JUDGMENT P.K. Musahary, J. 1. Being convicted under Section 304B/34, IPC and sentenced to undergo R.I. for 7 (seven) years, the appellants have preferred this appeal against the judgment and order dated 23.7.2008 passed by the learned Sessions Judge, Darrang, Mongaldoi in Sessions Case No. 67 (DM) of 2005. 2. The prosecution case, in nutshell, is that on 17.10.2002, one Md. Samsur Ali lodged an FIR with the Officer-in-Charge, Sipajhar P.S alleging that on 24.4.2002 his third daughter, Mustt. Runu Begum, aged about 25 years, was married to Md. Samadul Ali @ Samasul Hoque, third son of Md. Bhebua Sheikh. On 15.10.2002 at about 7.30 AM at Maroi under Sipajhar P.S., Md. Bhebua Sheikh, Halima Begum, Md. Ahed Ali and Md. Mazizul Haque @ Ali set fire on the person of Runu Begum by pouring kerosene on her body on demand of dowry. The accused being relatives of Md. Samadul Ali @ Samasul Hoque, husband of the deceased, caused severe burn injury on her person and she succumbed to her injuries on the same day at about 10.30 P.M. at Gauhati Medical College Hospital (GMCH). The deceased, Runu Begum, before her death, allegedly stated before the, O.C., Sipajhar Police Station and attending doctor that the aforesaid accused-persons forcefully poured kerosene on her body and set fire. 3. On the basis of the aforesaid FIR, the police registered a case being Sipajhar P.S. Case No. 148/02 under Sections 304B, IPC read with Section 34, IPC. Police, after investigation, submitted charge sheet under Sections 304B/34, IPC against Md. Ahed Ali, Md. Mazizul Haque @ Ali and Mustt. Halima Begum, the present appellants. The case was committed to the Sessions Judge, Darrang, Mongaldoi, who framed charges under Sections 304B/34, IPC against the appellants to which they pleaded not guilty and claimed to stand trial. 4. The prosecution examined in all 12 witnesses including the, I.O., and the medical officer to establish its case. The defence examined 02 witnesses. The accused-persons were also examined under Section 313 Cr. PC who denied the charges. The learned Sessions Judge, after perusing the evidence on record and hearing both the parties, convicted the accused-appellants as mentioned above. 5. I have heard Mr. H.R.A. Choudhury, Learned Senior Counsel assisted by Ms. Nargis, Learned Counsel for the appellants and also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam. 6. Mr. PC who denied the charges. The learned Sessions Judge, after perusing the evidence on record and hearing both the parties, convicted the accused-appellants as mentioned above. 5. I have heard Mr. H.R.A. Choudhury, Learned Senior Counsel assisted by Ms. Nargis, Learned Counsel for the appellants and also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam. 6. Mr. Choudhury, Learned Senior Counsel for the appellants submits that although allegations have been made in the FIR that the accused-persons/appellants poured kerosene and set fire on the body of the deceased demanding dowry, there is no evidence that before her death or before the alleged occurrence, there was any demand for dowry from the parents of the deceased. The father of the deceased Md. Samsur Ali was examined as PW1. The deceased's mother, Smt. Maharun Begum was also examined as PW6 but none of them, in their deposition, stated that the accused-appellants or for that matter, the in laws of the deceased demanded dowry or the deceased had been tortured physically or mentally on demand of dowry. One Tamzida Begum, a neighbour was also examined as PW7 as an independent witness. In her evidence, she did not say anything about the dowry demand and torture on the deceased by the accused-appellants. In order to convict the accused-appellants under Sections 304B/34, IPC, the prosecution must prove that soon before the death of the women, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry. The prosecution could not adduce any evidence to that effect and as such, the accused-appellants cannot be convicted under Section 304B, IPC. In this regard, Mr. Choudhury, relied on the decisions rendered by the Apex Court in the following cases:- (1) Tarsem Singh vs. State of Punjab, (2009) 73 AIC 50 (SC) (2) Biswajit Halder @ Babu Halder and other vs. State of W.B. (2008) 1 SCC 202 (3) State of Andhra Pradesh vs. Guvva Satyanarayana, (2008) 12 SCC 692 (4) Noorjahan vs. State represented by DSP, (2008) 11 SCC 55 (5) Anand Kumar vs. State of Madhya Pradesh, (2009) 3 SCC 799 7. Mr. Choudhury, Learned Senior Counsel, secondly submits that the learned trial court heavily relied upon so called dying declaration (M-Exhibit 'A'), made by the deceased before the attending doctor in presence of some police officials and medical staff. Mr. Choudhury, Learned Senior Counsel, secondly submits that the learned trial court heavily relied upon so called dying declaration (M-Exhibit 'A'), made by the deceased before the attending doctor in presence of some police officials and medical staff. As per the