Dismissed

Vivek Yadav Alias Vivek Kumar v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Allahabad HC5 Mar 2024/1908/2024

Case brief

AI extract

What is this about?

An applicant sought to quash a charge-framing order adding Section 316 IPC for the death of an unborn child in a poisoning case. The court rejected the submission that Section 316 requires assault, holding that administering poison qualifies as 'any act'. The application was dismissed.

What did the court decide?

Application under Section 482 Cr.P.C. seeking quashing of order dated 09.12.2023 was dismissed for lack of merits.

Vivek Yadav Alias Vivek Kumar Vs State of U.P. Thru… — Cheating and Forgery | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:19847

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Court No. - 27

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Case :- APPLICATION U/S 482 No. - 1908 of 2024 Applicant :- Vivek Yadav Alias Vivek Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Suresh Chand Rathour Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Suresh Chand Rathour, the learned counsel for the applicant and Ms. Charu Singh, the learned A.G.A for the State and perused the record.

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By means of the present application filed under Section 482 Cr.P.C., the applicant has sought quashing of an order dated 19.12.2023 passed by the Additional District and Session Judge, Bhaya Nayayalaya, Mohammadi, Lakhimpur Kheri in Session Trial No. 340/2022 (State Vs. Vivek Yadav and others).

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The opposite party no.2 filed an F.I.R No. 113/2022 on 26.02.2022 against nine persons, including the applicant, stating that he got his sister married to the applicant on 29.07.2020; that all the accused persons used to harass her for demanding dowry and they had turned her out of her matrimonial home. After much persuasion, the applicant had taken back the complainant's sister on 23.02.2022 and they killed her in the night of 24/25.02.2022. Information of this fact was received by the complainant through some unknown person. The F.I.R further states that the dead body of the complainant's sister had several injury marks.

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After investigation, the investigating officer has submitted a charge-sheet for commission of offences under Sections 498-A, 304 I.P.C and Section 3/4 of Dowry Prohibition Act, against the

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applicant only and his father- co-accused Sadhu Ram Yadav, mother- co-accused Sunita Yadav and the other named accused persons have been exonerated.

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The trial court took cognizance of the offences and summoned the accused persons to face the trial.

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On 03.10.2022, the opposite party no.2 filed an application under Section 216 Cr.P.C stating that the postmortem report mentions that the deceased was 12 weeks pregnant and the child in her womb also died because of poisoning and, therefore, the charge of offence under Section 316 I.P.C should also be added. The application has been allowed by means of the impugned order dated 09.12.2023, wherein after taking into consideration the aforesaid fact, the trial court has fixed the matter for 18.01.2024 for further orders for framing a charge under Section 316 I.P.C.

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Both the co-accused persons have filed an application under Section 482 Cr.P.C No. 317 of 2024 which is pending consideration of this court.

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The learned counsel for the applicant submitted that the prosecution case does not make out commission of offence under Section 316 I.P.C as for making out the aforesaid offence, it is necessary that the victim should have been assaulted and the child in the womb should have died because of the assault. As per the learned counsel for the applicant, the victim died because of poison and causing death by poisoning of the victim and causing death of the child in her womb as a result of the poisoning would not make out the offence under Section 316 I.P.C.

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Section 316 I.P.C provides as follows:- "Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act

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cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

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For attracting Section 316 I.P.C merely this much is sufficient that the accused should have done 'any act', under such circumstances, that if he thereby caused death, he would be guilty of culpable homicide. 'Any act' cannot be interpreted so as to mean an act of committing assault only and an act of administering poison would be covered within the meaning of the phrase 'any act' used in Section 316 I.P.C. Therefore I find no force in the aforesaid submission of the learned counsel for the applicant.

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In view of the aforesaid discussion, the application lacks merits and the same is hereby dismissed.

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(Subhash Vidyarthi,J.)

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Order Date :- 5.3.2024 Preeti.

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Digitally signed by :- PREETI GAUTAM High Court of Judicature at Allahabad, Lucknow Bench

Vivek Yadav Alias Vivek Kumar v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Case brief

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Vivek Yadav Alias Vivek Kumar v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Case brief

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