# Smt. Sheela Devi v. State of U.P

- **Citation:** (2019) 2 ILRA 2163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-21
- **Case number:** Criminal Appeal No. 5449 of 2018
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sheela-devi-v-state-of-u-p-44713
- **Pages:** 13

## Headnote

A. Indian Penal Code, 1860 - Section 306
/ 34 - Appeal against conviction - A
conviction
on
mere
allegation
of
harassment without any positive action
in proximity to the time of occurrence on
the part of accused that led a person to
commit suicide is not sustainable under
section 306 IPC. (Para 24)

Grievance of dowry demand and consequential
harassment shall not be general in nature and
there should be some specific incident and
should have provocative capability to drive the
deceased to such distressed state, mental and
physical that she could elect to end her life.
Here the test of "person of common prudence"
must also be applied. (Para 24)

Failure to provide an opportunity to accused of
cross-examination of a prosecution witness
vitiates trail and it tantamounts to condemning
him unheard. (Para 29)

Criminal Appeal allowed (E-2)

List of cases cited: -
2164 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

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2 All. Smt. Sheela Devi Vs State of U.P.
2163
Arjun Pathak. The inquiry clearly reveals the
role of Arjun Pathak. It was Arjun Pathak
who had demanded and received the money,
though the tacit approval of the Appellant
was proved in the inquiry. The charge
leveled against Arjun Pathak was more
serious than the one charged against the
Appellant. Both the Appellants and other two
persons as well as Arjun Pathak were
involved in the same incident. After having
found that Arjun Pathak had a more serious
role and, in fact, It was he who had
demanded and received the money, he was
inflicted comparatively a lighter punishment.
At the same time, the Appellant who had
played a passive role was inflicted with a
more serious punishment of dismissal from
service which, in our view, cannot be
sustained."

58. Further a Division Bench of this
Court in the case of Sukh Ram Vs. State
of U.P. and others, 2018(4) ESC 1772
held in para 20 as under:-

"20. It is made clear that such a
comparison is permissible only when the
other employee(s) who is given lighter
punishment was a co-delinquent. Such a
comparison is not permissible by citing the
cases of other employees, as precedents, in all
together different departmental enquiries."

59. For the foregoing reasons, we
are of the considered opinion that there is
no illegality or infirmity in the impugned
jdugment passed by Tribunal.

60. The writ petition lacks merit and
is dismissed.
----------

(2019)10ILR A 2163

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.08.2019

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 5449 of 2018
with
Criminal Appeal No. 5696 of 2018
with
Criminal Appeal No. 5811 of 2018

Smt. Sheela Devi ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Muktesh Kumar Singh, Sri Ramkripal
Yadav, Sri Rajesh Yadav, Sri V.K. Srivastava.

Counsel for the Opposite Party:
A.G.A.

A. Indian Penal Code, 1860 - Section 306
/ 34 - Appeal against conviction - A
conviction
on
mere
allegation
of
harassment without any positive action
in proximity to the time of occurrence on
the part of accused that led a person to
commit suicide is not sustainable under
section 306 IPC. (Para 24)

Grievance of dowry demand and consequential
harassment shall not be general in nature and
there should be some specific incident and
should have provocative capability to drive the
deceased to such distressed state, mental and
physical that she could elect to end her life.
Here the test of "person of common prudence"
must also be applied. (Para 24)

Failure to provide an opportunity to accused of
cross-examination of a prosecution witness
vitiates trail and it tantamounts to condemning
him unheard. (Para 29)

Criminal Appeal allowed (E-2)

List of cases cited: -
2164 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Ghulam Mustafa Vs St. of U.K AIR 2015 SC
3101.
2. Gurucharan Vs St. of Panj. AIR 2017 SC 74.
3. Nachhatter Singh Vs St. of Panj. (2011) II
Cri. LJ 2292 (SC).
4. Mangat Ram Vs St. of Har. AIR 2014 SC
1782.
5. Dwarka Das Vs St. of J&K 1979 Cri LJ 550
(J&K).
6. Kartar Singh Vs St. of Panj. (1994) 3 SCC
569.
7. Mohd. Hussain Vs St. (Gov. of NCT of Delhi)
(2012) 2 SCC 584.
8. Sunil Mehta Vs St. of Guj. (2013) 9 SCC
209.
9. Anil Sharma Vs St. of Jharkhand (2004) 5
SCC 679.
(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. These criminal appeals have been
preferred against the judgment and order
dated 07.09.2018, passed by learned District
& Sessions Judge, Chandauli, in Sessions
Trial No. 178 of 2012 (State vs. Rakesh
Yadav), arising out of Case Crime No. 44 of
2009, under Section 306/34 IPC, Police
Station Baluwa, District Chandauli, whereby
the appellants Rakesh Yadav, Akhand Yadav
and Sheela Devi have been convicted and
sentenced under Sections 306/34 IPC for ten
years rigorous imprisonment and Rs.
50,000/- fine each and in default six months
additional imprisonment each. It has further
been directed that period already passed in
jail shall be adjusted against the sentence.