evidence of PW9, Dr. Prodip Ch. Sarma, Medical and Health Officer-1 of Sipajhar Primary Health Centre, who recorded the dying declaration, testified that the deceased received 80% burn injury and he recorded the dying declaration inside the vehicle just before she was being shifted to GMCH. Moreover, the victim woman, in her dying declaration, specifically stated that she could not say as to who set fire on her. Such dying declaration as stated to have been recorded by the doctor in such a condition cannot be relied upon for conviction of the accused-appellants. In support of his submissions, he also relies upon the decisions rendered by the Apex Court in P. Mani vs. State of Tamil Nadu, (2006) 3 SCC 161 and Kamalakar Nandram Bhavsar vs. State of Maharasthra, AIR 2004 SC 503 . 8. Thirdly, it is submitted by Mr. Choudhury that there being no evidence supporting the case under Section 304B, IPC, it would attract offence under Section 498A, IPC, which relates to cruelty by husband or relatives of the husband. Except the allegation made in the FIR, according to Mr. Choudhury, there is no evidence to prove that the accused-appellants, being relatives of the husband of the deceased woman indulged themselves in subjecting the deceased to cruelty on dowry demand. The prosecution, except PW7, Tamzida Begum, examined no independent witness to support the case of cruelty. The prosecution could have produced some neighbours of the deceased or co-villagers to give evidence on the alleged cruelty committed by the husband or relatives of the husband of the deceased. The prosecution has failed to bring home the charge under Section 304B, IPC as well as Section 498A, IPC and as such, the impugned judgment and order convicting the accused-appellants under Section 304B/34, IPC is not sustainable under the law as the charges against them have not been proved beyond reasonable doubts. 9. First of all let me discuss about the acceptability and reliability of the dying declaration purported to have been made by the deceased. The dying declaration was recorded by Dr. P.C. Sarma, PW9, on 15.10.2005 at 8.30 A.M., in presence of Shri Sapwan Kr. 9. First of all let me discuss about the acceptability and reliability of the dying declaration purported to have been made by the deceased. The dying declaration was recorded by Dr. P.C. Sarma, PW9, on 15.10.2005 at 8.30 A.M., in presence of Shri Sapwan Kr. Seal, O.C., PW10, Shri Suren Kalita, I.O., PW11 and Smt. Bhagya Deka, ANM, PW8. PW9 deposed that while he was on duty at Sipajhar Primary Health Centre (PHC) on 15.10.2002, a woman was brought to the said PHC with severe burn injuries. He found the patient in a semi conscious state but she could talk. The local police came to the hospital on being informed by him regarding the burn case. PW10 and PW11, the, O.C., and the, I.O., respectively came to the PHC and in their presence, he recorded the dying declaration. In cross-examination, he stated that he found 80% burn injury on the body of the victim woman and she was trying to tell something. Considering her serious condition, he referred the victim woman to GMCH for further treatment. The police arrived at the campus of the PHC after half an hour of the information sent to them. After the arrival of the police, he recorded the dying declaration inside the vehicle in the compound of the hospital just before she was shifted to GMCH, Guwahati. 10. PW10, O.C., in his deposition, confirmed his presence in the Sipajhar PHC along with PW11 at the time of recording the dying declaration. He also confirmed that he issued a requisition to the hospital in-charge requesting him to record dying declaration of the victim woman. He put his signature on the dying declaration. PW11, Shri Suren Kalita, I.O., corroborated the evidence of PW9 and PW10. He was present at the time of recording the dying declaration and he put his signature as a witness thereon. During investigation, he seized the dying declaration, M-Exhibit 'A' through a seizure list marked as Exhibit-2(1). He put his signature marked as Exhitbit-2(2). The other witness to the recording of the dying declaration is Smt. Bhagya Deka, PW8, who was working as ANM in the said hospital at the relevant time. She also confirmed her presence at the time of recording the dying declaration of the victim woman by PW9 at 8.30 a.m. She put her signature on the dying declaration marked as Exhibit A(1). She also confirmed her presence at the time of recording the dying declaration of the victim woman by PW9 at 8.30 a.m. She put her signature on the dying declaration marked as Exhibit A(1). According to her, the victim Runu Begum put her signature on the dying declaration in her presence. The signature of the victim is marked as Exhibit A(1)(2). In her cross-examination, she deposed that she did not hear what the victim said in her dying declaration but she saw the recording of the dying declaration by the doctor. She also deposed that the victim Runu Begum could not talk properly. 