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2019 DIGILAW 349 (ALL)

Rajesh Agrawal v. State of U. P.

2019-02-08

ANIL KUMAR IX, RAM SURAT RAM (MAURYA)

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JUDGMENT : RAM SURAT RAM (MAURYA), J. 1. Heard Sri Nafees Ahmad, A.G.A, for State of U.P., Sri Amit Danga, for first informant and Sri Manish Tandon, for the accused. 2. Government of U.P. has filed Government Appeal No. 3624 of 2009 from acquittal of Rajesh Agrawal, from charges under Section 498-A, 304-B of Indian Penal Code, 1860 (hereinafter referred to as the IPC) and Section 3/4 of Dowry Prohibition Act, 1961 and Government Appeal No. 3901 of 2009 from acquittal of Smt. Ram Sumirini, Yogesh Agrawal and Smt. Seeta Agrawal from all the charges; Shiv Narayan Agrawal has filed Criminal Revision No. 92 of 2009, from acquittal of Smt. Ram Sumirini, Yogesh Agrawal and Smt. Seeta Agrawal from all the charges and Criminal Revision No. 93 of 2009, from acquittal of Rajesh Agrawal, from charges under Section 498-A, 304-B of IPC and Section 3/4 of Dowry Prohibition Act, 1961 and Rajesh Agrawal has filed Criminal Appeal No. 240 of 2009, from his conviction and sentence dated 07.01.2009, passed by Additional Session's Judge, Court No. 3, Kanpur Nagar, in S.T. No. 295 of 2007, State Vs Rajesh Agrawal and others, (arising out of Case Crime 268 of 2006, under Section 498A, 304-B of IPC and Section 3/4 of Dowry Prohibition Act, 1961, P.S. Barra, Kanpur Nagar), convicting him under Section 306 IPC and awarding sentence of five years rigorous imprisonment with fine of Rs. 5000/-with default stipulation. These appeals and revisions were arising out of same judgment as such these were consolidated and heard together. 3. On the complaint (Ex-Ka-1) of Shiv Narayan Agrawal (PW-1), FIR (Ex-Ka-7) of Case Crime No. 268 of 2006 was registered on 04.09.2006 at 9:45 hours, under Section 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act, 1961, at P.S. Barra, district Kanpur Nagar, against Rajesh Agrawal (husband) and Smt. Ram Sumirini (mother-in-law), Yogesh Chandra Agrawal (Jeth) and Smt. Seeta Agrawal (Jethani) of the deceased Smt. Vibha Agrawal, by Head Moharrir Baleshwar Prasad (PW-5). It has been stated in the FIR that Vibha Agrawal, aged about 30 years, the daughter of the informant, was married to Rajesh Agrawal son of late Harish Chandra Agrawal, resident of 13/8-W-2, Juhi, Damodar Nagar, P.S. Barra, Kanpur Nagar on 18.05.2003, giving dowry according to his capacity. It has been stated in the FIR that Vibha Agrawal, aged about 30 years, the daughter of the informant, was married to Rajesh Agrawal son of late Harish Chandra Agrawal, resident of 13/8-W-2, Juhi, Damodar Nagar, P.S. Barra, Kanpur Nagar on 18.05.2003, giving dowry according to his capacity. When his daughter came to her in-laws house, then his son-in-law Rajesh Agrawal, mother-in-law Smt. Ram Sumirini, Jeth Yogesh Chandra Agrawal and Jethani Smt. Seeta Agrawal were not happy with the dowry given by him and used to tell her to bring Rs. One lakh cash in dowry. When his daughter informed him in this respect, then he, his son and his brother-in-law Sri Ram Gopal came to Barra and thoroughly pacified the in-laws of Vibha but after their going back, they began to torture his daughter for bringing dowry. Then, he arranged Rs. 25000/-and gave it to his son-in-law Rajesh Agrawal. But after some time, they again started to threaten and assault his daughter. On 03.09.2006 at about 10:00 PM, some one informed him on telephone that his daughter had died. On this information, the informant and his wife came to Barra then found that his daughter was murdered by hanging and cutting veins of the hand due to non-fulfillment of dowry demand. The dead body of his daughter was kept at the house of the accused. 4. After lodging FIR, ACM Kamal Prasad Yadav (PW-4) conducted Inquest (Ex-Ka-2) of the dead body on 04.09.2006 between 11:30 to 13:00 hours. He prepared photo lash, police paper and letters to authorities (Ex-Ka-3 to Ka-6) for conducting postmortem of the deceased. He dispatched the dead body for postmortem through Constable Balwan Singh and Home-Guard Rakesh Kumar. Dr. R.K. Chaudhary (PW-7) conducted autopsy of the dead body on 04.09.2006 at 4:30 PM and prepared postmortem report (Ex-Ka-16) in which following ante-mortem injuries were noted:- (i) Multiple incised wound on the anterior aspect of both wrists and fore am in an area of 7 cm x 4 cm x blood clot present and incised wounds are superficial to deep in nature and right radial artery is cut. (ii) An oblique ligature mark high up in the neck, 30 cm x 1 cm, a gap of 04 cm on