# Mayank Gautam v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 1036
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-24
- **Case number:** Application U/S 482 No. 5811 of 2019
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mayank-gautam-v-state-of-u-p-anr-52513
- **Pages:** 11

## Headnote

Law

-
Indian
Penal
Code,1860 - Section 304-B -cause of
death of the deceased was cruelty and
harassment committed by the applicant for
demand of dowry before six months of
marriage- unnatural death caused within
six months of marriage- all the ingredients
of Sections 304B, 498A, 323 I.P.C. and
Sections 3/4 of the D.P. Act, are attracted
against
the
applicant-rightly
charge-
sheeted by the trial court and the trial court
has further rightly rejected the application
for discharge.

Application dismissed. (E-9)

List of Cases cited:

## Text

1036 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 9 ILRA 1036
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482 No. 5811 of 2019

Mayank Gautam ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Amit Daga

Counsel for the Respondents:
G.A.,Yogendra Pal Singh

Criminal
Law

-
Indian
Penal
Code,1860 - Section 304-B -cause of
death of the deceased was cruelty and
harassment committed by the applicant for
demand of dowry before six months of
marriage- unnatural death caused within
six months of marriage- all the ingredients
of Sections 304B, 498A, 323 I.P.C. and
Sections 3/4 of the D.P. Act, are attracted
against
the
applicant-rightly
charge-
sheeted by the trial court and the trial court
has further rightly rejected the application
for discharge.

Application dismissed. (E-9)

List of Cases cited:

1. Rajiv Thapar Vs Madan Lal Kapoor: (2013) 3
SCC 330
2. Baljeet Singh Vs St. of Har.: (2004) 3 SCC
122

3. Tarsem Singh Vs St. of Punj.: (2008) 16 SCC
155

4. Rammilan Bunkar Vs St. of U.P (Criminal
Appeal No. 1667 of 2021)

5. Harjit Singh Vs St. of Punj., (2006) 1 SCC 463
6. Satvir Singh Vs St. of Punj. [(2001) 8 SCC
633 : 2002 SCC (Cri) 48]

7. Tarsem Singh Vs St. of Punj., (2008) 16 SCC
155

(Delivered by Hon'ble Anish Kumar Gupta, J.)

1. Heard Sri Amit Daga, learned
counsel assisted by Sri Akash Mishra,
learned counsel for the applicant, Sri
Yogendra Pal Singh, learned counsel
appearing for the opposite party no.2 and
Sri Sunil Kumar Kushwaha, learned A.G.A.
for the State.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of the order dated 15.01.2019 in
Session Trial No. 1239 of 2017 (State of
U.P. vs. Mayank Gautam) under Sections
(in short, 'u/S') 498-A, 304-B, 323, 302 of
the India Penal Code (hereinafter referred
to as, 'I.P.C.') and 3/4 of Dowry Prohibition
Act, 1961 (hereinafter referred to as, 'the
D.P. Act'), arising out of Case Crime No.
1711 of 2016, Police Station- Nai Mandi,
District- Muzaffaragar, pending in the court
of learned Additional Sessions Judge
(F.T.C. No.-3), Muzaffarnagar.

3. The brief facts of the instant
case are that on 20.07.2016, an F.I.R. was
lodged by the opposite party no.2/Jalaj
Sharma being Case Crime No. 287 of 2016,
alleging herein that the sister (Shailey) of
the opposite party no.2 was married to the
applicant no.1/Mayank Gautam, as per the
Hindu customs and rituals on 02.03.2016
and various gifts were given during the
marriage and a total sum of Rs. 9,00,000/-
was spent by the family of the opposite
party no.2 in the marriage of his sister.
Since after the marriage, the applicant and
the other family members of the applicant
started harassing and assaulting the sister of
9 All. Mayank Gautam Vs. State of U.P. & Anr.
1037
the opposite party no.2 and initially on
05.03.2016, she was badly beaten up and
locked inside the room on 05.03.2016.
Initially, the sister of the opposite party
no.2 did not disclose the aforesaid incident.
On 08.04.2016, the sister of the opposite
party no.2 again went to her matrimonial
house. Again, the behaviour of the family
members of the applicant herein was not
good towards the sister of the opposite
party no.2 and they told her that her brother
has not spent the enough amount of money
in the marriage and subsequently it was
informed by the sister of the opposite party
no.2 that these persons used to demand a
further sum of Rs. 2,00,000/- from her and
when the demand was not fulfilled they
used to torture and assault her.

