Delhi District Court
Shruti Bhatia & Anr. vs State (Nct Of Delhi) on 15 March, 2018
1
Case No.
CR No. 304/17
Shruti Bhatia & Anr. Vs State (NCT of Delhi)
15.03.2018
Present : Sh Gurmail Singh, ld counsel for petitioner Sakshi Bhatia.
Sh Aman Sareen, ld counsel for petitioner Shruti Bhatia.
Sh B.B. Bhasin, Ld. Addl. PP for the State.
Arguments heard.
Put up for orders at 4 p.m.
(Manish Yaduvanshi)
ASJ05(West)/THC
15.03.2018
At 4.30 p.m.
ORDER (ORAL)
Present : Sh Rajeev Bhatia, father of petitioner Shruti Bhatia.
Sh Sanjay Bhatia, ld counsel for complainant.
1. The investigating agency filed a charge sheet disclosing offences punishable under Section 325/34 IPC against the petitioners herein including one Banna Ram, against whom the FIR was quashed subsequently by the Hon'ble Delhi High Court. The Trial Court passed impugned order dated 17.7.2017 holding that a charge is made out against present petitioners for offence punishable U/s 394/34 IPC. It also held that against petitioner Sakshi Bhatia, a charge is also made out for committing offences punishable U/s 506/325 IPC.
22. According to Sh Aman Sareen, Advocate, no charge is made out against Shruti Bhatia U/s 394 IPC and the charge sheet, at best, only discloses charge U/s 323 IPC against her.
3. According to Sh Gurmail Singh, Advocate, no charge is made out against Sakshi Bhatia U/s 325 IPC on the basis of the medical opinion on record.
4. It is urged that the investigation is faulty and the version of complainant Binita Beg a house maid employed with prosecution witness Vandana Bhatia is concocted at the instance of Vandana Bhatia owing to pendency of civil litigation between her husband and the husband of her sisterinlaw Sakshi Bhatia with respect to a Suit for Partition.
5. This Court has gone through the entire record carefully. The trial court had decided an application of complainant U/s 173(8) Cr.P.C on 8.7.2016 and while considering it, the Court rejected complaint of Vandana Bhatia dated 6.7.2015 being based on hearsay narration.
6. This complaint (copy) found its way on trial Court record with application U/s 173(8) Cr.P.C revealing that when Vandana Bhatia went to the P.S Moti Nagar on the date of incident i.e. 6.7.2015 alongwith the complainant, she is said to have not made any statement on that day before the police. Conversely, the copy of written complaint dated 6.7.2015 bears an endorsement of its receipt at the P.S at 6.15 p.m by the D.O on 6.7.2015 at DD No. 61B.
7. It is this complaint which is rejected by trial Court being hearsay on 8.7.2016. That order is now final. Reference to it is also made in the order impugned.
8. On the next day of incident i.e. 7.7.2015, the complainant had 3 made a statement duly signed by her. FIR thereupon was registered only on 7.8.2015.
9. It is apparent from the Rukka that the delay occasioned owing to medical records of the victim. Her 'Audiogram' regarding injury sustained by her in her left ear was recorded on 3.8.2015. Subsequent thereto opinion regarding the nature of injury as "grievous" was made on the MLC on 5.8.2015.
10. The incident that occurred in House no. 92, Raja Garden New Delhi between 12 Noon to 1 p.m on 6.7.2015 forms a chain of series of incidents and during which different offences were committed.
11. Before the trial Court, the prosecution/complainant had pressed for charge U/s 397 IPC against Sakshi Bhatia. Order impugned is silent on that submission.
12. Silence has not resulted in any illegality into the order. The trial Court has noted the judgments on the scope of looking in to the evidence at the time of charge by citing judgment in P.Vijayan and Prafful Kumar Samal.
13. As a matter of fact, in judgment titled as Soma Chakravarty Vs. State through CBI Crl. Appeal no. 710 of 2007, it is held that material brought on record by the prosecution has to be accepted as true at the stage of framing of charge. Court must apply its mind and must be satisfied that commission of offence by accused was possible, where accused infact committed offence, can only be decided in trial. It is also held that charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exists some materials.
414. In the Judgment in Criminal Appeal no. 192 of 2010 titled as P. Vijayan Vs. State of Kerala and Anr. , it is held that consideration of records and documents at the stage of framing of charge is for limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. Whether the materials at the hands of the prosecution are sufficient and whether the trial will end in conviction or acquittal are not relevant considerations at the stage of framing of charge.
15. In the Judgment of Hon'ble Rajasthan High Court titled as Narendra Sharma @ Pappu Vs. The State of Rajasthan and Crl.No.888 of 2000 titled as State of Delhi Vs. Gyan Devi & others , it is held that at the stage of framing of charge, the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor it is for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge, the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons.
16. Further, at the stage of framing of Charge, the truth, veracity and effect of the evidence which the prosecution purposes to adduce are not to be meticulously judged. The Apex Court in a number of cases had held that at the stage of framing the charges, meticulous consideration of evidence and material by the court is not required; nor the adequacy of the evidence can be seen at this stage as it would amount to premature appreciation of evidence. The same view has been held by their Lordship in Kanti Bhadra Shah Vs. State of West Bengal, 2000 Crl.L.J.746 and Omwati Vs. State through Delhi Admn,. 2001 (2) Crimes 59.
