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2013 DIGILAW 106 (MP)

Dilip v. State of M. P.

2013-01-22

J.K.MAHESHWARI

body2013
JUDGMENT : This appeal under Section 374 of the Code of Criminal Procedure is directed against the judgment dated 5-12-1997, passed in Sessions Trial No. 120/1997, by IInd Additional Sessions Judge, Ujjain convicting the appellant under Section 304-B of IPC with Rigorous Imprisonment for 10 years. 2. The prosecution story as alleged is that on 31-12-1996, deceased Manju was died by burns. The dying declaration (Exh. P-11) was recorded by Anil Patwa, Naib Tehsildar (P.W. 8) mentioning that the burn was caused by her husband because the father has not given dowry in marriage thereupon the offence under Section 307/498-A of IPC was registered. After death due to said injuries the offence under Section 307 read with Sections 302,304-B as well as 306 of IPC was registered and the challan has been filed. On committal, it was sent to Competent Court for trial where the charges under Sections 306, 302 and 304-B of IPC were framed. The accused had abjured his guilt stating innocence and taken a defence of false implication after the death by his wife. The prosecution has examined 15 witnesses to prove its case and in defence no witness has been examined by the accused. 3. The Trial Court found that the dying declaration (Exh. P-11) cannot be relied upon to prove the charge under Section 302 of IPC. It is further held that the charges under Sections 302 and 306 of IPC has not been established by the prosecution bringing the cogent evidence on record, however, acquitted the accused but relying upon the statement of Rampal-father of deceased (P.W. 12) and Rambabu-brother of deceased (P.W. 13) and also partly relying upon the dying declaration convicted the appellant for the charge under Section 304-B of IPC and directed him to undergo Rigorous Imprisonment for 10 years. 4. Shri Vivek Singh, learned Counsel appearing on behalf of the appellant after reading the statement of Rampal-father (P.W. 12) and Rambabu-brother (P.W. 13) and also reading the dying declaration (Exh. P-11) and also the statement of Anil Patwa, Naib Tehsildar (P.W. 8) recorded dying declaration and further relying upon the statement of Prakashchandra Dubey (P.W. 9), Forensic Expert and Yashpal Sharma (P.W. 1) contended that the deceased was died in a bathroom pouring the kerosene over her. P-11) and also the statement of Anil Patwa, Naib Tehsildar (P.W. 8) recorded dying declaration and further relying upon the statement of Prakashchandra Dubey (P.W. 9), Forensic Expert and Yashpal Sharma (P.W. 1) contended that the deceased was died in a bathroom pouring the kerosene over her. This neighbour reached on the spot first and found that the door of the bathroom was bolted from inside, which was broken by Yashpal Sharma (P.W. 1) with the help of Om Prakash and Sanjay Jadhav and as per the evidence brought, it is clear that at that time the accused was not present on the spot. In addition to it, it is submitted that in the statement of father and brother of deceased it has not been established that there is any demand of dowry, cruelty and harassment soon before her death, essential to bring the charge under Section 304-B of IPC at home and to draw the presumption under Section 113-B of Evidence Act. It is further said that by plain reading of dying declaration allegation of cruelty and harassment as well as demand of dowry is not there, therefore, the prosecution has not established the essential ingredients of Section 304-B of IPC. However, the presumption under Section 113-B of Evidence Act is not attracted. In such circumstances, conviction directed by the Trial Court is liable to be set aside. Shri Vivek Singh, Counsel has placed reliance on the judgments of Hon'ble the Apex Court in the case of Sham Lal Vs. State of Haryana, 1997 SCC (Cri) 759, Baljeet Singh and another Vs. State of Haryana, 2004 SCC (Cri) 692, State of Rajasthan Vs. Teg Bahadur and others, 2005 SCC (Cri) 218 and M. Srinivasulu Vs. State of A.P., AIR 2007 SC 3146 , to buttress the said contention and prayed to acquittal of accused allowing this appeal. 5. Per contra Shri Manish Joshi, learned Panel Lawyer for the respondent-State contends that in the statement of Rampal-father (P.W. 12) and Rambabu-brother (P.W. 13) it is clear that she was subjected to cruelty and harassment on account of not giving sufficient dowry in the marriage, and such complaint was made as and when she came back to the house. The aforesaid statements has been relied upon proving the ingredients of the dowry death soon before the death. The aforesaid statements has been relied upon proving the ingredients of the dowry death soon before the death. In addition to it, looking to the averments of the dying declaration, relied by the Sessions Court the conviction for the charge under Section 304-B of IPC has rightly been recorded, however, interference is not warranted, therefore, the appeal may be dismissed. 