4. On 16.07.2016 at about 8:37
A.M., from the Mobile No. 9412888897 to
Mobile No. 9711407603, a video was sent
which depicted that the applicant and the
other
family
members
tortured
and
assaulted the sister of the opposite party
no.2 and she had become unconscious due
to such torture, and this video was sent to
create panic among the opposite party no.2
and his family members. After receiving
the said video the opposite party no.2
alongwith other family members went to
the house of the applicant. When they
reached the in-laws place of the sister of
the opposite party no.2, they found the
injury marks on the body of the sister of the
opposite party no.2 and she was lying
unconscious in the room. The in-laws,
namely
Archana
Gautam,
Manmohan
Gautam and the applicant herein were also
present there. When the opposite party no.2
and others reached there the applicant and
other family members told them that if they
will not pay an amount of Rs. 2,00,000/-,
she will be beaten up like this and when
only they bring Rs.2,00,000/- only then
they bring her there. Thereupon, the
opposite party no.2 has taken his sister
from the in-laws place and admitted her at
Sharda Hospital, Greater Noida, who was
very serious condition. She was brought by
the opposite party no.2 on the clothes,
which were worn by the sister of the
opposite party no.2 and all stridhan and
jewellery etc., were kept by the applicant
and his family members. On the aforesaid
averments, the F.I.R. was lodged.

5. Subsequent thereto, during
treatment the sister of the opposite party
no.2 had died on 12.08.2016, which was
intimated by the opposite party no.2. After
such intimation of death of the sister of the
opposite party no.2 the Inquest Report was
prepared and thereupon the dead body was
sent for postmortem. As per the Inquest
Report, in the opinion of the punch
witnesses, the death of the deceased was
caused as the deceased went into coma, due
to the injuries sustained on her body.
Thereafter, the postmortem was conducted
and as per the postmortem the following
injuries were sustained by the deceased,
which reads as under:

"Anti Mortem Injury-
1. Contusion 3 x 10 cm left
ulna joint
2. Contusion 1 x 1 cm from
leg 3.5 cm........
3. Contusion 4 x 3 cm
probated sore or back of Rt. heal
4. Contusion 3 x 3 cm
probated over back of left heal"

6. As per the postmortem report
the cause of death could not be ascertained,
hence, viscera was preserved. During the
investigation the statements of witnesses
were
recorded
and
thereupon
the
investigation of the case was handed over
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
to the Circle Officer (CO), after adding
Section 304B I.P.C. in the said F.I.R.
Thereupon, the statements of various
witnesses including the opposite party no.2
were
recorded
wherein
categorical
allegations were made with regard to the
demand of dowry, torture and harassment
of the sister of the opposite party no.2 by
the applicant and his family members.

7. The witnesses, namely Jalaj
Sharma, Devendra Kumar Sharma and
Madan
Gopal,
have
supported
the
allegations of demand of dowry and torture
committed by the applicant and his family
members on the deceased for the demand
of
dowry.
The
viscera,
which
was
preserved, was sent for Forensic Science
Laboratory, Ghaziabad, for examination
and from the examination, no poisoning
was found on the viscera, as per the report
of Forensic Science Laboratory dated
15.12.2016. The other witnesses were also
examined during the investigation by the
Circle Officer such as Hitesh Kumar, Sunil
Kumar Sharma, Mahesh Chandra Sharma,
Smt. Kavitra Tyagi and Yashpal Chaudhary,
who have denied the allegations of demand
of dowry, torture and harassment by the
applicant and his family members to the
sister of the opposite party no 2, however,
none of them have stated any reason for the
deceased being unconscious in the house of
the applicant herein.

