JUDGMENT Jasbir Singh, J. (Oral) - This appeal has been filed against judgment and order dated 17.4.1998 and 18.4.1998, vide which appellant was convicted for commission of an offence under Section 304-B Indian Penal Code and was sentenced to undergo RI for a period of ten years. 2. It was case of the prosecution that marriage between appellant and deceased Taro was solemnised in the month of October, 1989. She consumed poison on 31.1994 and death occurred on 1.2.1994. 3. FIR was recorded at the instance of brother of the deceased namely Pappu (PW8) on 2.2.1994. Relevant contents of FIR read as under :- "I am a resident of the aforesaid address and do the work of Labour. My father had expired about 14 years ago. We are three brothers and three sisters. The eldest is Piari and next to her is Ishwar. The youngest of all is Taro. She (Taro) was married with Om Parkash s/o Takhtu, caste Odd Rajput r/o Chandni Bagh, about 3 years ago. My sisters husband is addicted in the habit of Drinking and Gambling. He used to maltreat to my sister. On account of his beating etc. my sister had brought Rs. 2000/- from our house and given to her husband. Inspite of that he used to tease my sister and give her beating. We came to know yesterday night, that my sisters husband had served my sister with some poisonous substance and she had expired in the hospital. Sh. Ram Dass, the uncle of my sisters husband, has played part in this matter. Legal action may be taken against them. On receiving information I have come here alongwith my mother and uncle. Sd/- Pappu (In Punjabi) Attested Partap Singh, ASI dated 2.2.1994." 4. During investigation, it came out that poison was consumed by the deceased on 31.1.1994, she was got admitted in the hospital by landlord of the house, where family was residing. On admission in the hospital, police was informed by the doctor concerned. However, subsequently, she died on 1.2.1994. Her viscera was sent for chemical examination. As per report, it was found containing aluminium phosphide. Cause of death was ultimately established as due to poison. On completion of investigation, final report was submitted in the Court for trial. Appellant/accused was charge-sheeted for commission of an offence under Section 304-B Indian Penal Code, to which he pleaded not guilty and claimed trial. As per report, it was found containing aluminium phosphide. Cause of death was ultimately established as due to poison. On completion of investigation, final report was submitted in the Court for trial. Appellant/accused was charge-sheeted for commission of an offence under Section 304-B Indian Penal Code, to which he pleaded not guilty and claimed trial. Prosecution then led evidence to prove his guilt and produced as many as 10 witnesses and also brought on record documentary evidence to establish its case. 5. On completion of prosecution evidence, statement of the appellant/accused was recorded under Section 313 Criminal Procedure Code, wherein he denied all the allegations appearing against him in prosecution evidence had pleaded false implication. He further denied that he ever raised any demand of dowry, as alleged against him. He was not available when poison was consumed by his wife. He also took up a stand that earlier, in the month of November/December, 1990, she remained admitted as an indoor patient in Hospital at Rohtak as she was suffering from some mental ailment. Even thereafter, she continued to get treatment regarding the same and may be due to her ill health, she had consumed poison and committed suicide. 6. He further stated that initially, FIR was recorded against him and three of his relatives but subsequently, complainant (PW8) Pappu, brother of the deceased, had filed an affidavit Ex. DA, wherein he had exonerated other accused except appellant. He also led evidence in defence to prove that the deceased was suffering from a mental disease. He also brought in landlord of the house, where the couple was residing on rent, to prove that the husband and wife were living happily and there were no strained relations between them. 7. Trial Court on appraisal of evidence, convicted and sentenced him as found mentioned in para 1 of this judgment. 8. Shri Chaudhary, learned counsel appearing for the appellant has vehemently contended that conviction and sentence was not justified in view of evidence on record. 7. Trial Court on appraisal of evidence, convicted and sentenced him as found mentioned in para 1 of this judgment. 8. Shri Chaudhary, learned counsel appearing for the appellant has vehemently contended that conviction and sentence was not justified in view of evidence on record. He, by referring to the contents of FIR, as reproduced in the preceding para of this judgment, statements of PW5, PW8 and PW9, contends that it was not a case of dowry death as demand of dowry was not proved on record and, there was absolutely no demand of dowry soon before death, as is necessary to convict any person for commission of an offence under Section 304-B Indian Penal Code. He further stated that allegations against the appellant were vague and general in nature on the basis of which he could not have been convicted as had been done by the trial court. 