# Ram Avadh Yadav & Anr v. State of U.P

- **Citation:** (2021) 11 ILRA 863
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-30
- **Case number:** Criminal Appeal No. 655 of 2002
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-avadh-yadav-anr-v-state-of-u-p-46654
- **Pages:** 9

## Headnote

Govt. Advocate

Victim died within seven years of marriageunnatural death-cut down on railway track by a
train-earlier also complaint was lodged-but no
mention of cruelty for dowry was there-matter
mediated-prosecution
witnesses
are
in
contradictions for demand of dowry-all the
witnesses
are
interested
witnessescircumstantial evidence to be conclusive and
consistent-conviction bad.

Appeal allowed. (E-9)

List of Cases cited:

## Text

11 All. Ram Avadh Yadav & Anr. Vs. State of U.P.
863
Laraitey (P.W.7) is the witness of recovery. He,
in his examination-in-chief, has stated that in his
presence, the accused/appellant gave the blood
stained knife, which was kept on the wall under
the thatch from inside his to the police. But this
witness, in his cross-examination, has stated that
he had not seen the injuries on the person of the
accused when he was brought to his house and
gave out the knife in his present. However, this
witness
denied the
suggestion in
crossexamination that the accused did not give any
knife from his house to the police. There is no
evidence
on
record,
which
shows
that
accused/appellant has inimical relations with
Ram Laraitey (P.W.7), who resides in that very
locality in which the accused/appellant has been
living. Thus, the plea of the appellant that
recovery of knife on his pointing out is not
proved, is not sustainable.

52. For the reasons aforesaid, we are of the
considered view that the prosecution has proved
the case beyond all reasonable doubts and the
trial Court, after properly appreciating the
evidence in consonance with the settled legal
position applicable to the facts of the case, have
recorded cogent findings of fact and have rightly
convicted and sentenced the appellant by the
impugned judgment and order dated 07.08.1982.

53. Accordingly, both the criminal appeals
are dismissed. Appellant is in jail and he shall
serve out the sentence as ordered by the trial
Court.

54. Office is directed to transmit the lower
court record along with a copy of this order to
the court concerned forthwith for necessary
information and follow up action, if any
required.
----------
(2021)12ILR A863
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.11.2021
BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Appeal No. 655 of 2002

Ram Avadh Yadav & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Vashu Deo Misra, Anuj Kumar Srivastava,
Maneesh Kumar Singh, Navita Sharma

Counsel for the Respondent:
Govt. Advocate

Victim died within seven years of marriageunnatural death-cut down on railway track by a
train-earlier also complaint was lodged-but no
mention of cruelty for dowry was there-matter
mediated-prosecution
witnesses
are
in
contradictions for demand of dowry-all the
witnesses
are
interested
witnessescircumstantial evidence to be conclusive and
consistent-conviction bad.

Appeal allowed. (E-9)

List of Cases cited:

1. St. of A.P. Vs Raj Gopal Asawa & anr. reported in
(2004) 4 SCC 470

2. Gurmeet Singh Vs St. of Pun. reported in (2021) 6
SCC 108

3. Satbir Singh Vs St. of Har.reported in (2021) 6 SCC
1

4. Sharad Birdhi Chand Sarda Vs St. of Mah. reported
in (1984) 4 SCC 4,
(Delivered by Hon'ble Vikas Kunvar Srivastav, J.)

1. The present Criminal Appeal is
preferred under Section 374 Cr.P.C. against the
judgment and order dated 16.05.2002 passed by
IXth Additional District Judge and Sessions
Judge, Lucknow in Crime No.225 of 1997,
864 INDIAN LAW REPORTS ALLAHABAD SERIES
Sessions Trial No.586 of 1998, Police Station
Gomti Nagar, District Lucknow (State Vs.
Ishwar Deen and others) convicting the each
appellant to rigorous imprisonment for two years
under Section 498-A I.P.C. and a fine of
Rs.5,000/- and in default of payment of fine to
further
undergo
six
months
rigorous
imprisonment and under Section 304B I.P.C.,
ten years rigorous imprisonment and a fine of
Rs.20,000/- and in default of payment of fine to
further
undergo
two
years
rigorous
imprisonment.