8. During the investigation the
statement of Dr. Dinesh Srivastava of
Sharda Hospital, Greater Noida was also
recorded. As per the statement of the
doctor, the opposite party no.2 has admitted
the deceased on 17.07.2016 at 1:04 P.M.
The deceased was in unconscious position
and there was no movement in the body. At
the time of admission her sugar level was
24 and BP was 90/60. The doctor further
stated that after controlling the blood sugar
level and after getting her stomach clean
the Magnetic Resonance Imaging (MRI)
was conducted. As per the MRI report, such
condition of patient would be due to
deficiency of blood and oxygen. As per the
MRI report, the condition of the patient
could have been due to Hyporia or Hypo
Glycaemia. Therefore, it was told that the
patient was suffering from either HypoxicIschemic brain injury, which could be
caused due to deficiency of oxygen and
sugar at any age. The deficiency can be
caused due to not eating food for
sufficiently a long period of time and the
deficiency of oxygen would occur due to
deficiency of blood sugar or deficiency of
supply of blood to the brain during any
treatment. Therefore, Dr. Dinesh Srivastava
has concluded that the deceased had died
due to not eating for sufficiently long time,
thereby, the deficiency of sugar as well as
the deficiency of blood was there. The
mother of the deceased has also supported
the allegations of demand of dowry by the
applicant herein and it was further stated
that despite being serious condition of the
deceased the applicant had not admitted her
in any hospital due to which her condition
had worsen.

9. In view of the aforesaid
investigation conducted by the IO, on
18.08.2017 the charge-sheet was filed
against the applicant only, exonerating the
other family members of the applicant, for
the offence u/S 498A, 323, 304B I.P.C. and
Sections 3/4 of the D.P. Act. In the chargesheet it has been concluded by the IO that
the applicant herein had demanded the
additional dowry from the deceased and
when the demand was not fulfilled, the
deceased was kept hungry, whereby her BP
and sugar level came down and due to
which she also suffered the deficiency of
9 All. Mayank Gautam Vs. State of U.P. & Anr.
1039
oxygen and blood in her body due to which
she had died, for which principally the
applicant herein was held responsible.

10. After submission of the chargesheet, the applicant herein had moved a
Discharge Application on 11.01.2019 u/S
227 Cr.P.C., which was rejected by the trial
court vide order dated 15.11.2019, having
found no case for discharge and has
proceeded to frame charges against the
applicant herein u/S 498A, 304B, 323 I.P.C.
with an additional charge u/S 302 I.P.C. and
Sections 3/4 of the D.P. Act. Against the
rejection of the Discharge Application the
instant application has been filed by the
applicant herein.

11. Learned counsel for the
applicant submits that since the death of the
deceased was caused due to her medical
condition, whereby she was suffering from
the deficiency of blood as well as oxygen
and was diagnosed at the Sharda Hospital
as Hypoxic Ischimic Encephalopathy brain
injury and she was admitted in the hospital
on 17.07.2016 and she was discharge on
23.07.2016.
After
explaining
her
conditions, subsequently thereto she has
died on 12.08.2016. He further stated that
the
disease
Hypoxic
Ischimic
Encephalopathy brain injury could be
caused to any person of any age.

12. Relying upon the literature of
Access
Medicine
from
McGraw-Hill,
learned counsel for the applicant contends
that Hypoxic Ischimic Encephalopathy
occurs from lack of delivery of oxygen to
the brain because of hypotension or
respiratory
failure.
Causes
include
mycardial infarction, cardiac arrest, shock,
asphyxiation, paralysis of respiration and
carbon monoxide or cyanide poisoning. In
some
circumstances,
hypoxia
may
predominate.
Carbon
monoxide
and
cyanide poising are termed histotoxic
hypoxia
since
they
cause
a
direct
impairment of the respiratory chain.

13. In view thereof, learned
counsel for the applicant submits that since
the deceased was suffering from the
Hypoxic Ischimic Encephalopathy disease,
which is primarily cause due to lack of
supply of oxygen and deficiency in the
blood level, therefore, the cause of death
was her medical condition not any act done
by the applicant herein.

