Delhi District Court
State vs . Suhail Sharma And Anr. on 23 November, 2022
IN THE COURT OF MS AKANKSHA GARG, MM03, SE,
SAKET COURTS, NEW DELHI
State Vs. Suhail Sharma and Anr.
FIR No. 88/2017
Police Station : H. N.Din
Under Section : 323/341/34 IPC
Date of institution :06.07.2017
Date of pronouncement :23.11.2022
JUDGEMENT
a) Cr. Cases number of the case 2973/2017
b) Date of commission of offence 04.05.2017
c) Name of the complainant Dhuru Katyal
(1)Suhail S/o Vijay Kumar
Sharma
R/o H.No.A1/68, 1st floor,
Safdarjung, Enclave, New
Name, parentage and address of Delhi
d)
the accused (2) Bharat Gandhi S/o Sh.
Vijay Kumar Sharma
R/o H.No B27, Ground
floor, Surajmal vihar Anand
Vihar, New Delhi
e) Offence complained of Section 323/341/34 IPC
f) Plea of the accused Pleaded not guilty
g) Final order Convicted
h) Date of final order 23.11.2022
FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.1/15
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Briefly stated, the case of the prosecution is that on 04.05.2017 at about 02.05 AM, accused persons in furtherance of their common intention wrongfully restrained the complainant Dhruv Katyal and voluntarily caused simple hurt by beating the complainant and thereby accused persons have committed an offence punishable u/s 323/341/34 IPC ACCUSATION AGAINST THE ACCUSED
2. Vide order dated 06.09.2018, passed by the learned predecessor of this Court, charge of accusation for the offences punishable under Sections 323/341/34 IPC was served upon the accused persons to which they pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3. The prosecution, in order to prove its case against the prosecution, in all examined 6 witnesses:
(a) PW1 Dhruv Katyal has deposed that on 04.05.2017, at about 2.10AM, in the night time, he had gone to the house of his friend Ishan Mehra situated at D19, Nizamuddin West to wish him. There were 78 persons including Ishan and Sachit at the house of Ishan Mehra. The birthday party was going on the first floor. Accused Suhail and Bharat were also present there and called him in the balcony of the said floor. When they FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.2/15 all three reached in balcony, Bharat Gandhi had closed the door. Accused Suhail caught hold of his Tshirt collar and abused him in filthy language and also hit him. Thereafter, Suhail held his hand and Bharat Gandhi had started boxing him . Bharat Gandhi had hit over his head blood was started to ooze out. When he screamed, the mutual friends present in the party namely Sachit Arora, Ishan Mehra, Aman Soni and Bharat Sharma came there and intervened in the quarrel. When his throat was choked he was unable to breathe properly and also his golden chain became broken. His Tshirt was also torn by both of accused persons. Sachit Arora asked him to not take any police action against both of accused persons as Suhail and he were friends since last 10 years. He had dialed 100 number at the spot itself and PCR came at the spot, however, Sachit Arora and others told to PCR officials that everything had been sort out and send them back. Thereafter, he returned to his house. After around 6 to 8 hours of the incident, he along with police officials and his father went to AIIMs for medical treatment. Thereafter, on 04.05.2017, in the noon time, he alongwith his father went to PS H.N. Din where IO Satinder met them. He gave a written complaint to police ExPW1/A. His case was registered.
(b) PW2 Ct. Amit Kumar has deposed that in the intervening night of 03/04 May 2017, he was posted PS H.N. Din as constable. On that day, at about 1.00AM in the night time, he FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.3/15 was on emergency duty along with ASI Satender and at the same time DD no.8A was marked to ASI Satender. DD NO.8A was in respect of quarrel vide ExPW2/A. Thereafter, he along with ASI Satender reached at D19 Nizamuddin West where a person namely Dhruv met them and refused to get record his statement. Thereafter, they returned to PS. On 07.05.2017, he again joined the investigation of present case. After interrogation, they were arrested and their personal search were conducted vide memos ExPW2/B to ExPW2/E.
(c) PW3 Sh. Pradeep Katyal who is the father of the complainant and not the eyewitness of the incident has deposed that on 03.05.2018 at about 03:00 03:30AM in the night time his son Dhruv Katyal had called on his mobiles and several missed calls were lying in his mobile phone. Thereafter, they gave a written complaint to the police regarding the fact of hurt caused to his son by the accused persons.
(d) PW4 Dr.Abhijit Behera has deposed the MLC No.500021504/04MAY2017 was prepared by Dr. Praveen.
