JUDGMENT : Aniruddha Singh, J. 1. Heard Mr. Kamal Krishna, learned Senior Advocate assisted by Sri Raj Kumar Tripathi, learned counsel for the appellants as well as Ms. Usha Kiran assisted by Sri Rajesh Kumar Mishra, learned A.G.A. for the State. 2. Both the appeals have arisen out of same judgment and order, hence they were heard together and are being decided by common judgment. 3. These criminal appeals have been filed by appellants Smt. Noori @ Noorjahan (Nanad), Smt. Nanhi (mother-in-law), Isteyak Ahmad (brother-in-law), Imran Ahmad (brother-in-law) and Guddu @ Asfaq Ahmad (husband) of the deceased Praveen Bano against the impugned judgment and order dated 21.1.2017 passed by Additional Sessions Judge, Court No. 5, Allahabad, convicting appellants under Section 498A, 304-B IPC and Section 4 Dowry Prohibition Act and sentencing them to life imprisonment under Section 304-B IPC and for one year R.I. with fine of Rs. 5,000/- under Section 4 Dowry Prohibition Act and in case of default of payment of fine to undergo for 3 months R.I. in Session Trial No. 725 of 2004 (State vs. Ishteyak Ahmad and Imran Ahmad) under Section 498A, 304-B, 323, 506 and 427 IPC and Section ¾ Dowry Prohibition Act and Session Trial No.236 of 2006 (State vs. Smt. Nanhi and two others) arising out of Case Crime No. 290 of 2003 under Section 498-A, 304-B IPC and ¾ Dowry Prohibition Act, Police Station Nawabganj, District Allahabad. All the sentences have been directed to run concurrently. 4. Prosecution story in brief is that P.W. 1 Taukir Ahmad brother of the deceased has lodged a report(Ext. Ka-9) on 2.10.2003 stating/narrating that his sister Parveen Bano, aged about 27 years married before one and half year to Guddu @ Asfaq and there was a six months old female child out of their wedlock. Her husband Guddu @ Asfaq Ahmad was residing at Bombay and other accused Smt. Noori @ Noorjahan (Nanad), Smt. Nanhi (mother-in-law), Isteyak Ahmad (brother-in-law), Imran Ahmad (brother-in-law) were residing with the deceased. They were demanding dowry of Rs.1,00,0-00/- and torturing the deceased. On 1/2 October, 2003 in the night Smt. Noori @ Noorjahan (Nanad), Smt. Nanhi (mother-in-law), Isteyak Ahmad (jeth) and Imran Ahmad (brother-in-law) have beaten deceased and killed her by administering poison in her food. They were demanding dowry of Rs.1,00,0-00/- and torturing the deceased. On 1/2 October, 2003 in the night Smt. Noori @ Noorjahan (Nanad), Smt. Nanhi (mother-in-law), Isteyak Ahmad (jeth) and Imran Ahmad (brother-in-law) have beaten deceased and killed her by administering poison in her food. F.I.R. Version(in Hindi) is quoted below:- " lsok esa Jheku Fkkuk/;{k egksn; Fkkuk uckoxat bykgkcknA egksn;] fuosnu gS fd izkFkhZ rkSdhj vgen iq= Jh jlhn xzke es.Mkjk Fkkuk ucko xat ftyk&bykgkckn dk LFkk;h ,oa 'kkfUr fiz; ukxfjd gS ftldh cgu izohu okuks mez yxHkx 27 o"kZ dh 'kknh Ms<+ o"kZ iwoZ xqM~Mw mQZ vlQkd xzke beke xat] yky xksiky xat Fkkuk uckoxat ds lkFk gqbZ FkhA ftlls ,d 6 ekg dh yM+dh dk tUe Hkh gqvk gSA izkFkhZ dh cgu ds ifr bu fnuksa cEcbZ esa gS mudh eka uUgh iRuh Lo0 xuh] HkkbZ bf'r;kd] bejku] bljkj o valkj gkfQt iq=x.k Lo0 xuh rFkk cgu uwjh mQZ uwjtgka] vkfn izk;% izrkfM+r dj ,d yk[k :i;s dh ekax djrs jgs tks bu fnuksa dkQh ekjhiV djus yxs FksA ftldh lwpuk 27@9@03 dks Jheku th dks lwpuk fyf[kr izkFkZuk i= fn;k FkkA ijUrq dksbZ fujks/kkRed dk;Zokgh ugha gks ldh vkSj izkFkhZ o mldh cgu dks tku ls ekj Mkyus dh /kedh nsrs jgsA tks chrhjkr 1@2 vDVwcj dh jkr lkl uUgha o uun uwjh mQZ uwjtgka tsB bf'r;kd] nsoj bejku] o bljkj vkfn ekjihV dj [kkuk esa tgj nsdj gR;k dj nh ftldh yk'k dh lwpuk es.Mkjk fLFkfr edku esa iM+h VsyhQksu ij feyh ekSds ij tkdj ns[kk rks yk'k iM+h gS vkSj ?kj ds yksx ge lHkh dks ns[k Hkkx fudys tkrs le; izkFkhZ ds mij tku ysok geyk Hkh fd;s ftlls pksVsa Hkh vk;h o diM+s QV x;s gSA fdlh rjg tku cpkdj Fkkus vk;k gwW lwpuk ntZ dj dkuwuh dk;Zokgh djus dh d`ik djsaA izkFkhZ rkSdhj vgen iq= jlhn vkj@vks es.Mkjk ih0,l0 uckoxat] bykgkckn ekS0 rkSdhj fnukad 2&10&03A "" 5. On the basis of Ext. Ka-9 FIR was lodged on 2.10.2003 at 11:30 A.M.. The entry was made in G.D. As Crime No. 290/03 under Section 498A, 304B, 323, 506, 427 IPC and ¾ Dowry Prohibition Act. Panchayatnama (Ext.Ka-10) was prepared. Then the body of deceased was sent for Post mortem. The post mortem was done and the report is Ext. Ka-11. In the post mortem report, no injury was found but there was suspicion of poison. Panchayatnama (Ext.Ka-10) was prepared. Then the body of deceased was sent for Post mortem. The post mortem was done and the report is Ext. Ka-11. In the post mortem report, no injury was found but there was suspicion of poison. Visra was preserved and sent to 'Vidhi Vigyan Prayogshala', U.P., Mahanagar, Lucknow for chemical examination, in which poison of "Aluminium Phosphide" was found. 