14. Further relying upon the
injuries sustained as have been found on
the
body
of
the
deceased
in
the
postmortem,
learned
counsel
for
the
applicant submits that the first two injuries
are the injuries caused due to drip injected
in the body of the deceased during the
treatment and the other two injuries are the
back sore, which had occurred due to the
continued treatment of the deceased. While
she was unconscious for about 25 days,
therefore, none of the injuries can be
attributed to the applicant herein.

15. In support of his submissions
learned counsel for the applicant has relied
upon the judgements of the Apex Court in
Rajiv Thapar v. Madan Lal Kapoor: (2013)
3 SCC 330, Baljeet Singh v. State of
Haryana: (2004) 3 SCC 122 and Tarsem
Singh v. State of Punjab: (2008) 16 SCC
155 and contends that since the death of the
deceased was caused due to her medical
condition and it was a natural death during
her treatment, therefore, provisions of
Section 304B I.P.C. would not attract in the
instant case. Learned counsel for the
applicant has further submitted that the trial
court has erred in framing the charges u/S
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
304B I.P.C. as well as the additional charge
u/S 302 I.P.C.

16. Learned counsel for the
applicant submits that in the facts of the
case, only one charge either u/S 304B I.P.C.
or Section 302 I.P.C. can be levelled,
however, both cannot be levelled at the
same time. In support of his submissions
learned counsel for the applicant has relied
upon the judgement and order dated
30.05.2024 passed by the Co-ordinate
Bench of this Court in Rammilan Bunkar
vs. State of U.P (Criminal Appeal No. 1667
of 2021).

17. Per Contra, learned counsel for
the opposite party no.2 submits that the
marriage of the applicant with the deceased
had
taken
place
on
02.03.2016.
Immediately,
after
the
marriage
on
05.03.2016 the deceased was beaten up and
locked in the room for demand of dowry by
the applicant. On 08.04.2016 also, when
the opposite party no.2 came to take the
deceased the applicant had also demanded for
dowry. Thereby, the death of deceased has
been caused on 12.08.2016 i.e., within 6
months from the date of her marriage. There is
no material on record to show that the
deceased was having any previous illness and
just after three days of marriage torture and
harassment on the part of the applicant herein
was started for demand of dowry. She was
kept locked in a room after beaten up by the
applicant and his family members. The
deceased, who was diagnosed with Hypoxic
Ischimic Encephalopathy disease, which
would be caused by keeping a person hungry
for sufficiently long time, whereby the oxygen
and blood circulation to the brain stopped and
the deceased can became unconscious.

18. In the instant case the deceased
was found unconscious and when she was
admitted to the hospital the disease of
Hypoxic Ischimic Encephalopathy was
diagnosed, meaning thereby the deceased
was kept hungry by the applicant and his
family members for sufficiently long time,
which had caused deficiency of blood and
oxygen in the brain, thereby deceased had
become unconscious and no attempt of any
treatment was made by the applicant
herein. Rather, a video was circulated by
the applicant to the opposite party no.2 and
his family members and thereupon the
opposite party no.2 had taken her to the
hospital, where she was treated and
diagnosed that she was kept hungry for
sufficiently long time by the applicant and
immediately after admitting the deceased in
the hospital the F.I.R. was lodged by the
opposite party no.2 during treatment itself,
on 20.07.2016 making out a categorical
allegation with regard to the demand of
dowry and cruelty committed by the
applicant and his family members to the
deceased. Therefore, from the allegations
as
levelled
the
deceased
became
unconscious due to the ill treatment
committed by the applicant and his family
members and despite the best efforts made
by the opposite party no.2, the deceased
could not be saved. Therefore, the cause of
death of the deceased was cruelty and
harassment committed by the applicant for
demand of dowry before six months of
marriage. Therefore, the death of the
deceased could not be said to be a natural
death and by all means it is an unnatural
death
caused
within
six
months
of
marriage, therefore, all the ingredients of
Sections 304B, 498A, 323 I.P.C. and
Sections 3/4 of the D.P. Act, are attracted
against the applicant, for which he has been
rightly charge-sheeted by the trial court and
the trial court has further rightly rejected
the application for discharge moved by the
applicant herein. Therefore, no interference
9 All. Mayank Gautam Vs. State of U.P. & Anr.
1041
is called for in the instant case by this
Court.