right and post and back side of neck. The ligature mark is 06 cm below left ear 3 cm below chin and 02 cm below right ear. (ii) An oblique ligature mark high up in the neck, 30 cm x 1 cm, a gap of 04 cm on right and post and back side of neck. The ligature mark is 06 cm below left ear 3 cm below chin and 02 cm below right ear. Base of the ligature is furrow glistening surface. In internal examination brain and its membranes were congested; pleura larynx were congested; both lungs were congested; right chamber of heart was full and left was empty; small intestine contained semi-digested food and gases and large intestine contained faecal matter and gases; gall bladder was congested; pancreas, spleen and both kidneys were congested; uterus was empty. Duration of death has been noted as “about one day”. According to Doctor cause of death is “Asphyxia as a result of ante mortem hanging”. 5. After registration of FIR, Circle Officer of Police O.P. Singh (PW-6) started investigation. He copied the check FIR and G.D. entry in case diary and recorded statements of Shiv Narayan Agrawal, Durgesh Kumar Garg and Smt. Vimla Agrawal, mother of the deceased and witnesses of the spot Ram Saran Arya and Uma Shankar. On the pointing out of the informant, he prepared site-plan (Ex-Ka-9) of the house of the accused. He took into possession of blood stained floor, blood soaked scarf, pieces of ropes, pieces of glass bangles and hairs of the deceased from the place of occurrence and prepared its recovery memos (Ex-Ka-10 and Ka-11). He recorded statements of the witnesses of recovery memos. He arrested the accused Rajesh Agrawal and recorded his statement. He copied Inquest and postmortem reports in case diary and recorded statements of Panches and the doctor. He took into possession the card and photographs of the marriage and prepared its recovery memos (Ex-Ka-12 and Ka-13). He send the materials for chemical examination. After investigation, he submitted charge sheet (Ex-Ka-14) against the accused Rajesh Agrawal and Smt. Ram Sumirini and exonerated Yogesh Chandra Agrawal and Smt. Seeta Agrawal. After receiving chemical examination report, he filed chemical examination report (Ex-Ka-15), subsequently. 6. On committal, the case was registered as S.T. No. 295 of 2007. Additional Session's Judge framed charges on 05.04.2007 against Rajesh Agrawal and Smt. Ram Sumirini. The accused pleaded “not guilty” and claimed trial. After receiving chemical examination report, he filed chemical examination report (Ex-Ka-15), subsequently. 6. On committal, the case was registered as S.T. No. 295 of 2007. Additional Session's Judge framed charges on 05.04.2007 against Rajesh Agrawal and Smt. Ram Sumirini. The accused pleaded “not guilty” and claimed trial. After recording, statement-in-chief of Shiv Narain Agrawal, he summoned Yogesh Chandra Agrawal and Smt. Seeta Agrawal, under Section 319 Cr.P.C. Additional Session's Judge framed charges against them on 08.04.2008. In order to prove the charges, the prosecution examined Shiv Narain Agrawal (PW-1), the informant and father of the deceased, Ram Gopal Agrawal (PW-2), brother-in-law of the informant, Durgesh Garg (PW-3), brother of the deceased, Kamal Prasad Yadav (PW-4), to prove Inquest, Head Constable Baleshwar Prasad (PW-5), to prove check FIR, Circle Officer of Police O.P. Singh (PW-6), Investigating Officer and Dr. R.K. Chaudhary (PW-7) to prove postmortem report. 7. After completion of evidence of the prosecution, all incriminatory facts and materials were put to the appellants under Section 313 CrPC. They denied the facts and materials and stated that they were falsely implicated. Smt. Ram Sumirini stated that she was living with her daughter Pratibha Agrawal at Guahati at the time of occurrence and was an innocent. Yogesh Chandra Agrawal and Smt. Seeta Agrawal stated that they were living separately from Rajesh Agrawal and had no concern with the occurrence. They examined Jagdev Prasad Shukla (DW-1), who stated that Rajesh Agrawal was working as a 'Contractor' in HAL and Yogesh Chandra Agrawal was doing service in Reserve Bank of India. Both of them were living separately in the same house. Pratibha Agrawal, sister of Rajesh Agrawal was teacher in IIT Guahati and was unmarried. Smt. Ram Sumirini, her mother was living with her at Gauhati. 