6. After hearing learned Counsel appearing on behalf of the parties and on perusal of the record, it is not in dispute that the charge under Sections 302 and 306 of IPC was framed in addition to the charge under Section 304-B of IPC. The appellant was acquitted by the charge of Section 302 as well as of Section 306, IPC. The conviction has only been directed under Section 304-B of IPC. Prior to appreciation, the evidence brought on record the ingredients of Section 304-B is required to be taken note of, however, it is reproduced as under :- "304-B. Dowry death.- (t) 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 the 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." Bare reading of the aforesaid, in a case of dowry death, three ingredients as required to be established- (i) the death of a woman caused by burns or bodily injury or occurs otherwise than normal circumstances within seven years of marriage, (ii) that married woman had died within seven years from the date of marriage; and (iii) it ought to be established that soon before her death the deceased woman was subjected to cruelty and harassment in connection with the demand of dowry by her husband or any relative of her husband. 7. 7. As per Section 2 of the Dowry Prohibition Act, it is clear that any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage would fall within the purview of the dowry. In this regard, it can safely be observed that demand must have a inextricable nexus with the marriage, in case it has no connection with the consideration for the marriage it will not amounting to demand for dowry. 8. On proving the aforesaid, the death of woman shall be deemed to be a dowry death and the accused shall be punished with the imprisonment for a term which shall not be less than 7 years or may be extended up to life. In the said context, presumption regarding dowry death has been specified in Section 113-B of Evidence Act, which is relevant, however, reproduced as under :- "113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death." Bare reading of the aforesaid, for determination that the accused has committed a dowry death of a woman, it is required to be seen that soon before her death, she was subjected to cruelty and harassment in connection with any demand of dowry by accused. On bringing such evidence, the presumption causing death by the accused would be in favour of the prosecution. Thus, to prove the charge under Section 304-B of IPC and to draw presumption of dowry death as enumerated under Section 113-B of Evidence Act, the evidence brought in a particular case on record is required to be seen. 9. In the present case, the intimation regarding death was given to the Police Station regarding the incident by Yashpal Sharma (P.W. 1), who is a neighbour residing in front of the house of the deceased as well as the accused. 9. In the present case, the intimation regarding death was given to the Police Station regarding the incident by Yashpal Sharma (P.W. 1), who is a neighbour residing in front of the house of the deceased as well as the accused. He had first reached on the spot and found that since the bathroom bolted from inside, burn smell is coming, however, with the help of two other persons the door was broken by pushing and after pouring the water over the body and the flames, deceased was shifted to the hospital. In his statement, it has also come on record that by pouring kerosene over the body, deceased received burns, and on account of burn injuries, deceased Manju succumb to death. The dying declaration (Exh. P-11) was recorded by Anil Patwa, Naib Tehsildar (P.W. 8), as per his statement, but the Sessions Court has not found it worthy to rely upon for the purpose of proving the charge under Sections 302 and 306 of IPC. On the point of proving the charge under Section 304-B the prosecution has brought the statement of Rampal (P.W. 12), who in his statement stated that the marriage of his daughter was solemnised about two and half years back. It is also stated by him that the deceased had conveyed him regarding cruelty due to non-fulfilling the demand of a buffalo and motorcycle. Rambabu (P.W. 13) in his statement has stated that the deceased was facing physical and mental agony on account of demand of dowry of a motorcycle and a buffalo and the said fact was conveyed by her as and when came at his place. In addition to it, in the dying declaration (Exh. P-11), the question relating to demand of dowry has been relied upon by the Sessions Court, wherein it was stated by the deceased that her husband has refused to live with her because her father and brother have not given anything in marriage and at the time of incident he was present and put her into fire in the bathroom. However, in the context of the aforesaid evidence brought on record, it is to be seen whether the said evidence is sufficient to prove the charge against the accused under Section 304-B of the IPC drawing the presumption. However, various judgments of the Hon'ble Apex Court are required to be analysed on the said point. 