2. Brief facts of the case is that the
daughter of the complainant Bindu was
married to Rakesh Yadav, who was living
in the joint family of Dashrath Yadav and
Munni Lal. About three years and eight
months ago, a partition took place
between them and they started living
separately. At the time of partition, Munni
Lal had taken a loan of Rs. 1,00,000/-
from Dashrath Yadav. Therefore, accused
Munni Lal (Father-in-law), Rakesh Yadav
(Husband), Akhand Yadav (Jeth) and
Sheela Devi (Jethani) started pressurizing
and beating deceased Bindu to bring Rs.
1,00,000/- from her parents for payment
of aforesaid loan. On 22.02.2009, on the
occasion
of
Shivratri,
when
the
complainant went to meet his daughter
Bindu with Siya Ram Yadav, his daughter
asked him to arrange Rs. 1,00,000/-, if he
wants to see her alive. She told that her
in-laws will kill her as Dashrath Yadav is
regularly pressurizing for payment of
money. She also said that if the
complainant
will
not
arrange
Rs.
1,00,000/-, she will commit suicide with
her children. They tried to console her and
came
back.
On
25.02.2009,
the
complainant got information from her
another daughter Inda Devi that Bindu has
been beaten and forcibly expelled from
the house and whether she reached to him
or
not.
On
26.02.2009,
when
the
informant was going to Kailawar for
searching her daughter Bindu and her
children, in Chandauli, he was informed
by some persons that the dead bodies of a
woman and two children are lying on the
railway track. When he reached there, he
found that his daughter and her two
children had committed suicide after
coming under a train. A report was given
to Police Station Balua about the incident
on 26.02.2009 naming all the accused
persons and a case was registered against
them for offence under Section 306/34
IPC. His daughter was aged about 35
years and her daughter was aged about 14
2 All. Smt. Sheela Devi Vs State of U.P.
2165
years and her son was aged about 12
years.

3. The inquest report was prepared
and the dead bodies were sent for postmortem in the district hospital where the
post-mortem
was
conducted.
After
completing the investigation, charge sheet
was
submitted
against
the
accused
persons namely Munni Lal. Rakesh
Yadav, Akhand Yadav and Sheela Devi.
The case was committed for trial and
charge was framed against all the accused
persons for evidence under Section 306
IPC.

4.
 The prosecution
examined
Chowki Incharge, Kailawar Sri Moti Lal
as PW-1, Ramvriksh Yadav as PW-2,
Siyaram Yadav as PW-3, Inda Devi as
PW-4, retired SI Chandrakanti as PW-5
and Dr. Ravindra Nath Singh as PW-6.
They have proved the written report as
Exhibit Ka-1, site map as Exhibit Ka-2,
Charge sheets as Exhibits Ka-3 and Ka-4,
post-mortem reports as Exhibits Ka-5 to
Ka-7, chik first information report as
Exhibit Ka-8, G.D. Report as Exhibit Ka9, Inquest reports as Exhibits Ka-10 to
Ka-12 and the papers for sending the
three dead bodies for post-mortem as
Exhibits Ka-13 to Ka-26.

5. Accused Munni Lal died during
trial, hence the case against him was
abated. The statements of remaining
accused persons have been recorded
under Section 313 Cr.P.C., who admitted
the marriage but denied the prosecution
story. They stated it to be false that they
expelled the deceased persons from the
house after beating them. The fact is that
she along with her children had gone to
her parents on the occasion of Maha
Shivratri and while coming back from
there, she and her children got injured in
accident by train near Majhwar Railway
Station and died on spot. The death of all
deceased took place out of accident by
train but the complainant has filed a false
case against them. The accused persons
have
examined
in
defence
DW-1
Dharmraj Yadav and DW-2 Indrapal
Singh Yadav.

6. After hearing counsel for both the
parties and perusing the evidence on
record, the learned sessions judge by the
impugned
judgment
convicted
and
sentenced the accused persons.