6. After recording statements of witnesses and preparing the site plan(Ext. Ka-5) and other relevant papers, charge sheet Ka-6 and Ka-8 were submitted by the Investigating Officer against Nanhi, Smt. Noori @ Noorjahan, Guddu @ Ashfaq Ahmad, Isteyak Ahmad, Israr Ahmad and Imran. Israr was declared juvenile and his case was separated, and Final Report was submitted in respect of Ansar. 7. On 10.5.2006 charges were framed against Nanhi, Noori @ Noorjahan and , Guddu @ Ashfaq and on 3.6.2005 against Isteyak and Imran on 3.6.2005 under section 498A, 304-B IPC and Section 4 of Dowry Prohibition Act. 8. Prosecution produced 7 witnesses namely PW-1 Mohd Taukeer (brother of deceased), PW-2 Smt. Akeela Bano (mother of deceased), PW-3 Rajesh Kumar Yadav, C.O.(I.O.), PW-4 CP 1619 Ram Bahadur Singh, PW-5 Neeraj Prasad, Nayab Tehsildar, PW-6 G.K. Misra, PW-7 Harish Lal Dwivedi. 9. After closing evidence of prosecution, statements of accused were recorded under Section 313 Cr.P.C. wherein they denied the charges and specifically submitted that witnesses are interested and deceased would have committed suicide because her husband refused to take alongwith him to Bombay due to paucity of accommodation. They also submitted that deceased was living separately in one room on upper part of same house and examined five witnesses in defence DW-1 Firoz Akhtar, DW-2 Abdul Zabbar,DW-3 Mohd. Gufran, DW-4 Muntzir Husain and DW-5 Pradeep Kumar Kesarwani. 10. The trial Court after hearing both the sides on merits of the case, and appreciating and evaluating testimony on record, recorded conviction against accused persons and sentenced them to imprisonment as mentioned above. Consequently this appeal. 11. The prosecution produced witnesses of fact PW-1 Mohd. Taukeer(brother of deceased) and PW-2 Akeela Bano(mother of deceased). Other witnesses are formal witnesses. 12. We have to decide whether the prosecution has proved charges levelled against accused persons beyond reasonable doubt or not. 13. Consequently this appeal. 11. The prosecution produced witnesses of fact PW-1 Mohd. Taukeer(brother of deceased) and PW-2 Akeela Bano(mother of deceased). Other witnesses are formal witnesses. 12. We have to decide whether the prosecution has proved charges levelled against accused persons beyond reasonable doubt or not. 13. Word 'proved is defined under Section 3 of Evidence Act as under:- "Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 14. According to prosecution case, there are two allegations for demand of dowry against the accused. First demand of Rs.50,000/- for going to 'Saudi Arab' and second demand of Rs.1,00,000/- for opening garage. In examination-in-chief PW-1 and PW-2 supported the prosecution case but in cross-examination they could not prove that from where they could arrange for Rs.50,000/- for giving as dowry on demand. PW-1 deposed in his statement that he arranged Rs.50,000/- by encashing 'hundi' but he could not explain from where he encashed the same. He also admitted that this fact was not mentioned in FIR nor in statement under Section 161 Cr.P.C. It appears that this statement has come before Court first time in evidence of PW-1 and PW-2, hence these statements come into the category of improvement. Hence, this statement has no significance as it was held by the Apex Court in the case of Rudrappa Ramappa Jainpur vs. State of Karnataka (2004) 7 SCC 422 . Moreover, these statements are not corroborated by any other evidence. Hence testimony of these two witnesses are not trustworthy to accept on this point. Before this incident complainant never made any complaint before any body against the accused regarding demand of dowry nor there was any litigation in between the deceased and family members of her husband. This Court does not find existence of demand of dowry so probable that a prudent man ought to suppose its existence. Hence question of demand of dowry of Rs.50,000/- is not proved against appellants beyond reasonable doubt. 