11. A doubt has been expressed by Mr. Choudhury, Learned Counsel for the appellants that as to how a patient with 80% burn injury in a semi conscious state who could not talk properly, could make dying declaration and why the dying declaration was recorded without awaiting arrival of a Magistrate and also why it was recorded in the vehicle just before shifting her to GMCH. According to him, PW8, the Nurse on duty who was present at the time of recording the statement could not hear what statements were made by the victim and she simply put her signature on the dying declaration. Her evidence, therefore, cannot be treated as reliable. Before accepting the submission of the Learned Counsel for the appellants, one must try to appreciate that the victim woman was rushed to the PHC in a precarious condition, as found in the evidence of PW9, with 80% burn injuries in a semi conscious state and to save her life, arrangements were made to shift her to GMCH. PW9, from his own, informed the police and the police arrived within half an hour. As the victim was trying to say something after arrival of the police, PW9 had to record her statement in the vehicle itself just before leaving the PHC compound. Although, there was no evidence that the victim would succumb to her injury immediately, it was quiet natural to apprehend that she may die on way to GMCH and as such, the situation demanded recording of her statement in such manner. Although, there was no evidence that the victim would succumb to her injury immediately, it was quiet natural to apprehend that she may die on way to GMCH and as such, the situation demanded recording of her statement in such manner. There is no contradiction in the evidence of PWs 8, 9, 10 and 11, who were present at the time of recording the dying declaration, rather they have corroborated each other and as such, the fact of recording the dying declaration has been proved. The evidence of PW8, the Nurse on duty would not, in any manner, disprove the fact of recording the dying declaration. The responsible of police officials like PWs 10 and 11, who were present at the time of recording the dying declaration, corroborated the evidence of PW9 and they have also proved the contents of the dying declaration. It may be noted that PWs 8, 9, 10 and 11 are government servants and they are not related to the victim woman. All these witnesses are independent witnesses and they have no motive in recording the dying declaration and therefore, the fact of recording of dying declaration by PW9 in presence of PWs 8, 10 and 11 cannot be doubted. The defence at least could not make out any case of mala fide intention or motive behind recording the dying declaration by the PW9. It is not the rule that dying declaration must be recorded by the Magistrate alone or in presence of the Magistrate. It depends on the situation and if the condition of the victim is such that recording of her statement is necessary without waiting for arrival of the Magistrate, it can be done by the doctor who must be satisfied himself after examining the victim that he or she is mentally and physically fit to make the statement. A dying declaration may be recorded by the police personnel in the hospital after being certified by the doctor about the mental and physical fitness of the victim. 12. In the present case, the person who recorded the dying declaration is himself a doctor on duty in the hospital and he was the best person to know about the physical and mental condition of the victim woman. 12. In the present case, the person who recorded the dying declaration is himself a doctor on duty in the hospital and he was the best person to know about the physical and mental condition of the victim woman. Unless contradictory is proved, no presumption can be made that the doctor, PW9, recorded the victim's statement when her mental and physical condition was not fit enough to make any statement. In certain circumstances, a dying declaration can be recorded by any person before whom the deceased, before her death, desires to make statement. Such situation has been discussed in Nanhau Ram and Ann v. State of Madhya Pradesh 1988 (Supp.) SCC 152. In that case, during a clash between the dacoits and inmates of the house, one Nanhau Ram, who was standing with a gun, shot at one Dwarka Prasad who fell down. On alarm being raised, his sons and people from near by village came and the dacoits fled away. The injured Dwarka Prasad in presence of the people gathered asked one villager to take down his statement that he recognised the two accused persons amongst the dacoits. His dying declaration was scribed whereupon he put his thump impression. The scribe and several villagers who were present at the time of recording the dying declaration put their signatures on the same. Dwarka Prasad was then taken to a boat for his treatment in the hospital but he breathed his last on the