Judgment R.N.Sahay and P.K.Sarkar JJ. 1. This is an appeal against the judgment and order dated 20.9.1994 of Sri R.P. Rai, Sessions Judge, Katihar, in Sessions Case No. 218/92 whereby the appellants have been convicted under Section 304B read with Section 120B, IPC and each of them have been sentenced to undergo rigorous imprisonment for life. 2. Appellant Chandan Rai was married. with Sumita daughter of Ram Briksha Mahto, a railway servant, in the year 1990. The appellant was living in Durgasthan Colony No. 1 in the town of Katihar. After the marriage in 1990 Sumita was living in her sasrual at Katihar with her husband, mother-in-law and sister-in-law. She stayed in her husbands house for about eight months when she was brought to Kaliagunj, North Dinajpur district of West Bengal by her father. She was pregnant at that time. She is alleged to have told her father that behaviour of her husband, mother-in-law and sister-in-law was not good. They tortured her on account of not giving any dowry in marriage. A son was born to Sumita and she remained at her fathers place for six months. During this period the appellant Chandan Rai used to visit his wife. Appellant Chandan Rai wanted to take Sumita back with him, but the father-in-law of the appellant did not allow Sumita to go with him on account of fear of being tortured at the hands of the appellants. The appellant Chandan Rai is said to have given a beating to his wife because she had disclosed the factum of torture to her father. This appellant returned without his wife. He again went to Kaliagunj along with one Bhola Mandal who requested father-in-law of the appellant to allow Sumita to go with them. Bhola Mandal assured him that in future the accused persons would not mis-behave with Sumita. However, Sumita on her part did not agree to go with her husband. She was apprehensive that she would be murdered by the appellants. After persuasion by her father, she went with her husband on 28.4.1992. 3. On 6.5.1992 Sumita was found dead in her bedroom with severe burn injuries. In the morning, according to the version of the appellant Chandan Rai, he was washing his mouth outside the house. The newly born son was with him. He then went to take bath at the tap outside the house. 3. On 6.5.1992 Sumita was found dead in her bedroom with severe burn injuries. In the morning, according to the version of the appellant Chandan Rai, he was washing his mouth outside the house. The newly born son was with him. He then went to take bath at the tap outside the house. When he returned after taking bath, he found the door locked. He shouted that the door be opened but there was no response from inside the room. He saw smoke coming through the window. He broke the door and entered the room and found his wife Sumita dead. A u/d case was registered bearing U/D Case No. 10/92 at Katihar, on the report of Chandan Rai. 4. Some ladies in the nearby houses had heard the alarm of this appellant. Chandan sent two telegrams to his mother-in-law and at the same time a messenger was sent to Kaliagunj to inform his mother-in-law of the incident. On 5.5.1992 itself a letter had been received intimating that the grand mother of Sumita Rai had died and Sumita was asked to come. This appellant, however, wanted that Sumita should go at the time of Sradh. This was the reason why Sumita set herself afire. 5. Dilip Debnath of Katihar went to Kaliagunj with a message to mother-in-law and father-in-law of appellant Chandan Rai that Sumita was seriously ill. On hearing this Ram Briksh Mahto and Sabitri Devi, father and mother of the deceased rushed to Katihar. On 6.5.1992 Naresh Mahto son of Ram Briksh Mahto went to Katihar Police Station and submitted a written report charging the appellants of murdering Sumita Rai. On the basis of written report, formal FIR of this case was registered against the appellants for the offence under Section 304 (B), IPC. 6. According to the post-mortem report, no external anti- mortem injury was found on the person of the deceased, only extensive burn on whole body (95%). No sign of throttling was found. The deceased died due to extensive burn injuries. 7. The Investigating Officer inspected the room where the deceased was found dead in the house of the appellants. The room was 10 X 8. A Chowki, Table Fan etc. was found in the room. The dead body was in a slanting position. He did not find any Kerosene oil spilled on the floor. No article was found on the floor. The Investigating Officer inspected the room where the deceased was found dead in the house of the appellants. The room was 10 X 8. A Chowki, Table Fan etc. was found in the room. The dead body was in a slanting position. He did not find any Kerosene oil spilled on the floor. No article was found on the floor. In course of investigation some letters written by Sumita Rai to her parents and also letter written by Chandan Rai were handed over to the Investigating Officer. 8. The deceased died of burn injuries in the house of the appellant, is an admitted fact. The appellants have been found guilty under Sections 304B/120, IPC. In order to attract application of Section 304B, IPC the following essential ingredients are to be proved : (i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances. (ii) Such a death should have occurred within 7 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. 