8. After hearing the parties, Additional Session's Judge, by the impugned judgment, held that from the evidence on record, demand of dowry by the accused was not proved. Smt. Vibha Agrawal, voluntarily cut her nerves first and thereafter hanged, putting noose of ropes around her neck, with the help of window. Although the rope, being thin, was broken but noose in neck remained tight, which caused her death. Apart from cut of nerves of both the hand and ligature mark in neck, there was no other external injury on the body of the deceased as such it cannot be said that some body had forcibly hanged her. Although the rope, being thin, was broken but noose in neck remained tight, which caused her death. Apart from cut of nerves of both the hand and ligature mark in neck, there was no other external injury on the body of the deceased as such it cannot be said that some body had forcibly hanged her. On the date of incident, she had appeared in P.G.T. Examination and she might have not satisfied with her solving of the papers and committed suicide as several attempt in P.G.T. Examination was made by her earlier and she was not succeeded. From the evidence on record, it was proved that Smt. Ram Sumirini was living with her daughter Pratibha Agrawal at Gauhati at the time of occurrence. Yogesh Chandra Agrawal and Smt. Seeta Agrawal were living separately from Rajesh Agrawal and had no concern with the occurrence. On these findings he convicted Rajesh Agrawal (the husband) under Section 306 IPC and acquitted him under Section 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, 1961 and acquitted other accused from all the charges. Hence, these appeals and revisions have been filed. 9. We have considered the arguments of the counsel for the parties and examined the record. A three Judges Bench of Supreme Court in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588 , has held that in order to attract application of Section 304-B IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. On proof of the essential ingredients mentioned above, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. A conjoint reading of Section 113-B of the Evidence Act, 1872 and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. A conjoint reading of Section 113-B of the Evidence Act, 1872 and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. “Soon before” is a relative term and it would depend upon circumstance of each case and no straitjacket formula can be laid down as to what would constitute a period “soon before the occurrence”. There must be in existence a proximate live link between the facts of cruelty in connection with the demand of dowry and the death. If the 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. 10. Supreme Court in Baijnath v. State of M.P., (2017) 1 SCC 101 , has held that a conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or his relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof. The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss over and condone its failure to prove credibly, the basic facts enumerated in the sections involved, lest justice is the casualty. 11. In order to prove the charges of demand of dowry and torture of the deceased in relation to it, by the accused, soon before her death, the prosecution examined Shiv Narayan Agrawal (the father), Ram Gopal Agrawal (phupha) and Durgesh Garg (the brother) of the deceased. 11. In order to prove the charges of demand of dowry and torture of the deceased in relation to it, by the accused, soon before her death, the prosecution examined Shiv Narayan Agrawal (the father), Ram Gopal Agrawal (phupha) and Durgesh Garg (the brother) of the deceased. Shiv Narayan Agrawal (PW-1) stated that Smt. Vibha Agrawal, his daughter, was married to Rajesh Agrawal on 18.05.2003, according to Hindu rites from Allahabad. He gave cash, dowry and clothes etc. according to his capacity. At the time of marriage, his daughter went to her in-laws house at Damodar Nagar, PS Barra, Kanpur. In the house of Rajesh, his mother Ram Sumirini, his elder brother Yogesh Agrawal and his sister-in-law Seeta Agrawal were also residing with him. They have joint mess. When his daughter came to her in-laws house, then her husband, mother-in-law, Jeth and Jethani were not satisfied with the dowry. His daughter had informed that her in-laws used to say that cash money was not given in dowry. Tell them to give Rs. One lakh cash in dowry. Due to this demand, the accused began to torture his daughter mentally and physically. Whenever his daughter Vibha came to his house, she used to inform these things while weeping to his family members. They used to pacify her that they would talk to her in-laws and every thing would become right. They pacified her in-law, but they did not stop. In November, 2004, he went to the house of Rajesh along with his brother-in-law Sri Ram Gopal and his son Durgesh, where his daughter informed, while weeping, that her in-laws were