Judgment :- (Appeal filed against the judgment of conviction and sentence imposed in S.C.No.55 of 1999 by the Principal Assistant Sessions Judge, Mayiladuthurai dated 19.8.1999.) This appeal has been preferred by the accused against the conviction for the offence punishable under Section 304(B) of IPC and sentence to undergo rigorous imprisonment for a period of 8 years and a fine of Rs.1,000/- in default to undergo rigorous imprisonment for a period of two months. 2. The brief facts of the case are as follows:- The appellant is the husband of the deceased Sakunthala. P.W.1 is the brother, P.W.2 is the mother and P.W.3 is the uncle of the deceased. On 8.9.1994, the appellant/accused and the deceased got married in a temple at Gobichettipalayam and the marriage invitation is Ex.P4. At the time of their marriage, the accused has demanded 10 sovereigns of gold jewels but the deceased was given 7 sovereigns of gold jewels only and other customary Sridhana properties were also given. Three months after the marriage, when the appellant/accused and the deceased went to the house of P.W.1 for their first Deepavali, the accused demanded P.W.1 to present gold ring. At that time, P.W.1 told to the accused that it was not possible and he would give later. Aggrieved over the same, the accused left the deceased Sakunthala and went to his native place. 3. After a month, the deceased was taken to the house of the accused, where the accused and the deceased lived separately, for the extension of his business, the accused demanded the deceased a sum of Rs.10,000/- or Rs.20,000/-, for which the father of the accused questioned the accused, due to which he bet his father. The deceased Sakunthala went to her fahter's house. Thereafter, she stayed in her brother's house for nearly 4 or 5 months. Then the deceased gave birth a male child. After delivery of the child, even though intimation was sent regarding the birth of his male child, the accused never came to see her and his child. Thereafter, the deceased Sakunthala and the child were taken to the house of the accused and left there. Sometime later, P.W.1 received a telegram stating that Sakunthala died and P.Ws.1 and 2 went to the house of the accused, where they saw the said Sakunthala was alive and when questioned the accused, he simply stated that he did it only for fun. Sometime later, P.W.1 received a telegram stating that Sakunthala died and P.Ws.1 and 2 went to the house of the accused, where they saw the said Sakunthala was alive and when questioned the accused, he simply stated that he did it only for fun. Thereafter, P.Ws.1 to 3 and 6 went to Mayiladuthurai Police Station, where they gave complaint-Ex.P1 to P.W.9-Inspector. She examined P.Ws.1,2 and the deceased Sakunthala, who gave Ex.P14 statement. Thereafter they took the deceased to P.W.1's house and then, Soundararajan took the deceased to the house of the accused, where she lived for a period of two months. After that, P.W.1 received Ex.P2-telegram, in which it was mentioned that Sakunthala was serious in condition and thereafter, they received Ex.P3 telegram in which it was stated that Sakunthala died. After receiving the telegram-Ex.P3, P.Ws.1 and 2 rushed to Mayiladuthurai. 4. On 19.8.1997 at about 1.10am Sakunthala was taken to Mayiladuthurai Government Hospital by the accused-her husband. At that time she has told to P.W.7-Dr.Govindarajulu that she herself poured kerosene at 12.30am and set herself fire. P.W.7 immediately sent Ex.P8-intimation to the police and also Ex.P9-requisition, which was received by P.W.12-the Judicial Magistrate, Mayiladuthurai on 19.8.1997 at about 1.50am. to record her statement. He went to the hospital and after getting a certificate from the doctor on duty that the injured was in fit state of mind to give statement, he recorded the statement of the deceased, which is marked as Ex.P19. On the same day at about 2.30am, P.W,11- Head Constable went to the Government Hospital, Mayiladuthurai and recorded the statement of the deceased, which is marked as Ex.P16, after getting a certificate from the doctor on duty that the injured was in a fit state of mind to give statement. On the same day, at about 7.00am he received Ex.P10-intimation that Sakunthala died in the Government Hospital, Mayiladuthurai. Therefore, he registered a case in Crime No.1317 of 1997 under Section 174 of Cr.P.C and prepared printed FIR, which is marked as Ex.P17. At 8.00 am. he went to the house of the deceased, where the occurrence took place and prepared Ex.P6-Observation Mahazar attested by P.W.5 and also ex.P18-sketch. 