2. Heard learned counsel for the appellant,
Sri Maneesh Kumar Singh, Advocate and
learned A.G.A. for the State, Sri Anurag Singh
Chauhan, Advocate.

3. In the instant Criminal Appeal against
conviction, the brief story in the prosecution
case is that Ram Dulari, mother of the deceased
"Babita Yadav" lodged a first information report
on 07.07.1997 in Police Station Gomti Nagar,
District Lucknow that her daughter aforesaid
Babita Yadav, who got married on 01.07.1994
with Ram Avadh Yadav, was subjected to
cruelty,
mental
and
physical
torture
in
connection with demand of dowry since after the
marriage. The aforesaid Ram Avadh Yadav, the
son-in-law of the complainant with his father
Ishwar Deen Yadav, mother-in-law, brother-inlaw and sister-in-law forced her to bring
Rs.40,000/- in cash. When the demand could not
be fulfilled by the complainant, being a widow
of insufficient means, they began to beat and
torture her daughter. Severally they threaten in
the course of beating the complainant's daughter
Babita Yadav that let her ablaze into fire or to
push on the railway tracks so that she would die.
She further complained that in April, 1966, Ram
Avadh Yadav, the son-in-law assaulted the
complainant's daughter, inflicting a blow on her
head from Banka. A report with regard to which
was lodged in Police Station Madiyaon, District
Lucknow, pursuant whereof, police recovered
the complainant's daughter from the house of
appellants
brought
her
into
hospital
for
treatment.
Subsequently
the
in-laws
of
complainant's daughter, in mediation of some
respectable people of the locality, asked pardon
for their wrongs and requested to sent back the
complainant's daughter to her in-laws house with
assurance not to do any such thing any future.
However, on 02.07.1997, the complainant got an
information received by her in house at Satna,
Madhya Pradesh that dead body of her daughter
was found at Gomti Nagar Railway crossing in
suspicion state. She further informed in the
written complaint that her daughter was
subjected to cruelty by son-in-law, Ram Avadh
Yadav, his father, mother, brother and sister to
such an extreme extent that she compelled to
commit suicide. The Police instituted Crime
No.225 of 1997, under Sections 498-A and 304B of I.P.C., Police Station Gomti Nagar, District
Lucknow on 07.07.1997 whereupon after
committal from the Magistrate Court, Session
Trial No.586 of 1998 was instituted for trial by
the Court of Sessions.

4. In the Course of trial, one of the
accused, Ram Kali, mother-in-law of the
deceased "Babita Yadav" died and therefore, the
case was abated to her extent by the trial judge.

5. Firstly, the charge sheet was submitted
against the accused, Ram Avadh Yadav and
Ishwar Deen Yadav only, whereupon Sessions
Trial No.586 of 1998 was instituted. Thereafter,
rest of the accused persons, namely, Ram Kali,
mother-in-law, brother-in-law and sister-in-law
of the deceased were arraigned in Sessions Trial
No.18 of 1999, which was instituted thereupon.
Both the sessions trial since pertaining to the
same offence, therefore, the accused persons
were trialed jointly for the purpose of
consolidated hearing and judgment.

6. Firstly, the accused were charged under Section
306 and 498-A of I.P.C. but looking into the facts before
11 All. Ram Avadh Yadav & Anr. Vs. State of U.P.
865
the trial judge with regard to the unnatural death of the
deceased "Babita Yadav" within seven years from the
date of her marriage in her in-laws house, charges
framed were amended and Section 498A I.P.C. read
with Section 304 B of I.P.C. was imposed.

7. The prosecution produced witnesses for oral
evidences, namely, complainant "Ram Dulari" as PW1, Smt. Geeta as PW-2, Smt. Anita as PW-3, Dwarika
as PW-4, Ram Ratan Yadav as PW-5, R.P. Yadav, Sub
Inspector as PW-6 and Radhe Shyam as PW-7.

8. As documentary evidences, the prosecution
produces before the Court, the written complaint as Ex.
Ka-1, Post Mortem Report as Ex. Ka-2, Site Map as Ex.
Ka-3, Chargesheet as Ex. Ka-4 and the First
Information Report as Ex. Ka-5, Copy of the G.D. as
Ex. Ka-6, Inquest Report as Ex. Ka-7 and other police
papers prepared during the investigation as Ex. Ka-8,
Ex. Ka-9 and Ex. Ka-10.