asking her to bring rupees one lakh and were torturing her. At that time, at the house of Rajesh, Rajesh, his mother, his elder brother and sister-in-law were present. All of them told to give rupees one lakh otherwise they would not keep his daughter properly. Then, in February, 2006, he arranged and gave Rs. 25000/-to Rajesh at Allahabad. But they were not satisfied with it and demanding Rs. 75000/-. On 03.09.2006 at about 10:00 PM, he was informed on telephone that his daughter had died. On this information, he came to the house of Rajesh Agrawal in Kanpur on 04.09.2006 at 8:00 AM, where he found that dead body of Vibha was kept at drying-room. But they were not satisfied with it and demanding Rs. 75000/-. On 03.09.2006 at about 10:00 PM, he was informed on telephone that his daughter had died. On this information, he came to the house of Rajesh Agrawal in Kanpur on 04.09.2006 at 8:00 AM, where he found that dead body of Vibha was kept at drying-room. Veins of her both the hands were cut and there was ligature mark in the neck. At one place in the room, where Vibha used to sit, large quantity of blood, broken bangles and up-rooted hairs were lying and in doors pieces of ropes were lying. On seeing the dead body, he believed that Vibha was murdered by her husband, mother-in-law, Jeth and Jethani due to non-fulfillment of full amount of dowry. After postmortem, dead body was handed over to him and he had done her cremation at Bhairo Ghat, Kanpur, in which no body from the family of her in-laws had participated. In cross-examination, he stated that at the time of marriage of his daughter, dowry was given according to his capacity but the accused were not satisfied with it and were saying that cash was not given and were demanding rupees one lakh cash. In November, 2004, he along with his brother-in-law Ram Gopal and son Durgesh Garg went to the house of the accused, then his daughter told while weeping that her in-laws were demanding rupees one lakh cash and were physically and mentally torturing her for that. At that time all the accused were present there and confirmed their demand and told that in case rupees one lakh cash is not given then they would not keep her daughter. He gave Rs. 25000/-to Rajesh at Allahabad, in February, 2006 but the accused were not satisfied with it and were demanding Rs. 75000/-. He was having a shop of general merchant and stationary and his son and other daughter were student. His daughter Vibha appeared in PGT examination on 03.09.2006. He could not say as to whether her examination was good or not. Rajesh Agrawal had given advertisement in news paper for marriage. Then he contacted for marriage of Vibha with his brother Yogesh Agrawal. He had seen his house and the boy and found the boy was appropriate and prosperous. His daughter Vibha appeared in PGT examination on 03.09.2006. He could not say as to whether her examination was good or not. Rajesh Agrawal had given advertisement in news paper for marriage. Then he contacted for marriage of Vibha with his brother Yogesh Agrawal. He had seen his house and the boy and found the boy was appropriate and prosperous. Yogesh Agrawal was in service of Reserve Bank and his sister Pratima Agrawal was lecturer in IIT, Guahati, who was unmarried. Rajesh was working as Contractor for repairing telephone in HAL. He had gone up to drying room of Rajesh Agrawal. He could not tell as to how many kitchen etc. were existing in the house of Rajesh Agrawal. The son of her daughter was born on 29.05.2004. At that time, she was sad due to family tension. His daughter came to his house on 25.02.2006 and went to Maihar Devi on 26.02.2006, along with Rajesh and his wife and son Sudhir. After returning from there, they stayed for one day at his house and at that time his daughter Vibha was happy. After the marriage, he went to the in-laws house of Vibha in November, 2004. Vibha was M.A., B. Ed. At the time of marriage, no demand of dowry was made. When he reached at the house of the accused on 04.09.2006 at 7:00 AM, the accused Rajesh and Yogesh were trying to quarrel with him. He had not given statement to Investigating Officer that he had given Rs. 25000/-to his son-in-law. His daughter and son-in-law visited to his house at Allahabad on the occasion of Raksha-bandhan, in 2006 and thereafter, they happily returned. 