5. P.W.13, R.D.O. of Mayiladuthurai received the FIR on 19.8.1997 at 9.20am. and went to the Government Hospital, Mayiladuthurai at 9.30am and conducted inquest on the body of the deceased in the presence of Panchayatar. he went to the house of the deceased, where the occurrence took place and prepared Ex.P6-Observation Mahazar attested by P.W.5 and also ex.P18-sketch. 5. P.W.13, R.D.O. of Mayiladuthurai received the FIR on 19.8.1997 at 9.20am. and went to the Government Hospital, Mayiladuthurai at 9.30am and conducted inquest on the body of the deceased in the presence of Panchayatar. During the inquest, he examined P.Ws.1 to 3 and the accused and his father. He came to the conclusion that due to the dowry harassment, Sakunthala died. His inquest report is Ex.P5. His final report is Ex.P20. He sent the body of the deceased for post mortem. 6. P.W.8, who received the body of the deceased along with the requisition-Ex.P11 conducted autopsy on the body of the deceased. He found the following injuries:- "Body lies on the back, ii degree burns about 95% except portion of scalp and sole. On dissection: Hyoid bone intact. Left side of the heart contains clotted blood Lungs-pale. All abdominal organs pale. Stomach contains yellow colour (N.C.) with undigested food particles about 200ml. Uterus normal size. Bladder empty." He gave final opinion that the cause of the death was due to Hypovolemic shock, as a result of extensive burns. P.W.14-Inspector of Police, based on the report of the RDO, altered the case from Section 174 Cr.P.C. as one punishable under Section 304(B) IPC and sent express report-Ex.P21. The Deputy Superintendent of Police, Mayiladuthurai took up further investigation and examined P.Ws.1 to 5, P.Ws.7 to 10 on 15.12.1997, P.W.6 on 16.12.1997 and P.Ws.11 and 12 on 19.12.1997 and after completing the investigation, he filed charge sheet against the accused for the offence punishable under Section 304(B) IPC. 7. Before the Principal Assistant Sessions Judge, Mayiladuthurai, on behalf of the prosecution, P.Ws.1 to 15 were examined and Exs.P1 to P21 were marked. On behalf of the accused, no witness was examined, but Ex.D1-letter of the deceased was marked. On a careful consideration of oral and documentary evidence, the trial judge came to the conclusion that the alleged offence punishable under Section 304(B) of IPC against the accused was proved and convicted and sentenced him to undergo rigorous imprisonment for a period of 8 years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for a period of two months. Aggrieved over the said conviction and sentence, the accused preferred this appeal. 8. Aggrieved over the said conviction and sentence, the accused preferred this appeal. 8. Heard Mr.M.K.Subramanian, learned counsel appearing for the appellant and Mr.N.Kumaran learned Government Advocate (Criminal Side) appearing for the respondent. 9. Mr.M.K.Subramanian, learned counsel appearing for the appellant/accused would contend that in the two dying declarations, one recorded by the Judicial Magistrate No.I, Mayiladuthurai and another recorded by the Head Constable, the deceased never stated that she was harassed for dowry by the accused. On the other hand, she has stated that there was frequent quarrel between herself and the accused with regard to the quality of cooking food by her. After her death, when P.W.1-brother of the deceased and P.W.2-mother of the deceased and P.W.3-uncle of the deceased were examined, the allegation of dowry harassment has been introduced. Therefore, according to the learned counsel appearing for the appellant-accused, allegation of doing harassment is only an after thought and according to him, there was no immediate provocation for the deceased to pour kerosene and set fire by herself, thereby committing suicide. 10. Per contra, Mr.N.Kumaran, learned Government Advocate (Criminal Side) would contend that within three months after the marriage, when the accused and the deceased went to the house of P.W.1 for their first Deepavali, the accused demanded P.W.1 to present gold ring. At that time, P.W.1 told to the accused that it was not possible at that time and he would give later. Aggrieved over the same, the accused left the deceased Sakunthala and went to his native place. After a long time, she was taken back to the house of the accused. There were frequent quarrels between the accused and the deceased, which resulted the death of the deceased. Therefore, the presumption for the offence under Section 113 (B) of the Indian Evidence Act should be drawn by this court and the conviction should be upheld. 11. P.W.12, the Judicial Magistrate, is the first person who recorded the statement from the deceased at 2.15am on 19.8.1997. The said statement is marked as Ex.P19. In her statement, the deceased has stated that there would be frequent quarrels between herself and her husband-the accused without any reason. 