted to examine the
injuries, if any, over the body of the foetus. It was further opined that the
ultrasound report of foetus showed that the foetus was alive and injuries
over the same could not be possible due to simple fall on the ground. It
was also opined that possibility of infliction of injuries on the body of the
foetus after the delivery of the dead foetus cannot be ruled out.
5. Learned counsel for the petitioner has submitted that in the
complaint dated 5th July, 2013, made by Mr.Ram Manohar, husband of
the complainant, he did not mention that his pregnant wife accompanied
with him on 5th July, 2013 and further there was no allegation of assault
made by the accused (petitioner herein) or any other person. It is also
contended that no PCR call was made by the complainant even on 5 th
July, 2013. It was also contended that in the complaint dated 5th July,
2013, the husband of the complainant tried to book Mr.L.D. Sulania and
his son Surender Sulania (accused/petitioner herein) under the SC/ST
Act.
6. Learned counsel for the petitioner has submitted that the impugned
order is bad in law as the learned Sessions Court failed to consider the
post mortem report inasmuch as the death of foetus is opined to be due to
decreased amount of amniotic fluid due to premature rupture of
membrane. It was also opined by the doctor that the ultrasound report of
foetus clearly shows that the foetus was alive and injuries over the foetus
could not be possible due to simple fall on the ground. It was also further
opined that membrane could be ruptured due to trauma, pathological
causes or drugs induce.
7. Learned counsel for the petitioner has further submitted that local
inquiry was also conducted and statement of one of the residents namely
Mr.Valmiki Sharma, was also recorded who stated that he was present at
the house and no one visited Mr.L.D. Sulania. Statement of Ms.Suresh
Devi, residing in front of the house of Mr.L.D. Sulania, was also
recorded who confirmed that on 5th July, 2013, no quarrel took place at
the house of Mr.L.D. Sulania.
8. In support of his arguments, learned counsel for the petitioner
relies on the pronouncement of the Supreme Court in Union of India vs.
Prafulla Kumar 1979 SCC (Crl) 609, in which it was held that if two
views are possible and the evidence produced gives rise to some
suspicion but not great suspicion, he would be justified to discharge the
accused and even the principles of that judgment clearly shows that the
petition is entitled to discharge.
9. Learned counsel for the petitioner also relies on the pronouncement
of the Apex Court in Yogesh Vs. State of Maharashtra 2009 (1) SCC
(Crl.) 51 in which it was observed that mere suspicion is not sufficient to
hold that there is a sufficient ground to proceed against the accused.
10. Reliance is also placed on P. Vijayan Vs. State of Kerala AIR
2010 SC 663, the Supreme Court held that the courts are empowered to
discharge accused if two views are possible and one of them give rise to
suspicion only as distinguished from grave suspicion. It was also held
that the judge is not a mere post office to frame the charge at the behest
of the prosecution.
11. Learned Additional Public Prosecutor for the State has vehemently
contended that an offence under Section 316 IPC is made out because due
to injury suffered by Smt.Prem at the hands of the accused person, she
lost her unborn baby. It was further submitted in the status report that
during trial, two witnesses ASI Sarla and W.Ct. Seema were examined.
The case was fixed for remaining evidence on 26th April, 2016.
12. I have heard learned counsel for the parties at length; gone through
the available records and the judgments cited by learned counsel for the
petitioner.
13. It emerges from the record that there are specific allegations of the
complainant in her complaint dated 6th July, 2013 that due to the act of
pushing the complainant by the accused-Mr.Surender Sulania, she
suffered miscarriage of the child. It is important to note that on the very
next day of the said incident, the miscarriage, that too of six months
pregnancy, took place. Having regard to the magnitude of the offence
and the manner in which the offence is stated to have been committed,
charge under Section 316 of the Indian Penal Code appears to have been
rightly framed. The fact that miscarriage took place due to the act
attributable to the accused or not is matter which shall be considered
during further evidence in the trial and the petitioner is at liberty to
contest his case in the Court below.
14. I, therefore, do not find any infirmity, illegality or impropriety in
the order dated 15th December, 2015 passed by the learned Additional
Sessions Judge, thereby framing charge under Section 316 of the Indian
Penal Code against the petitioner.
15. Consequently, the present revision petition and application are
dismissed.
(P.S.TEJI)
JUDGE
AUGUST 23rd, 2016
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