Same is exhibited as PW4/A. The witness was shown the aforesaid MLC report. The same was signed by Dr. Praveen at point A.
(e)PW5 Sh. Rajender Singh has deposed that he was a record clerk, AIIMs, Trauma Centre, New Delhi. The MLC no.500021504/04 May2017 was prepared by Dr. Praveen and was signed by him. Same was ExPW4/A. FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.4/15
(f) PW6 SI Satender Kumar has deposed that on 03.05.2017, he was posted as ASI at PS H.N.Din. On that day, he was on emergency night duty alongwith Ct Amit. At about 2.30AM, they were marked a PCR call vide DD no.A already Ex PW2/A pertaining to a quarrel at D19, Nizamuddin west. Thereafter, he went to the spot alongwith Ct. Amit. There, he found a PCR van and some boys. He inquired from them as to what was the dispute about. The boys present there informed him that during the birthday party, heated arguments had occurred between Dhruv Katyal, Suhail Sharma and Bharat Gandhi. Further, Dhruv Katyal had already left for his home at NFC. Suhail Sharma, Bharat Gandhi and other boys present there informed him that the dispute had been settled. That on the next day i.e 04.05.2017, at around 5.20PM, information vide DD no.34 had come from AIIMS Trauma Centre that Dhruv Katyal was admitted in the hospital for treatment and same was marked to me. DD No.34 is ExPW6/A. Thereafter, he left for AIIMS Trauma Centre and collected the MLC of the injured/victim Dhruv Katyal. The injured was not present at the hospital. He contacted the father of the injured vide phone number mentioned on the MLC which was ExPW4/A. That on 06.05.2017 the injured alongwith his father came to PS H.N.Din and appeared before the SHO and handed over there written complaint ExPW1/A. He recorded the statement u/s 161CrPC of Ct. Amit. He sent the MLC for final opinion to FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.5/15 AIIMs Trauma Centre. In the said opinion concerned doctor had opined the nature of injury to be simple.Thereafter, upon completion of investigation, he prepared the chargesheet and filed it before the court.
STATEMENT / DEFENCE OF THE ACCUSED
4. In their examination under Section 313 Cr.P.C., the accused persons denied the entire evidence put to them and stated that they have been falsely implicated. Accused persons opted to lead DE and examined Suhail Sharma as DW1, Bharat Gandhi as DW2 and Sachit Arora as DW3. Testimonies of Suhail Sharma as DW1, Bharat Gandhi as DW2 and Sachit Arora as DW3 in brief are as follows:
(a) DW1 Suhail Sharma has deposed that he and Dhruv Katyal used to do the business of selling of Erickshaws and in between he took a loan of Rs.2.5lacs. On 03.05.2017, he called Dhruv Katyal for the payment of Rs.2.5lacs but the same was answered by his father who informed him that he was in Jammu and he would be back after a month. Later that night, at his friends Ishan's birthday, Dhruv Katyal came uninvited from another party in a drunk state. When he asked for his money, he started misbehaving with him and abused and pushed him.
Thereafter Ishan, Sachit and Bharat intervened and stopped him. Since he was unstable under influence of alochol, he lost his balance and fell down and injured his head. He called the cops and when the cops came, they asked him to get the MLC FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.6/15 done to which he refused and sent them back.
(b) DW2 Bharat Gandhi deposed on the similar lines as DW1.
(c)DW3 Sachit Arora has deposed that on 04.05.2017, he was present in the party thrown by his friend Ishan. Dhruv Katyal was also present there. At around 1.00AM, he suddenly saw that his friend Suhail Sharma was having some heated arguments with Dhruv katyal and before he could intervene Dhruv katyal started beating Suhail. He alongwith his friend Bharat Gandhi tried to stop Dhruv and made truce between them. Since, Dhruv was intoxicated, he lost balance and fell on the floor due to which he sustained injuries on his head. Thereafter, Dhruv called the police which arrived at the spot and asked them to get themselves medically examined but Dhruv denied the same. Since, he was the witness present at the spot, he tried to approach the IO to give his statement, however, the same was refused by the IO.
ARGUMENTS
5. Learned APP for the State has argued that the testimonies of all prosecution witnesses have established guilt on the part of accused persons be convicted for offence under Sections 323/341/34 IPC.