boat. It was deposed and proved by the witnesses that Dwarka Prasad was in full of senses when he dictated the dying declaration. The learned trial court, in the said case, relied upon the said dying declaration and on appreciation of the evidence convicted the accused-persons, which was upheld by the. Madhya Pradesh High Court in the appeal. The Apex Court, in the said case, upheld the conviction awarded by the learned trial court as well as the judgment of the High Court. It has been observed in the said case that the wife and sons of the deceased stated categorically in their deposition that Dwarka Prasad was in full of senses while making the statement which were recorded in writing by PW2 who is an independent witness and he has no anonymous against the accused-appellants. It has been observed in the said case that the wife and sons of the deceased stated categorically in their deposition that Dwarka Prasad was in full of senses while making the statement which were recorded in writing by PW2 who is an independent witness and he has no anonymous against the accused-appellants. The present case, in my considered view is in a better footing in respect of recording of dying declaration and admissibility and acceptability of the same inasmuch as the dying declaration was recorded by a doctor who attended the victim woman in presence of police officials and other independent witnesses. In my consider view, the dying declaration in the present case can be treated as a reliable and acceptable piece of evidence for conviction of the accused-appellants. 13. In P. Mani's case (supra), on which the Learned Counsel for the appellants relied upon heavily, the Apex Court held that the dying declaration must be wholly reliable and in case where suspicion can be raised as regards the correctness of the dying declaration, the court, before convicting an accused on the basis thereof, would seek corroboration and if the evidence on records shows that the statement of deceased not wholly true, it can be treated only as a piece of evidence but conviction can not be based solely upon it. This principle of law is to be applied as per the facts and circumstances of the case. That was a case whore a wife, who had no good relation with her husband, made dying declaration before a Judicial Magistrate implicating her husband having set her on fire. Her accused husband took her in the hospital along with other witnesses. They reached the hospital at about 11.15 A.M. A dying declaration was recorded by a Judicial Magistrate between the period 12.25 P.M. and 12.45 P.M. in presence of a doctor. The alleged incident took place on 4.10.1998 at about 10.45 A.M. and she died after 5 days. The son and daughter of the deceased in their evidence categorically stated that their deceased mother had been suffering from mental illness/depression and had made an attempt to commit suicide by pouring kerosene and setting fire on her person on an earlier occasion but the same was prevented. The son and daughter of the deceased in their evidence categorically stated that their deceased mother had been suffering from mental illness/depression and had made an attempt to commit suicide by pouring kerosene and setting fire on her person on an earlier occasion but the same was prevented. It has been observed by the Apex Court in the said case that it is the positive case of the prosecution itself that she was not keeping good relations with the appellant husband on the belief that he had an affair with another lady and if she had been labouring under a false belief and if in fact, she had been suffering from depression for whatsoever reasons, the possibility of her making wrong statement before the Magistrate cannot be ruled out. In the said case, it is also found that all the material witnesses turned hostile. The facts and circumstances of the present case defer from the aforesaid cited case in the main aspect, that is recording the dying declaration. The learned trial court, before accepting the dying declaration, found corroboration in the evidence of PWs 8, 9, 10 and 11 who were present at the time of recording the dying declaration. This is not a case of suspicion and any suspicion, if any, has been removed by the corroborated evidence of the aforesaid witnesses. In the other case of Kamalakar Nandram (supra) cited by the Learned Counsel for the appellant, the deceased suffered severe burn injuries to the extent of 94-95% consequent to which, she died on the next day in a hospital. According to the prosecution in the said case, right from the day of marriage, the deceased was ill-treated on account of non-payment of sufficient dowry and also because of her black complexion. During the course of trial, the prosecution examined 8 witnesses, out of which, 3 witnesses spoke about the ill-treatment meted out to the deceased as also to the factum of she being driven to commit suicide because of the act of the accused-persons. As per