JUDGMENT Dr. Indira Shah, J. 1. The appellant herein stands convicted under Sections 498A and 304(B) I.P.C., by judgment and order, dated 30.11.2009, passed, in Sessions Case No. 89(N)/2008, by the learned Additional Sessions Judge (FTC), Sankardevnagar, Hojai, and sentenced to undergo, for his conviction under Section 304B IPC, imprisonment for life with fine of Rs. 10,000/- and, in default of payment of fine, to suffer rigorous imprisonment for a period of one year and also to undergo, for his conviction, under Section 498A IPC, rigorous imprisonment for three years and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for three months, both the sentences having been directed to run concurrently. The case of the prosecution may, in brief, be described thus: The deceased, Bina Debnath, was married to the appellant about 3 years prior to date of incident, which took place on 18.08.2006. A female child was born out of their wedlock. According to prosecution, the accused demanded furniture, gold chain and money from the parents of the said deceased. Although Bina's father (P.W. 2) gave a gold chain, the accused alleged that the chain was not of good quality and asked his wife to get another good chain. The accused also demanded money from parents of the said deceased to run his business. On 18.08.2006, Bina died as a result of burn injuries. Ratan Debnath, brother of the accused, informed the family members of deceased, over phone, that Bina had set fire to herself inside latrine. Keshab Lal Debnath (P.W. 2) and Bibha Debnath (P.W. 4), parents of the said deceased, along with others, went to the house of the accused and saw the dead body of Bina lying on the floor in front of the bathroom. Pran Krishna Nath (P.W. 1) arrived there later. They saw entire body of the deceased burnt and the hair cut. P.W. 1 then lodged the FIR on 19.08.2006 and Hojai P.S. Case No. 169/2006, under Section 306 IPC, was registered against the accused. On completion of investigation, police submitted charge-sheet under Section 304B IPC against the accused. 2. The accused pleaded not guilty to the charge framed against him under Section 304B I.P.C. and claimed to be tried. 3. The prosecution, in order to establish its case, examined 11 witnesses. On completion of investigation, police submitted charge-sheet under Section 304B IPC against the accused. 2. The accused pleaded not guilty to the charge framed against him under Section 304B I.P.C. and claimed to be tried. 3. The prosecution, in order to establish its case, examined 11 witnesses. The accused, in his statement, recorded under Section 313 Cr.P.C., denied the allegations levelled against him and pleaded that he was innocent. The defence case was that the victim died accidentally by catching fire, from an open kerosene lamp inside the latrine. No evidence was adduced by the defence. 4. Learned trial Court, relying on the evidence of the brother (P.W. 1), father (P.W. 2) and mother (P.W. 4) of the said deceased, held that the victim was subjected to cruelty and harassment in connection with demand of dowry soon before her death and that it was the accused, who had set Bina on fire for non-fulfilment of dowry demand The learned trial Court, therefore, held the accused guilty of offences under Section 304B as well as 498A I.P.C., although no separate charge under Section 498A I.P.C. was framed against the accused. 5. P.W. 1 (Pran Krishna Nath) has deposed that Ratan Debnath, elder brother of the accused, informed him over telephone that his sister, Bina, had set herself on fine inside the latrine. When P.W. 1 told him to hospitalize her immediately, Ratan informed that Bina had already died. P.W. 1 was at his place of posting, which may away from his house. He, then, informed neighbour of his parents over phone that Bina was in serious condition and requested him to inform his parents. Next day morning, his brother, Premdhan, informed him that Bina was murdered. P.W. 1, then, came to the house of the accused. He saw gathering of people including his family members. He noticed entire body of his sister burnt and the hair cut. He also found some hair lying inside the bathroom. Inquest on the deadbody was held in his presence. He has alleged that deceased Bina had told that the accused and his parents had demanded furniture and furniture were accordingly given within 1 or 1 1/2 years of their marriage, because no furniture have been given at the time of marriage. He also found some hair lying inside the bathroom. Inquest on the deadbody was held in his presence. He has alleged that deceased Bina had told that the accused and his parents had demanded furniture and furniture were accordingly given within 1 or 1 1/2 years of their marriage, because no furniture have been given at the time of marriage. P.W. 1 has also alleged that his parents told him that accused had demanded gold chain, which, too, was given, but the deceased informed him that the said chain was not of good quality and that the accused had asked her to get another good chain, but another chain could not be given to him. P.W. 1 has further alleged that the deceased had told him that that the accused had demanded money from her parents for running his business. 