19 Learned A.G.A. also supports
the submissions so made by learned
counsel for the opposite party no.2 and
submits that in the instant case, from the
entire material available on record as noted
hereinabove, admittedly, the applicant
herein was the husband of the deceased and
marriage took place on 02.03.2016 and the
deceased
was
found
in
unconscious
condition, in the house of the applicant and
there are sufficient material to show that
the applicant used to commit cruelty
towards the deceased for demand of dowry
and from her medical examination and
diagnosis, after admitting her to the
hospital, it was categorically found that the
deceased was not given proper food for
sufficiently long time by the applicant,
which led to such condition of the
deceased, whereby the supply of oxygen
and blood to the brain was stopped, she
become unconscious and ultimately died
despite the best efforts made by the
opposite party no.2 to get the appropriate
treatment for her. From the aforesaid
uncontroverted material a prima facie case
against the applicant is made out for the
offences u/S 498A, 304B, 323 I.P.C. and
Section 3/4 of the D.P. Act. Further, the act
of the applicant by not providing food to
the deceased deliberately and keeping her
locked in the room also goes to the extent
of constituting the act of murder by the
applicant herein. Therefore, the offence u/S
302 I.P.C. is also attracted in the said case,
for which the additional charge has already
been framed by the trial court. Therefore,
there is no illegality in rejection of
discharge application as well as framing of
charge against the applicant in the instant
case. Therefore, learned A.G.A submits that
the instant application has no merit and is
liable to be dismissed

20. Having heard the rival
submissions made by learned counsels for
the parties, this Court has carefully gone
through the record of the case.

21. Section 304B I.P.C., reads as
under:

"304B. Dowry death.-(1)
Where the death of a woman is
caused by any burns or bodily
injury or occurs otherwise than
under normal circumstances within
seven years of her marriage and it
is shown that soon before her death
she was subjected to cruelty or
harassment by her husband or any
relative of her husband for, or in
connection with, any demand for
dowry, such death shall be called
"dowry death", and such husband
or relative shall be deemed to have
caused her death.
Explanation.-For
the
purposes of this sub-section, "dowry"
shall have the same meaning as in
section 2 of the Dowry Prohibition
Act, 1961 (28 of 1961).
(2)
Whoever
commits
dowry death shall be punished with
imprisonment for a term which
shall not be less than seven years
but
which
may
extend
to
imprisonment for life."

22. To attract the offence u/S 304B
I.P.C., the following are required to be
established:

i) the death is an unnatural
death;
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
ii) Such death is caused
within seven years of marriage;
iii) there are materials to
show that she was subjected to
cruelty by her husband or any
relative of her husband soon before
her death; or
iv)
such
cruelty
is
committed for any demand of
dowry.

23. In the instant case, admittedly,
the deceased had died within seven years of
marriage and there are sufficient allegations
that she was subjected to cruelty soon
before her death, for demand of dowry.

24. In Baljeet Singh (Supra), the
Apex Court has held as under:

"10. The explanation to the
said section says that the word
"dowry death" shall have the same
meaning as in Section 304-B IPC
which means such death should be
otherwise
than
in
normal
circumstances and within seven
years of marriage. On a conjoint
reading of these sections, it is clear
that for drawing a presumption
under
Section
113-B
of
the
Evidence Act firstly, there should be
death of a woman otherwise than in
normal circumstances, within seven
years
of
marriage
and
the
prosecution having shown that
soon before her death she was
subjected to cruelty or harassment
in connection with any demand for
dowry by persons accused of
having
committed
the offence.
Unless and until these preliminary
facts
are
established
by
the
prosecution, it is not open to the
courts to draw a presumption
against
the
accused
invoking
Section 113-B of the Evidence Act."
(emphasis supplied)