6. It has been argued by the Ld. Defence counsel that the alleged incident FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.7/15 occurred at 2:00AM on 04.05.2017 but the complainant refused to get himself medically examined when the police arrived at the spot. The medical examination was conducted at a belated stage at 5:00PM in the evening. Therefore, it is argued by the Ld. Defence Counsel that getting this case registered was an afterthought and done with a motive to falsely implicate the accused persons. Moreover, it is further argued by the Ld. Defence Counsel that the present case has been instituted in order to pressurize the accused persons as the complainant owed a sum of Rs. 2.5Lacs to accused Suhail Sharma. It is further argued by Ld. defence counsel that the testimony of the prosecution witnesses is totally contradictory and untrustworthy and therefore no conviction can be based upon such unreliable witnesses. It was also argued by Ld. defence counsel that the incident allegedly had taken place on 04.05.2017 and the present case was registered on 06.05.2017 and there is a delay of two days in registration of the FIR and the said delay has remained unexplained and is fatal for the prosecution version. Ld. Defence counsel has further buttressed his arguments by submitting that it was the complainant who came drunk to the party and when accused Suhail Sharma asked him to pay the money, some heated arguments took place but everyone intervened including DW 3 and no fight had taken place at all.
ANALYSIS AND FINDINGS
7. The record has been thoroughly and carefully perused. The respective submissions of the Ld. Assistant Public Prosecutor for the State and Ld. Defence counsel have been considered.
FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.8/15 Offence u/s 323 IPC:
8. Section 323 IPC provides punishment for voluntarily causing hurt and hurt is defined u/s 319 IPC as :
"whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
A bare perusal of Section 319 IPC clearly shows that even causing bodily pain falls within the ambit of Section 319 IPC and if the said bodily pain is caused voluntarily then the said offence is punishable u/s. 323 IPC. No particular kind/ nature of injury is essential for attracting the provisions of Section 323 IPC.
9. In the facts of the present case, the testimony of the complainant is pivotal to decide the present case. The complainant in his testimony recorded in court categorically stated that accused Suhail called him to the balcony and accused Bharat closed the door from behind. Thereafter, accused Suhail caught the collar of his TShirt and hit him, thereafter accused Suhail had held his hands and Bharat started boxing him. It was further stated that Bharat Gandhi hit over his head and his head started bleeding. When he screamed, the common friends Sachit Arora, Ishan Mehra, Aman Soni and Bharat Sharma intervened in the quarrel.
10. It is pertinent to note that though the FIR was registered after a delay of two days, however, the complainant had made a PCR call at the time of the alleged incident which is further corroborated by the testimony of PW2 Ct. Amit, PW6 SI Satender. Infact, the testimony of the accused persons in FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.9/15 their defence evidence and DW3 Sachit Arora further lends credence to the story of the prosecution that some fight had taken place between the complainant and the accused persons and the complainant had called the police. The testimony of the complainant is not only corroborated by the other prosecution witnesses but also by his MLC which reveals that there was laceration over the scalp, abrasion on the left side of the neck and abrasion over right lower eyelid and right forearm. The nature of injuries sustained by the complainant are opined to be simple in the MLC and the same are within the ambit of section 323 IPC.
11. Coming to the argument of the Ld. Defence Counsel that there is an unreasonable delay in lodging the FIR, I am of the considered opinion that the said delay has been sufficiently explained by the prosecution as according to the version of the complainant he was friends with the accused persons for past many years before the alleged incident occurred. Moreover, he was persuaded by his mutual friends specially Sachit Arora to not take any police action against the accused persons. The said fact is corroborated by the fact that the complainant called the police at the spot but Sachit Arora and other friends present at the spot told the police that the matter had been sorted out between the parties and sent the police back. This fact has been admitted by the defence witnesses themselves that the police had arrived at the spot.
12. Delay in lodging the FIR if sufficiently explained is not fatal to the case of the prosecution. There is no duration of time which is fixed either by the FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.10/15 legislature or the judiciary for giving information of a crime to the police. However, it has been observed that FIR has to be filed within reasonable time. The question of reasonable time being a matter is for determination of court in each case. Mere delay in lodging the FIR with the police is therefore, not necessarily, as a matter of law, fatal to prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.