10. However, in the context of the aforesaid evidence brought on record, it is to be seen whether the said evidence is sufficient to prove the charge against the accused under Section 304-B of the IPC drawing the presumption. However, various judgments of the Hon'ble Apex Court are required to be analysed on the said point. 10. The Hon'ble Apex Court in the case of Sham Lal (supra), has held in the context of provision of Section 304-B and with respect to presumption as under:- "9. The primary requirements for finding the appellant guilty of the offence under Section 304-B, IPC are that death of the deceased was caused by burns within seven years of her marriage and that 'soon before her death' she was subjected to cruelty or harassment by the appellant for or in connection with any demand for dowry. 10. The first premise stands established in this case that the death of Neelam Rani took place within seven years of her marriage though the precise date of her marriage is not in evidence. (It is admitted by both sides that her marriage was in the year 1983). The second premise that death was caused by burns is a factum which has not been disputed even by the appellant himself. In order to establish the third ingredient that 'soon before her death she was subjected to cruelty or harassment for or in connection with demand for a dowry', a plea is made to resort to the legal presumption envisaged in Section 113-B of the Evidence Act. It reads as under :- '113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death'. 11. 11. It is imperative, for invoking the aforesaid legal presumption, to prove that 'soon before her death' she was subjected to such cruelty or harassment Here, what the prosecution achieved in proving at the most was that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash, and on account of the failure to meet the demand for dowry, Neelam Rani was taken by her parents to their house about one and a half years before her death. Further evidence is that an attempt was made to patch up between the two sides for which a Panchayat was held in which it was resolved that she would go back to the nuptial home pursuant to which she was taken by the husband to his house. This happened about ten to fifteen days prior to the occurrence in this case. There is nothing on record to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end. 12. In the absence of any such evidence, it is not permissible to take recourse to the legal presumption envisaged in Section 113-B of the Evidence Act. That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption." In the case of Baljeet Singh and another (supra), has observed as under :- "8. A perusal of this section clearly shows that if a married woman dies 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 in connection with demand for dowry, such death shall be called 'dowry death' and such husband or relative shall be deemed to have caused the death. The conditions precedent for establishing an offence under this section are as follows :- (a) that a married woman had died otherwise than under normal circumstances; (b) such death was within seven years of her marriage; and (c) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death. 9. Section 113-B permits a presumption to be drawn against the accused in regard to dowry death provided the prosecution establishes that soon before her death the woman was subjected to cruelty or harassment. 10. The explanation to the said section says that the word 'dowry death' shall have the same meaning as in Section 304-B, IPC which means such death should be otherwise than in normal circumstances and within seven years of marriage. On a conjoint reading of these sections, it is clear that for drawing a presumption under Section 113-B of the Evidence Act firstly, there should be death of a woman otherwise than in normal circumstances, within seven years of marriage and the prosecution having shown that soon before her death she was subjected to cruelty or harassment in connection with any demand for dowry by persons accused of having committed the offence. Unless and until these preliminary facts are established by the prosecution, it is not open to the Courts to draw a presumption against the accused invoking Section 113-B of the Evidence Act. We are supported in this view of ours by a judgment of a three-Judge Bench of this Court in the case of Ramesh Kumar Vs. State of Chhattisgarh, wherein this Court held thus :- (SCC pp. 626-27, Para 12) 'Before the presumption may be raised the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that- (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression 'may presume' suggests. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression 'may presume' suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to 'all the other circumstances of the case'. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression- 'the other circumstances of the case' used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrefutable one. In spite of a presumption having been raised the evidence adduced-in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'may presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which says- 'Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it'.' (Emphasis in original) 11. The above cases, of course, deals with Section 113-A of the Evidence Act. However, the principle laid down therein squarely applies to cases involving Section 113-B of the said Act also insofar as they relate to the proof of facts enumerated in the section before a presumption is drawn. 12. From the above, it is clear that certain conditions precedent by way of proved facts should be brought on record before the Courts can draw a presumption under Section 113-A or 113-B of the Evidence Act. 17. 12. From the above, it is clear that certain conditions precedent by way of proved facts should be brought on record before the Courts can draw a presumption under Section 113-A or 113-B of the Evidence Act. 17. Having noticed the requirement of law both under Section 304-B, IPC as also under Section 113-B of the Evidence Act, we are of the considered opinion that both the Courts below erred in drawing an adverse presumption against the accused by shifting the onus on them to prove the date of marriage, which, in our opinion, is not the requirement of law. On the contrary, the law requires the prosecution to establish first by cogent evidence that the death in the case occurred within seven years of the marriage. Therefore, we will have to consider whether the prosecution has established the factum of Darshana having died within five years of her marriage as contended by P.W. 4. A perusal of his evidence shows that according to him marriage of Darshana was solemnised in the year 1982 but he was not aware which samvat it was. He says, it was the month of Jaistha but was not sure whether it was Samvat 2035. He specifically states that a bahi entry was made by his nephew Satbir in regard to the date of marriage and expenses incurred in connection therewith, but this document was not produced in the Court. Existence of such a document is established not only from the evidence of P.W. 4, but also from the evidence of the Investigating Officer (P.W. 10), who says that he was made known of the existence of such a document but he did not either seize the.said document or verify the date of marriage from the said document. He also states that he made an enquiry about the year of marriage of Darshana and nobody was able to tell the date but the year of marriage was told to him. He goes further to state that he did not record the statement of those persons who told him about the year of marriage. Therefore, it is clear that the prosecution has failed to produce the available evidence regarding the date of Darshana's marriage and thereby failed to discharge its initial onus of proof. The defence in this case has unequivocally challenged the correctness of the date of marriage, as stated by the prosecution. Therefore, it is clear that the prosecution has failed to produce the available evidence regarding the date of Darshana's marriage and thereby failed to discharge its initial onus of proof. The defence in this case has unequivocally challenged the correctness of the date of marriage, as stated by the prosecution. It even examined defence witnesses in this regard. Be that as it may, the question whether the defence has been able to establish its version of the date of marriage is immaterial because in the first instance, it was for the prosecution to establish this fact which for the reasons stated above, it has failed to do. Both the Courts below, thus, have clearly erred in shifting the onus of proving the date of marriage on the defence and drawing a presumption against it. This is evident from the finding of the Trial Court which is as follows :- 'Accused Baljeet in this case has not been able to rebut the mandatory presumption under Section 113-B of the Indian Evidence Act thus prosecution has been able to prove his guilt.' This finding which is concurred to by the High Court, in our opinion, is wholly erroneous and unsustainable in law." In the case of State of Rajasthan Vs. Teg Bahadur and others, 2005 SCC (Cri) 218, the Court relying upon the judgment of Hira Lal Vs. State (Govt. of NCT, Delhi), (2003) 8 SCC 80 , has observed that :- "18. Our attention was drawn to Section 113-B of the Evidence Act and Section 304-B of the Indian Penal Code by the learned Counsel appearing for the accused. 