25. In Harjit Singh v. State of
Punjab, (2006) 1 SCC 463, the Apex Court
has held as under:

"16. A legal fiction has
been created in the said provision
to the effect that in the event it is
established that soon before the
death, the deceased was subjected
to cruelty or harassment by her
husband or any of his relatives; for
or in connection with any demand
of dowry, such death shall be called
'dowry death', and such husband
or relative shall be deemed to have
caused her death."
Noticing the provisions of
Section 113-B of the Evidence Act,
it was opined:
"17.
From
a
conjoint
reading of Section 304-B of the
Penal Code and Section 113-B of
the Evidence Act, it will be
apparent
that
a
presumption
arising thereunder will operate if
the prosecution is able to establish
the circumstances as set out in
Section 304-B of the Penal Code.
***
19. In the case of unnatural
death of a married woman as in a
case of this nature, the husband
could be prosecuted under Sections
302, 304-B and 306 of the Penal
Code. The distinction as regards
commission of an offence under
one or the other provisions as
mentioned hereinbefore came up
for consideration before a Division
Bench of this Court in Satvir Singh
v. State of Punjab [(2001) 8 SCC
9 All. Mayank Gautam Vs. State of U.P. & Anr.
1043
633 : 2002 SCC (Cri) 48] wherein
it was held: (SCC p. 643, paras 2122)
'21. Thus, there are three
occasions related to dowry. One is
before the marriage, second is at
the time of marriage and the third
is "at any time" after the marriage.
The third occasion may appear to
be an unending period. But the
crucial words are "in connection
with the marriage of the said
parties". This means that giving or
agreeing to give any property or
valuable security on any of the
above three stages should have
been
in
connection
with
the
marriage of the parties. There can
be
many
other
instances
for
payment
of
money
or
giving
property as between the spouses.
For example, some customary
payments in connection with birth
of a child or other ceremonies are
prevalent in different societies.
Such payments are not enveloped
within the ambit of "dowry".
Hence the dowry mentioned in
Section 304-B should be any
property or valuable security given
or agreed to be given in connection
with the marriage.
22. It is not enough that
harassment or cruelty was caused
to the woman with a demand for
dowry at some time, if Section 304B is to be invoked. But it should
have happened "soon before her
death". The said phrase, no doubt,
is an elastic expression and can
refer to a period either immediately
before her death or within a few
days or even a few weeks before it.
But the proximity to her death is the
pivot indicated by that expression.
The legislative object in providing
such a radius of time by employing
the words "soon before her death"
is to emphasise the idea that her
death should, in all probabilities,
have been the aftermath of such
cruelty or harassment. In other
words,
there
should
be
a
perceptible nexus between her
death
and
the
dowry-related
harassment or cruelty inflicted on
her. If the interval elapsed between
the infliction of such harassment or
cruelty and her death is wide the
court would be in a position to
gauge that in all probabilities the
harassment or cruelty would not
have been the immediate cause of
her death. It is hence for the court
to decide, on the facts and
circumstances
of
each
case,
whether the said interval in that
particular case was sufficient to
snuff its cord from the concept
"soon before her death".' (Harjit
Singh case [(2006) 1 SCC 463 :
(2006) 1 SCC (Cri) 417] , SCC pp.
469-70, paras 17 & 19)
***
30.
The
ingredients
of
Section 306 and Section 304-B IPC
are different and distinct. In any
event,
no
evidence
has
been
brought on record to show that
there has been any act of omission
or commission on the part of the
accused, before the death of the
deceased to demonstrate that the
appellant was responsible for the
same. We have noticed hereinbefore
that the High Court, for the first
time,
in
its
judgment
on
a
hypothesis observed that when her
father came to see her, he must
have been insulted or felt hurt as
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
she might have been subjected to
harassment.
Unfortunately,
no
evidence whatsoever has been
brought to our notice to enable us
to sustain the said finding and in
that view of the matter we are
unable to accept the submissions of
the learned counsel appearing for
the respondent State. (Harjit Singh
case [(2006) 1 SCC 463 : (2006) 1
SCC (Cri) 417] , SCC pp. 472-73,
para 30)"
(emphasis supplied)

26. In Tarsem Singh v. State of
Punjab, (2008) 16 SCC 155 the Apex Court
has held as under:

"The essential ingredients
of the said offence are: (i) death of
a woman must have been caused by
any burns or bodily injury or
otherwise
than
under
normal
circumstances; (ii) such death must
have occurred within seven years of
marriage; (iii) soon before her
death she was subjected to cruelty
or harassment by her husband or
relative of her husband; (iv) such
cruelty or harassment must be in
connection with the demand of
dowry; and (v) such cruelty is
shown to have been meted out to
the woman soon before her death."
(emphasis supplied)

