CRL.REV.P./243/2016 of SURENDER SULANIA Vs STATE OF NCT OF DELHI

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.Rev.P. No.243/2016 & Crl.M.A. No.4984/2016

Date of Decision : 23[rd]August, 2016

SURENDER SULANIA

..... PETITIONER

ThroughMr.Neeraj Gupta, Adv.

versus

STATE OF NCT OF DELHI..... RESPONDENTThroughMr.Manjeet Arya, AdditionalPublic Prosecutor for the State with Sub-Inspector Prisilla, Police StationSagarpur.

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 behalfof the petitioner for revision against the impugned order dated 15[th]December, 2015 passed by learned Additional Sessions Judge-03,PHC/NDD, Delhi, thereby framing charges against the petitioner underSection 316 of the Indian Penal Code (IPC) in case arising out of FIRNo.182/2013 registered at Police Station Sagarpur, Delhi.

2.A thumbnail sketch of the facts of the case is that on 6[th]July, 2013,a PCR call was received in Police Station Sagarpur, New Delhi to theeffect that the wife of the caller, namely, Mrs.Prem, was admitted ina PCR call was received in Police Station Sagarpur, New Delhi to theeffect that the wife of the caller, namely, Mrs.Prem, was admitted in

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Mohanty Medical Clinic and her abortion was done on account ofmiscarriage.The complainant Mrs.Prem in her complaint had allegedthat on 5[th]July, 2013, she along with her husband-Mr.Ram Manoharvisited the house of one of their relatives namely Mr.L.D. Sulania, for thepurpose of demanding their long outstanding amount of approximatelyrupees eight lakhs when there arose quarrel between her husband andMr.L.D. Sulania.It is submitted that Mr.Ram Manohar used to workwith Mr.L.D. Sulania as driver/labour for carrying malba from tractortrolly.It was stated in the complaint that the said L.D. Sulania was aGovernment contractor and was not giving their dues for long time. Itis alleged that on being made demand of money by the complainant andher husband, Mr.L.D. Sulania remarked that had they not been theirrelatives, he would have kicked them out. It is further submitted that inthe meanwhile, L.D. Sulania’s son namely Surender Sulania (the presentpetitioner) reached there and started abusing the husband of thecomplainant upon which the complainant came and stood between them.Thereafter, Surender Sulania pushed the complainant as result of whichshe fell down. The complainant is stated to be six months pregnant atthat time. Thereafter, the complainant and her husband returned to theirhouse. It is submitted that on the very next day i.e. 6[th]July, 2013, thecomplainant felt stomach pain and her husband admitted her in MohantyMedical Clinic where ultrasound was done and her child was aborted.

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3.The statement of Dr.C.L. Mohanty was recorded in which shestated that the complainant visited her clinic with the complaint of pain inabdomen. The doctor further stated that the complainant never stated herin respect of history of assault, fall, injuries and violence. She furtherstated that the ultrasound of the complainant revealed that she waspregnant with evidence of open internal (OS) with gross OligohyDramnios with presence of fluid in cervical canal with rupture ofmembrane. She further stated that the spontaneous delivery of the foetusin her clinic was conducted.

4.The post mortem of the foetus was conducted to examine theinjuries, if any, over the body of the foetus. It was further opined that theultrasound report of foetus showed that the foetus was alive and injuriesover the same could not be possible due to simple fall on the ground. Itwas also opined that possibility of infliction of injuries on the body of thefoetus after the delivery of the dead foetus cannot be ruled out.

5.Learned counsel for the petitioner has submitted that in thecomplaint dated 5[th]July, 2013, made by Mr.Ram Manohar, husband ofthe complainant, he did not mention that his pregnant wife accompaniedwith him on 5[th]July, 2013 and further there was no allegation of assaultmade by the accused (petitioner herein) or any other person. It is alsocontended that no PCR call was made by the complainant even on 5[th]July, 2013. It was also contended that in the complaint dated 5[th]July,

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2013, the husband of the complainant tried to book Mr.L.D. Sulania andhis son Surender Sulania (accused/petitioner herein) under the SC/STAct.

6.Learned counsel for the petitioner has submitted that the impugnedorder is bad in law as the learned Sessions Court failed to consider thepost mortem report inasmuch as the death of foetus is opined to be due todecreased amount of amniotic fluid due to premature rupture ofmembrane. It was also opined by the doctor that the ultrasound report offoetus clearly shows that the foetus was alive and injuries over the foetuscould not be possible due to simple fall on the ground. It was also furtheropined that membrane could be ruptured due to trauma, pathologicalcauses or drugs induce.

7.Learned counsel for the petitioner has further submitted that localinquiry was also conducted and statement of one of the residents namelyMr.Valmiki Sharma, was also recorded who stated that he was present atthe house and no one visited Mr.L.D. Sulania.Statement of Ms.SureshDevi, residing in front of the house of Mr.L.D. Sulania,was alsorecorded who confirmed that on 5[th]July, 2013, no quarrel took place atthe house of Mr.L.D. Sulania.

8.In support of his arguments, learned counsel for the petitionerrelies on the pronouncement of the Supreme Court in Union of India vs.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 somesuspicion but not great suspicion, he would be justified to discharge theaccused and even the principles of that judgment clearly shows that thepetition is entitled to discharge.

9.Learned counsel for the petitioner also relies on the pronouncementof 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 tohold that there is sufficient ground to proceed against the accused.

10.Reliance is also placed on P. Vijayan Vs. State of Kerala AIR2010 SC 663, the Supreme Court held that the courts are empowered todischarge accused if two views are possible and one of them give rise tosuspicion only as distinguished from grave suspicion. It was also heldthat the judge is not mere post office to frame the charge at the behestof the prosecution.

11.Learned Additional Public Prosecutor for the State has vehementlycontended that an offence under Section 316 IPC is made out because dueto injury suffered by Smt.Prem at the hands of the accused person, shelost her unborn baby. It was further submitted in the status report thatduring trial, two witnesses ASI Sarla and W.Ct. Seema were examined.The case was fixed for remaining evidence on 26[th]April, 2016.

12.I have heard learned counsel for the parties at length; gone throughthe available records and the judgments cited by learned counsel for the

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petitioner.

13.It emerges from the record that there are specific allegations of thecomplainant in her complaint dated 6[th]July, 2013 that due to the act ofpushing the complainant by the accused-Mr.Surender Sulania, shesuffered miscarriage of the child.It is important to note that on the verynext day of the said incident, the miscarriage, that too of six monthspregnancy, took place. Having regard to the magnitude of the offenceand the manner in which the offence is stated to have been committed,charge under Section 316 of the Indian Penal Code appears to have beenrightly framed.The fact that miscarriage took place due to the actattributable to the accused or not is matter which shall be consideredduring further evidence in the trial and the petitioner is at liberty tocontest his case in the Court below.

14.I, therefore, do not find any infirmity, illegality or impropriety inthe order dated 15[th]December, 2015 passed by the learned AdditionalSessions Judge, thereby framing charge under Section 316 of the IndianPenal Code against the petitioner.

15.Consequently, the present revision petition and application aredismissed.dismissed.

AUGUST 23[rd], 2016

(P.S.TEJI)JUDGE

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