Uttarakhand High Court
Dr. Ram Shankar Gupta & Another … vs State Of Uttarakhand on 12 June, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
Reportable
Judgment Reserved on:01.04.2025
Judgment Delivered on:12.06.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.249 of 2007
Dr. Ram Shankar Gupta & another .........Appellants
Vs.
State of Uttarakhand ........Respondent
Present:-
Mr. Vikram Singh Dhapola, learned counsel holding brief of Mr. Ramji
Srivastava, learned counsel for the appellants.
Mr. K.S. Bora, learned Deputy Advocate General along with Mr. J.P.
Kandpal, learned Brief Holder for the State.
Hon'ble Pankaj Purohit, J.
This appeal is preferred by the appellants under Section
374(2) of Cr.P.C. and is directed against the judgment and order
dated 11.06.2007, passed by learned Sessions Judge, Chamoli
(Gopeshwar) in Sessions Trial No.06 of 1997, State vs. Dr. Ram
Shankar & another. By the said judgment, appellants were convicted
under Section 3/4 of Dowry Prohibition Act and were sentenced as
under: –
S.No. Conviction Sentence Fine Sentence in-lieu
of fine
1. Section 3 of 2½ years’ R.I. Rs.15,000/- Six months’
Dowry additional S.I.
Prohibition
Act
2. Section 4 of Six months’ R.I. Rs.1,000/- Two months’
Dowry additional S.I.
Prohibition
ActBoth the sentences were directed to run concurrently.
However, the appellants were acquitted for the offences punishable
under Sections 498-A and 304-B IPC.
2. In brief the prosecution case is that Smt. Kanchan
Gupta was sister of informant, namely, Alok Kumar Gupta and was
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married to Dr. Ram Shankar Gupta (appellant no.1) as per Hindu
rites and rituals on 02.05.1993. On the fateful day of 19.10.1993 she
was found dead. The informant alleges that she was killed by her in-
laws as her paternal family was unable to fulfil dowry demand of
cash, scooter, fridge and gold ornaments.
3. On the basis of aforesaid report, a charge-sheet was
filed by the investigating officer, the case was triable by Court Of
Sessions, learned Chief Judicial Magistrate, Chamoli, by an order
dated 17.01.1997 committed it to Court Of Sessions.
4. Thereafter, learned Sessions Judge, Chamoli framed
charges under Sections 498-A & 304-B IPC. The charges were read
over and explained to the accused, who pleaded not guilty and
claimed to be tried.
5. To prove its case, prosecution examined PW1 (Alok
Kumar-informant), PW2 (Madhu Gupta-elder sister of deceased),
PW3 (Ashok Kumar Gupta-cousin brother), PW4 (Shiv Kumar
Gupta-cousin brother), PW5 (Dr. S.K. Tripathi), PW6 (R.P. Bakshi-
Investigating Officer) and PW7 (Dr. Data Ram) to substantiate and
prove the charges against the appellants.
6. After prosecution evidence, the statements of appellants
were recorded under Section 313 Cr.P.C. in which they stated that
they were innocent. Appellant no.1 further stated that he was being
falsely implicated by his in-laws as they wanted him to marry elder
sister of deceased. He further deposed that he had cordial relations
with the deceased and he or his family never demanded any sort of
dowry from the parents of deceased. He also stated that deceased
died due to accidental burn injuries caused to her while working in
the kitchen and he tried his best to save her but no medical treatment
was able to save her. Appellant no.2 stated that the deceased was not
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subjected to dowry, cruelty by any of his family members. He
further stated that deceased was very happy with her marriage and
soon before her death, the couple went to various places for
honeymoon. He further stated that they themselves informed
parental relatives of the deceased regarding unfortunate accident
resulting in her death and conducted her last rites only when they
arrived and with their consent.
7. During trial, PW1 in his examination-in-chief stated
that he is the cousin of the deceased and stated that as the deceased
had no father or real brother, it was he who helped her to solemnize
the marriage. He further stated that they had given sufficient gifts to
the matrimonial family of the deceased but the deceased by letters
used to tell him that her in-laws were demanding more dowry. He
further deposed that the death of her sister was not accidental rather
she was killed by her in-laws. He further produced Photostat copies
of letters written to him by the deceased. In his cross-examination,
he accepted that he didn’t tell about demands of cash and some other
items to the investigating officer and he never visited deceased in
her matrimonial home.
8. PW2 on oath deposed that she is the elder sister of
deceased. She supported the prosecution story and stated that inspite
of meeting almost all the demands of dowry, in-laws of the deceased
were not satisfied. In her cross-examination, she accepted that she
did not tell about dowry demand, made post marriage to the
investigating officer and also admitted the fact that she never visited
deceased in her matrimonial house.
