Delhi District Court
State vs . Surender Sulania on 20 October, 2018
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
Old SC No. 100/15
New SC No. 12/18
State Vs. Surender Sulania
FIR No. 182/2013
U/s: 316 IPC
PS: Sagarpur
1. Date of Institution : 15.10.2014
2. Date of Commencement
of Final Arguments : 09.10.2018
3. Date of Conclusion of
Final Arguments : 09.10.2018
4. Date of Reserving Order : 09.10.2018
5. Date of Pronouncement : 20.10.2018
6. Whether Acquitted or
Convicted? : Convicted under Section
323 IPC.
Present: Sh. Pradeep Kumar, Addl. PP for the State.
Complainant in person with Sh. Pramod Singh and Sh.
Sunil Kumar, Advocates.
Sh. Neeraj Gupta, Advocate for the accused.
JUDGMENT
___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 1 of 23 Brief Facts of the Case The instant case was registered on the allegations that the husband of the complainant Sh. Manohar Lal used to work with his relative Sh. Ladhu Ram Sulania in the business of transporting Malba. Due to this business, a sum of Rs.8.00 Lakh was due to the husband of the complainant from Sh. Ladhu Ram Sulania and the husband of the complainant used to press Sh. Ladhu Ram Sulania from time to time to make the payment but he was not making the payment. On 05.07.2013, complainant Smt. Prem accompanied by her husband Sh. Manohar Lal went to the house of Sh. Ladhu Ram Sulania at about 1011:00 AM. However, he told the husband of the complainant that his account had already been settled and he had already given the written account. On account of this, there was an altercation between Sh. Ladhu Ram Sulania and husband of the complainant Sh. Manohar Lal. Sh. Ladhu Ram Sulania threatened to kick out the husband of the complainant. In the meanwhile, accused Surender Sulania also reached over there and started abusing the husband of the complainant. When the complainant intervened, Surender Sulania pushed her asking as to why she was intervening in the matter. On account of this, she fell down. The complainant was six months pregnant at that time. Thereafter, they returned to their house. However, on the next day, that is, on 06.07.2013, the complainant felt pain in her stomach and she was taken to Mohanty Medical Clinic, Palam Gaon, where ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 2 of 23 her Ultrasound was conducted. She gave birth to a dead foetus. On delivery of the foetus, the instant case was registered under Section 316 IPC.
2. During investigation, IO got the complainant medically examined and postmortem was conducted on the dead foetus, site plan was prepared, statements of witnesses were recorded, medical opinion was obtained and on completion of investigation, the instant charge sheet was filed.
3. The accused was summoned and on completion of formalities under Section 207 CrPC, the case was committed to the Court of Sessions on 28.10.2015.
4. Vide order dated 15.12.2015, my learned Predecessor was pleased to frame the charge under Section 316 IPC, which reads as under:
"........It is alleged that on
05.07.2013/06.07.2013 at about 10:00 to 11:00 AM at RZ8/290, Gali No. 6, Geetanjli Park, West Sagarpur you pushed Prem, W/o Sh. Manohar Lal in such a manner that if you had caused the death of Prem, W/o Sh.
Manohar Lal you would have been guilty of culpable homicide and by that act you caused the death of quick unborn child of Prem, W/o Sh. Manohar Lal and you hereby committed an offence punishable u/s 316 IPC within the cognizance of this court......."
Evidence of the Prosecution ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 3 of 23
5. In support of its case, the prosecution has examined nine witnesses in all.
6. PW 1 is Smt. Prem. She has deposed on the same lines as were narrated by her in her complaint to the police. She has proved her complaint Ex PW 1/A.
7. PW 2 is ASI Sarla, who was working as Duty Officer on 13.09.2013 in Police Station Mahender Park from 08:00 AM to 04:00 PM. On receipt of a rukka handed over by ASI Hari Singh, she recorded the instant FIR, Ex PW 2/A, and also made her endorsement, Ex PW 2/B, on the rukka.
8. PW 3 is Woman Constable Seema. On 06.07.2013, she had taken PW 1 Smt. Prem to DDU Hospital for examination.
9. PW 4 is Dr. C. L. Mohanty, General Physical, Palam Gaon. She deposed that on 06.07.2013, she had examined Smt. Prem, who had come with complaint of pain in abdomen with watery discharge. She examined her and recommended her Ultrasound and in the hospital, she had delivered a dead foetus at about 12:30 PM. She prepared a report, Ex PW 4/A.