7. Feeling aggrieved by the
impugned judgment, criminal appeals
have been filed on the ground that the
judgment is against the evidence on
record and is against law. The conviction
is wholly illegal and is liable to be set
aside. The offence under Section 306/34
IPC was not established against the
appellants.
The
statements
of
the
witnesses are contradictory and against
FIR version as well as site map. No
independent witness has been examined
and the witnesses examined, have turned
hostile. Clearly the accident took place by
train and there was no role of the
convicted
appellants,
therefore,
the
impugned judgment is liable to be set
aside and the accused persons are entitled
for acquittal.

8. Heard learned counsel for the
parties and perused the record.

9. PW-1 Moti Lal Yadav has been
examined to prove that the accused Munni
Lal has died and it has no relevance with
the prosecution case and during trial the
case against the accused Munni Lal has
been abated by the learned court below.
2166 INDIAN LAW REPORTS ALLAHABAD SERIES

10.

PW-2
Ramvriksh
Yadav
(complainant) has stated that Bindu was
married to accused Rakesh Yadav. Her
father-in-law and his brother had joint
family. A few years ago from the date of
incident, due to partition in the family,
they started living separately. Munni Lal
had taken a loan of Rs. 1,00,000/- from
Dashrath Yadav and for the payment of
the said loan, the accused persons were
demanding Rs. 1,00,000/- and treating
Bindu with cruelty and they used to beat
her. On 22.02.2009, when he went to
meet Bindu, she told him everything and
said
that
the
accused
persons
are
pressurizing
and
harassing
her
for
bringing Rs. 1,00,000/- and if this
continues, she will commit suicide. On
26.02.2009, when he came to Chandauli,
somebody told him that dead bodies of a
woman and two children are lying on the
railway
track.
He
went
there
and
recognized that it was the body of his
daughter and her two children. She
committed suicide with her children
because of dowry harassment by coming
under the train. He lodged the first
information report about the incident.

11. PW-3 Siyaram Yadav has stated
that Bindu was married to Rakesh Yadav
and after three or four years, she went to
her
in-laws
family
after
"Gaona".
Subsequently, a partition took place
between Munni Lal and Dashrath Yadav.
Munni Lal has taken a loan of Rs.
1,00,000/- from Dashrath Yadav after
partition and the in-laws of Bindu were
demanding Rs. 1,00,000/- for payment of
loan and harassing her. On 25.02.2009,
Indu, the real sister of the deceased
informed on telephone that Bindu has
been forced to leave the matrimonial
house after she has been beaten by her inlaws and when he and complainant went
to search her, she was found dead with
her children on the railway track. Bindu
committed
suicide
due
to
dowry
harassment.

12. PW-4 is Inda Devi, real sister of
the deceased Bindu has stated that her
sister was married with Rakesh Yadav.
The accused persons were harassing her
and the deceased had informed her on
25.02.2009 at 07:00 PM by telephone that
her in-laws used to beat her. She informed
her father for the same and on the next
day, the dead bodies of Bindu and her two
children were found on the railway track.
She
committed
suicide
because
of
harassment by the accused persons.

13. PW-5 is SI Chandrakanti has
investigated the case and has stated that
he recorded statements of the witnesses,
prepared the site plan of the place of
occurrence Exhibit Ka-2, and filed charge
sheet which is Exhibit Ka-3. She also
recorded the statements of other accused
persons and the witnesses of inquest. She
filed charge sheet also against accused
persons which is Exhibit Ka-4. She has
also proved other police papers.

14. PW-6 is Dr. Ravindra Nath Singh
who conducted the post-mortem of all the
three dead bodies. He has stated that on
26.02.2009, he was deputed at District
Hospital, Chandauli and he conducted
postmortem of the three dead bodies. On the
body of deceased Preeti following antemortem injuries were found :-

1. Lacerated wound on the left
side of face.

2. Abrasion 4x3 cm on the front
of both knees.

3. Lacerated wound 6x3 cm
above 5 cm from the right hand wrist.
2 All. Smt. Sheela Devi Vs State of U.P.
2167

4. Lacerated wound 10x4 cm on
the scalp, 8 cm above the left ear with
swelling around left eye.

Internal Examination

The fronto-peraital bone of
scalp was found broken, brain and brain
membranes were lacerated, both kidneys,
pleura, peritoneum and both lungs were
found pale. According to Doctor, death
occurred
due
to
shock
and brain
hemorrhage as a result of ante-mortem
head injuries caused in accident within 12
to 24 hours. He has proved postmortem
report as Ext. Ka-5.