9. The accused persons were confronted with the
evidence of prosecution witnesses under Section 313
Cr.P.C. though they denied from the allegations but did
not adduce any written document in defence and
examined witness Tulsiram as DW-1.

10. PW-1 in her examination before the Court
proved written complaint made by her before the Police
Station. PW-2 being elder sister of the deceased,
deposed that just after the marriage, deceased "Babita
Yadav" used to cohabit with her husband and another
family members in her in-laws house. The behavior of
in-laws with her was not good. They used to beat her in
connection with demand of dowry. The mother of the
witness and her sister lodged the F.I.R with this regard.
She has further told that whenever the deceased "Babita
Yadav" used to come in maternal house, she tells about
the incidence of beating for the reason of demand of
dowry. She has also stated the fact of illicit relations of
the accused "Ram Avadh", with the wife of his maternal
uncle and in order to continue with the illicit relation
also, she used to beat severely to the deceased "Babita
Yadav".

11. Another sister Anita as PW-3 has reiterated
the same facts as stated by the PW-2.

12. PW-4, Dwarika, The chowkidaar deployed at
railway station Malhore at Dilkusha in the year 1997.
He deposed before the court that at about 2:00 P.M. in
the noon of 02.07.1997, a woman was cut down on the
railway track by train, the report of which, he lodged in
the Police Station Gomti Nagar, District Lucknow.

13. PW-5, the brother-in-law of the deceased also
stated about the illicit relations of the accused/appellant
"Ram Avadh" with the wife of his maternal uncle which
was also a root cause of quarrel between husband and
wife and persuasive factor for committing suicide by the
wife. He did not affirm allegations as to the dowry
death.

14. PW-6, the Sub-Inspector R.P. Yadav who
was the investigating officer in the first information
report aforesaid, proved the facts came out of his
investigation.

15. Postmortem report after the autopsy was done
by the Dr. Radhe Shyam, which is proved by the said
Doctor PW-7 in the court, on which the death by
accident on railway track is found established.

16. PW-8, Smt. Sangeeta is examined as an
independent witness, who stated that on
30.06.1997 when she went to bank situated in
Gomti Nagar to withdraw cash and after
withdrawal, since she mistakenly left the
passbook there so she went back to the bank and
met with Babita Yadav who told her that her
husband
is
demanding
Rs.
40,000/-
for
purchasing a motor vehicle i.e. tempo and for
this he is forcing her. PW-8 told that the motherin-law of the deceased "Babita Yadav" is in
relation with her as wife of maternal uncle of her
husband. She also stated that Babita Yadav told
her about the cruelty and torture with which inlaws are subjecting to her in connection with
demand of dowry.
866 INDIAN LAW REPORTS ALLAHABAD SERIES

17. After perusing all the evidences and
hearing the parties, learned court below vide it's
judgment convicted the accused/appellants,
"Ram Avadh and Ishwar Deen" under Section
498 A and 304 B of I.P.C and sentenced them
vide order dated 16.05.2002, convicting the each
appellant to rigorous imprisonment for two years
under Section 498-A I.P.C. and a fine of
Rs.5,000/- and in default of payment of fine to
further
undergo
six
months
rigorous
imprisonment and under Section 304B I.P.C.,
ten years rigorous imprisonment and a fine of
Rs.20,000/- and in default of payment of fine to
further
undergo
two
years
rigorous
imprisonment.

18. I perused the judgment and examined
the same in light of evidences laid before the
court with regard to the charges framed under
Section 304B of I.P.C. as a presumptive offence.
The section 304B of I.P.C. read with section
113B of the Indian Evidence Act, 1872 is being
quoted hereunder for the easy reference:-

" Section 304B of I.P.C.- Dowry
death.--

(1) Where the death of a woman is
caused by any burns or bodily injury or occurs
otherwise than under normal circumstances
within seven years of her marriage and it is
shown that soon before her death she was
subjected to cruelty or harassment by her
husband or any relative of her husband for, or in
connection with, any demand for dowry, such
death shall be called "dowry death", and such
husband or relative shall be deemed to have
caused her death. Explanation.--For the purpose
of this sub-section, "dowry" shall have the same
meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death
shall be punished with imprisonment for a term
which shall not be less than seven years but
which may extend to imprisonment for life.]