the prosecution, no dying declaration was made by the deceased but the doctor who conducted the post mortem, on being examined, stated during cross-examination that a dying declaration was made by the deceased when she was in the hospital. As per the prosecution, no dying declaration was made by the deceased but the doctor who conducted the post mortem, on being examined, stated during cross-examination that a dying declaration was made by the deceased when she was in the hospital. It was established that the deceased had almost 95% burns and she was put on oxygen right from the moment she was brought to the hospital and continued to be on oxygen till she died and thus, she was not in a condition to make any dying declaration. The said dying declaration was found to be not genuine document inasmuch as the doctor who claimed to have recorded the dying declaration was not the doctor who treated the deceased in the hospital and he simply conducted the post mortem on the dead body of the deceased. It would be beneficial for all, if para 7 of the judgment in the aforesaid case is quoted below:- 7. So, for as the genuineness of the dying declaration is concerned, having perused the materials on record, we are also satisfied that the said document is not a genuine document. Until PW5, the doctor who conducted the post mortem was examined, the defence did not, in any manner, indicate or disclose the factum of the existence of a dying declaration. No suggestion was put to the other prosecution witness as to the existence of a dying declaration. It is very surprising that a doctor who admittedly did not treat a patient during her life time would be called upon to certify the fitness of the patient to make a dying declaration when other doctors who treated the said patient were available for the said purpose. From the evidence on record also, it is clear that the deceased was in no condition to make a dying declaration. She had almost 95% burns and she was put on oxygen right from the moment she was brought to the hospital and continued to be on oxygen till she died. In such circumstances, it is difficult to believe that she could have made a dying declaration when she was not even capable of breathing by herself. The evidence on record shows that she died within about half an hour after making the alleged dying declaration. In such circumstances, it is difficult to believe that she could have made a dying declaration when she was not even capable of breathing by herself. The evidence on record shows that she died within about half an hour after making the alleged dying declaration. All these circumstances lead to one and the only conclusion that this dying declaration is not a genuine document and the High Court was justified in rejecting the same on that basis. I would, therefore, hold that the aforesaid cited case would not be applicable to the present case. 14. The principle on which dying declaration is admitted as evidence is based on the legal maxim "nemo moriturus proesumitur mentire a man will not meet his maker with a lie in his mouth." So far as the dying declaration is concerned, the accepted legal proposition is that it is an exception to the general rule against his evidence contemplated under Section 60 of the Evidence Act, 1972. It is because, if the dying declaration is excluded it would result in miscarriage of justice as the victim being generally the only eye witness in a serious crime the exclusion of the statement would leave the court without any scrap of evidence. The Summit Court, therefore, reminded that though a dying declaration is entitled to great weight; it must be kept in mind that the accused has no scope for cross-examination. The maker of the dying declaration since not alive, the accused is deprived of the chance of cross-examining him and as such, it is always insisted that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting, or product of imagination. Once the court is satisfied that the declaration was made in a fit state of mind after a clear opportunity to observe and identify the assailant and it is true and voluntary, it can base its conviction without any further corroboration. In Muthu Kutty vs. State by Inspector of Police, Tamil Nadu (2005) 9 SCC 113 , it is held that corroboration is not an absolute rule of law and the rule requiring corroboration is merely a rule of prudence. 15. In Muthu Kutty vs. State by Inspector of Police, Tamil Nadu (2005) 9 SCC 113 , it is held that corroboration is not an absolute rule of law and the rule requiring corroboration is merely a rule of prudence. 