15. PW-1 and PW-2 both could not prove the demand of Rs.1,00,000/- for giving to the husband of deceased. This Court does not find existence of demand of dowry so probable that a prudent man ought to suppose its existence. Hence question of demand of dowry of Rs.50,000/- is not proved against appellants beyond reasonable doubt. 15. PW-1 and PW-2 both could not prove the demand of Rs.1,00,000/- for giving to the husband of deceased. Moreover, on this point in the case of Vipin Jaiswal(A-1) vs. State of Andhra Pradesh and others, 2013(3) SCC 684 it was held by the Apex Court that demand of Rs. 50,000/- for purchase of computer after six months of marriage cannot be said to be demand of dowry within the meaning of Section 2 of Dowry Prohibition Act, 1961. 16. There are major contradictions about the demand of dowry in the statements of PW-1 and PW-2. Moreover, PW-1 and PW-2 both are brother and mother of the deceased, hence they are interested witnesses. Hence, on this point statements of PW-1 and PW-2 are not trustworthy to accept and conviction can not be based on evidence of both these witnesses. The Court has to adopt careful approach in analysing the evidence of such interested witnesses as it was held by the Supreme Court in the case of Santosh Devidas Bahade vs. State of Maharashtra 2009(4) Supreme 380 . 17. In the case of Appasaheb and Another vs. State of Maharashtra (2007) 3 SCC 468 it has been held by the Apex Court that demand made by accused appellants from parents of deceased to meet domestic expenses and for purchasing manure cannot be said to be a demand for dowry. Since an essential ingredient of Section 304-B IPC viz. Demand for dowry was not established, the conviction of the appellants could not be sustained. 18. In the present case, even if it is presumed that Rs.50,000/- and Rs.1,00,000/- was demanded for going to Mumbai and establishing garage in Mumbai for livelihood, it cannot be said to be a demand of dowry. 19. So far as administering poison (mixing in food) to the deceased is concerned, one person was sufficient to mix poison in the food, there was no need of five persons to do the same. Hence prosecution story seems unnatural and unbelievable. 20. 19. So far as administering poison (mixing in food) to the deceased is concerned, one person was sufficient to mix poison in the food, there was no need of five persons to do the same. Hence prosecution story seems unnatural and unbelievable. 20. In the case of Jaipal vs. State of Haryana 2003 SCC(Cri) 250 it has been held that sulfas (aluminium Phosphide) is having very strong smell and its consumption creates burning pain in the mouth etc. 21. In the present case, it is not believable that deceased was administered poison by mixing in her food because aluminium phosphide is very strong smelling substance and its consumption generates burning pain in the mouth, throat and stomach and the deceased could have recognized or have become cautious that there was poison mixed in her food. There is more probability that deceased had committed suicide by consuming poison herself out of rage as her husband denied to take her with him to Mumbai. On the basis of observation given by the Apex Court, the theory of administering poison by five accused is not believable hence fails, and conviction cannot be sustained on this theory. 22. Hence it is not proved beyond reasonable doubt that accused persons administered poison in the food and supplied to the deceased. Evidence on the record shows that deceased had consumed poison by herself. It is also pertinent to mention here that there is not even a single injury found on the body of deceased. Only visra was preserved. It is also a circumstance to denote that the story of administering poison in the food of deceased is concocted one and a prudent man can not believe the same. 23. It is pertinent to mention here that PW-1 and PW-2 are neither independent witnesses nor eye witnesses of the incident. They were not present at the time of incident. Testimony of these two witnesses about administering the poison in the food of deceased seems hypothetical, imaginary and based on hearsay evidence as well as suspicion. Hence evidence of these witnesses are neither reliable nor trustworthy. 