9. To support his contention, he has placed reliance upon a judgments of the Honble Supreme Court in Sunil Bajaj v. State of M.P., 2002 Supreme Court Cases (Crl.) 608, Sham Lal v. State of Haryana, AIR 1997 Supreme Court 1873, Kunhiabdulla and another v. State of Kerala, 2004(2) RCR (Crl.) 197 (SC) and State of Andhra Pradesh v. Raj Gopal Asawa and another, 2004(2) RCR (Crl.) 330 (SC). He prayed that appeal be accepted and the appellant be acquitted of the charge framed against him. 10. Arguments raised by counsel for the appellant have vehemently been controverted by Mr. Bijender Dhankhar, AAG Haryana, appearing for the State. He, by referring to evidence on record, argued that the guilt of appellant/accused was proved on record and the appellant had rightly been convicted and sentenced by the trial court. He, by referring to the statement of PW8, has stated that demand of dowry had continued till the time deceased consumed poison on 31.1.1994. He prayed that appeal be dismissed having no substance. Counsel for the parties heard. 11. It is apparent from the records that marriage took place between appellant and deceased Taro in the month of October, 1989, deceased consumed poison on 31.1.1994 and ultimately died on 1.2.1994. 12. From the facts mentioned above, it is apparent that death had occurred within 7 years from the date of marriage. It has also come on record and is apparent from Chemical Examiners report Ex. 12. From the facts mentioned above, it is apparent that death had occurred within 7 years from the date of marriage. It has also come on record and is apparent from Chemical Examiners report Ex. PA that death was caused due to poisoning i.e. Aluminium phosphide, as such, death is un-natural. Section 304-B Indian Penal Code reads as under :- "304B. Dowry Death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry. Such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. Explanation - For the purpose of this sub-section "dowry" shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 13. Their Lordships of the Supreme Court in Sunil Bajajs case (supra), while interpreting the provisions of Section 304-B Indian Penal Code had opined that to constitute an offence under Section 304-B Indian Penal Code, following essentials must be satisfied before any death can be termed as a dowry death :- "1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; 2) Such death must have occurred within 7 years of her marriage; 3) Soon before her death, the women must have been subjected to cruelty or harassment by her husband or by relatives of her husband; 4) Such cruelty or harassment must be for or in connection with demand of dowry." 14. To the same effect is the opinion of the Honble Supreme Court in Sham Lals case (supra). 15. Now, it is to be seen in this case, whether ingredients of an offence under Section 304-B Indian Penal Code, as have been enunciated by the Honble Supreme Court, were made out or not. To the same effect is the opinion of the Honble Supreme Court in Sham Lals case (supra). 15. Now, it is to be seen in this case, whether ingredients of an offence under Section 304-B Indian Penal Code, as have been enunciated by the Honble Supreme Court, were made out or not. In view of facts, as have been referred to in the earlier part of the judgment, 1st two ingredients i.e. No. 1 and 2 are complete. 16. Now, it is to be seen whether other two ingredients i.e. No. 3 and 4 are complete or not, in view of facts of this case. 17. It is apparent from the reading of contents of FIR that PW8 had stated nothing regarding demand of dowry when FIR was recorded at his instance. He had categorically stated that his sisters husband was addicted to drinking and gambling and he used to mal-treat his sister. He had further stated that on account of beating, his sister had brought Rs. 2,000/- from his house and gave the same to her husband. While appearing in the witness box as PW8, he had tried to make improvements over the statement made by him, on the basis of which, FIR was recorded, by stating that after about two years of marriage, appellant/accused had demanded a sum of Rs. 2,000/- and after torturing his sister, she was sent with a message that Rs. 2,000/- should be given to her, which was given accordingly. 