9. In the present case, two ingredients are proved. Death has been caused by burn injuries and death had occurred within sevenyears of marriage. This is not enough. The prosecution in order to bring home the charge under Section 304B, IPC has further to prove that the deceased was subjected to cruelty or harassment by her husband or any relative of her husband. Another ingredient for this section to come into play is that cruelty or harassment was meted out soon before the death of the deceased. The import of this expression was examined by the Orissa High Court in Keshab Chandra Panda V/s. State, (1995) 1 Cr LJ 174, in which there was a history of beating the wife up for dowry. But the couple reconciled and resumed joint life. The wife joined her husband after a long stay with her parents. The husband left her back with her parents were informed of her death. During the fortnight she had not made any complaint to her parents about dowry or torture. But the couple reconciled and resumed joint life. The wife joined her husband after a long stay with her parents. The husband left her back with her parents were informed of her death. During the fortnight she had not made any complaint to her parents about dowry or torture. The Court held that the section was not attracted because there was no cruelty or harassment soon before the death. The Court compared Section 304B, IPC with Section 113B of the Evidence Act, 1872, where also the words soon before occur and said : "A conjoint reading of Section 113B of the Act and Section 304B, IPC shows that there must be material to show that soon before death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances. The expression "soon before is very relevant where Section 113B of the Act and Section 304B, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates". 10. The facts of the present case are similar to the facts of Orissa case. In the present case, no dowry was demanded at the time of marriage and the father of the girl stated that he had given some ornaments to his daughter and in due course some clothes to Chandan Rai. There is no allegation of any demand of dowry. He says that demand for dowry etc. was made after six months of the marriage, but he did not oblige. There is no evidence on record to suggest that relationship between the husband and wife and son-in-law and father-in-law were strained. The deceased had hardly returned from her fathers place where unfortunate event took place. Now, according to the post-mortem report, no external injury or sign of trottling was found on the deceased. The learned trial Judge has; however, observed that even though, the Doctor, who conducted the post-mortem, was not produced by the prosecution, it is positive case that the deceased was murdered by the appellants and was set on fire. According to the post-mortem report, no smoke was detected in the trachea and burn injuries were extensive (95%). 11. The learned trial Judge has; however, observed that even though, the Doctor, who conducted the post-mortem, was not produced by the prosecution, it is positive case that the deceased was murdered by the appellants and was set on fire. According to the post-mortem report, no smoke was detected in the trachea and burn injuries were extensive (95%). 11. The learned trial Judge says that the "non finding of the smoke in the trachea clearly goes to show that the fire was set for the person of the deceased Sumita Rai only after her death. There is no doubt in our mind that Sumita Rai was at first throttled to death and thereafter fire was set to her person with the sole intention to cover up the crime of murder". 12. It was not permissible for the trial Court to advance a theory of its own in face of a definite case of the prosecution that the deceased had committed suicide on account of demand of dowry. 13. In Archi Nawal Kishore Kujar V/s. State of Bihar, reported in 1995 (1) East Cr C 548 : (1995) 2 BLJR 787 , it was found that the trial Court contrary to the definite case of the prosecution held that the deceased was strangulated first and then her dead body was set on fire. In other words, the burn injury was postmortem and not ante-mortem. In the postmortem examination it was found that the deceased had died due to asphyxia, head injury and burn. No histological test was conducted to determine whether the burn injury was post-mortem or ante-mortem. It was held in that case that the finding of the trial Court was erroneous and it was not permissible for the trial Court to make an alternative case for the prosecution. 14. Several letters were sent by the deceased to her husband but none of the letters speak an iota of any grievance by the deceased against the appellants. Still, letters have been used against the appellants finding them guilty. Now, important essential ingredients to establish the charge under Section 304B, IPC, namely the deceased was subjected to the cruelty or harassment in connection with the demand of dowry and such cruelty or harassment were perpetrated her death have not been established. There has been serious mis-carriage of justice. Still, letters have been used against the appellants finding them guilty. Now, important essential ingredients to establish the charge under Section 304B, IPC, namely the deceased was subjected to the cruelty or harassment in connection with the demand of dowry and such cruelty or harassment were perpetrated her death have not been established. There has been serious mis-carriage of justice. The appellant have been found guilty purely on suspicion and there is not an iota of evidence against the appellants. 15. Accordingly, the appeal is allowed. The conviction of the appellants Chandan Rai, Rekha Rai and Arati Bala Rai are set aside and they are acquitted of the charge. The appellant Chandan Rai is in custody. He shall be released forthwith from custody, if not wanted in any other case. The remaining two appellants who are on bail are discharged from the liabilities of their bail bond.