24. Defence witnesses i.e. DW-1 to DW-5 all have categorically deposed in their statements that Isteyak Ahmad and husband of deceased both were living at Mumbai. The deceased was living in one room of her matrimonial house and accused have never demanded dowry or tortured the deceased for demand of dowry. 24. Defence witnesses i.e. DW-1 to DW-5 all have categorically deposed in their statements that Isteyak Ahmad and husband of deceased both were living at Mumbai. The deceased was living in one room of her matrimonial house and accused have never demanded dowry or tortured the deceased for demand of dowry. The offence under Sections 498-A/304-B IPC and ¾ Dowry Prohibition Act does not prove beyond reasonable doubt. The deceased was insisting upon living with her husband at Mumbai and her husband could not take her to Mumbai due to paucity of accommodation, hence she committed suicide by consuming poison herself out of rage. From evidence of these defence witnesses, it comes out that accused have neither demanded dowry nor tortured the deceased. 25. According to the prosecution case, a letter dated 27.9.2003 was written by deceased Praveen Bano stating therein that her husband and his family members demanded Rs.1,00,000/- and threatened to kill her, which was filed before the lower Court (Ext. Ka-3). But this letter is undated and unsigned, and writing of deceased in this letter was neither compared nor any opinion of handwriting expert was obtained to prove that this letter was written by the deceased herself. It is also not proved that this letter was written just before the death of the deceased. Hence this letter is not reliable. Even if it is presumed that this letter was written by deceased, then also it shows only demand of Rs.1,00,000/- by her husband for the purpose of business. It is admitted fact that the Investigating Officer had asked to provide handwriting of deceased to compare with the said letter but PW-1 and PW-2 failed to provide the same. Neither PW-1 and nor PW-2 deposed that they have seen deceased writing nor expert opinion was obtained. It is admitted by PW-1 that said letter was given to the Investigating Officer on 18.10.2003 though the FIR was lodged on 1/2.10.2003 at 14 hours. Though the letter is exhibited as Ka-3 but it was not proved according to law, hence has no evidentiary value. 26. The allegation made against the accused for demand of dowry is general in nature. It is admitted fact that co-accused had informed the brother of deceased about her death over telephone. In the inquest report, there is nowhere mention about demand of Rs.1,00,000/-. 27. 26. The allegation made against the accused for demand of dowry is general in nature. It is admitted fact that co-accused had informed the brother of deceased about her death over telephone. In the inquest report, there is nowhere mention about demand of Rs.1,00,000/-. 27. From perusal of record and evidence led by prosecution, it is admitted that Ansar was named in the FIR but after investigation, Final Report was submitted and no protest petition was filed against the said Final Report. It was also admitted that she was living separately in a room on upper part of the matrimonial house. Further it is also admitted that Noori @ Noorjahan (Nanad) is a married lady and her marriage was solemnized before the marriage of deceased. 28. Now a days, there is general tendency in the society to falsely implicate a large number of persons in the case of dowry death due to other reasons. It is unfortunate. 29. PW-1 has admitted that notice through Sri Haidar Abbas, Advocate was given to accused to return the articles given in dowry at the time of marriage. 30. Both PW-1 and PW-2 reached the house of deceased at 8 a.m. and both have deposed that Israr had beaten deceased and torn her clothes but in this respect there is neither any evidence in the medical report nor torn clothes were found on her body. Thus evidence on this point against accused is not reliable. 31. The prosecution witnesses PW-1 and PW-2 also deposed that before 3-4 days of incident they made a written complaint to the police regarding demand of dowry and harassment of deceased but there is no evidence on record to prove this fact. PW-2 deposed in her examination-in-chief that husband of deceased demanded Rs.1,00,000/- from the deceased over telephone from Mumbai. PW-2 clearly deposed that demand of Rs.1,00,000/- was made by the husband only. It appears that other accused were not involved in demand of money. She also admitted that she has received information of death of deceased over telephone. 