15. On the same day postmortem of
the dead body of Bindu alias Indu was
conducted by the witness and following
injuries were found :-

1. Cranial conty was open was
open and empty, frontal bone was
lacerated, both eye ball was absent.

2. Lacerated wound 5x3 cm in
size on face.

3. Lacerated wound 2x2 cm on
right ear.

4&5. On the right side of chest
two contusions of 10x4 and 9x5 cm were
found.

6. Contusion 5x2 cm on right
cheek.

7. Loosening of upper teeth.

8. Contusion in the area of
60x20 cm on right side of back, on
stomach, right side of hip, on the back
side of right thigh, all connected with
each other.

9. Contusion 10x4 cm on the
right thigh and the bone was broken.

10. Contusion 10x4 cm on left
hand.

11 to 14. Multiple contusion and
abrasion on body, mandible fractured,
femur fractured.

Internal Examination

Frontal bone of scalp and skull
found crushed and fractured. Both eye
ball found absent. Contusion found on the
right side of abdomen in the area of about
10x4 cm. Brain and brain membranes,
base of skull were fractured, both kidneys,
pleura, peritoneum and both lungs were
found pale. According to Doctor, death
occurred
due
to
shock
and brain
hemorrhage as a result of anti mortem
head injuries caused in accident within 12
to 24 hours. He has proved postmortem
report as Ext. Ka-6.

16. On the same day, postmortem of
dead body of Ravi was conducted and
following injuries were found :-

1. Whole of the skull including
mandible amputated and missing.

2.Whole of neck lacerated and
crushed.

3.
Upper
limb
amputated
through shoulder.

4.
Lower
limb
amputated
through 10 cm below the knee joint.

5. Lacerated wound found on
the right leg 15x10 cm 5 cm below knee,
fracture was found.

6. Laceration on waist 10x3 cm
on the left side.

7. Multiple small contusion and
abrasion on whole body.

Internal examination

Scalp and skull, membranes,
brain and base of skull was damaged as
per injury mentioned above. Both kidneys,
pleura, peritoneum, pancreas, spleen and
both lungs were found pale. According to
Doctor,
death
occurred
due
to
instantaneous anti mortem injuries at
neck, vessels and spinal cord caused in
accident within 12 to 24 hours. He has
proved postmortem report as Ext. Ka-7.
2168 INDIAN LAW REPORTS ALLAHABAD SERIES

17. PW-6 Dr Ravindra Nath Singh
who conducted postmortem has stated
that the postmortem of the three dead
bodies was done by him in between 3.40
PM to 5 PM and the bodies were brought
by GRP, Mughalsarai. Deceased Bindu
Devi was aged about 35 years, Preeti of
14 years and Ravi was about 12 years old.
Rigor Mortise was present in all the three
dead bodies which was indicative of fact
that death must have occurred more than
12 hours before and all the injuries found
on the dead bodies must have come in a
train accident simultaneously and in one
go. Semi digested food was found which
indicates that they must have taken meals
2 1⁄2 to 3 hours prior to death.

18. From the reading of the
postmortem report, nature of injuries
found on the dead bodies and statement of
doctor, it is clear that all the three
sustained injuries and died due to injuries
which must have been caused by a
running train, may be accident or
otherwise. This is further supported by the
inquest reports of dead bodies Ext. Ka-10,
Ka-11 and Ka-12, prepared on 26.2.2009
from 9.20 AM to 12.30 PM before five
witnesses and all the witnesses and the
officer who prepared inquest report were
of the view that the deceased persons
must have died being hit by train.

19. The prosecution version is that
deceased Bindu was being harassed and
treated with cruelty by accused persons as
they were demanding one lac rupees for
repayment of loan taken by her father in
law and on the date of incident she was
expelled from her matrimonial house after
beating by accused persons along with
children and provoked by same she
committed suicide with her two children.
On the other hand, the defence has put a
case of denial and has put forward a case
of accident alleging that Bindu and her
children had gone to her parents on
Shivratri festival and while coming back
they got trapped as crossing gate was
closed and the accident took place by a
train resulting in their unfortunate death.
It has been also argued that the deceased
with her husband and children were living
separately from other accused and the
family was leading a good and happy
family life. Therefore, the issue which
was to be determined was whether it was
a case of accident or the deceased persons
committed suicide and if they committed
suicide, whether it has been proved by
prosecution that the accused persons
provoked and abetted them to commit
suicide.