15. Adding to the above principles, I would also love to quote few lines from the observations made by DW Elliott, Solicitor, Professor of Law, University of Newcastle-upon-Tyne, in his book "Phipson's Manual of the Law of Evidence" (10th edition) - In trials for murder or manslaughter the dying declaration of the victim, made under the sense of impending death, is admissible to prove the circumstances of the crime. The special circumstances which prima facie guarantees the truth of the statement is the solemnity of the occasion, when the sense of impending death creates a sanction equal to the obligations of an oath. Nevertheless, declarations made on such a solemn occasion concerning any matter other than the homicide of the declarant are not within this exception to the hearsay rule. And with an admissible declaration, the Judge must point out to the jury that the declaration was not subject to cross-examination. In the light of above observations, the present case may be examined as to whether there existed:- (1) Sense of impending death by the deceased (2) Special circumstances (3) Statement was made in solemnity of the occasion It is a common knowledge that the deceased with 95% burn injury (as per PM report, Ext. 7) was under the sense of impending death, who in fact, died within 18 hours from the time of occurrence. The primary health centre where she was taken first, due to seriousness of her condition, had to be referred to GMCH. Her husband was not present at home at the time of occurrence. He was not even present in the PHC and so she had to tell the attending doctor about the incident before her imminent death. As per PM report, she was carrying 5 months old female dead foetus. She was expecting to give birth to her first child out of the wedlock. Normally, no expecting mother would like to die even under extreme hardship. Why should the deceased commit suicide when her husband is not a party to the act of torture on dowry demand by the in-laws. She has no complaint against her husband. She was expecting to give birth to her first child out of the wedlock. Normally, no expecting mother would like to die even under extreme hardship. Why should the deceased commit suicide when her husband is not a party to the act of torture on dowry demand by the in-laws. She has no complaint against her husband. The love between the husband and wife is not lost; rather it was refreshing with the expecting child. So, she had to tell the truth in solemnity of the occasion in the form of dying declaration with the sense of impending death without being tutored, prompted or driven by any ill-motive, which is as solemn as statement on oath. 16. Because of what has been discussed above in the light of the decisions of the Apex Court in respect of the dying declaration, I find no ground in the present case for discarding the dying declaration in question, as a piece of unreliable and doubtful evidence. It does not matter even if the victim woman could not see who actually set fire on her body. One should visualize the situation confronted by her and try to appreciate the mental condition of a helpless woman on whose body the in-laws had poured kerosene with intention to kill her. She must have been struggling to free herself from their clutches and flee away in extreme nervousness for which she could not notice who threw the lighted match stick on her body already soaked with kerosene. Will a reasonable man afford to disbelieve her statement? In my considered view, the learned trial court rightly relied upon and accepted the dying declaration (M-Exhibit 'A') as a piece of reliable evidence for awarding conviction of the accused-appellants. 17. As regard the charge under Section 304B, IPC, the prosecution has relied upon the FIR and the evidence of PW1 and PW6, both father and mother of the deceased. There is specific mention/allegation in the FIR that the accused-persons named in the FIR jointly poured kerosene and set fire on her body on 15.10.2002 at about 7.30 A.M. on demand of dowry. In the evidence of PW1, it has been stated that after the marriage, the deceased once came to his house and told that she would not return to matrimonial house as the accused-persons used to torture her. In the evidence of PW1, it has been stated that after the marriage, the deceased once came to his house and told that she would not return to matrimonial house as the accused-persons used to torture her. The relevant portion of his evidence in examination-in-chief, translated from Assamese is quoted- After 4 months of her marriage, Runu came to my house and told me that she does not want to return to the house of the accused. On my query, she told me that the accused-persons have been assaulting her. She told me that her mother-in-law Halima Begum used to beat her. I sent her back to matrimonial house but after 10/12 days, Runu returned to our house with her husband. My son-in-law was keen to leave Runu for one week as because he is busy in fish business. On my enquiry, why he wanted to leave Runu for a week, he told me that only yesterday her mother-in-law accused Halima Begum assaulted Runu Bengum over gold ornament/necklace. She was taunted as the gold ornament/ necklace could not be given from my side. Having learnt about the same, I again in the morning of the next day