12. Ram Gopal Agrawal (PW-2) stated that Smt. Vibha Agrawal, the daughter of Shiv Narayan Agrawal, was married to Rajesh Agrawal on 18.05.2003, according to Hindu rites from Allahabad. At the time of marriage, Shiv Narayan gave sufficient dowry but Rajesh Agrawal, Ram Sumirini, Yogesh Agrawal and Seeta Agrawal were not happy with the dowry. They were demanding Rs. One lakh cash in dowry. Due to this demand, the accused used to torture and assault Vibha. In this connection, he had gone to the in-laws' house of Vibha along with Shiv Narayan Agrawal and Durgesh Garg, where Vibha informed while weeping that her in-laws were demanding Rs. One lakh cash in dowry and on denying they used to torture her mentally and physically. Due to this demand, the accused used to torture and assault Vibha. In this connection, he had gone to the in-laws' house of Vibha along with Shiv Narayan Agrawal and Durgesh Garg, where Vibha informed while weeping that her in-laws were demanding Rs. One lakh cash in dowry and on denying they used to torture her mentally and physically. She also told that if their demand was not satisfied then they would kill her. When they went to talk at the house of Rajesh then the informant had told that his financial position was not good and he was not able to satisfy their demand. Then the accused threatened for dire consequences. Any how, the informant gave Rs. 25000/-to in-laws of Vibha. But they were not satisfied with it and remained continuous torture of Vibha. On 03.09.2006, the accused murdered Vibha at their house. In cross-examination, he stated that Investigating Officer had not recorded his statement. At the time of settlement of the marriage, he went to the house of the accused along with Shiv Narain and Durgesh. At that time, no list of dowry demand was given but Yogesh had told that it was the marriage of his younger brother and he want to solemnize it in a good manner. He went to the house of Rajesh two-three times and his brother-in-law informed that this was house of the father of Rajesh, in which both the brothers were residing. He did not inform about the sister of Rajesh that where she was doing service. His brother-in-law informed that he had come to know about Rajesh through advertisement. He did not go on the spot on the date of occurrence. It is correct to say that Rajesh was doing his business separately and Yogesh was doing service in Reserve Bank of India. He had no knowledge about the sister of Rajesh namely Pratima Agrawal or she was professor in IIT, Guwahati and unmarried. He did neither go to see Vibha on the occasion of birth of her son nor he was invited on his first birth day. Shiv Narayan came to his house within three-four months of the marriage for the complaint. He went with him and Durgesh at the house of in-laws of Vibha. He did not take any legal action. He could not tell as to when the son of Vibha was born after the complaint. Shiv Narayan came to his house within three-four months of the marriage for the complaint. He went with him and Durgesh at the house of in-laws of Vibha. He did not take any legal action. He could not tell as to when the son of Vibha was born after the complaint. He called several time Vibha and her husband to his house but they never came to his house. Vibha talked on telephone only one time. He had not seen son of Vibha before her death. 13. Durgesh Garg (PW-3) stated that Smt. Vibha Agrawal, his sister, was married to Rajesh Agrawal on 18.05.2003, according to Hindu rites from Allahabad. His father gave dowry and gifts etc. according to his capacity. At the time of marriage, his daughter went to her in-laws house. Her husband, her mother-in-law, her jeth and her Jethani were not satisfied with the dowry. They used to tell Vibha to bring Rs. one lakh cash in dowry. On refusal, they used to assault and abuse her. His sister informed him and his father about this. On which, he, his father and phupha Ram Gopal went to the in-laws house of Vibha in November, 2004, where Vibha informed, while weeping that her husband, mother-in-law, jeth and jethani were asking her to bring rupees one lakh and were mentally and physically torturing her. Vibha also informed that in case their demand was not satisfied then they would murder her. On which his father, stating his poor financial condition, told to Rajesh and his family members that he was not able to satisfy their demand and prayed to maintain Vibha any how. On which all the accused told that you give Rs. one lakh otherwise they would not able to maintain Vibha and you would be ready to face consequences. After making sincere prayer, they came back. But in-laws of Vibha used to torture her continuously. Then, in February, 2006, his father arranged and gave Rs. 25000/-to Rajesh at Allahabad. But they were torturing her for remaining Rs. 75000/-. At last, due to non-fulfillment of their demand, they murdered Vibha on 03.09.2006. On the information, they came to Kanpur on 