20. Section 306 incorporates the
offence of abetment of suicide and the
main ingredients of the offence is the
suicidal death and abetment thereof. The
suicide is an intentional killing of oneself.
Section113-A
of
the
Evidence
Act
provides presumption as to abetment of
suicide by a married woman as below :-

"Abetment of suicide by a
married woman: When the question is
whether the commission of suicide by a
woman had been abetted by her husband
or any relative of her husband and it is
shown that she had committed suicide
within a period of seven years from the
date of her marriage and that her
husband or such relative of her husband
had subjected her to cruelty, the Court
may presume, having regard to all the
other circumstances of the case, that such
suicide had been abetted by her husband
or by such relative of her husband.

Explanation- For the purpose
of this section, "cruelty" shall have the
2 All. Smt. Sheela Devi Vs State of U.P.
2169
same meaning as in section 498-A of the
Indian Penal Code (45 of 1860)."

21. Explanation to section 498-A
IPC defines cruelty caused on wife by
husband or his relatives as follows :-

"(a) any willful 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."

22. It is pertinent to mention that at
the time of death Bindu was aged about
35 years and her daughter was about 14
years in age and son was of 12 years in
age. Thus, Bindu must have died nearly
15 years of her marriage and as such no
presumption will be available under
section 113-A of the Evidence Act and
the prosecution is required to establish the
facts constituting abetment in addition to
the fact of commission of suicide by three
deceased persons.

23. In Ghulam Mustafa vs State of
Uttarakhand, AIR 2015 SC 3101, the
Court held that a casual remark or
something said in a routine way or in
usual
conversation
should
not
be
construed or misunderstood to mean
'abetment.'
A
conviction
on
mere
allegation of harassment without any
positive action in proximity to the time of
occurrence on the part of accused that led
a person to commit suicide is not
sustainable under section 306 IPC. Again,
in Gurucharan vs State of Punjab, AIR
2017 SC 74, it has been held that to
constitute the offence under section 306
IPC, there should be a live link between
abetment and suicide and the intention
and involvement of the accused to aid or
instigate the commission of suicide is
imperative. So far as the grievance of
dowry
demand
and
consequential
harassment is concerned, it should not be
general in nature and there should be
some specific incident and should have
provocative
capability
to
drive
the
deceased to such distressed state, mental
and physical that she could elect to end
her life.

24. In Nachhatter Singh vs State of
Punjab, (2011) II Cri. LJ 2292 (SC), the
court remarked that in case of abetment of
suicide by married woman, the cruelty
and harassment meted out must be of
nature to drive a person of common
prudence to commit suicide. Every
quarrel between husband and wife which
results in suicide cannot be taken to
abetment by husband. For abetment,
standard of reasonable or practical woman
as compared to headstrong and over
sensitive one is to be applied. In Mangat
Ram vs State of Haryana, AIR 2014 SC
1782, it was laid down that a woman can
commit suicide for various reasons, such
as,
depression,
financial
difficulties,
disappointment in love, tired of domestic
worries, acute or chronic ailments and so
on and need not be due to abetment.
Therefore, reasoning that no prudent
woman will commit suicide unless
abetted by someone is perverse and not
sustainable
under
law.
In
Ghulam
Mustafa vs State of Uttarakhand, AIR
2015 SC 3101, the Court held that a
casual remark or something said in a
2170 INDIAN LAW REPORTS ALLAHABAD SERIES
routine way or in usual conversation should
not be construed or misunderstood to mean
'abetment.' A conviction on mere allegation
of harassment without any positive action in
proximity to the time of occurrence on the
part of accused that led a person to commit
suicide is not sustainable under section 306
IPC. Again, in Gurucharan vs State of
Punjab, AIR 2017 SC 74, it has been held
that to constitute the offence under section
306 IPC, there should be a live link between
abetment and suicide and the intention and
involvement of the accused to aid or
instigate the commission of suicide is
imperative. So far as the grievance of dowry
demand and consequential harassment is
concerned, it should not be general in
nature and there should be some specific
incident and should have provocative
capability to drive the deceased to such
distressed state, mental and physical that
she could elect to end her life.

25. Though, Gurucharan vs State of
Punjab (supra) was a case based on dowry
harassment, the last four lines mentioned in
bold letters are still relevant and they require
specific incident, and not general allegations,
having provocative capability to drive the
deceased to such distressed state, mental and
physical that she could elect to end her life.
Routine behaviour, remark or quarrel by
husband in matrimonial life in a drunken state
cannot be taken to be sufficient to the extent to
constitute abetment unless something extraordinary, more than normal wear and tear of
married life, is shown on or just before the
date of incident. The burden of proving close
link, in proximity of time between abetment
and suicide, heavily lies on prosecution and
the
prosecution
has
utterly
failed
in
discharging this burden.