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'. For the above proposition, learned Counsel appearing for the accused, cited the judgment of this Court in the case of Hira Lal Vs. State (Govt. of NCT, Delhi). In that case, this Court observed thus :- (SCC pp. For the above proposition, learned Counsel appearing for the accused, cited the judgment of this Court in the case of Hira Lal Vs. State (Govt. of NCT, Delhi). In that case, this Court observed thus :- (SCC pp. 86-87, Para 9) 'The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC are pressed into service. The 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 the 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. 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 their 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 effect 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 the mental equilibrium of the woman concerned, it would be of no consequence.' 20. There must be existence of a proximate and live link between the effect 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 the mental equilibrium of the woman concerned, it would be of no consequence.' 20. On a careful scrutiny of the statements of the aforesaid witnesses, it is seen that witnesses have given different statements regarding demand of dowry. According to him, with respect to dowry, dispute was raised at the time of marriage. According to Om Prakash, when Suman returned to her parents' house, she complained about demand of dowry by the in-laws. There is no corroboration about the statement of Om Prakash by the statement of his wife Smt. Hira Bai. Under these circumstances, we are of the opinion, that there is lack of evidence to prove the demand of dowry and that the evidence led by the prosecution bristles with discrepancies and contradictions. On the basis of the evidence, it could not be treated to have been proved that actually the accused had made a demand of dowry and that was made soon before the death and due to this, the deceased was harassed." Thereafter, in the case of M. Srinivasulu (supra), has observed that :- "9. The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304-B, IPC and the wording on the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been 'soon before her death' subjected to cruelty or harassment 'for or in connection with the demand of dowry'. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on 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 :- (1) 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). (2) The woman was subjected to cruelty or harassment by her husband or his relatives." (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death. 10. 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 the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' 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 circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period 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. 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 expression 'soon after' used in Section 114 [Illustration (a)] of the Evidence Act is relevant. 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 expression 'soon after' 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 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. 14. The prosecution version primarily rests on three documents, i.e., Exhibits 2, 3 and 4 dated 3-1-1990, 20-6-1991 and 25-10-1990 respectively. A careful reading of these documents which were letters by the deceased show that there was in fact no allegations of any demand of dowry made by the accused. Exhibit 3, i.e., the letter dated 20-6-1991 is very significant. Grievance in the said letter was not to any demand of dowry. In fact, the deceased had clearly written that she was forced to marry with the accused against her wish and that created a log of problems for her. The underlying essence of the letter is that the deceased was not willing to get married and wanted to continue her studies and she was married against her wish. There is one significant statement in the letter, which is to the effect that the deceased did not want to go to her parental home for Gangamma festival as her husband was taking due care of her. There is one significant statement in the letter, which is to the effect that the deceased did not want to go to her parental home for Gangamma festival as her husband was taking due care of her. In Exhibit 4, i.e., letter dated 25-10-1990, she was clearly stated that she was all right and was happy in her in-laws place and her in-laws were taking good care of her and she on the other hand stated that somehow or other she does not want to live in the marital home. In Exhibit 2, i.e., letter dated 3-1-1990 also she had stated that she was happy. In fact, she wrote to her father that he should take good care of her mother." As per the aforesaid judgments of Hon'ble the Apex Court, it is clear that in the case where a woman has died other than the normal circumstances within seven years, the evidence with respect to cruelty, harassment soon before her death regarding demand of dowry ought to be established for the purpose of bringing the charge under Section 304-B of IPC at home. After proof of the aforesaid ingredients, the presumption of dowry death as specified under Section 113-B of Evidence Act may be drawn by the Court. In absence of proving the ingredients, the presumption cannot be drawn." 