9. PW3 in his examination-in-chief deposed that he is the
cousin of the deceased and stated that Rs.51,000/- cash, gold ring,
chain, fridge and V.C.R. were demanded by the husband and father-
in-law of the deceased in lieu of marriage. He further stated that in
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spite of fulfilling all the demands they were not satisfied. He stated
that he was of the opinion that his sister was killed by her in-laws
and her death was not accidental. He also stated that the original
letters written by the deceased regarding demand for dowry were
handed over to investigating officer during investigation. In his
cross-examination, he admitted that the deceased just before her
death went for honeymoon to various places and also admitted that
letters regarding demand of dowry were written by deceased before
her death and also he admitted that he did not visit deceased in her
matrimonial home.
10. PW4 is also one of the cousin of the deceased. He also
supported the prosecution story and reiterated the facts stated by
PW1 to PW3.He also admitted that he had never visited deceased
matrimonial house post marriage.
11. PW5 and PW7 are Medical Officers. They deposed that
the deceased was brought before them with burn injuries. PW5
stated that he conducted post-mortem of the deceased body. He
stated that injuries caused in her body were burn injuries and cuts
found in her body could be done due to initial treatment provided to
her to save her from succumbing to burn injuries.
12. PW6 who happens to be the investigating officer in his
examination-in-chief stated that he was handed over the
investigation after a delay of more than 1.5 years. He submitted that
he took statements of most of the witnesses. He also accepted the
fact that he was quite satisfied regarding the fact that the cut in
throat of deceased was made by doctors during treatment.
13. It is vehemently argued by learned counsel for the
appellants that there is an unexplained delay in lodging the FIR
which creates a serious doubt over entire prosecution story. He
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further stated that non-presence of independent witnesses also
weakens the case of prosecution. He also stressed heavily on the fact
that dying declaration of the deceased was recorded by S.D.M. in
which she herself stated that while cooking she accidently fell on
stove and caught fire.
14. It is vehemently submitted by learned counsel for the
appellants that the learned trial court acquitted the appellants of the
charges under Sections 498-A & 304-B IPC. But convicted and
sentenced them under Section 3/4 of the Dowry Prohibition Act. It is
also submitted by learned counsel for the appellants that the learned
Sessions Judge, Chamoli initially framed charges under Sections
304-B & 498-A IPC and all the evidence were produced under this
Sections and appellants got opportunity of defence under these
sections only but the learned Sessions Judge surprisingly without
altering/adding charges went on to convict the appellants under
Section 3/4 of the Dowry Prohibition Act that too even without
framing proper charges, producing proper evidence and giving the
accused persons/appellants an opportunity to defend themselves.
The learned counsel for the appellants relied upon the para 30 & 31
of the judgment of Hon’ble Apex Court in the case Kalicharan&
others vs. State of Uttar Pradesh; reported in (2023) 2 SCC 583.
15. He further submitted that the prosecution has not
produced any independent witnesses of the alleged offence under
Sections 3 & 4 of Dowry Prohibition Act. The PW1-PW4 are
interested witnesses and other witnesses are procedural witnesses.
The prosecution witness PW1 Alok Kumar/informant/cousin of
deceased did not see any of incident of demand of dowry or
harassment for the same, and his evidences are hearsay, and the
same has no evidencery value. The PW2 (Madhu Gupta/elder sister)
in her testimony did not depose that how and when demand was
made, and there are major contradiction in her deposition and her
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deposition is nothing but further developed story. The deposition of
PW3 (Ashok Kumar Gupta/cousin) and PW4 (Shiv Kumar
Gupta/cousin) also have major contradiction and they have further
developed the story. However, these witnesses alleged that deceased
died by strangulation but the dying declaration as well as the
medical evidence and deposition of doctors proved the case
otherwise, which clears the fact that these witnesses just want to
implicate the appellants by concocting a false story. He further
stated that the aforesaid letters demanding dowry are Photostat
copies which are not admissible in evidence without producing the
original.
16. Per contra, learned State Counsel supported the case of
prosecution.
17. Having heard the learned counsel for the parties and on
perusal of record, the argument advanced by learned counsel for the
appellants regarding failure of justice for not framing the charge
under Sections 3 and 4 of the Dowry Prohibition Act, 1961, before
conviction cannot be accepted. As Section 222 Cr.P.C. empowers
the Court to convict a person for minor offences even if he is not
initially charged under them, therefore, in the opinion of this Court,
the learned court below has committed no irregularity in convicting
the accused for minor offences as the accused persons were initially
charged under the Sections 304-B and 498-A of IPC and were not
charged with Sections 3 and 4 of Dowry Prohibition Act, 1961.