26. Now coming to the facts of this
case. Three fact witnesses have been
examined by the prosecution. PW-2 is the
father and informant and from his
statement
in
examination-in-chief,
it
appears that he has stated that when he
went to his daughter Bindu on 22.2.2009,
she told about cruelty and harassment by
accused persons on account of demand of
one lac rupees for repayment of debt and
she was so disturb that she wanted to
commit suicide. He also stated that he got
a report scribed and lodged FIR. When he
was
put
to
cross-examination,
he
disowned his FIR and said that he did not
lodge any such FIR nor he signed over it
and he does not know who wrote the same
and who delivered it to police. He has
also stated that her married life was happy
and there was no complaint from either
side.

27. There is one more aspect in
relation to PW-2 which has not been
considered by the learned trial court.
From the perusal of the statement of PW2 it appears that his cross-examination
was not completed and the same was
continued on 29.9.2016 and the case was
fixed for remaining cross-examination on
4.11.2016,
7.11.2016,
7.12.2016,
2.2.2017,
18.3.2017,
15.5.2017,
29.6.2017,
17.8.2017,
28.9.2017,
15.11.2017, 28.11.2017, 12.12.2017 and
3.1.2018, but the prosecution did not
produce PW-2 for cross-examination
during trial, although, other prosecution
witnesses were examined. This resulted in
the denial of the valuable right of the
accused to cross-examine the witness. It
has been nowhere mentioned in the ordersheet that the witness was not produced as
he was not traceable or had died. It has
also not been shown that the opportunity
of cross-examination was closed by the
court by a specific order to that effect.
Moreover, he has himself disowned the
2 All. Smt. Sheela Devi Vs State of U.P.
2171
FIR and statement of such witness cannot
become basis for conviction and if at all
such statement could be used, the same
may be for the support of other evidence.

28. The main object of crossexamination is to find out the truth and
detect falsity in the testimony of a
witness. According to Powell (Law of
Evidence, 10th Edition, 463) the objects
of cross-examination are to impeach the
accuracy, credibility, general value of the
evidence given in-chief, to shift the facts
already stated by the witness, to detect
and expose discrepancies, or to elicit the
suppressed facts which will support the
case
of
the
cross-examining
party.
Phipson (On Evidence, 15th Ed., 2000,
para 11-17) has remarked that 'the object
of cross-examination is two fold- to
weaken, qualify, or destroy the case of
the opponent; and to establish the party's
own case by means of his opponent
witness.'

29. In Dwarka Das vs State of J&K,
1979 Cri LJ 550 (J&K), it has been
observed
that
the
right
of
crossexamination is referable not only to
section 138 of the Evidence Act but is one
of the principles of natural justice that
evidence may not be read against a party
until the same has not been subjected to
cross-examination,
or
at
least
an
opportunity has not been given for crossexamination. Section 138 impliedly lays
down that the statement of a witness
would be read as evidence against a party
only when it had been tested on the anvil
of cross-examination or opportunity was
afforded for the purpose. The testimony
of a witness is not a legal evidence unless
subjected to cross-examination. In Kartar
Singh vs State of Punjab, (1994) 3 SCC
569 and Mohd. Hussain vs State
(Government of NCT of Delhi) (2012) 2
SCC 584, it has been held that the right of
cross-examination is included in the right
of accused in a criminal case, to confront
the witness against him not only on facts
but also to discredit the witness by
showing that his testimony in-chief was
untrue and biased. Failure to provide an
opportunity
to
accused
of
crossexamination
of
prosecution
witness
vitiates the trial. In Sunil Mehta vs State
of Gujarat, (2013) 9 SCC 209, it has been
further held that in a criminal case, using
the testimony of a witness at the trial
without
giving
the
accused
the
opportunity
of
cross-examination,
is
tantamount to condemning him unheard.

30. The purpose of the above
discussion is to indicate that the evidence
of PW-2 cannot form basis for conviction
as he was not produced for crossexamination and a very little crossexamination (ten to fifteen lines) which
was conducted by the defence, that too
demolished the credibility of the witness
as he denied that any written report was
given and FIR was lodged by him and that
he did not know who signed over the
same. Moreover, he stated about the good
matrimonial life of deceased. It is also
pertinent to mention that the witness was
not declared hostile. After that little crossexamination, he did not turn up nor he
was
further
produced
for
crossexamination.