10. PW 5 is Sh. Manohal Lal, husband of PW 1 Smt. Prem. He has also deposed on the same lines as deposed to by PW 1.
11. PW 6 is ASI Data Ram. He had only recorded statement of woman constable Seema.
12. PW 7 is Dr. Pallavi, Emergency Medical Officer, Department of Casualty, DDU Hospital. She deposed that on ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 4 of 23 06.07.2013, a baby of Ms. Prem Devi was brought in the casualty in unconscious and unresponsive state. As per the reports, she had delivered a dead foetus due to premature membrane rupture. She packed the foetus and sent it to the mortuary for autopsy. Her report in this regard is Ex PW 7/A. She had also examined Ms. Prem Devi. She had prepared report in this regard and opined that she has suffered blunt injuries due to fall. Her report in this regard is Ex PW 7/B.
13. PW 8 is Dr. B. N. Mishra, Department of Forensic Medicine, DDU Hospital, New Delhi. He had conducted postmortem examination on the body of one female foetus, aged about five months. He prepared his report, Ex PW 8/A, in this regard. However, police again sought further clarification and he gave the clarification vide his report, Ex PW 8/B.
14. PW 9 is IO (Retired) SI Hari Singh. He deposed that on 06.07.2013, he was posted as ASI at Sagarpur Police Station. On that day, at about 06:15 PM, he received DD No. 31A, Ex PW 9/A, regarding miscarriage of the wife of a person, who had lodged the report. He reached Mohanty Medical Clinic, where he met Sh. Manohar Lal, husband of Smt. Prem, who was admitted in the clinic and she produced a dead foetus to the IO. He recorded her statement, Ex PW 1/A. He also called lady constable Seema to the clinic and sent Smt. Prem to DDU Hospital for medical examination. He also collected the medical report, Ex PW 4/A, of ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 5 of 23 Smt. Prem and Ultrasound reports, Ex PA and PB. He reached DDU Hospital and collected MLC, Ex PW 7/A of the dead foetus. He also collected MLC of Smt. Prem, Ex PW 7/B. Postmortem on the dead foetus was conducted on 08.07.2013 and he also collected the postmortem report, Ex PW 8/A. He also seized blood gauze piece vide memo, Ex PW 9/B. On 13.09.2013, he prepared rukka, Ex PW 9/C, and got the instant case registered. During investigation, he interrogated Smt. Prem, prepared site plan, Ex PW 1/B, recorded the statement of witnesses, completed the investigation and filed the instant charge sheet.
15. Thereafter, prosecution evidence was closed.
Statement of the Accused and Defence Evidence
16. Statement of the accused was recorded under Section 313 CrPC, wherein he denied the allegations against him to be incorrect stating that no such incident as deposed to by the complainant had taken place and submitted that he has been falsely implicated in this case to take revenge on his father. He did not lead evidence in his defence.
Final Arguments
17. I have heard the arguments at the bar and have carefully gone through the record.
18. It is submitted by learned Addl. PP that in view of the ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 6 of 23 deposition of PW 1 Smt. Prem, wherein she deposed that on 05.07.2013, when she along with her husband PW 5 Sh. Manohar Lal went to the house of the accused to demand payment due to them for the work done by them, an altercation took place between father of the accused and PW 5 Sh. Manohar Lal and when Smt. Prem intervened, the accused pushed her, due to which she fell down on the ground. It is further submitted that she was having six month pregnancy at that time and due to the fall she felt pain in her stomach and was brought to the hospital. It is further submitted that she delivered a dead foetus. It is submitted that in view of this deposition, a case of death of quick unborn child is made out against the accused. My attention has been invited to the deposition of PW 4 Dr. C. L. Mohanty, PW 7 Dr. Pallavi and PW 8 Dr. B. N. Mishra. It is submitted that in view of the oral and medical evidence on record, prosecution has been successful in proving its case against the accused beyond reasonable doubt.