27. Learned counsel for the
applicant has heavily contended that such
death of the applicant is not an unnatural
death but the death was caused due to her
medical
condition.
Admittedly,
the
deceased was found at the residence of the
applicant, in an unconscious condition and
when she was taken to the hospital on the
same date, the diagnosis revealed that she
was suffering from Hypoxic Ischimic
Encephalopathy brain injuries, which is
primarily caused due to deficiency of
oxygen and blood supply to the brain, as
Dr. Dinesh Srivastava has categorically
admitted that such disease could be caused
if the deceased was not provided food for
sufficiently long time and there are
categorical allegations in the instant case.
Just three days after the marriage, she was
beaten up and was locked in the room by
the applicant for demand of dowry. The
deceased was found in an unconscious
condition at the house of the applicant
herein, which categorically shows that she
was not given food intentionally by the
applicant for sufficiently long period, due
to which the deceased had suffered the
aforesaid disease of Hypoxic Ischimic
Encephalopathy brain injury due to non
supply of oxygen and blood to the brain,
having not provided food sufficiently for
long period of time, thus, by no stretch of
imagination it can be said to be a natural
death but it appears to be an unnatural
death, deliberately caused by the applicant
by not providing the food to the deceased
for sufficiently long period of time. Having
clear and categorical intention to kill the
deceased for non fulfilment of demand of
dowry, therefore, all the conditions of
Section 304B I.P.C. are fulfilled in the
instant case, which goes to the extent of
intentionally killing the deceased thereby
attracts provisions of Section 302 I.P.C. as
well. Since, there are sufficient allegation
for demand of dowry, cruelty caused by the
applicant for demand of dowry and the
demand of dowry raised by the applicant
and the assault committed on the deceased
by the applicant, therefore, Sections 302,
498A, 304B, 323 I.P.C. and also Sections
3/4 of the D.P. Act, is categorically
attracted in the instant case, for which the
charges have been framed against the
9 All. Mayank Gautam Vs. State of U.P. & Anr.
1045
applicant herein by rejecting the discharge
application.

28. In Rajiv Thapar (Supra), the
Apex Court has laid down the following
guidelines
for
attracting
the
judicial
conscious of the High Court to quash the
criminal proceedings while exercising the
power u/S 482 Cr.P.C., which reads as
under:

"30. Based on the factors
canvassed
in
the
foregoing
paragraphs, we would delineate the
following steps to determine the
veracity of a prayer for quashment
raised by an accused by invoking
the power vested in the High Court
under Section 482 CrPC:
30.1.Step one: whether the
material relied upon by the accused
is
sound,
reasonable,
and
indubitable i.e. the material is of
sterling and impeccable quality?
30.2.Step two: whether the
material relied upon by the accused
would rule out the assertions
contained in the charges levelled
against
the
accused
i.e.
the
material is sufficient to reject and
overrule the factual assertions
contained in the complaint i.e. the
material is such as would persuade
a reasonable person to dismiss and
condemn the factual basis of the
accusations as false?
30.3.Step three: whether
the material relied upon by the
accused has not been refuted by the
prosecution/complainant;
and/or
the material is such that it cannot
be
justifiably
refuted
by
the
prosecution/complainant?
30.4.Step
four:
whether
proceeding with the trial would
result in an abuse of process of the
court, and would not serve the ends
of justice?
30.5. If the answer to all
the steps is in the affirmative, the
judicial conscience of the High
Court should persuade it to quash
such
criminal
proceedings
in
exercise of power vested in it under
Section 482 CrPC. Such exercise of
power, besides doing justice to the
accused, would save precious court
time, which would otherwise be
wasted in holding such a trial (as
well
as
proceedings
arising
therefrom) specially when it is
clear that the same would not
conclude in the conviction of the
accused."
(emphasis supplied)