31. PW-3 Siyaram is brother of PW2 and he claims to be present with him
when they visited to the in-laws of the
deceased. But the fact that he also
accompanied the informant does not find
mention in the statement of PW-2. PW-3
has stated in his cross-examination that
Bindu used to come to her parents and
2172 INDIAN LAW REPORTS ALLAHABAD SERIES
used to return to her husband after staying
a day or two. He has also stated that in his
knowledge there was no dispute of any
kind
between
two
sides.
Very
importantly, he has stated that he cannot
say whether Bindu and two sons died out
of train accident or they committed
suicide. He has stated that for the first and
last time he went to in-laws of Bindu on
22.2.2009 and nothing was demanded by
her in-laws, their stay there was very
cordial and Bindu and her children raised
no complaints. He says that both the
children were born in her laws house and
all the arrangements were made by inlaws and they were given usual education
by them and daughter was studying in
class 9th and son was studying in
7thclass. Thus, the statement of this
witness does not prove the prosecution
version on the point of demand, cruelty
and harassment or abetment and he is not
sure
whether
the
deceased
persons
committed suicide.

32. PW-4 Inda, sister of deceased,
has stated that the deceased informed her
on phone on 25.2.2009 that the accused
persons are treating her with cruelty and
have committed maar-peet and she will
not live there. She informed the same to
her father. PW-2 has said nothing about
this information in his statement. In the
cross-examination, PW-3 Siyaram has
said it, but he has been contradicted on
this point with reference to his statement
recorded by IO in which he has not stated
that fact. Then, the information, if any,
was given to the father of deceased and
not to PW-3. It is also pertinent to
mention that the witness has admitted that
the deceased and she, both do not have
any mobile phone nor prior to incident,
they ever talked to each other and there
was mobile connectivity between them.
Therefore, it is doubtful that the deceased
talked to her or she further informed to
her father. She has further stated that the
deceased and her husband were living
separately from other accused her brother
in law and his wife and as such, it is
highly doubtful how they abetted the
deceased.

33. PW-4 Inda has further stated
about good and happy married life of
deceased as after marriage she used to
happily come to her parents whenever she
liked and there was no restriction on her.
Her two children were studying and they
were happy and healthy. The deceased
never made any complaints about her
husband and in-laws. She has stated that
to go to the parents and on coming back
to in laws, one has to step over the
railway track and after crossing the
railway track, another means of travel is
to be taken for both sides. She has further
stated that there was no complaint to
deceased before the accident. She has
admitted that because of death of
deceased and her children, her father and
family became emotional and angry.

34. The statement of PW-5 IO Ms
Chandrkranti is very relevant who has
stated that during investigation, she found
that
Munnilal
and
Dashrath
were
separated a long back and there was no
dues of one lac rupees and this fact was
found to be wrong in investigation. She
has stated that the deceased persons died
out of train accident while crossing the
railway track at railway crossing situated
at Chandouli-Sakaldiha road in the west
of Majhwar railway station. She has also
stated that there was no evidence of
cruelty and harassment by accused
persons for any demand of one lac rupees.
She has also stated that witness Siyaram
2 All. Smt. Sheela Devi Vs State of U.P.
2173
(PW-3) never stated to her about Inda
Devi informing him on phone that Bindu
has been expelled by accused persons
after beating her. Proving Ext. Ka-25, the
witness has stated that about the accident
GRP Moghulsarai was having prior
information and the dead bodies were
removed from railway track and were
kept near the railway track in front of
Police Chowky, Chandouli and from there
the dead bodies were taken in possession
and proceeding of inquest was conducted.
Pw-5 has also stated that none of the
witnesses examined by her stated that the
deceased persons committed suicide by
jumping over the track. She has also
stated that it came to her knowledge
during investigation that the deceased and
her children had gone to her parents 2 to 4
days before prior to accident. It is notable
that it has been specific case of defence
that the deceased and her children had
gone to her parents on the occasion of
Maha Shivratri and while returning when
trying to cross railway track at the railway
crossing they were hit by train and died in
accident. The statement of IO supports the
defence version and it cannot be ignored
nor it can be said that the IO has given
false statement for which she had no
reason. The learned trial court appears to
have adopted a very casual approach in
rejecting the statement of IO. If her
statement was suffering from infirmity,
the benefit in such circumstances should
have been given to the accused persons.

35. The two witnesses who have
been examined by the defence DW-1
Dharmraj Yadav and DW-2 Indrpal Singh
Yadav have stated that the deceased and
her children had gone to her parents on
Maha Shivratri and while coming back
they sustained injuries by train accident
when they were crossing the railway
track. They have also stated that married
life of the deceased was good and cruelty
and harassment on her was never heard.
Both these witnesses come in relation of
Bindu from her maternal side and they
have stated that accused Akhand and
Sheela got separated and Bindu and her
husband used to live with Munnilal. The
children of deceased were studying in the
Junior High School, Mathela and the
deceased had full liberty to go to her
parents whenever she wished. There was
no complaint of any harassment. When all
the three died in accident, her father
lodged case out of anger and emotions. A
similar statement has been given by PW-4
Inda Devi.

