Madhya Pradesh High Court
Smt. Manjari Dixit vs The State Of Madhya Pradesh on 24 March, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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THE HIGH COURT OF MADHYA PRADESH
MCRC-10091-2022
(SMT. MANJARI DIXIT Vs STATE OF M.P. & ANOTHER)
Gwalior, Dated : 24-03-2022
Shri Manish Nayak, Counsel for applicant.
Shri Rohit Mishra, Additional Advocate General for respondent
No.1/State.
Shri Pawan Vijaywargiya, Counsel for respondent No.2. This application under Section 482 of Cr.P.C has been filed against the order dated 08.01.2022 passed by JMFC, Gwalior in RCT No.10076/2015 by which the application filed under Section 216 and 242 (2) of Cr.P.C has been rejected.
2- The necessary facts for disposal of the present case are that on the report lodged by the applicant, the police registered an FIR in Crime No.145/2015 for offence under Section 498-A, 506, 34 of IPC and Section 3/4 of Dowry Prohibition Act. The charges have also been framed for the aforesaid offences.
3- It is submitted that applicant in her statement under Section 161 of Cr.P.C had specifically stated that on account of non-fulfillment of demand of dowry, she was beaten by kicks and fists blows and was also extended a threat to kill her and her mobile was snatched. Thereafter she ran towards the balcony from where she was pushed, as a result, she sustained injuries and fracture of left iliac bone with pubic rami (left).
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THE HIGH COURT OF MADHYA PRADESH MCRC-10091-2022 (SMT. MANJARI DIXIT Vs STATE OF M.P. & ANOTHER) 4- It is submitted by Counsel for applicant that grievous injury was caused to the applicant, therefore, she filed an application under Section 216 of Cr.P.C for framing additional charge under Section 325 of IPC. An application under Section 242 (2) of Cr.P.C was also filed for taking MLC done at Mascot Hospital as well as discharge ticket, x- ray report on record to prove the guilt of the respondent. The said application was vehemently opposed by counsel for respondent No.2. 5- The Trial Court by impugned order has held that the discharge ticket of the hospital is already available on record from which it is clear that the applicant had suffered fracture. The applicant is seeking permission to place the same discharge ticket on record which has already been filed by the police along-with the charge-sheet. It was also held that since the definition of cruelty as mentioned in Section 498-A of IPC would also include any other criminal act, therefore, the act of pushing the complainant thereby causing fracture of left iliac bone with pubic rami (left) is already included under Section 498-A of IPC and accordingly both the applications were rejected. 6- Challenging the order passed by the Court below, it is submitted by Counsel for applicant that the Court below has failed to see that although the police has filed the discharge ticket issued by Mascot Hospital but has not filed the supporting documents to show that the 3 THE HIGH COURT OF MADHYA PRADESH MCRC-10091-2022 (SMT. MANJARI DIXIT Vs STATE OF M.P. & ANOTHER) observation made by Doctor in discharge ticket with regard to fracture was correct. Merely because in the discharge ticket, fracture has been mentioned will not be sufficient to prove that the applicant had suffered fracture. When some documents are already available on record to show that the applicant had suffered fracture, then the Court below should have taken the MLC as well as x-ray report of applicant on record so that the fracture suffered by the applicant can be proved in the trial by leading primary evidence. It is further submitted that so far as observation by the Trial Court, that any other offence of cruelty done by the accused person is already included under Section 498-A of IPC is concerned, the same is misconceived. 7- Per contra, Counsel for respondent No.2 has supported the findings given by the Trial Court.
8- Heard learned Counsel for the parties.
9- Following two questions arise for consideration in the present
case :
i. Whether any act which also amounts to an offence
independently, is included in Section 498-A of IPC or whether a separate charge is required to be framed for the said offence ?
ii. Whether the Trial Court committed an illegality by refusing to take MLC as well as x-ray report of the applicant on record, specifically when discharge ticket which had already been filed by the prosecution indicates that the applicant had suffered fracture ?
4THE HIGH COURT OF MADHYA PRADESH MCRC-10091-2022 (SMT. MANJARI DIXIT Vs STATE OF M.P. & ANOTHER) Whether any act which also amounts to an offence independently, is included in Section 498-A of IPC or whether a separate charge is required to be framed for the said offence ? 10- Section 498-A of IPC reads as under :-
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
11- The word cruelty has been defined in explanation to Section 498-A of IPC, which means that any willful act which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health or not with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Thus, it is clear that if the cruelty is committed with a view to drive the woman to commit suicide or to cause grave injury or danger to life limb or health (whether mental or 5 THE HIGH COURT OF MADHYA PRADESH MCRC-10091-2022 (SMT. MANJARI DIXIT Vs STATE OF M.P. & ANOTHER) physical) or harassment is on account of non-fulfillment of any unlawful demand for any property or valuable security, then such cruelty would be punishable under Section 498-A of IPC. Whereas offence under Section 325 of IPC is a specific provision with regard to causing grievous injury.