13. Also, the argument of the Ld. Defence Counsel that the delay by the complainant in getting himself medically examined raises a shadow of doubt on the story of prosecution, does not find merit in the opinion of this court. It is true that the MLC in the present case was conducted at around 5:00PM, whereas the alleged incident had occurred around 2:00AM in the morning, also the fact that the complainant refused to get himself medically examined is admitted by the prosecution witnesses. However, in the peculiar facts of this case, where the accused persons were friends with the complainant for past many years and several mutual friends present at the spot persuaded the complainant not to take any police action, it is highly logical that the complainant did not get himself medically examined through the police, in fact the police though called by the complainant was sent back by the friends present there. Moreover, it has clearly come in the crossexamination of medical expert Dr. Abhijit Behera, summoned by the prosecution to prove MLC Ex PW4/A that it is highly unlikely that the injuries in question could have been self inflicted injuries. Further, the FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.11/15 defence taken by the accused persons that the complainant fell down and injured himself also appears to be very improbable in the given circumstances, specially considering the nature of injuries sustained by the complainant.
14. In Abdul Sayeed v. State of MP Hon'ble Supreme Court observed that:
"where witness to occurrence was himself injured in the incident, testimony of such witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone . ....thus, deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on basis of major contradictions and discrepancies therein".
15. Be that as it may, even if it is believed that the medical examination was deliberately delayed by the complainant, in the opinion of this court the medical examination is not a prerequisite to establish an offenece u/s 323 IPC. Reliance is hereby placed upon Lakshman Singh vs State Of Bihar (Now Jharkhand) on 23 July, 2021 wherein Hon'ble Supreeme Court observed:
" However, production of an injury report for the offence under Section 323 IPC is not a sine qua non for establishing the case for the offence under Section 323 IPC. Section323 IPC is a punishable section for voluntarily causing hurt. "Hurt" is defined under Section 319 IPC. As per Section 319, whoever causes bodily pain, disease or infirmity to any person is said to cause "hurt".
Therefore, even causing bodily pain can be said to be causing "hurt". Therefore, in the facts and circumstances FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.12/15 of the case, no error has been committed by the courts below for convicting the accused under Section 323 IPC."
16. Therefore, in the opinion of this court the testimony of the complainant is found to be coherent throughout and hence inspires the confidence of this court which is further corroborated by the Injury report of the complainant.
17. Coming to the argument of Ld. Defence Counsel that there are several contradictions in the testimonies of PW2 Ct. Amit & PW6 SI Satender. Ld. Counsel has pointed out to the fact that while PW2 stated that when he reached the spot, complainant refused to get himself medically examined, whereas according to PW6 when he reached the spot along with PW2 the complainant had already left the spot and few boys present there informed that there were some heated arguments between the complainant and the accused persons and the matter had been settled. In my considered opinion the said contradictions are very minor in nature, specially considering the fact that the presence of the complainant and the accused persons has not only been proved by the prosecution but also has been admitted by the accused persons while leading their defence evidence. Therefore, the said contradictions have not been able to create a dent in an otherwise strong case of the prosecution.
18. Perusal of lengthy cross examination and the defence evidence clearly shows that Ld defence counsel had placed much reliance upon the alleged partnership contract between the parties and the fact that the complainant FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.13/15 owed Rs.2.5Lac to the accused persons. Whether the complainant actually owed the alleged amount to the accused persons or not is not of much significance in the present case. It is settled proposition of law that proving of motive for commission of an offence is essential in those cases in which the whole prosecution case is based upon circumstantial evidence. In the present case, the prosecution has not relied upon circumstantial evidence and in the present case the injured/ victim had appeared in the court and had deposed against the accused. Moreover, in the alleged circumstances the defence version further lends credence to the case of the prosecution that the accused persons had some hostility against the complainant as he could not pay the alleged amount owed to the accused persons and irked with the same they bashed up the complainant.
19. Offence u/s 341IPC Section 341IPC provides for punishment for wrongful restraintment while Wrongful restraintment is defined u/s 339 IPC which is reproduced below:
"339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person."
20. It has clearly come in the testimony of the complainant that the accused persons locked the balcony from behind and held his hands while the other started beating him and it was only when the other friends intervened that the accused could escape. Therefore, the offence u/s 341 is also made out against the accused persons.
FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.14/15
21. Since, the alleged offences were committed under the circumstances that the acts of the accused persons were done in furtherance of common intention of each other the abovementioned offences shall be read with section 34IPC.
CONCLUSION
22. Accordingly, the accused persons Suhail Sharma and Bharat Gandhi for the offences punishable under 323/341/34 IPC.
List for arguments on quantum of sentence for 05.01.2023.
Announced in open Court on 23.11.2022 (AKANKSHA GARG ) MM03 (SouthEast), Saket Courts, New Delhi FIR No.88/2017, State Vs. Suhail Sharma PS H. N. Din page No.15/15