19. On the other hand, it is submitted by learned defence counsel that PW 1 Smt. Prem delivered a spontaneous dead foetus and this was not the result of any fall suffered by her due to any push given to her by the accused. It is further submitted that the premature foetus was delivered by her due to medical or other reason and accused is not responsible for that at all. It is further submitted that on 05.07.2013, when the alleged altercation took place between father of the accused and PW 5 Sh. Manohar Lal, she ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 7 of 23 was not even present on the spot. It is repeatedly submitted that on the basis of material on record, no case under Section 316 is made out. My attention has been invited to the earlier statements, Ex PW 9/D1 and D2, of PW 5 Sh. Manohar Lal, which he had lodged with the police before the premature delivery of the foetus by his wife. It is repeatedly submitted that on the basis of contradictory stand of the complainant and his husband and the medical record, no case is made out against the accused. It is repeatedly submitted that in view of the fact that there is no legally admissible evidence on record, accused may be acquitted.
Legal Provisions and Case Law
20. Section 316 IPC reads as under:
"Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Illustration "A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 8 of 23 defined in this section."
21. Section 299 defines culpable homicide as under:
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
22. In an authority reported as Jabbar and Others Vs. State, AIR 1966 All 590, while dealing with a case under Section 316 IPC, Hon'ble Allahabad High Court observed in paragraph 11 to 13 as under:
"11. The next question which arises is what is the offence committed by Jabbar appellant alone in pushing Smt. Pangoli (P.W. 1) and trying to kick where she was in an advanced and visible stage of pregnancy? The trial court has convicted the appellant Jabbar under Sec. 316, I.P.C. This section reads as follows: "316. Whoever does any act under such circumstances, that if he thereby caused death he could be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
12. It is clear that Sec. 316, I.P.C. can only ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 9 of 23 apply if the action resulting in a death was capable of amounting to culpable homicide. The section does not specifically state that the action must be directed against the mother and not the quick unborn child. From the illustration to the section, which is intended to clarify the meaning of the "act", it appears that, the act must be of such a nature that the offence committed against the mother herself would be culpable homicide if the mother had died as a result of it. If the act is intended only to cause miscarriage without the consent of the mother, it could fall under Secs. 312 and 313, I.P.C. or under Sec. 314, I.P.C. If the act is intended to cause the death of the child before its birth or to cause it to the after its birth it is an offence punishable under Sec. 315 I.P.C. Hence, an offence under Sec. 316, I.P.C. must be deemed to refer to acts directed against the mother. And these acts have to be of such a character that the offender would have been guilty of culpable homicide if she had died. The resulting injury to the child carried in the womb of the mother may be quite unintended and yet an offence under Sec. "316 I.P.C.
would be made out. The action must be such that if results in the death of a "quick unborn child" instead of the death of the mother which could have been caused by the Action.
13. As the offence under Sec. 316, I.P.C.
consists of action against the mother which must be capable of causing "culpable homicide," I have to examine the definition of 'culpable homicide' and determine whether "the" act" in this case could result in a culpable ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 10 of 23 homicide of the mother. Now, culpable homicide has been defined by Sec. 299, I.P.C. It involves the doing of an act either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that the act is likely to cause death. Unless the act is done against the mother with an intention or with a knowledge which brings it within the purview of Sec. 299, I.P.C., it can not constitute an offence under Sec. 316, I.P.C. merely because the death of a quick unborn child has resulted from art act against the mother........"
23. While dealing with the offence of culpable homicide not amounting to murder, in an authority reported as Afrahim Sheikh and Others Vs. State of West Bengal, AIR 1964 SC 1263, Hon'ble Supreme Court observed in paragraph 5 as under:
"5. ......Culpable homicide is the causing of the death of a person in three ways: ( 1 ) with the intention of causing death, ( 2 ) with the intention of causing such bodily injury as is likely to cause death, and ( 3 ) with the knowledge that the offence is likely by such act to cause death. The offence of culpable homicide becomes murder when four circumstances exist. They are mentioned in Section 300. A number of exceptions are however included, and those exceptions show extenuating circumstances on strict proof of which the offence is again brought down to culpable homicide not amounting to murder.
___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 11 of 23 The causing of the death of a person by doing an act accompanied by intention in the two ways described in Section 299 or with the knowledge that the act is likely to cause death also described there is thus distinguished from cases of deaths resulting from accident or rash and negligent act and those cases where death may result but the offence is of causing hurt either simple or grievous. Once it was established, as was established in this case, that the act was a deliberate act and was not the result of accident or rashness or negligence, it is obvious that the offence which was committed was one under Section 304. In present was however death was not the result of the act of a single individual but was the result of the act of several persons, and they shared the common intention, namely, the commission of the act or acts by which death was occasioned."