Section 222 Cr.P.C. is quoted hereinbelow:-
“222.When offence proved included in offence charged.-(1)
When a person is charged with an offence consisting of several
particulars, a combination of some only of which constitutes a
complete minor offence, and such combination is proved, but the
remaining particulars are not proved, he may be convicted of
the minor offence, though he was not charged with it.
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(2) When a person is charged with an offence and facts are
proved which reduce it to a minor offence, he may he
convicted of the minor offence, although he is not charged
with it.
(3) When a person is charged with an offence, he may be
convicted of an attempt to commit such offence although the
attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a
conviction of any minor offence where the conditions
requisite for the initiation of proceedings in respect of that
minor offence have not been satisfied.”
18. My above view is further fortified by the judgment
given by Hon’ble Supreme Court in the cases of Shaukat Hussain
Guru vs. State (NCT) Delhi & another; reported in (2008) 6 SCC
776. Para 15 of the said judgment is quoted hereinbelow:-
“15. Section 222 of the Code of Criminal Procedure, 1973 (CrPC)
authorises and gives jurisdiction to the court to convict an accused of
the charge which has not been framed, if he is found guilty of a minor
offence. The court need not frame a separate charge before the
conviction is rendered on a minor offence. In Shamnsaheb M.
Multtani v. State of Karnataka [(2001) 2 SCC 577 : 2001 SCC (Cri)
358] , this Court has held in paras 15-16 as under: (SCC p. 584)
“15. Section 222(1) of the Code deals with a case ‘when a
person is charged with an offence consisting of several particulars’.
The section permits the court to convict the accused ‘of the minor
offence, though he was not charged with it’. Sub-section (2) deals
with a similar, but slightly different situation.
***
16. What is meant by ‘a minor offence’ for the purpose of Section
222 of the Code? Although the said expression is not defined in the
Code it can be discerned from the context that the test of minor
offence is not merely that the prescribed punishment is less than the
major offence. The two illustrations provided in the section would
bring the above point home well. Only if the two offences are
cognate offences, wherein the main ingredients are common, the one
punishable among them with a lesser sentence can be regarded as
minor offence vis-à-vis the other offence.”
19. In the case of Suman Sood alias Kamal Jeet Kaur vs.
State of Rajasthan; reported in (2007) 5 SCC 634. Para 29 of the
said judgment is quoted hereinbelow:-
“29. We find no substance in the said contention as well. It is no doubt
true that Section 365 IPC had not been mentioned in the order of
extradition. But as already seen earlier, Section 364-A IPC had been
included in the decree. Now, it is well settled that if the accused is
8charged for a higher offence and on the evidence led by the prosecution,
the court finds that the accused has not committed that offence but is
equally satisfied that he has committed a lesser offence, then he can be
convicted for such lesser offence. Thus, if A is charged with an offence of
committing murder of B, and the court finds that A has not committed
murder as defined in Section 300 IPC but is convinced that A has
committed an offence of culpable homicide not amounting to murder (as
defined in Section 299 IPC), there is no bar on the court in convicting A
for the said offence and no grievance can be made by A against such
conviction.”
20. This Court is of the opinion that the judgment relied
upon by the learned counsel for the appellants, is of no use to him,
as it is based upon entirely different facts. Thus, the argument of
learned Counsel for the appellant that before convicting the
appellant under Sections 3 and 4 of the Dowry Prohibition Act,
charge under these sections has not been framed and the same
resulted into illegality, is misconceived and is, accordingly, rejected.
21. However, this Court is of the opinion that the learned
trial court committed grave illegality and irregularity in convicting
the accused persons/appellants under Section 3/4 of the Dowry
Prohibition Act as the conviction is based upon hearsay evidence of
the PW1 i.e. the informant and on the basis of Photostat copies of
the alleged letters, completely ignoring the settled law that
photocopy in the absence of original is not admissible. Moreover,
the statements regarding supplying of original letter to the
investigating officer made by the prosecution witnesses were only
bald statements and were not supported by any evidence.
22. The upshot of the aforesaid discussions is that the
appeal deserves to be allowed. Accordingly, present appeal is
allowed and the impugned judgment and order dated 11.06.2007
passed by learned Sessions Judge, Chamoli whereby the appellants
were convicted and sentenced under Section 3/4 of the Dowry
Prohibition Act is hereby set-aside. The appellants are on bail. They
need not to surrender. Their sureties be discharged forthwith.
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23. Let the T.C.R. be immediately sent back to the trial
court for consignment.
(Pankaj Purohit, J.)
12.06.2025
AK