brought her to the house of the accused. There Halima Begum rebuked me. PW6 also deposed in the same line and corroborated the evidence of PW1, the mother of the deceased. Her deposition in examination-in-chief, translated from Assamese language, would be like this - The mother-in-law and father-in-law of Runu Begum do not give her meal to eat; they used to keep the kitchen under lock and key. Being helpless my son-in-law Samad Ali, brought Runu Begum to my house for 02 days. He told me that the father-in-law, mother-in-law, Ahed Ali, brother-in-law and Mazi Ali, had not given meal to Runu. Her father took her to the husband's house. After about 3 days, due to some quarrel, Samad Ali again brought her to our house. She stayed two nights. I took her to the house of the accused on Friday. She died in the GMCH. She was brought there in a vehicle in a complete burnt state. The girl was tortured by the accused-persons as we could not give gold ornament/necklace at her marriage. They refused to solemnize the marriage as we could not give the gold necklace. I took her to the house of the accused on Friday. She died in the GMCH. She was brought there in a vehicle in a complete burnt state. The girl was tortured by the accused-persons as we could not give gold ornament/necklace at her marriage. They refused to solemnize the marriage as we could not give the gold necklace. But Samad Ali married on the assurance that he would get the gold necklace made. As we could not give the gold necklace, the accused-persons have assaulted, tortured and killed her by burning. In cross-examination, the defence put no suggestion to the aforesaid important witnesses to rebut that the accused-persons did not demand any dowry or the deceased was tortured as her patents could not give gold ornament or gold necklace. The defence, however, in cross-examination, put suggestion to PW6 that the accused persons did not torture the deceased. The manner in which, the defence cross-examined and put suggestion to PW1 and PW6, it becomes clear that the demand for gold necklace/ornament by the accused-persons and torturing her for the same have not been denied. The aforesaid facts, thus, stands proved by the parents of a deceased. Of course, the evidence of PWs 1 and 6 have not been corroborated by any independent prosecution witness. It must be noted that all the accused-persons and the parents of the deceased live in the same village. The prosecution examined PW2, PW3 and PW4, co-villagers, as witnesses but they have deposed only as seizure witnesses. Another co-villager and neighbour Tamzida Begum was examined as PW7, but she did not say anything about the dowry demand or the torture committed by the accused-persons. It is under such circumstances and evidence on records, Mr. Choudhury, Learned Counsel for the appellant submits that the evidence of PW1 and PW6 cannot be relied upon for conviction under Section 304B, IPC. In the same context, Mr. Choudhury, Learned Counsel for the appellants also argued that in the dying declaration (M-Exhibit 'A') there is no mention whatsoever that the accused-appellants, on dowry demand, poured kerosene and set fire on her person. In the same context, Mr. Choudhury, Learned Counsel for the appellants also argued that in the dying declaration (M-Exhibit 'A') there is no mention whatsoever that the accused-appellants, on dowry demand, poured kerosene and set fire on her person. The reason for such extreme act like pouring kerosene and setting fire on the person of the deceased has not been mentioned by the deceased herself and as such, the prosecution has imported a case of dowry-torture on presumption only which is not permissible under the criminal law and the conviction passed on such presumption must not be allowed to sustain. 18. It is difficult to accept the above submission of the Learned Counsel for the appellants because in my consideration, the prosecution has led enough evidence to lead to the presumption that the present appellants were responsible for the death of the deceased. The death, according to prosecution, is homicidal. According to defence, the death is suicidal. The evidence has confirmed that deceased had suffered unnatural death while she was living in the company of the appellants in absence of her husband, at her matrimonial house and before her death, she had suffered torture and ill-treatment at the hands of the appellants over demand for gold ornament/necklace, which the parents of the deceased could not give at the time of marriage. Since the defence has taken the plea of suicidal death of the deceased, there is no scope for taking a view that the deceased died in an accident. It is established that it was an unnatural death. Even accepting the defence story that it is a case of suicide, none the less, it occurred in unnatural circumstances and it would attract Section304B, IPC. In such case, Section 4 of the Evidence Act would come into play. This has been discussed in Shamnsaheb M. Multtani vs. State of Karnataka AIR 2001 SC 921 , with explanation under what circumstances, court should press into service, the provision of Section 4 of the Evidence Act. Paragraph 28 of the said judgment be reproduced for this purpose. 28. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the court shall presume the fact it shall regard such fact as proved unless and until it is disproved." So that court has no option but to presume that the accused had caused dowry death unless the accused disproves it. 28. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the court shall presume the fact it shall regard such fact as proved unless and until it is disproved." So that court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However, it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both. In the above case it has further been held that the peculiar situation in respect of an offence under Section 304B, IPC is that the court has a statutory compulsion, merely on the establishment of the two factual positions, namely (i) death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (ii) soon before her death, she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch, the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it. Once the defence has projected the case of suicidal death, burden has been shifted to it to prove the same. In the instant case, the defence had made no attempt to discharge its burden by adducing evidence in this respect and it remained satisfied by putting suggestion to PWs 1 and 6 during cross-examination. None of the DWs deposed that the deceased committed suicide. So the evidence of the prosecution about causing death of the deceased by the accused-appellants, over dowry demand has not been disproved in any manner by the defence. 19. The presumption under Section 113B of the Evidence Act will also operate, if prosecution is able to establish circumstances set out in Section 304B, IPC. This has been held so in State of Karnataka vs. M.V. Mangunethegowda and another, (2003) 2 SCC 188 . It may be apposite to quote Section 304B, IPC. 19. The presumption under Section 113B of the Evidence Act will also operate, if prosecution is able to establish circumstances set out in Section 304B, IPC. This has been held so in State of Karnataka vs. M.V. Mangunethegowda and another, (2003) 2 SCC 188 . It may be apposite to quote Section 304B, IPC. Section 304B Dowry death – (1) Where the death of a woman is caused by any bums 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. (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. The provision is very clear that for conviction under Section 304B. IPC, the prosecution is obliged to prove (a) the death of a woman was caused by burns or bodily injury or occurred otherwise under normal circumstances; (b) such death should have been occurred within seven years of her marriage; (c) the deceased was subjected to cruelty or harassment; (d) such cruelty or harassment should be for, or in connection with dowry demand and (e) such cruelty or harassment, the deceased should have been subjected soon before her death. For better appreciation paragraphs 22 and 23 are reproduced hereunder. 22. The aforesaid legal position, as it stands now, is that in order to establish the offence under Section 304B, IPC the prosecution is obliged to prove that the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and such death occurs within 7 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. Such harassment and cruelty must be in connection with any demand for dowry. 23. If the prosecution is able to prove the aforesaid circumstances then the presumption under Section 113B of the Evidence Act will operate. Such harassment and cruelty must be in connection with any demand for dowry. 23. If the prosecution is able to prove the aforesaid circumstances then the presumption under Section 113B of the Evidence Act will operate. It is the rebuttable presumption and the onus to rebut shifts on the accused. 20. The last submission of the Learned Counsel for the appellants that there may be a case for convicting the appellants under Section 498A, IPC, in my considered view, merits no consideration inasmuch as, it is found that the prosecution has been able to prove the charge under Section 304B, IPC against the accused-appellants. 21. From the discussions made above in the light of the principles laid down by the Apex Court in regard to dying declaration and the laws laid down on the conviction under Section 304B, IPC, I find no legal infirmity in the conviction and sentence awarded vide impugned judgment and order 23.7.2008 by the learned trial court in Sessions Case No. 67 (DM) of 2005 warranting interference in appeal by this Court. The appeal must fail and accordingly, it is dismissed. The conviction and sentence in respect of the accused-appellants stand upheld. 22. Let the LCR be returned forthwith. Appeal dismissed.