Discussion on the Issues, Conclusion and Order
24. From the law quoted above, it is clear that in order to constitute an offence under Section 316 IPC, the act of the accused should be of such a nature as to cause culpable homicide not amounting to murder of a pregnant woman and in that incident mother gets injured but survives and instead the act causes the death of a quick unborn child with which she is pregnant.
Now the question is: Whether the act of the accused was of such a nature as to cause death of Smt. Prem?
___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 12 of 23
25. Let me take note of the testimony of PW 1 Smt. Prem, the relevant part of which reads as under:
".......We had to take about Rs. 8 lacs from the accused and his father as both of them were engaged in the same work, for the work my husband Manohar Lal had done for the accused and his father. We has asked the accused and his father repeatedly for payment of money but the accused and his father on one pretext or the other always refused to make the payment. I had accompanied my husband Manohar Lal to the house of the accused on 05.07.2013 to demand our full payment as the accused and his father had called us. There was verbal altercation between the father of the accused and my husband and the accused and his father had told that they do not owe anything to us and they have already paid us. The cheque given by the father of the accused also bounced and a separate case is pending. I intervened between my husband and the father of the accused and told them not to quarrel. Accused present in the court today also came around and intervened and started hurling abuses and he told me why I was intervening between my husband and his father and I was illiterate. He pushed me and I fell down on the ground and at that time I was pregnant about six months. I started feeling pain in my stomach and I was brought to my house by my husband. On the next date i.e. 06.07.2013 I was taken to the hospital by my husband for medical treatment at Palam Gaon. After the ultrasound, I was told ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 13 of 23 by the doctor that my unborn child will not survive. Later on IO had joined me in the investigation. I never visited the house of the accused alongwith the police.
The incident had taken place on the first floor of the house of the accused. Accused had given "dhakka" to me on my back as a result of which I had fallen down on my stomach on the ground. I had given the statement to the police Ex PW 1/A signed by me at point A......."
26. Similarly, relevant part of the deposition of PW 5 Sh. Manohar Lal reads as under:
".......I was called by L. D. Sulania on 05.07.2013 in the morning and accordingly I along with my wife Prem reached the house of L. D. Sulania at about 09:30 to 10:00 AM. L. D. Sulania was having his office at 1st Floor. L. D. Sulania told me that no other payment was due towards me and that he had already got my signatures on the payments. I had given a complaint against L. D. Sulania on 04.07.2013 in the PS Sagarpur and some how L. D. Sulania came to know about it. L. D. Sulania started abusing me in the office and caught hold of me by my collar. My wife Prem intervened and told L. D. Sulania not to hurl abuse and not to fight. Accused Surender then pushed my wife Prem and he also abused her. My wife Prem fell down on the ground and some how I managed to pick up my wife Prem and that time she told me that she was having pain in my stomach. We returned back to our house. Next day on 06.07.2013 I had taken my wife ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 14 of 23 to a medical centre in Palam Village and was advised ultrasound. I had got the ultrasound test conducted on my wife. I was told that my wife was pregnant and was in her 5th 6th month and that her uterus lining had cracked and that I should take a decision soon as the unborn child will not survive and my wife Prem was also having chances of collapse and even she might not survive........"
27. A bare perusal of the aforesaid testimonies reveals that accused had only pushed PW 1 Smt. Prem on account of which she fell down on the ground. Bare pushing of a person by another does not automatically mean that the offender was having intention to cause death or to cause such bodily injury as is likely to cause death or the knowledge that he is likely by such act to cause death of the person pushed by him. When such an act does not amount to an act covered by Section 299 IPC, an offence under Section 316 IPC is not made out.