32. It has also come in evidence that Taukir(brother of deceased) and Imran(brother of husband) both were studying in class X and due to this relation, marriage of deceased was solemnized. There was no mediator. It appears that appellants neither demanded nor received any dowry at the time of marriage. 32. It has also come in evidence that Taukir(brother of deceased) and Imran(brother of husband) both were studying in class X and due to this relation, marriage of deceased was solemnized. There was no mediator. It appears that appellants neither demanded nor received any dowry at the time of marriage. PW-2 admitted that she had given a motorcycle at the time of marriage but it was in the name of her daughter/deceased. Hence it does not come in the definition of dowry. 33. It is proved by the statements of DW-1 to DW-5 that deceased had committed suicide by consuming poison herself out of rage, as her husband denied to take her with him to Mumbai. It is also admitted by the accused/husband in his statement under Section 313 Cr.P.C. that deceased was insisting upon to take her with him to Mumbai but he could not take her due to paucity of accommodation, hence she had committed suicide. Hence this fact is proved beyond reasonable doubt against the husband. 34. It is also proved that demand of Rs.1,00,000/- for garage was made by husband from the deceased. The deceased had a six month's daughter at the time of death. A lady having six months old child normally does not suicide except the reason otherwise. In this case, it is proved that the suicide was committed by the deceased due to abetment by her husband over telephone. This act of husband will come in the purview of Section 306 IPC (Abetment of suicide). To attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary as has been held in the case of Pallem Deniel Victoralions Victor Manter vs. State of Andhra Pradesh (1997) 1 Crimes 499 (AP). 35. It is relevant here to mention Section 113A and 106 of Indian Evidence Act which is quoted below:- "113A. 35. It is relevant here to mention Section 113A and 106 of Indian Evidence Act which is quoted below:- "113A. Presumption as to 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 purposes of this section, "cruelty" shall have the same meaning as in section 498A of Indian Penal Code(45 of 1860)." 106. Burden of proving fact especially within knowledge-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 36. A perusal of evidence on record and above discussion we are of the opinion that the prosecution has failed to prove charges beyond reasonable doubt levelled against accused appellants Smt. Noori @ Noorjahan, Smt. Nanhi, Isteyak Ahmad, Imran Ahmad and Guddu @ Asfaq Ahmad under Sections 498A, 304-B IPC and ¾ Dowry Prohibition Act. But on the basis of Section 113A and 106 of Indian Evidence Act, offence under Section 306 IPC is proved against appellant Guddu @ Asfaq Ahmad(husband of deceased). Although charge under Section 306 IPC has not been framed against the husband but we may convict him on the basis of provision under Section 222 Cr.P.C. Which is quoted below:- 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. 2. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. 3. 2. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be 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. 37. Hence Criminal Appeal No. 641 of 2017 is allowed and Criminal Appeal No. 1124 of 2017 is partly allowed. The conviction of appellants Noori @ Noorjahan, Smt. Nanhi Ishteyak Ahmad, Imran Ahmad and Guddu @ Asfaq Ahmad under Section 498-A, 304-B IPC and ¾ Dowry Prohibition Act and sentence passed thereon by the trial Court is hereby set aside and they are acquitted under Sections 498-A, 304-B IPC and ¾ Dowry Prohibition Act. All appellants except accused Guddu @ Asfaq Ahmad shall be released forthwith, if not required to be detained in any other offence. 38. Accused appellant Guddu @ Asfaq Ahmad is convicted under Section 306 IPC and is sentenced to five years' rigorous imprisonment with fine of Rs.5000/- and in default of fine, additional three months' simple imprisonment. Period of detention already undergone shall be adjusted. Conviction warrant of accused Guddu @ Asfaq be amended accordingly. 39. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.