18. It is not coming out from his statement that at the time of marriage or immediately thereafter or soon before death, demand regarding dowry was made by the appellant/accused. He had categorically admitted that no demand was put forward by the appellant/accused before or at the time of marriage. He had further stated that after marriage, appellant/accused had started demanding some dowry and ultimately, Rs. 2,000/- was paid after about two years of the marriage. If that payment is taken note of, it comes that demand of dowry was made in the year 1991, when Rs. 2,000/- was paid. He even failed to indicate any date, month or year when such demand was raised. He had tried to level general allegations. 19. To the same effect is the statement of Lalu Ram (PW9), uncle of the deceased. 2,000/- was paid. He even failed to indicate any date, month or year when such demand was raised. He had tried to level general allegations. 19. To the same effect is the statement of Lalu Ram (PW9), uncle of the deceased. So far as this witness is concerned, he had levelled general allegations to the effect that the deceased was being mal-treated in connection with demand of dowry by the appellant/accused. In his cross- examination, he had failed to tell the date, month or the year when this fact was disclosed to him by the deceased. He had also failed to tell the date, month or the year when she was mal-treated. PW5, an independent witness, who had performed the marriage ceremony of the deceased and the appellant/accused, in his statement had categorically stated that marriage was solemnised in a simple manner. 20. From the evidence, as referred to above, it is to be seen whether last two ingredients to constitute an offence under Section 304-B Indian Penal Code are made out or not. 21. Their Lordships of the Supreme Court in Kunhiabdullas case (supra), while dealing with a similar situation, by interpreting the provisions of Section 304-B Indian Penal Code and Section 113-B of the Indian Evidence Act, 1872, in para 11, has opined as under :- "11. A conjoint reading of Section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that soon before her 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 Evidence Act and Section 304B Indian Penal Code 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. Evidence in that regard has to be led by prosecution. Soon before is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. Evidence in that regard has to be led by prosecution. Soon before is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression soon before her death used in the substantive Section 304B Indian Penal Code and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression soon before is not defined. A reference to expression soon before used in Section 114, Illustration(a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief, or has received the goods knowing them to be stolen, unless he can account for its possession. The determination of the period which can come within the term soon before is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression soon before would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence." 22. To the same effect is the opinion of their Lordships in State of Andhra Pradeshs case (supra). 23. Keeping in view ratio of the judgments of the Supreme Court and the facts of this case, it is apparent that there was no demand of harassment to the deceased in connection therewith, as proved on record, soon before death. Only one stray incident has been referred to, that too, in the year 1991, approximately three years prior to the date of death. Only one stray incident has been referred to, that too, in the year 1991, approximately three years prior to the date of death. Under these circumstances, it can safely be said that prosecution had failed to prove guilt of the appellant/accused beyond a reasonable doubt. Furthermore, there existed no material to convict the appellant regarding abetment. PW8 and PW9 had levelled general allegations regarding harassment and cruelty. Both these witnesses have failed to refer to the date and month in which cruelty was meted out to the deceased. 24. Admittedly, husband was away when poison was consumed by the deceased. Husband and wife were residing in tenanted portion of a house. Landlord had appeared in witness box as DW2. He had categorically stated that deceased was suffering from some disease and the appellant/accused had been taking her for treatment many a times. He had further stated that the deceased had never complained about any ill treatment on the part of the appellant/accused. This witness had also deposed that both husband and wife were residing happily and had never quarrelled. DW2 was a witness, who had brought the deceased to the hospital. 25. Under these circumstances, it can be said that the prosecution had failed to prove on record any offence regarding abetment also. 26. In view of facts referred to above, appeal is allowed, judgment under challenge is set aside and appellant/accused is acquitted of the charge framed against him. No order as to costs. Appeal allowed.