29. The principal of law has been
laid down in Rajiv Thapar (Supra) to
attract the judicial consciousness of the
High Court in the considered opinion of
this case, none of the conditions as laid
down in Rajiv Thapar (Supra) are present
in the present case. Therefore, this Court
does not find any good reason to interfere
with the charges framed against the
applicant and does not find any illegality in
rejection of the discharge application filed
by the applicant herein. So far as the
reliance placed by the applicant in the
judgement of Rammilan Bunkar (Supra),
to contend that the accused can be
convicted either u/S 304B I.P.C. or u/S 302
I.P.C., he cannot be convicted for both the
offences simultaneously. The question in
Rammilan Bunkar (Supra) was whether
an accused, who is charged u/S 302 I.P.C.
could be convicted for the alternative
charge u/S 304B I.P.C. without the said
offence being specifically put in-charge.
This Court has categorically held that since
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
the offence u/S 304B I.P.C., does not be an
alternate charge but ought to be the main
charge and in such circumstances the
charge u/S 302 I.P.C. can be an additional
charge. However, it has been further held in
the aforesaid judgement by the Division
Bench of this Court that though the
additional charge Section 302 I.P.C. can be
framed, but a person cannot be convicted
for both the offences i.e., u/S 304B I.P.C.
and also u/S 302 I.P.C., however, there is
no bar with regard to framing of additional
charge u/S 302 I.P.C.

30. Therefore, this Court does not
find any illegality in rejection of the
discharge application as well as in the
charges framed by the trial court in the
instant
case
against
the
applicant.
Accordingly, the instant application is
devoid of merits and the same is
accordingly dismissed.
----------
(2024) 9 ILRA 1046
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482 No. 6753 of 2019

Dr. Brij Pal Singh ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Syed Mohammad Abbas Abdy

Counsel for the Respondents:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 4, 5, 154, 155, 156,
157, 161, 162, 173, 190, 202, 204 & 482 -
The Indian Penal Code, - Sections 315 &
511 - The Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 - Sections - 4, 5,
5(2), 6, 6(a), 17, 17-A, 23, 25, 28 & 30 -
The
Pre-conception
and
Pre-natal
Diagnostic Techniques (Prohibition of Sex
Selection) Rules, - Rule - 12, 18-A, 18A(3) & 18-A(3)(iv) - Application u/s 482 - for
quashing the summoning order as well as entire
criminal proceedings - Tehsildar submitted
compliant, against Sobha Ram Hospital, stating
that, sex identification of the foetus of the
pregnant woman is being done illegally - District
Appropriate
Authority
(PC&PNDT),
District
Magistrate authorized to Tehsildar to conduct
the required proceedings - a special team was
constituted - team with a planning and with a
decoy customer conducted inspection, search
and arrest accused persons - FIR - investigation
- Charge-sheet - plea taken that, Tehsildar is
not the appropriate authority u/s 28 of the Act,
1994 - which mandate that no court can take
cognizance of an offence under this Act, except
on the complaint filed by the appropriate
authority and u/s 17 of the Act, District
Magistrate is the appropriate authority not the
Tehsildar who has lodge the FIR - Court
observed that, (i) u/s 30 of the Act, 1994 held
that search and seizure can be authorized only if
appropriate authority has reason to believe
which is not mere formality, (ii) under the
scheme of the Act, 1994 & Rules the
investigation
can
be
done
only
by
the
Appropriate
Authority
himself
or
by
the
authorized officer - registration of FIR & police
investigation
is
not
warranted
and
the
Magistrate is incompetent to take cognizance,
(iii) appropriate authority, any other person
authorized by the central govt. or St. govt. or
any person authorized by appropriate authority
can file a complaint for any offence under this
Special Act, 1994, - held, The cognizance order
as well as FIR and the Charge-sheet deserve to
be quashed, as the Magistrate is incompetent to
take Cognizance of such charge-sheet / police
report, specially, for the offence under the
provisions of PC & PNDT Act, 1994 - application
is allowed - cognizance order as well as chargesheet are quashed. (Para -75, 76, 77, 78, 79,
80, 85, 86)

(B) Criminal Law - Constitution of India,
1950- Article - 134(1)(c) & 134-A -