Research › Search › Judgment

Uttarakhand High Court · body

2021 DIGILAW 181 (UTT)

Bharat Bhushan Nautiyal v. State Of Uttarakhand

2021-03-19

N.S.DHANIK

body2021
JUDGMENT N.S. Dhanik, J. - By means of this application under Section 482 Cr.P.C., the applicant has prayed for quashing of the charge-sheet dated 24.01.2017 and summoning order dated 19.05.2017, along with the entire proceedings of Criminal Case No. 145 of 2017 (FIR No. 20 of 2016), "State v. Bharat Bhushan Nautiyal" under Section 304-B & 498-A IPC, registered at P.S. Purola, District Uttarkashi, pending before the learned Judicial Magistrate, Purola, District Uttarkashi. The applicant has further prayed for quashing of the impugned order dated 30.09.2020 passed by the learned Sessions Judge, Uttarkashi in Criminal Revision No. 22 of 2017. 2. Facts, in brief, are that on 31.08.2016 respondent no. 2 (Gopeshwar Prasad Bijalwan) lodged an F.I.R. against the accused applicant and one another stating therein that on 03/04- 10-2014 the marriage of daughter of the second respondent was solemnized with the applicant (husband) as per Hindu Rites and Rituals. Soon after the marriage, the husband and the sister-inlaw of the applicant started harassing and torturing the deceased for the reason that she brought a very small amount of dowry. The deceased used to tell in this regard to her brother-Ashok telephonically and also on WhatsApp, the detail of which are still available with Ashok. It is also stated in the FIR that the husband of the deceased was having illicit relations with her sister-in-law (bhabhi). When the deceased caught them red-handed then in order to get rid of the deceased, they again started harassing and torturing. It is also stated that when the husband of the deceased came to know about the fact that the deceased is pregnant, the applicant started assaulting her and pressurized her for abortion. Thereafter, the applicant started to pick up fight with the deceased and intentionally kicked on the stomach of the deceased due to which the deceased succumbed to the injury and died at Doon Hospital Dehradun on 15.08.2016. 3. Pursuant to the FIR lodged by respondent no. 2, investigation was carried out and police submitted the charge-sheet against the applicant under Section 304-A IPC and excluded Sections 498-A and 120 IPC. Thereafter, the learned Magistrate took cognizance against the applicant under Sections 498-A and 304B IPC. Thereafter, against the aforesaid cognizance order dated 19.05.2017, the applicant preferred a criminal revision before the learned Sessions Judge, Uttarkashi which was dismissed vide order dated 30.09.2020. Hence, the present criminal misc. Thereafter, the learned Magistrate took cognizance against the applicant under Sections 498-A and 304B IPC. Thereafter, against the aforesaid cognizance order dated 19.05.2017, the applicant preferred a criminal revision before the learned Sessions Judge, Uttarkashi which was dismissed vide order dated 30.09.2020. Hence, the present criminal misc. application under Section 482 Cr.P.C. 4. Learned counsel for the applicant would submit that the applicant has falsely been implicated in the instant crime and has been made a scapegoat. It is also submitted that the second respondent had lodged the FIR having some misunderstanding and when the second respondent came to know about the true facts, he himself gave an affidavit before the Court below clearly stating therein that he has lodged the said FIR under some misunderstanding and now he does not want to pursue further criminal litigations against the applicant. It is further submitted that the deceased was already facing complications and even the applicant had provided all adequate medical facilities and treatment to her, as per his capability. It is also submitted that from the date of marriage till the date of the unfortunate death of the deceased, no complaint or FIR has ever been lodged regarding any kind of dowry harassment and as such, it is proved that the deceased was never harassed or tortured. It is also clear from a perusal of the Postmortem report, which clearly reveals that no external injury was found and since the father of the deceased had himself given an affidavit stating therein that the deceased was not subjected to any cruelty or harassment for want of dowry by the applicant, therefore, the ingredients of Section 304-B IPC are not attracted in the present case. Furthermore, the proceedings against the present applicant are nothing but a gross misuse of the process of law. Hence, an intervention is warranted by this Hon'ble Court while exercising its extraordinary jurisdiction under Section 482/483 Cr.P.C. 5. In the counter affidavit filed on behalf of the respondent no. 2, it is stated that the applicant had never demanded any dowry, but due to some misunderstanding, the second respondent (father of the deceased) became annoyed and as a result, he lodged the present FIR against the applicant. 6. Learned State Counsel opposed the present criminal misc. In the counter affidavit filed on behalf of the respondent no. 2, it is stated that the applicant had never demanded any dowry, but due to some misunderstanding, the second respondent (father of the deceased) became annoyed and as a result, he lodged the present FIR against the applicant. 6. Learned State Counsel opposed the present criminal misc. application on the ground that the deceased has died because of negligence occurred on the part of applicant, as the deceased was not given proper treatment at the time of the alleged incident. Learned State Counsel also submits that the deceased died under unnatural circumstances and the learned Magistrate has rightly taken cognizance under Sections 498-A and 304 IPC against the applicant, because the death of the deceased has taken place within seven years of her marriage. 7. Per contra, learned counsel for the petitioner would submit that they live in a remote area in Purola, District Chamoli where advanced medical facilities are not available and the medical problem of the deceased could not be treated there. However, he took the deceased to Doon Hospital, Dehradun for advanced medical treatment but unfortunately it was too late. Thus, the petitioner did his best to save the life of the deceased and there is no element of negligence on the part of the petitioner. 8. Section 304-B of IPC deals with the dowry death which reads as under: "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. (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.] 9. In order to appreciate the application of Section 304-B, the essential ingredients are:- (i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances. (ii) Such a death should have been caused within seven years of her marriage. In order to appreciate the application of Section 304-B, the essential ingredients are:- (i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances. (ii) Such a death should have been caused within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment soon before her death by her husband or any relatives of her husband. (iv) Such cruelty or harassment must be in connection with any demand for dowry. 10. It is undisputed case of the parties that marriage of the deceased (wife) had taken place within seven years of the incident. It is also undisputed that the death of the deceased occurred otherwise than under normal circumstances, as she had died because of hemorrhage ante mortem burst of the Fallopian Tube. 11. It is now to be seen whether the deceased was subjected to cruelty or harassment soon before her death by the applicant (husband) and whether the same was in connection with demand of dowry. 12. Furthermore, the complainant (father of the deceased) in his counter affidavit filed on the record has clearly admitted that he has lodged the FIR under some misunderstanding. In his counter affidavit, he further admitted that the present applicant (husband) never demanded any dowry nor his daughter (deceased) had ever told him about any demand of dowry on the part of the accused applicant. 13. Having heard the contentions of the learned counsel for the parties and considering the facts and circumstances and the legal proposition as discussed above and the legal preposition, this is a fit case where interference is required under Section 482 Cr.P.C., as no prima facie case is made out against the applicant. Therefore, the present criminal miscellaneous application, under Section 482 of Cr.P.C., is allowed. Cognizance order dated 19.05.2017 as well as the entire proceedings of Criminal Case No. 145 of 2017 (FIR No. 20 of 2016), "State v. Bharat Bhushan Nautiyal", under Sections 304-B & 498-A IPC registered at PS Purola, District Uttarkashi, pending in the Court of learned Judicial Magistrate, Purola District Uttarkashi and the impugned order dated 30.09.2020 passed by Sessions Judge Uttarkashi in Criminal Revision No. 22 of 2017 are hereby quashed. Inform the Court concerned accordingly.