Section 113B of Indian Evidence Act,
1872-

Presumption as to dowry death.--When
the question is whether a person has committed
the dowry death of a woman and it is shown that
soon before her death such woman has been
subjected by such person to cruelty or
harassment for, or in connection with, any
demand for dowry, the Court shall presume that
such person had caused the dowry death.
Explanation.--For the purposes of this section,
"dowry death" shall have the same meaning as
in section 304B, of the Indian Penal Code, (45 of
1860)."

19. In the case of State of A.P. Vs. Raj
Gopal Asawa and another reported in (2004) 4
SCC 470, it is held as under:-

"Section 304-B I.P.C. and Section 113B of the Evidence Act were inserted by the
Dowry Prohibition (Amendment) Act 43 of 1986
with a view to combat the increasing menace of
dowry deaths. Keeping in view the impediment
in the pre-existing law in securing evidences to
prove dowry-related deaths, the legislature
thought it wise to insert a provision relating to
presumption of dowry death on proof of certain
essentials. It is in this background that
presumptive Section 113-B in the Evidence Act
has been inserted.

Presumption under Section 113-B is a
presumption of law. On proof of the essentials
mentioned therein, it becomes obligatory on the court
to raise a presumption that the accused caused the
dowry death. The essentials required to be proved for
raising the said presumption are that (i) the question
before the court must be whether the accused has
caused the dowry death of a woman, (ii) the woman
was subjected to cruelty or harassment by her
husband or his relatives, (iii) such cruelty or
harassment was for, or in connection with, any
demand for dowry, and (iv) such cruelty or
harassment was soon before her death.
11 All. Ram Avadh Yadav & Anr. Vs. State of U.P.
867

Now, one of the essential ingredients,
amongst others, in both the provisions i.e. Sections
304-B and 113-B is that the woman concerned
must have "soon before her death" subjected to
cruelty or harassment "for, or in connection with,
the demand of dowry". There must be material to
show that soon before her death the victim was
subjected
to
cruelty
or
harassment.
The
prosecution has to rule out the possibility of a
natural or accidental death so as to bring it within
the purview of "death occurring otherwise that in
normal circumstances". The expression "soon
before" is very relevant where Section 113-B of the
Evidence Act and Section 304-B I.P.C. are pressed
into service. Evidences in that regard has to be led
by the prosecution. "Soon before" is a relative
term and it would depend upon the circumstances
of each case and no straightjacket formula can be
laid down as to what would constitute a period of
soon before the occurrence. It would be hazardous
to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of
an offence of dowry death as well as for raising a
presumption under Section 113-B. The expression
"soon before her death" used in the substantive
Section 304-B IPC and Section 113-B of the
Evidence Act is present with the idea of proximity
test. No definite period has been indicated and the
expression "soon before" is not defined. The
determination of the period which can come within
the term "soon before" is not defined. The
determination of the period which can come within
the term "soon before" is left to be determined by
the courts, depending upon the facts and
circumstances of each case. Suffice, however, to
indicate that the expression "soon before" would
normally imply that the interval should not be
much
between
the
cruelty
or
harassment
concerned and the death in question. There must
be existence of a proximate and live link between
the effect of cruelty based on dowry demand and
the death concerned. If alleged incident of cruelty
is remote in time and has become stale enough not
to disturb mental equilibrium of the woman
concerned, it would be of no consequence."

20. In view of the aforesaid provisions of
304B of I.P.C. read with Section 113B of the
Indian Evidence Act, 1872 the prosecutions if
establishes by its evidences that the unnatural
death of the victim of the incident occurred
within seven years from the date of marriage and
she was subjected to cruelty soon before her
death in connection with the demand of dowry
and all these conditions are shown to co-exists, it
shall be presumed that the offence under Section
304B of the I.P.C. is committed by the in-laws.
The presumption raised against the in-laws that
the victim died of a dowry death by reason of
their behavior and conduct. In the instant case,
the mother herself has lodged the F.I.R. under
Section 306 of I.P.C. read with Section 498A of
I.P.C.. The Section 498A of I.P.C. is also quoted
hereunder for the easy reference:-

" Section 498A of the I.P.C.- 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."