36. In Anil Sharma Vs. State of
Jharkhand, (2004) 5 SCC 679, it has
been held that an accused can examine
himself u/s 315 CrPC as a defence
witness and equal treatment should be
given to the evidence of prosecution and
defence. Standard and parameter for
evaluation of evidence is the same
whether it is a prosecution witness or
defence
witness.
Unfortunately,
the
learned trial court has applied different
yardstick for evaluation of defence
witness and has discarded their testimony
on the ground that they have good
relations with accused persons and have
been brought by accused side to give
evidence. If this was a good ground for
rejecting their testimony, the prosecution
witnesses
are
closely
related
with
complainant as he is father of the
deceased and PW-3 and PW-4 are his
brother and daughter. Moreover, the
defence witnesses are also relatives of the
complainant and as such their testimony
assumes greater weight, more so when the
prosecution witnesses also have stated in
such way that there appears to be greater
2174 INDIAN LAW REPORTS ALLAHABAD SERIES
possibility of deceased dying out of
accident.

37. There is one more perspective on
the basis of which a conclusion of death
by accident finds support. The age of the
daughter at the time of incident was about
14 years. PW-1 has stated that the
daughter was born after 6-7 years of
marriage. PW-2 has stated that after 3-4
years of marriage, her GAUNA (a
matrimonial ceremony when the girl for
the first time goes to her in-laws) took
place. DW-1 and DW-2 have also stated
that both were married 20-25 years
before. In every case the marriage must
have taken place 20 years ago. Therefore,
it is not a case of suicide by a young
bride. After 20 years of marriage where
the matrimonial life of deceased was good
and happy as two children were born to
her, and she had enough freedom and
could go to her parents alone and come
back, a freedom which is not much seen
in village life, more particularly when
prosecution
has
alleged
harassment.
When the life of deceased was enough
settled, it does not suit to reasoning that
she could have been in any way abetted to
commit suicide. There is no allegation
that the children were also put to cruelty
or they were also beaten before the
incident. They were studying and were
leading happy and healthy life. In such
case there was no occasion for them to
commit suicide. They were aged about 14
and 12 years and in their age, children
attain sufficient understanding and it
cannot be reasonably believed that they
could get prepared to commit suicide
merely on saying of their mother. On the
contrary, they could check their mother
from committing suicide. This is also
indicative of an unfortunate accident in
which they all lost their lives.

38. There is no principle of law that
wherever wife commits suicide, the
husband will bear the responsibility and
will be held liable. Where marriage of
both has passed about 15-20 years, two
children were born and both studying in
school in a usual way and the family is
leading happy life, general allegation of
harassment cannot be sufficient to hold
the accused persons guilty for the offence
of abetment of suicide. It has not been
stated by the prosecution witnesses that
any demand was made by the accused
persons before them or from them. No
witness has been examined to show
cruelty and harassment with the deceased
before the incident or abetment in
proximity of time for committing suicide.
Postmortem report shows that semidigested food was found and that
indicates that deceased have taken meals
and it also falsifies that she was not given
food
on
account
of
cruelty
for
pressurizing the demand. The trial court is
required to look into all the circumstances
of the case and to attract the offence under
section 306 IPC, the alleged cruelty,
instigation or encouragement by accused
should not only be proved by prosecution
but also be of such nature which leaves no
option to the deceased except to commit
suicide. From the evidence on record and
attending
circumstances
as
well
as
postmortem report of dead bodies, a
possibility of deceased loosing life due to
accident appears to be more probable in
comparison to their committing suicide.
There is no evidence led by prosecution
that there was abetment of such grave
nature which was likely to drive them to
commit suicide in group. The witnesses of
prosecution also do not disclose any
serious fact creating a panic situation for
all to commit suicide. The prosecution
evidence if considered in totality, makes
2 All. Sarfaraz Ali & Anr. Vs State of U.P.
2175
out a case of accident rather than a
suicide.

39. On the basis of above discussion, I
find that the conviction and sentence
recorded by the learned trial court suffers
from perversity and the impugned judgment
is not sustainable under law.

40. Therefore, all the three appeals
are allowed and the impugned judgment
and order dated 07.09.2018, passed by
learned
District
&
Sessions
Judge,
Chandauli, in Sessions Trial No. 178 of
2012 (State vs. Rakesh Yadav), arising
out of Case Crime No.