Maya Pathak vs State Of Jharkhand And Ors

I.A. No. 9230/2017 has been filed for condonation of delay of 483 days in filing the Acquittal Appeal against the impugned judgment dated 21.09.2016,

whereby Respondents herein though have been convicted under section 498(A)/34 IPC and section 4 of Dowry Prohibition Act, but have been

acquitted by the learned Trial Court under section 313/34 and 323/504 IPC and section 3 of Dowry Prohibition Act. I.A. No. 8734/2018 has been

preferred for grant of Leave to Appeal.

Heard learned counsel for the appellant/ informant Mr. Suraj Singh, learned counsel for the State Mr. Moti Gope, Additional Public Prosecutor,

learned counsel for the Respondent No. 2 to 5 Mr. P.A.S. Pati and learned counsel for the Respondent No. 6 M/s. Apoorva Singh.

Learned counsel for the appellant submits that though, Respondents have been convicted under section 498(A)/34 IPC and section 4 of Dowry

Prohibition Act, but they have not been convicted under section 313/34 and 323/504 IPC and section 3 of Dowry Prohibition Act, though there was

sufficient materials on record. To buttress his argument, learned counsel for the appellant has submitted that in her evidence, P.W.14 Dr. Arti Shukla

has categorically stated that it was a case of incomplete abortion of Maya Devi (appellant) that was the reason D & E test was done and termination

of pregnancy was done due to bleeding and it was not possible to preserve the child. As such, the pregnancy was terminated and that termination has

been proved before the court below, but the court below has not convicted the Respondents under sections 313/34 and also under section 323/504

IPC.

Learned counsel for the State assisted by the learned counsel for the private Respondents has submitted that the Respondents have been acquitted

by the learned Trial Court under section 313/34 and 323/504 IPC and section 4 of Dowry Prohibition Act, though by the same impugned judgment,

they have been convicted under section 498A/34 IPC and section 4 of the Dowry Prohibition Act and the same has been assailed by them in Cr.

Appeal (SJ) No. 1133/2016 before this Hon’ble Court.

This appeal has been preferred after long delay without offering any plausible explanation for such delay. Learned counsel for the Respondents has

further submitted that from the evidence of P.W.14 Dr. Arti Shukla, it appears that she has taken consent of the victim Maya Devi to conduct the test

D & E and termination of pregnancy as there was bleeding and it was not possible to preserve the child. Learned counsel for the Respondent has

further submitted that the medicines were administered by her to save the life of Maya Devi. As such, appellant has failed to make out a case of

forcible termination of pregnancy of the informant Maya Devi (Maya Pathak) without her consent. It has been further submitted that conviction of the

Respondents under section 498(A)/34 IPC and section 4 of Dowry Prohibition Act has been passed and there is no legal evidence for conviction

under section 313/34. The ingredients of section 323/34 IPC are incorporated under section 498(A) IPC. The impugned judgment of acquittal under

section 313/34 and 323/504 IPC is under challenge before this Court. Learned counsel for the Respondents has thus submitted that appeal has no

merit and it is fit to be dismissed both on the grounds of limitation as well as on merits.

Heard learned counsel for the appellant and learned counsel for the State as learned counsel for the private Respondents.

I.A. No. 9230/2017 filed for condonation of delay is being allowed as the appellant has initially preferred Criminal Revision No. 101/2017, which

was subsequently converted into an application under section 378(3) Cr.Pc to prefer Acquittal Appeal with leave of the Court. So far as merit of the

appeal is concerned, we do not find any basic ingredients to constitute an offence under section 313 IPC causing miscarriage without woman’s

consent. Miscarriage has been defined under section 312 IPC, which reads as under:

“Causing miscarriage.- Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the

purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine,

or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven

years, and shall also be liable to fine.

Explanation.- A woman who causes herself to miscarry, is within the meaning of this section.â€​

Considering the same and on perusal of the materials brought on record including the evidence of P.W.14 Dr. Arti Shukla, this Court is of the

opinion that whatever precaution which has been taken, was taken only to save the life of the victim Maya Devi by the doctor. As such, no case is

made out to constitute an offence under section 313/34 IPC. Accordingly, findings of the learned Trial Court while acquitting the Respondent Nos. 2

to 5 under section 313/34 IPC is well reasoned and do not require any interference by this Court. So far as the findings of acquittal recorded against

the Respondent No. 6 Shyam Kant Ojha is concerned, we are of the considered view that since there is no material against him with respect to the

ingredients to constitute offence under section 498A IPC as this person is not relative of Santosh Pathak (Respondent No. 2), husband of the victim,

he has been rightly acquitted by the learned Trial Court under section 498(A)/34 and section 3/4 of Dowry Prohibition Act. Accordingly, I.A. No.

8734/2018 seeking Leave to Appeal is dismissed. Consequently, the instant Acquittal Appeal stands dismissed.