21. In the case of Gurmeet Singh Vs. State
of Punbjab reported in (2021) 6 SCC 108, a
case before Hon'ble the Supreme Court, it is
held that the offence under Section 304B of the
I.P.C. and that committed under Section 498A
868 INDIAN LAW REPORTS ALLAHABAD SERIES
are held to be independent and not connected
with each other. The relevant portion of the said
judgment is being quoted hereunder:-

"Sections 304-B and 498-A I.P.C. 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. If the
case is established, there can be a conviction
under both the sections."

22. Section 304-B (i) of the I.P.C. defines
Dowry Death of the woman. It provides that
dowry death is where the death of a woman is
caused by any burns or bodily injury or occurs
otherwise than under normal circumstances
within seven years of her marriage and it is shown
that soon before her death she was subjected to
cruelty or harassment by her husband or any
relative of her husband in connection with demand
of dowry.

23. In the case of Satbir Singh Vs. State of
Haryana reported in (2021) 6 SCC 1, it is held
that it is important to appreciate and understand the
necessary ingredients required to coexists for the
constitution of offence under Section 304-B of
I.P.C. The relevant portion of the said judgment is
being quoted hereunder:-

"38.1. Section 304-B, IPC must be
interpreted keeping in mind the legislative intent
to curb the social evil of bride burning and
dowry demand.

38.2. The prosecution must at first
establish the existence of the
necessary
ingredients for constituting an offence under
Section 304-B, IPC. Once these ingredients are
satisfied,
the
rebuttable
presumption
of
causality,
provided
under
Section
113-B,
Evidence Act operates against the accused.

38.3. The phrase "soon before" as
appearing in Section 304-B, IPC cannot be
construed to mean ''immediately before'. The
prosecution
must
establish
existence
of
"proximate and live link" between the dowry
death and cruelty or harassment for dowry
demand by the husband or his relatives.

38.4. Section 304-B, IPC does not take
a pigeonhole approach in categorizing death as
homicidal or suicidal or accidental. The reason
for such non categorization is due to the fact
that death occurring "otherwise than under
normal circumstances" can, in cases, be
homicidal or suicidal or accidental."

24. In the present case, the victim "Babita
Yadav" is admittedly within seven years from
the marriage died of unnatural death on having
been cut down on the railway track by a train.
The unnatural death may be homicidal,
accidental or suicidal. The death by any of such
means comes within the ambit of unnatural
death for the purpose of constituting offence
with
other
essential
ingredients
referred
hereinabove for constituting offence under
Section 304-B of the I.P.C.

25. In the light of the aforesaid legal
position, it is necessary to see the evidences
proving the demand of dowry and then cruelty in
connection therewith committed with the victim.

26.

The
case
lodged
by
the
complainant/mother of the victim, the deceased
"Babita Yadav" was duly investigated by the
PW-6, R.P. Yadav, the Sub-Inspector. There is
no mention of any cruelty or incident of beating
to the victim after the earlier first information
11 All. Ram Avadh Yadav & Anr. Vs. State of U.P.
869
report lodged in the year 1996 with regard to the
cruelty in connection with demand of dowry and
the matter was mediated by some respectable
persons. The in-laws of the deceased "Babita
Yadav" make pardon and got back the deceased
to her matrimonial home. No independent
witness of the locality or neighbours is recorded.
The mother of the victim used to reside in the
State of Madhya Pradesh in Satna, there is no
evidence that from where and how she got
information of beating and torturing of her
daughter after the said mediation and settlement
between the parties. Evidence is also not on
record as to when the deceased came to visit her
before her death so that she knew about any
recent and subsequent incident of torture at any
point of time prior to her death. Moreover, the
other prosecution witnesses like sister-in-law
and brother-in-law of the deceased are also not
stating about any such recent and subsequent act
of cruelty after the mediation pursuant to the
earlier first information report lodged by the
mother in the year 1996.