04.09.2006 along with his father, mother, younger sister, brother Sudhir, his cousin Rajeev Garg and friend Kuldeep. They found that dead body of Vibha was kept at drying-room. But they were torturing her for remaining Rs. 75000/-. At last, due to non-fulfillment of their demand, they murdered Vibha on 03.09.2006. On the information, they came to Kanpur on 04.09.2006 along with his father, mother, younger sister, brother Sudhir, his cousin Rajeev Garg and friend Kuldeep. They found that dead body of Vibha was kept at drying-room. Veins of her both the hands were cut and there was ligature mark in the neck. At one place in the room, where Vibha used to sit, large quantity of blood, broken bangles and up-rooted hairs were lying and pieces of ropes were hanging by the side of door. His father got the complaint scribed from him and lodged FIR. After postmortem, dead body was handed over to him and he had done her cremation at Bhairo Ghat, Kanpur, in which no body from the family of her in-laws had participated. In cross-examination, he stated that Investigating Officer had called him in October, 2006 but after recording his name, address etc. left him. His younger sister Rolli got admission in Government Ayurvedic College, Pilibhit, in 2002. His younger brother Sudhir did his graduation in 2003. Thereafter, he did Polytechnic from Government Polytechnic Rai Bareilly in 2006. Vibha was M.A., B.Ed. He was recruited in Military Engineering Service, in 2000. His parents were residing in a rented accommodation. In November, 2004, he along with his father and phuphaji went to the house of the accused, to pacify them. A son of born to Vibha on 29.05.2004. At that time he did not come. He did not go to the house of Vibha on the occasion of Diwali and Raksha-bandhan. Vibha came to his house on the occasion of Raksha-bandhan. It is incorrect to say that he had come to the in-laws house of Vibha on Shivratri, 2006. Pratima Agrawal, sister of Rajesh was unmarried. She was doing service in IIT, Guwahati. Rajesh was working as telephone repairers and photographer. At the time of settlement of the marriage of Vibha, he had also come. At that time no list of dowry was prepared. At the time of marriage of Vibha, he was posted at Ranchi. On 03.09.2006, he was posted at Banbasa, district Champawat, Uttarakhand. He came from Banbasa to Bareilly through car, then from Bareilly to Lucknow from railway and from Lucknow to Kanpur by bus. At that time no list of dowry was prepared. At the time of marriage of Vibha, he was posted at Ranchi. On 03.09.2006, he was posted at Banbasa, district Champawat, Uttarakhand. He came from Banbasa to Bareilly through car, then from Bareilly to Lucknow from railway and from Lucknow to Kanpur by bus. He picked up his sister Rolli from Philibhit, which was in his way. He reached at the house of the accused on 04.09.2006 at 8:00 AM. Yogesh Agrawal threatened him and told to take dead body and go away otherwise you all would be killed. On arrival of police, the accused ran away from spot. 14. In the present case, the accused Rajesh Agrawal has filed newspapers “Dainik Jagran” dated 30.11.2002 and 07.12.2002, showing that he got an advertisement published for his marriage, in which he had disclosed his status as “Inter pass, self business and self residence”. This fact has been admitted to Shiv Narayan Agrawal (PW1). He stated that on the basis of advertisement, he approached Yogesh Agrawal and on satisfying that boy was appropriate and rich, he settled the marriage. It is admitted to Shiv Narayan Agrawal and Durgesh Garg (PW-1 and 3) that at the time of marriage no list of the article of dowry was supplied by the accused. From their statement, it is also proved that no cash was given at the time of marriage. At that time Vibha Agrawal was M.A., B.Ed. Her family was residing in a rented accommodation. Her father was having grossery and stationary shop at Daraganj, Allahabad. Durgesh Garg came in MES in 2000. His brother Sudhir and sister Rolli were student. Financial condition of Shiv Narayan Agrawal was poor. On the other hand the accused Yogesh Chandra was in service of Reserve Bank of India, Kanpur, his sister Pratima Agrawal was lecturer in IIT Guwahati and Rajesh Agrawal was doing his business of telephone repair and photography. If the informant had to give dowry then he would not have married his M.A., B.Ed. daughter to an Intermediate passed boy. From their statement, it is proved that Vibha Agrawal (the deceased) was married to Rajesh Agrawal (the accused) on 18.05.2003, without demand of dowry. 