12- To prove an offence under Section 498-A of IPC, the prosecution would be required to prove that the offence was committed with an intention to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical), not on account of non-fulfillment of demand of dowry, but no such aspect is required to be proved for an offence under Section 325 of IPC. Cruelty as defined under Section 498-A of IPC would include every willful conduct like persistent demand of dowry, not providing food, depriving a women from her children, depriving a woman from the company of her husband, passing of taunts, compelling her to live in her parental home on account of non- fulfillment of demand of dowry etc. Further the maximum sentence for offence under Section 325 of IPC is 7 years, whereas the maximum sentence for offence under Section 498-A of IPC is 3 years. Both the offences are distinct and a person can be convicted under both the Sections.
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THE HIGH COURT OF MADHYA PRADESH MCRC-10091-2022 (SMT. MANJARI DIXIT Vs STATE OF M.P. & ANOTHER) 13- The Supreme Court in the case of Kaliyaperumal v. State of T.N., reported in (2004) 9 SCC 157 has held as under :
7. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-
A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304- B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty". In Section 304-B there is no such explanation about the meaning of "cruelty". But having regard to the common background to these offences, it has to be taken that the meaning of "cruelty" or "harassment" is the same as prescribed in the Explanation to Section 498-A under which "cruelty" by itself amounts to an offence. Under Section 304-B it is "dowry death" that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. A person charged and acquitted under Section 304-B can be convicted under Section 498-A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder v. State of A.P.) Section 498-A IPC and Section 113-B (sic 113-A) of the Evidence Act include in their amplitude past events of cruelty. The period of operation of Section 113-B (sic 113- A) of the Evidence Act is seven years; presumption arises when a woman committed suicide within a period of seven years from the date of marriage.
14- The Supreme Court in the case of Dinesh Seth v. State (NCT of Delhi), reported in (2008) 14 SCC 94 has held as under : 7
THE HIGH COURT OF MADHYA PRADESH MCRC-10091-2022 (SMT. MANJARI DIXIT Vs STATE OF M.P. & ANOTHER)
26. The ingredient of cruelty is common to Sections 304-B and 498-A IPC, but the width and scope of the two sections is different, inasmuch as Section 304-B deals with cases of death as a result of cruelty or harassment within seven years of marriage, Section 498-A has a wider spectrum and it covers all cases in which the wife is subjected to cruelty by her husband or relative of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether mental or physical) or even harassment caused with a view to coerce the woman or any person related to her to meet unlawful demand for property or valuable security.
27. In order to bring home charge under Section 304-B IPC, the prosecution is required to establish that the death of the woman has been caused by burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage and soon before her death, the woman is subjected to cruelty or harassment by her husband or his relative. However, for the purpose of conviction under Section 498-A IPC, it is sufficient to prove that the woman was subjected to cruelty, as elucidated in the Explanation appearing below substantive part of the section, by her husband or his relative.
15- In order to prove the offence under Section 325 of IPC, the prosecution is merely required to prove the allegation of assault, but it is not required to prove that such assault was within an intention to commit suicide or to cause grave injury or danger to life, limb or heath (whether mental or physical) of the woman or on account of harassment with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure to meet such demand.
16- A person should be tried for each and every offence. Therefore, 8 THE HIGH COURT OF MADHYA PRADESH MCRC-10091-2022 (SMT. MANJARI DIXIT Vs STATE OF M.P. & ANOTHER) it is held that since the act of causing injury is also an independent offence punishable under Section 325 of IPC, therefore, the separate charge under Section 325 of IPC should have been framed along-with offence under Section 498-A of IPC.
Whether the Trial Court committed an illegality by refusing to take MLC as well as x-ray report of the applicant on record, specifically when discharge ticket which had already been filed by the prosecution indicates that the applicant had suffered fracture ?
17- The police has filed a copy of the discharge ticket along-with the charge-sheet, therefore, the fact that applicant suffered fracture due to offensive act of her husband is already on record. Unless and until primary evidence of sustaining fracture is produced and proved before the Trial Court, the prosecution would not be able to prove the allegation that complainant had suffered fracture merely because it is mentioned in the discharge ticket.
18- Under these circumstances, this Court is of the considered opinion that the Trial Court should have taken the x-ray report as well as MLC of applicant prepared at Mascot Hospital on record. 19- Accordingly, the order dated 08.01.2022 passed by JMFC, Gwalior in RCT No.10076/2015 is hereby set-aside. 20- The applications filed under Sections 216 and 242(2) of Cr.P.C are hereby allowed. The Trial Court is directed to frame the additional 9 THE HIGH COURT OF MADHYA PRADESH MCRC-10091-2022 (SMT. MANJARI DIXIT Vs STATE OF M.P. & ANOTHER) charge under Section 325 of IPC and is also directed to take the MLC as well as the x-ray report of applicant on record. 21- Accordingly, the application succeeds and is allowed.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2022.03.28 11:06:21 +05'30'