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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:23.08.2019
+ CRL.REV.P. 731/2017
STATE NCT OF DELHI ….. Petitioner
Through: Mr. Hirein Sharma, APP for State
with SI Dharamvir Singh, PS – CWC,
Nanak Pura
versus
JATIN KAPOOR ….. Respondent
Through: None

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT

J U D G M E N T (ORAL)

CRL.M.A 16081/2017 (Exemption)

1. Allowed, subject to all just exceptions.

2. This application is, accordingly, disposed of.

CRL.REV.P. 731/2017 and CRL.M.A 16080/2019

3. Vide the present revision petition, the petitioner – State seeks setting

aside the part of the order dated 04.05.2017 whereby the respondent was

discharged for offence U/s 313 SectionIPC and consequently direct framing of

charges U/s 313 SectionIPC.

4. The present revision petition is filed on the ground that learned trial

court while passing the impugned order dated 04.05.2017 ignored the fact

that there is a specific allegation in the complaint of the complainant that the

CRL.REV.P. 731/2017 Page 1 of 6
accused-respondent did not want the child as he was afraid that if the child is

born, the complainant may claim 2/3rd share in his properties and assets.

5. Learned trial court also ignored the fact that the complainant in

complaint dated 10.06.2013 and statement under Section 161 Cr.P.C. had

categorically attributed that on the intervening night of 5/6 June, 2011, she

was hit on her abdomen by her husband and she was dragged out of the bed

as a result thereof her condition worsened and she had to go to the hospital

in this regard wherein doctor told her to go to shelter home or to her parent’s

house in India.

6. Learned Additional Public Prosecutor appearing for the petitioner-

State submits that the Ld. ASJ erred while not, appreciating the fact that the

complainant was forced to bring more dowry and when she refused, she was

humiliated and subjected to cruelty.

7. He submits that based upon the allegation in the complaint, the

learned Judge is bound to frame the charge under Section 313 IPC and if any

clinching evidence is with the respondent / accused, he may take the benefit

of the same during the trial.

8. It is not disputed by the petitioner that initially FIR No. 106/2013 was

registered under Section 498A/Section406/Section34,SectionIPC 02.07.2013 on the complaint of

CRL.REV.P. 731/2017 Page 2 of 6
the complainant whereby, she has alleged that once her marriage was fixed

with accused in December, 2010, different demands were made by his

family members qua venue of functions associated with marriage. Further,

though her father spent about 2 crores on her marriage, but parents of

accused were not happy. Further, after marriage, she stayed with accused

and his family at Delhi for about one month and after that she went to her

husband to U.K. The respondent had demanded ₹ 50,000/- in U.K. from her

and when she refused, she was beaten by him. Meanwhile, her father-in-law

also came to U.K. and they also quarrelled with her and beaten her. Then she

came to India in February, 2011 to attend her brother’s marriage and went

back to U.K. Thereafter, she became pregnant, but she was not well and

doctors in U.K. advised her to go back to India because accused-respondent

wanted her abortion done in U.K. In the month of June, 2011, she returned

to her parents at Delhi. Her father suffered minor heart attack when she

informed them about different incidents of cruelty. Moreover, her condition

deteriorated so much that her mis-carriage happened. Further, efforts were

made to settle the disputes, but to no avail and she was not permitted to stay

with accused-respondent in U.K. However, she went to U.K. for her studies

and resided separately but she did not report the said incidents of quarrels

CRL.REV.P. 731/2017 Page 3 of 6
and beating at U.K. as it could hamper her studies.

9. During investigation, supplementary statement of complainant was

recorded whereby she disclosed that immediately after her marriage,

accused-respondent and his parents kept her jewellery with them at Delhi

house on the pretext of keeping it in safe custody, but it was not returned

despite repeated requests. Further, she added that accused-respondent too

came to India to attend the marriage of her brother and he returned to U.K.

on 22.02.2011. She returned to U.K. after two months on 22.04.2011 and

thereafter, she stayed with her guardian because of her coming examination.

When she informed her husband about her pregnancy on 20.05.2011, he

took her to his place from her guardian’s place, but since then he started

pressurizing her for abortion and one day, after getting annoyed on the issue

of abortion, he gave a fist blow on her abdomen and since then she started

having pain in her abdomen. Subsequently, offence under Section 313 IPC

was added in the case by the police.

10. The medical reports of U.K. qua pregnancy of complainant have been

attached along with charge sheet. Though, the learned counsel for the

respondent has questioned the admissibility of these medical reports,

however, genuineness of these reports was confirmed by the concerned I.O.,

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through e-mail and trial court was of the view that these could be looked

into at this stage of charge and the question of admissibility can be decided

during trial, if required. As per the allegation, the respondent landed a fist

blow on her abdomen few days after 20.05.2011 when she disclosed about

her pregnancy and thereafter, she had to go to London hospital on

07.06.2014 on account of bleeding.

11. The learned trial Court perused the clinical notes of U.K. hospital

which established that the complainant had disclosed to doctor that there

have been arguments between her and her husband recently and they used to

hit each other while fighting and screaming but at the same time she denied

any specific episode of injury/trauma. Accordingly, the trial Court opined

that complainant had not alleged at that time that accused had hit her on her

abdomen. There seems to be no reason as to why the complainant would

hide such an important information, especially after knowing that because of

the said act, the bleeding started during early stage of pregnancy, as alleged

by her.

12. It is not the case of the complainant that she had not disclosed

anything to the doctor about their matrimonial dispute. When complainant

had frankly told the doctor that there had been arguments, fighting and even

CRL.REV.P. 731/2017 Page 5 of 6
hitting between them, her omission about disclosing the specific incident of

punching her abdomen only indicate that there had been no such incident.

13. In view of the above, the learned trial Court recorded that when

complainant has herself admitted that they used to hit each other, without

alleging hitting at abdomen, no inference can be drawn that accused had hit

complainant with the intention to cause injury resulting into mis-carriage.

Moreover, complainant while indulging in fighting and hitting with her

husband knowing well that she was pregnant. In that condition, even an

accidental injury can be fatal for fetus.

14. In view of the facts recorded above, this Court is of the view that

there is no illegality and perversity in the order of the learned ASJ by not

framing charge under Section 313 IPC against the respondent. However, this

Court hereby makes it clear that if during trial, clinching evidence comes

before the trial Court, the Court may take action at that stage as per the law.

15. In view of the above, the present revision petition is dismissed not

only on merit but also on the ground of delay and latches. Pending

application also stands disposed of.

(SURESH KUMAR KAIT)
JUDGE
AUGUST 23, 2019
PB

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