15. So far as demand of cash of Rs. If the informant had to give dowry then he would not have married his M.A., B.Ed. daughter to an Intermediate passed boy. From their statement, it is proved that Vibha Agrawal (the deceased) was married to Rajesh Agrawal (the accused) on 18.05.2003, without demand of dowry. 15. So far as demand of cash of Rs. one lakh, soon before death and torture of the deceased in relation to it, is concerned, Shiv Narayan Agrawal (PW-1) has stated that in November, 2004, he along with his brother-in-law Ram Gopal and son Durgesh Garg went to the house of the accused, then his daughter told while weeping that her in-laws were demanding rupees one lakh cash and were physically and mentally torturing her for that purpose. Durgesh Garg (PW-3) added some things more in the above facts and stated that Vibha had warned them at that time that in case their demand would not be satisfied then they would kill her. On which his father, expressing his poor financial condition, told to Rajesh and his family members that he was not able to satisfy their demand and prayed to maintain Vibha any how. On which all the accused told that you did not give Rs. one lakh then they would not able to maintain Vibha and you would be ready to face consequences. If the accused were adamant on their demand of Rs. one lakh and were torturing the deceased and the informant, who was not in condition to satisfy the demand, he would have made a complaint to police but he remained silent for more than a year. For this reason the Court below disbelieved the allegation of demand of dowry. At least from the evidence of the prosecution it is not proved that there was torture of the deceased in relation to demand of dowry. A son was born to Vibha on 29.05.2004 and she was living happily with the accused at their house. In normal course, Vibha, herself used to visit the house of the informant along with her husband, while the informant and his family members used to visit her house on occasion. 16. Shiv Narayan Agrawal (PW-1) stated that he had given Rs. 25000/-to Rajesh at Allahabad, in February, 2006. In normal course, Vibha, herself used to visit the house of the informant along with her husband, while the informant and his family members used to visit her house on occasion. 16. Shiv Narayan Agrawal (PW-1) stated that he had given Rs. 25000/-to Rajesh at Allahabad, in February, 2006. He admitted that on 25.02.2006, Rajesh along with the deceased and her son visited to his house at Allahabad and on 26.02.2006, he went to worship Maihar Devi. From which it is clear that Rajesh had not gone to Allahabad to collect his dowry but he had to go to Maihar Devi. It is admitted that son of Vibha was born on 29.05.2004. When she visited Allahabad on 25.02.2006, she was happy. There is no evidence that till her death on 03.09.2006, there was any demand of dowry or torture of the deceased in relation to it. Trial Court has not committed any illegality in holding that the prosecution has failed to prove demand of dowry and torture of the deceased in relation to it soon before her death. 17. Investigation Officer, in spot inspection memo has noticed that mosquito net was spread in the room of the deceased and fan was on. Blood of both the hands were collected at one place. In normal course, if the blood is oozed from both the hands, then it would have fallen on earth at two places. Thin cotton rope was tied at shutter at the height of 6.5 feet from ground, from where hanging by the deceased was not possible. The rope was not capable to bear the weight of the deceased. Broken bangles and up-rooted hairs found in the room, proved that the deceased might have resisted the act of strangulation of the accused. Investigating Officer recovered a blood soaked scarf, which was rapped over the cut wound of both the hand. The blood of both the hands came on earth through the scarf as such it was collected at one place. Apart from cut wounds in hand and ligature mark in neck, no other injury was found on the body of the deceased, from which inference of strangulation by the accused can be drawn. So far as broken bangles are concerned it might have been broken, at the time of falling the dead body on the ground. Apart from cut wounds in hand and ligature mark in neck, no other injury was found on the body of the deceased, from which inference of strangulation by the accused can be drawn. So far as broken bangles are concerned it might have been broken, at the time of falling the dead body on the ground. From the circumstances noted by Investigating Officer, it is not proved beyond reasonable doubt that the deceased was strangulated. 