517. Main witness of the prosecution would be the complainant herself. While cleaning the portion of the house in possession of her employer Vandana Bhatia, she noticed construction activity on the first floor. She clicked pictures on her mobile phone instrument but spotted by a labour who informed about it to house servant Bannu. Bannu informed it to Sakshi Bhatia. She and her elder daughter came to the spot and started beating complainant while recording her conversation. She was also threatened. Her phone was snatched and daughter of Sakshi Bhatia removed the Sim Card and threw it away.
18. In the next segment, Sakshi and her servant Bannu dragged complainant to a room situated on the upper floor where Rs. 10,000/ was taken out from a locker and forcefully handed over to the complainant in order to threaten her that she will be implicated in a false case of theft.
19. Thereafter, Sakshi Bhatia slapped the complainant on her ear with such force that her ear drum burst. The accused persons threw away her mobile phone and did not return the Sim Card till the date of complaint.
20. Supporting evidence is in the form of MLC of complainant dated 7.7.2015 incorporating subsequent opinion dated 5.8.2015 formed on the basis of report from DDU hospital, being a superior facility to Acharya Shri Bhikshu Govt. Hospital, establishing existence of 'central perforation on the left TM'. Thus, the ear membrane was ruptured as on 7.7.2015 as per the E.N.T Division report of DDU hospital. Above referred audiogram no. 858 vide OPD no. 250889 is mentioned on subsequent opinion on the MLC. This injury was found 'grievous'. Even on 3.8.2015, complaint of hearing was found in the left ear as per OPD card on record. Perforation seemed to have healed but it is preceded by a question mark (?).
621. Whether or not the injury would qualify as an injury either under Thirdly or Forthly of Section 320 IPC or not in the sense of permanent privation of any 'Member' or 'Hearing' of either ear can only be established after expert medical opinion is produced during trial.
22. As per the complainant, this particular injury was caused to her only by Sakshi Bhatia who also threatened her of implication in a false theft case.
23. This segment of the allegation and complaint makes out a prima facie case under Section 506(1) IPC and also under Section 325 IPC against accused Sakshi Bhatia. The ld. Trial court seems to have noticed at two places in the impugned order that this injury resulted in permanent hearing loss. This Court could not find justification for it after perusal of medical records. However, central perforation of the ear drum (TM) is definitely seen. I have already held that evidence thereupon shall have to be produced during trial. Suffice is to say that there is prima facie applicability of Section 320 (thirdly and forthly) IPC.
24. The offence of robbery took place at the first floor as per the complainant. Robbery is of mobile phone and the Sim Card. File reveals that CDR of cell phone number in use in the hand set of complainant matches visavis the time of incident till upto 12.56 p.m.
25. At the time of robbery, both Sakshi and Shruti (daughter of Sakshi though not called by name in FIR) were present at the first floor. The Court agrees with the ld. Trial Court that for offence of theft, intention to steal permanently is not required and only the dishonest intention to steal temporarily is enough to qualify for an offence of theft.
26. In this case also, there is clear statement that these accused snatched mobile phone of complainant from her with a view to cause loss of 7 data in the form of the pictures of alleged construction and also to prevent her from making phone call.
27. Dishonest intention and absence of consent as well as moving the property i.e. mobile phone and also the Sim Card is prima facie seen.
28. This theft would become robbery if in order to commit it or in committing it, or in carrying away or attempting to carry away property stolen, the offender, for that end, voluntarily causes or attempts to cause any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint.
29. In the present case there is prima facie material to proceed that in committing the theft, the complainant was also being beaten up. The MLC does not describe any other kind of injury except the complaint regarding pain in the ear. However, oral testimony is on record and the MLC is of next day of the incident. This much material is sufficient to observe that hurt was caused in the process. This segment of the series of incidence can not be bifurcated. Hence, there is also sufficient material to proceed against both the petitioners/accused under Section 394 IPC with the aid of existence of common intention under Section 34 IPC.
30. Qua Section 397 IPC, suffice is to say that the two offences of "Robbery' and 'causing grievous hurt' are separated by time. Robbery took place at Ist floor and offence was concluded. Dragging complainant to upper floor and allegations thereafter are not in relation to the commission of robbery. Offence U/s 397 IPC is not prima facie made out.
31. This Court finds no impropriety, illegality or error of finding in the order impugned.
32. Consequently, the revision petition stands dismissed.
33. TCR be returned with copy of this order with direction to the 8 parties to appear before ld. Trial Court/its successor Court for further trial on 31.3.2018.
34. File of revision petition be consigned to record room.
Announced in the open Court (Manish Yaduvanshi)
Dated: 15.03.2018 ASJ05(West)/THC
Digitally
signed by
MANISH
MANISH YADUVANSHI
YADUVANSHI Date:
2018.03.16
13:35:57
+0530