27. One of the witnesses, Anita as PW-3
and brother-in-law as P.W.-5, Ram Ratan
denying the fact of demand of dowry stated in
consonance with the statement of PW-3, Anita
that Babita Yadav and her husband were in
quarrel and dispute with regard to the illicit
relations of Ram Avadh with the wife of his
maternal uncle.

28. The prosecution witnesses themselves
are in difference and contradictions with regard
to the demand of dowry during the period when
the deceased "Babita Yadav" came back after
mediation in 1996 to reside in her in-laws
family. One set of witnesses stated on oath in the
course of their examination in trial that demand
of dowry was persistent and continuing with
cruelty and torture committed on the deceased,
whereas, another set of prosecution witnesses
have stated on oath before the Court in the
aforesaid process of trial that she was in quarrel
and annoyed with her husband, the appellant
"Ram Avadh" for the reason, his illicit relation
with the wife of her husband's maternal uncle
(mama). None of the witnesses's statement in
oral evidence got corroboration from evidence
of other attending facts.

29. None of the witnesses have ruled out
any such allegations of illicit relations of the
appellant "Ram Avadh". However, the Court
has considered this aspect and ruled out the
possibility of committing suicide by the
deceased "Babita Yadav" by reason of the
alleged illicit relations of her husband only for
the reason that none of the witnesses have
seen ever the appellant "Ram Avadh" and his
companion of alleged illicit relations in any
objectionable
state
of
things.
The
eye
witnesses account in evidences as to such
intimacy between a male and female is
generally not possible as it is not an activity
done in the day light and openly. Legal or
illegal whatever type of intimacy between a
male or female may be, it is beyond the vision
of people and done secretly, therefore, if
witnesses are stating about the illicit relations
that could not be disbelieved only for the
reason that no one has seen the presence of
complained to be in illicit relations in an
objectionable state of things.

30. All the witnesses are interested
witnesses as they are in relation with the victim
as mother, sister and brother of the deceased.
Their evidences required strict scrutiny by the
Court but the same is not found done in the
judgment delivered by the trial court.

31. If the prosecution has taken case of
suicide by reason of demand of dowry and
cruelty committed in connection therewith, the
same is to be proved beyond all reasonable
doubts. Prosecution is not relieved from proving
it's case for the purpose of securing conviction
of the accused thereupon.
870 INDIAN LAW REPORTS ALLAHABAD SERIES

32. The demand of dowry in the present
case is not proved beyond all reasonable doubts
and so far as the cruelty in connection therewith
committed upon the victim is concerned soon
before her death is also not proved beyond all
reasonable doubts. So far as another aspect of
the offence under Section 498-A is concerned,
mere happening of incidence of victim's having
been cut down on railway track is not in itself
sufficient to presume that she committed suicide
and to draw an inference that she could have not
met an unfortunate accident. Here in the present
case, right from the first information report
lodged by the mother of the deceased/victim.
The case of prosecution and it's witnesses, all
have stated that the victim has committed
suicide. No one even the keyman/chowkidar of
the railway track, PW-4, has seen the victim
jumping before a train on the railway track. He
only saw the dead body cut down and lying on
railway track.

33. In Sharad Birdhi Chand Sarda vs
State of Maharashtra reported in (1984) 4 SCC
4, psychological and mental state of victim
likely to commit suicide for the reason of any
cruelty committed on her. The railway line, as in
accordance with the evidence of prosecution
witnesses is not too remote in the near vicinity
of the home of the deceased where the incident
happened.

34. In 1996, when the victim/deceased
went to her mother and complained of the
demand of dowry, the panchayat mediated the
things and conceived therefrom, the victim
returned to her in-laws house. No further
complaint to the police is made either by the
mother of the deceased or by the victim
herself, as she was from the first incidence
seems to have been a lady of courage and bold
nature to raise voice against wrongs done with
her by in-laws. Therefore, in absence of the
evidence as to the psychology and personality
of the deceased/victim, likely to commit
suicide on having been annoyed from the
alleged
demand
of
dowry
and
cruelty
committed with her, the prosecution case of
commission of suicide by reason of cruelty
committed by in-laws is not proved beyond all
reasonable doubts. The cutting on the tracks
may be accidental, suicidal or homicidal also
but how high so ever the suspicion may be, the
same could not take place of the proof either
as to the accident or as to the suicide or even
homicide. The prosecution in the present case
failed to prove it's case of suicide by reason of
cruelty in connection with demand of dowry.
Therefore, learned court below committed
error in passing the judgment of conviction
under the aforesaid offences under Section
304B and 498A of the I.P.C. The judgment
and sentence deserves to be set aside.