11. In the context of the aforesaid precedents of law by Hon'ble Apex Court, the evidence brought by the prosecution is required to be examined. On reading of the dying declaration, it reveals that the husband of the deceased has denied to live with him because the father and brother of the deceased has not given him dowry. It is not reflected from the said dying declaration that the accused has made any demand which was refused though it is a requirement contemplated and enumerated under Section 304-B of IPC. In addition to it, if we go through the statement of the father Rampal (P.W. 12) the allegation of demand of buffalo and motorcycle has been made but when such demand was made, it has not been made clear in his statement. Similar is the statement of Rambabu (P.W. 13) brother of deceased. Thus, looking to the statement of both these brother and father it cannot be accepted that the evidence of cruelty, harassment coupled with demand of dowry soon before her death is available. Similar is the statement of Rambabu (P.W. 13) brother of deceased. Thus, looking to the statement of both these brother and father it cannot be accepted that the evidence of cruelty, harassment coupled with demand of dowry soon before her death is available. It can safely be observed here that in a case of dowry death to interpret the phrase 'soon before her death' the demand must be in consonance to the incidents occurred. It can further be a persistent demand soon before commission of an incident, in absence thereto the presumption for dowry death as specified under Section 113-B of Evidence Act would not come into the picture. It is made clear here that presumption for dowry death as specified under Section 113-B of Evidence Act was operated only when the prosecution has brought some evidence to prove the charge of Section 304-B of IPC of cruelty, harassment and demand of dowry resulted soon before the death. In the present case, as per the evidence of the father Rampal (P.W. 12) and the brother Rambabu (P.W. 13) the aforesaid ingredients has not been established discharging the onus to draw presumption under Section 113-B of Evidence Act. 12. In addition to the aforesaid, if we see the statement of the Yashpal Sharma (P.W. 1), who is the person reached on the spot first, it is clear that the deceased was inside the bathroom and bolted the door, which was broken with the help of two other persons. The aforesaid fact has been reiterated by the Forensic Expert Prakashchandra Dubey (P.W. 9). It is categorically stated by him that after perusal of the spot it was found that the dead body was inside the bathroom and the flames were there and the door of the bathroom was closed from inside, which was broken by the neighbours while bringing the body of the injured outside from the said bathroom. In addition to it, looking to the statement of Dr. S.K. Agrawal (P.W. 11), it is clear that the body of the deceased was burnt by 99%. However, in such circumstances, the dying declaration recorded, creates doubt looking to the other prosecution evidence itself, which has been partly relied upon by the Trial Court and partly disbelieved. In addition to it, looking to the statement of Dr. S.K. Agrawal (P.W. 11), it is clear that the body of the deceased was burnt by 99%. However, in such circumstances, the dying declaration recorded, creates doubt looking to the other prosecution evidence itself, which has been partly relied upon by the Trial Court and partly disbelieved. In the facts and circumstances of the present case, primary evidence of burn of the deceased is available inside the bathroom, which is only 3 x 3 feet and its door was broken by the neighbours and the said fact has been conquered by the Forensic Expert. Thus, in the considered opinion of this Court relying upon the said dying declaration only wherein even the allegation of demand of dowry soon before death is not available, the conviction of accused is not in fair administration of justice. Therefore, the finding recorded by the Trial Court partly relying upon the said dying declaration only to prove the charge under Section 304-B of IPC is unsustainable in law. In the said sequel of facts in the light of judgment of Hon'ble the Apex Court in the cases of Sham Lal (supra), Teg Bahadur (supra), M. Srinivasulu (supra), Him Lal (supra) and Baljeet Singh (supra), the presumption under Section 113-B of Evidence Act is not attracted in absence of proving the ingredients of the said charge. 13. Accordingly, the appeal filed by the accused/appellant succeeds and is hereby allowed. The conviction and the sentence directed by the Trial Court is hereby set aside. The appellant is acquitted from the charge under Section 304-B of IPC and in consequence to it the bail bonds furnished by the appellant stand discharged.