11. P.W.12, the Judicial Magistrate, is the first person who recorded the statement from the deceased at 2.15am on 19.8.1997. The said statement is marked as Ex.P19. In her statement, the deceased has stated that there would be frequent quarrels between herself and her husband-the accused without any reason. On the previous day at 10.00pm there was quarrel between themselves and at the end of quarrel, she said that she has decided to die and therefore, she herself poured kerosene and set fire and her husband, the accused took her to the hospital and admitted her for treatment. On the same day at about 2.30am, P.W.11-Head Constable, Mayiladuthurai Police Station has recorded the statement of the deceased, Ex.P16, in which also she has stated that due to poor cooking of the deceased, the accused-her husband used to scold her stating that he did not like her and on 18.8.1997 at about 11.00pm she told him that she was going to pour kerosene and set fire, but her husband did not stop her and went out of the house and at about 12.30am, she poured kerosene and set herself in fire. The said statement is marked as Ex.P16, based on which FIR-Ex.P17 was registered. 12. A perusal of these two dying declarations would clearly show that at no point of time her husband demanded dowry or harassed her demanding dowry. According to P.W.1, after three months of their marriage, the accused demanded a gold ring at the time of his first Deepavali and thereafter, he demanded a sum of Rs.10,000/- or Rs.20,000/-for the purpose of extending his business, for which the father of the deceased questioned the accused, due to which he bet his father and the deceased Sakunthala went to her fahter's house. Thereafter, she stayed to her brother's house for nearly 4 or 5 months. Then the deceased gave birth a male child. After delivery of the child, even though intimation was sent regarding the birth of his male child, the accused never came to see her and his child for about six months. Thereafter, the deceased Sakunthala and the child were taken to the house of the accused and left there. On 30.6.1996, Ex.P14 complaint was given by the deceased to the All Women's Police Station and Ex.P15 is also a complaint dated 30.6.1996 given by the mother of the deceased to the same police station. Thereafter, the deceased Sakunthala and the child were taken to the house of the accused and left there. On 30.6.1996, Ex.P14 complaint was given by the deceased to the All Women's Police Station and Ex.P15 is also a complaint dated 30.6.1996 given by the mother of the deceased to the same police station. In these two complaints, there is no allegation that the accused demanded dowry. In Ex.P14 it is stated that the accused demanded a sum of Rs.10,000/- or Rs.20,000/-for expanding his business, but the date of demand is not mentioned. However the fact remains that after 30.6.1996, the deceased lived in her mother's house till 5 months prior to the date of occurrence. The occurrence had taken place on 19.8.1997, that is about 14 months after the complaints dated 30.6.1996 in which there is no demand for dowry and prior to the occurrence, there is no proximity of any dowry harassment before her death. 13. In this connection, Mr. M.K.Subramanian, learned counsel appearing for the appellant/accused relied on the following Supreme Court decisions:- (i) In BALWANT SINGH v. STATE OF PUNJAB (2004 Supreme Court Cases (Crl.)2057) Supreme Court held as follows:- "A Penal Code,1860--S.304-B--Dowry death --"Soon before her death"--Facts and circumstances must show existence of a proximate live link between the effect of cruelty or harassment for or in connection with dowry demand and death of the victim--Where deceased not shown to have been subjected to cruelty or harassment by her husband for at least 15 months prior to her death, held, S.304-B not attracted. Held: "Soon before" is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim." (ii) In KAMESH PANJIYAR v. STATE OF BIHAR (2005 Supreme Court Cases (Crl)511) the Supreme Court has held as follows:- 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. (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. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory for the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (i) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (ii) The woman was subjected to cruelty or harassment by her husband or his relatives. (iii) Such cruelty or harassment was for, or in connection with, any demand for dowry. (iv) Such cruelty or harassment was soon before her death. A conjoint reading of Section 113-B of the Evidence Act 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. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before her death" is very relevant where Section 113-B of the Evidence Act and Section 304-B 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. Evidence in that regard has to be led by prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket 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 113-B of the Evidence Act. 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 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B 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 the 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 his possession. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon the 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 cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. 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. (iii) In STATE OF RAJASTHAN v. TEG BAHADUR (2005 Supreme Court Cases (Crl)218, the Supreme Court has held as follows:- "For proving the offence under Section 304-B of the Indian Penal Code, the prosecution has to prove the following things: (a)The death of the married woman was within seven years of the marriage. (b) A title prior to death, her husband or relative, on the point of demand of dowry subjected her to cruelty or harassed her. A conjoint reading of Section 113-B of the Indian Evidence Act and Section 304-B of the Indian Penal Code 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 Indian Evidence Act and Section 304-B of the Indian Penal Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances." (iv) In THAKKANJHA v. STATE OF BIHAR (2006) I Supreme Court Cases (Crl)309), the Supreme Court has held in paragraphs 6 and 7 as follows:- 6. In Kans Raj v. State of Punjab a three-Judge Bench of this Court dealt with the presumption available in terms of Section 113-B of the Evidence Act, 1872 (in short "the Evidence Act") and its effect on finding persons guilty in terms of Section 304-B IPC. It was noted as follows: (SCC p.217, para 9) "9. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304-B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death." 7. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the victim. This is so because the expression used in the relevant provision is "soon before". The expression is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". This is because of what is stated in Section 114 Illustration (a) of the Evidence Act. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon the 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 cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link [see Hira Lal v. State (Govt. of NCT), Delhi2]. 14. From the judgments cited above, it is made clear that For proving the offence under Section 304-B of the Indian Penal Code, the prosecution has to prove the following things: (a) The death of the married woman was within seven years of the marriage. (b) A little prior to death, her husband or relative, on the point of demand of dowry subjected her to cruelty or harassed her. As for on this case is concerned, there is no evidence that there was cruelty or harassment of the deceased soon before her death. In the letter Ex.D1 dated 28.9.1996, the deceased has stated that it was her fault to leave her husband for which she requested apology and she was ready and willing to live with her husband. There is no allegation of dowry demand in this letter. 15. In the letter Ex.D1 dated 28.9.1996, the deceased has stated that it was her fault to leave her husband for which she requested apology and she was ready and willing to live with her husband. There is no allegation of dowry demand in this letter. 15. In the dying declaration before the Judicial Magistrate-Ex.P19 and the dying declaration before the Head Constable-Ex.P16 she has stated that without any reason very often they used to quarrel with each other and also that she was not cooking properly. The allegation of demand of dowry is belated and even if it is true, it was stale. Therefore, the presumption of Section 113-B of the Indian Evidence Act cannot be drawn against the accused and since offence alleged against the accused is not proved beyond reasonable doubt, the benefit of doubt is in favour of the accused and hence, he cannot be convicted for the offence punishable under Section 304(B) IPC. 16. In result, this appeal is allowed, setting aside the conviction and sentence imposed in S.C.No.55 of 1999 by the Principal Assistant Sessions Judge, Mayiladuthurai dated 19.8.1999. Bail bond if any, shall be cancelled. Fine amount if paid, shall be refunded to the accused.