35. It is well to remember that in cases
where the evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should in
the first instance be fully established, and all
the facts so established should be consistent
only with the hypothesis of the guilt of the
accused. Again, the circumstances should be
of a conclusive nature and pendency and they
should be such as to exclude every hypothesis
but the one proposed to be proved.

36. In view of the aforesaid, the appeal is
hereby allowed. The judgment and order dated
16.05.2002 passed by IXth Additional District
Judge and Sessions Judge, Lucknow in Crime
No.225 of 1997, Sessions Trial No.586 of
1998, Police Station Gomti Nagar, District
Lucknow (State Vs. Ishwar Deen and others)
convicting the each appellant to rigorous
imprisonment for two years under Section
498-A I.P.C. and a fine of Rs.5,000/- and in
default of payment of fine to further undergo
six months rigorous imprisonment and under
Section 304B I.P.C., ten years rigorous
imprisonment and a fine of Rs.20,000/- and in
11 All. Jagannath Vs. State
871
default of payment of fine to further undergo
two years rigorous imprisonment is hereby set
aside.

37. Appellants, namely, Ram Avadh
Yadav and Ishwar Deen Yadav are acquitted of
the charges levelled against them. They shall be
released forthwith if not wanted in any other
case.

38. Office is directed to communicate this
order forthwith to the court concerned and also
to send back the lower court record to ensure
compliance.
----------
(2021)12ILR A871
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.12.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 702 of 1988
Connected with
Criminal Appeal No. 754 of 1988

Jagannath ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
P.L. Misra, Amarjeet Singh, Amit Chaudhary,
Seraj Ahmad

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section - 307 - Proof of grievous hurt not a sine
qua non for the offence-12 wounds -weapon
used
was
firearm-intention
to
murder
apparent-second part of section 307 IPC is
attracted-prior
enmity-motive
provedconviction upheld-sentence reduced.

Appeal disposed. (E-9)

List of Cases cited:

1. Neelam Bahal & anr. Vs St. of Uttarakhand,
reported in (2010) 2 SCC, 229

2. St. of Mah. Vs Balram Bama Patill (1983)2 SCC 28

3. St. of M. P Vs Saleem (2005)5 SCC 554

4. Jage Ram Vs St.of Har. (2015)11 SCC 366
(Delivered by Hon'ble Karunesh Singh Pawar, J.)

1. These two criminal appeals arise out of a
common judgment and order dated 14.10.1988
passed by VII Additional Sessions Judge,
Sitapur in Sessions Trial No.218 of 1987
whereby the appellants Santu, Naresh, Ram
Shankar, Prem Narain, Bahori, Jagannath and
Bhudhar have been convicted and sentenced to
undergo rigorous imprisonment for three years
under section 148 I.P.C.. They are further
convicted under Section 307 I.P.C. read with
section 149 I.P.C. and each of them is sentenced
to undergo Rigorous Imprisonment for ten years.
Both the sentences of all the accused appellants
were directed to run concurrently.

2. As per the prosecution case narrated in
the written report, Ex.Ka.6, Lallu, father of the
accused Santu and Naresh was murdered. In the
said case, Santu had named Shiv Balak Ram,
complainant of the present case and others. At
the time of the present incident, the murder cases
was pending before the trial court. There was
enmity between the complainant and Santu and
others and a case under Section 107/117 CrP.C.
was also pending in the Court.

Due to the said enmity, on 23.6.1986
at about 6.00p.m. in village Shah Singhpur,
P.S. Kamlapur, district Sitapur when the
complainant Shiv Balak Ram was coming to
his home after attending natural call, near
Ahata of Ramasrey, situated towards north of
the village, he saw accused Santu, Hori Lal