28. This is further corroborated by medical record. PW 4 Dr. C. L. Mohanty has deposed that Smt. Prem did not give any history of injury, fall, assault or any violence and she had spontaneous delivery of the foetus in her clinic at about 12:30 PM and in the delivery she did not use any instrument or external manipulation. Her report, Ex PW 4/A, reads as under:
"I Dr C.L. Mohanty states that the patient Mrs Prem Devi W/o Shri Manohar Lal came to my ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 15 of 23 clinic with complaints of pain (in) abdomen with watery discharge from vagina at about 10'O clock morning on Dt. 06/07/2013. She did not give any history of injury, fall, assault or any violence. She was sent to Sanjeevani diagnosis centre for ultrasound of abdomen. The ultrasound report revealed that she was pregnant with evidence of open internal or with gross oligohydramnios (much less fluid in uterus cavity) with presence of fluid in cervical canal with rupture of membranes. She had spontaneous delivery of the foetus in my clinic at about 12.30 PM afternoon. I did not use any instruments, I did not use any external manipulations, I did not use any manual assistance and I did not use any drugs for delivery. The dead foetus was handed over to the parents of the foetus at about 12.30 PM on 06/07/2013."
29. Similarly, PW 8 Dr. B. N. Mishra, who had conducted the postmortem on the body of foetus, also opined as under:
"1. TIME SINCE DEATH: Approx. 2 days prior to post mortem examination.
2. The foetus delivered still birth and could be died due to gross oligohydramnios (decreased amount of amniotic fluid) subsequent to pre mature rupture of membrane.
3. The injuries observed on the body of deceased (foetus) appearing post mortem in nature and could be caused by blunt impact / pressure upon the body parts.
___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 16 of 23
4. The observed bruises (patterned) and other internal injuries on the body of foetus could not be possible under the condition of normal amount of amniotic fluid in the uterine cavity with simple fall on the ground.
5. As per ultrasound report, the foetus was alive without showing any injuries on the body of foetus with decreased amount of amniotic fluid which was conducted before the delivery of dead foetus in Mohanti Medical Clinic at 12:30PM (the ultrasound took place after referred from Mohanti Medical Clinic at 10:00AM). The possibility of infliction of injuries on the body foetus after the delivery of the dead foetus cannot be ruled out.
6. The duration or exact time of pre mature rupture of membrane cannot ascertain on the basis of the autopsy.
7. The possibility of tearing/rupture of pre mature membrane due to trauma, pathological causes or drug induced cannot be ruled out."
30. Later on, police also obtained further clarification from him and clarification was given vide Ex PW 8/B, which reads as under:
"1. The amniotic membrane deep seat structure which is well protected by uterine cavity and it cannot be ruptured by simple pressure like fallen on the ground unless until the abdomen is vigorously compressed by some external force or pressure.
2. The rate of leakage/draining of amniotic ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 17 of 23 fluid from amniotic sac is depends on the size of tear on the membrane.
3. Time of discharging/oozing out of amniotic fluid after ruptured on the membrane depends on the rate of its draining and in this stage same cannot be ascertained."
31. Perusal of medical record, Ex PW 4/A, reveals that PW1 Smt. Prem had spontaneous delivery and no instrument or external manipulation was used during delivery. Even no drug was used for inducing delivery.
32. Similarly, PW 8 Dr. B. N. Mishra has also reported that possibility of infliction of injury on the body of foetus after delivery cannot be ruled out and the injuries were postmortem in nature. He also opined that uterine cavity is wellprotected and cannot be ruptured by simple pressure, like fall on the ground until the stomach is vigorously compressed by some external pressure or force. There is no evidence that there was any vigorous push by the accused.
33. Thus, no serious injury was sustained by PW 1 Smt. Prem due to the fall suffered by her on account of push given to her by the accused. The injuries suffered by the foetus were also post mortem and could be caused by blunt impact. Thus, there is no evidence at all that the act of the accused was of such a nature as to fall within the mischief of Section 299 IPC, which could have caused the death of PW 1 Smt. Prem and led to the death of an ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 18 of 23 unborn quick child, attracting the provision of 316 IPC.
34. However, there is ample evidence in the testimony of PW 1 Smt. Prem that she was pushed by the accused on account of which she fell down on the ground. This has been corroborated by PW 5 Sh. Manohar Lal also. These witnesses were crossexamined and in the crossexamination, there is nothing of any significance which could discredit the evidentiary value of their testimony. Both are consistent in their deposition that the accused pushed Smt. Prem on account of which she fell down on the ground. In the hospital, she had given the history of physical assault as is mentioned in MLC, Ex PW 7/B, by PW 7 Dr. Pallavi. There is no material on record to discredit the testimony of these two witnesses.