18. Supreme Court in Satish Nirankari v. Stat e of Rajasthan, (2017) 8 SCC 497 , has held that as per Modi’s Medical Jurisprudence and Toxicology, there are 16 main distinctions in death caused by hanging or strangulation. According to the medical evidence, second ligature mark was ending towards back of the neck and it was oblique going upwards and ligature mark was shining. The hyoid bone was intact, there was no fracture of larynx and trachea. There were no scratches, abrasions and bruises on face, mouth and ears. There were no abrasions and echymosis around about the edges of the ligature mark. Subcutaneous tissues under the ligature mark were white, hard and glistering. There were no injuries to muscles of neck. The saliva was dribbling. If the death would have been strangulation then fracture of larynx and trachea and hyoid bone was a must, there should have been scratches, abrasions and finger nail marks and bruises on the face, neck and other parts of the body. Saliva would not be dribbling, ligature mark would have been horizontal and not oblique, it would have lower down in the neck and not upwards to the chin. There should have been abrasions and echymosis round about the edges of the ligature marks. Subcutaneous tissues should have ecchymosed, there should have been some injuries to muscles of neck, carotid arteries, internal coat should have been ruptured, whereas there was no such rupture. 19. In the postmortem report oblique ligature mark was found. Base of the ligature was furrow and surface was glistering. Right chamber of heart was full of blood and left chamber was empty. The hyoid bone was intact, there was no fracture of larynx and trachea. There were no scratches, abrasions and bruises on face, mouth and ears. There were no abrasions and echymosis around about the edges of the ligature mark. Cause of death has been noted as “asphyxia as a result of ante-mortem hanging. The hyoid bone was intact, there was no fracture of larynx and trachea. There were no scratches, abrasions and bruises on face, mouth and ears. There were no abrasions and echymosis around about the edges of the ligature mark. Cause of death has been noted as “asphyxia as a result of ante-mortem hanging. Dr. R.K. Chaudhary (PW-7) stated that if a person commits suicide by hanging such a ligature mark used to come. Apart from cut injuries on the hand and single ligature mark in neck, there was no other injury on the body of the deceased as such it is not proved that she was strangulated or forcibly hanged. Findings that Smt. Vibha Agrawal committed suicide does not suffer from any illegality. 20. Constitution Bench of Supreme Court in Common Cause v. Union of India, (2018) 5 SCC 1 , has held that for abetting an offence, the person abetting must have intentionally aided the commission of the crime. Abetment requires an instigation to commit or intentionally aiding the commission of a crime. It presupposes a course of conduct or action which facilitates another to end life. Hence abetment of suicide is an offence expressly punishable under Sections 305 and 306 IPC. In the present case, the prosecution has failed to prove demand of dowry and torture of the deceased soon before death as such presumption of abetment of suicide under Section 113 A of Evidence Act, 1872 cannot be raised. No evidence has been adduced to prove that any of the accused abetted, instigated or committed any act which instigated the deceased to commit suicide. Conviction of Rajesh Agrawal under Section 306 IPC was not warranted. Trial Court has neither framed charge under Section 302 IPC nor there is evidence on record to convict any of the accused under Section 302 IPC. 21. In view of the aforesaid discussion, the appeal filed by Rajesh Agrawal is liable to be allowed and Government Appeals and revisions filed by the informant is liable to be dismissed. 22. In result, Criminal Appeal No. 240 of 2009 is allowed. 21. In view of the aforesaid discussion, the appeal filed by Rajesh Agrawal is liable to be allowed and Government Appeals and revisions filed by the informant is liable to be dismissed. 22. In result, Criminal Appeal No. 240 of 2009 is allowed. Conviction and sentence of Rajesh Agrawal under Section 306 IPC by judgment dated 07.01.2009, passed by Additional Session's Judge, Court No. 3, Kanpur Nagar, in S.T. No. 295 of 2007, State Vs Rajesh Agrawal and others, (arising out of Case Crime 268 of 2006, under Section 498-A, 304-B of IPC and Section 3/4 of Dowry Prohibition Act, 1961, P.S. Barra, Kanpur Nagar), is set aside. Government Appeal No. 3624 of 2009, Government Appeal No. 3901 of 2009, Criminal Revision No. 92 of 2009 and Criminal Revision No. 93 of 2009 are dismissed.