35. However, it was argued by learned defence counsel that Smt. Prem was not present on the spot on 05.07.2013 when the altercation between PW 5 Sh. Manohar Lal and the father of the accused took place. In this regard, my attention was invited to the complaint, Ex PW 9/D1, which was lodged by PW 5 Sh. Manohar Lal with the police on 05.07.2013 itself, wherein he did not mention that his wife was also with him at the time of incident. However, learned counsel did not confront PW 5 Sh. Manohar Lal with this statement during crossexamination to give an opportunity to him to explain the omission or contradiction. The author of a statement must have the opportunity to explain the ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 19 of 23 contradiction or omission before his statement is discarded. It was so held by Hon'ble Supreme Court in an authority reported as Mahabir Singh Vs. State of Haryana, (2001) 7 SCC 148. Thus, this submission is of no avail to the defence.
36. It was also argued that she did not give any history of injury, fall, assault or any violence at the Mohanty Clinic, Palam. In this regard, my attention has been invited to the deposition of PW 4 Dr. C. L. Mohanty. It is a fact that the deposition of PW 4 Dr. C. L. Mohanty is to the effect that she did not give any history of injury, fall or assault, when she came to his clinic. However, in the cross examination she has denied the suggestion that she was not pushed to the ground by the accused. In the crossexamination, she was not questioned as to why she did not give such history of being pushed to the ground by the accused and as such she had no opportunity to explain the omission. Accordingly, this submission is of no avail to the defence.
37. Consequently, there is ample evidence on record to the effect that PW 1 Smt. Prem was present on the spot when an altercation took place between PW 5 Sh. Manohar Lal and father of the accused and at that time when she intervened to save her husband from the fight, she was pushed by the accused on account of which she fell on the ground and sustained simple injury.
38. In view of the above discussion, I am satisfied that the prosecution has failed to prove any case under Section 316 IPC ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 20 of 23 against the accused. However, there is ample evidence on record to the effect that the accused had voluntarily pushed Smt. Prem on account of which she fell down and sustained simple injury. Thus, this act of the accused is covered by Sections 319 and 323 IPC, which read as under:
"319. Hurt. Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
323. Punishment for voluntarily causing hurt. Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
39. In view of the above discussion, I am satisfied that the prosecution has failed to prove any case under Section 316 IPC. However, there is enough evidence to prove the act of the accused in pushing Smt. Prem and causing her simple injury on her abdomen with blunt force. No medical evidence is required to prove simple injury. As per the law contained in an authority reported as Osman Isak Vs. Dada Pir Mamad and Others, 1949 SCC OnLine Kutch 55, no medical evidence is required to prove an offence of causing simple hurt and physical pain, even if caused momentarily, is sufficient to bring a case under Section 323 IPC. Accordingly, from the facts proved on the record, a lesser case of ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 21 of 23 Section 323 IPC stands proved against the accused.
40. Accordingly, the accused is acquitted of the charge under Section 316 IPC and is convicted for the offence punishable under Section 323 IPC.
41. I have heard the arguments on the point of sentence also.
42. Learned Addl. PP has submitted that severe punishment may be given to the convict whereas the accused has submitted that they are relatives and no such incident took place. It is submitted that a lenient view may kindly be taken, as it was an altercation over money. It is repeatedly submitted that a lenient view may kindly be taken.
43. I have carefully considered the submissions made at the bar in the light of material on record.
44. It was a simple act of pushing the complainant by the accused during an altercation over money. There is no evidence that it was a vigorous or violent push. The complainant just fell on the ground and did not sustain any serious injury. Both parties are related to each other. Considering these facts, I am inclined to take a lenient view and sentence the convict to a fine of Rs.1000/, in default of which one month simple imprisonment.
45. A copy of the judgment be given to the convict free of cost immediately.
46. Case property, if any, is forfeited to the State to be ___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 22 of 23 disposed of after the time of appeal is over.
47. Since the convict is on bail, his bail bond is cancelled and surety is discharged. Endorsement, if any, on the documents be cancelled and the documents be returned to the surety against proper signatures and verification.
48. As per the provisions of Section 437A CrPC, the convict is directed to furnish a personal bond in the sum of Rs.10,000/ with one surety in the like amount to appear before Hon'ble Appellate Court, as and when he receives notice of appeal.
49. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 20.10.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Surender Sulania FIR No. 182/13, PS: Sagarpur Page 23 of 23