6. In his cross-examination P.W. 1 has admitted that at the time of his marriage, the accused had helped him with money. P.W. 1 also admitted that since the marriage of the deceased with the accused was organized in a hurry, no furniture or anything except one ring was presented. P.W. 1 further admits that he did not enter in the bathroom, where his sister had reportedly been burnt, whereas in his examination-in-chief, he had claimed that he had found Bina's haircut and lying inside the bathroom. 7. P.W. 2, Keshab Lal Debnath, father of the deceased, has stated that father of the accused told him that the deceased committed suicide by setting fire to herself inside the latrine. P.W. 2 has also stated that he was unable to give furniture and chain, which he gave later. P.W. 2 has alleged that the accused demanded Rs. 50,000/- from him, but he was not able to meet the said demand. P.W. 2 has, however, in his cross-examination, admitted that at the time of marriage of his eldest son, the accused helped him monetarily. This witness has also admitted that he stated before the police that his daughter (deceased) told him that the accused had asked for Rs. 50,000/- for doing business. P.W. 2 has further admitted that his daughter, Bina, did not tell him that she had been subjected to assault or was engaged in quarrel. This witness has also admitted that he stated before the police that his daughter (deceased) told him that the accused had asked for Rs. 50,000/- for doing business. P.W. 2 has further admitted that his daughter, Bina, did not tell him that she had been subjected to assault or was engaged in quarrel. P.W. 2 has deposed that he heard from people that accused had broken the door and brought out the deadbody and that he thought that their (deceased and accused) conjugal life ran peacefully and none of the two had ever made any complaint. 8. P.W. 4, Bibharani Debnath, mother of the deceased, has deposed that after six months of marriage, a gold chain was given to the accused and furniture were given to him after two-and-half years of marriage of the accused with deceased and that six months prior the incident the accused asked for Rs. 50,000/-, but the same was not given. According to the evidence of P.W. 4, Bina (deceased) informed her over phone that trouble had arisen in her family as the money was not given. 9. As regards the occurrence, P.W.4 has deposed that on being informed about the incident, she went to the house of accused and saw the deadbody with burn injuries. 10. In her cross-examination, she has, however, stated that the accused and her daughter had lots of fun in the marriage ceremony of her eldest son. She has also admitted that the accused had said that the articles, which were supposed to be given to him, should be given in the marriage of the younger daughter, Shankari, of the said deceased and although the parents of accused were nagging for not giving articles, the accused did not say anything. 11. P.W. 4 has conceded, in the cross-examination, that she did not tell the police that Bina had told her that accused had demanded Rs. 50,000/-. 12. It is also in the evidence of P.W. 4 that the accused used to address her as mother and respected her. 13. Thus, neither P.W. 1 nor P.W. 2 or P.W. 4 has stated that the said deceased was being ill treated. They have, however, stated that the accused had asked for Rs. 50,000/- through his wife for doing business. It also transpires from their evidence that the accused also helped P.W. 1 with money at the time of his marriage. 13. Thus, neither P.W. 1 nor P.W. 2 or P.W. 4 has stated that the said deceased was being ill treated. They have, however, stated that the accused had asked for Rs. 50,000/- through his wife for doing business. It also transpires from their evidence that the accused also helped P.W. 1 with money at the time of his marriage. It is pertinent to mention here that these witnesses, in their statement recorded under Section 161 Cr.P.C., did not state that accused demanded money. 14. Situated thus, it becomes clear, from the evidence of P.W. 1 and P.W. 4, the fact that the accused had demanded money, cannot be simply relied upon; more so, when it is clear evidence on record that even accused has helped his brother-in-law monetarily at the time of the latter's marriage. 15. To convict a person under Section 304B IPC, it must be proved that death of woman is caused by any burn or bodily injury or occurs otherwise than under normal circumstances and the woman was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for 'dowry'. The Explanation appended to Sub-section (1) of Section 304B says that 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. 16. Section 2 of the Dowry Prohibition Act defines "Dowry" as under: In this Act 'dowry' means any property or valuable security given or agreed to be given directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahar in the case of persons to whom Muslim personal law (Shariat) applies. 17. In view of the definition of 'dowry', a demand, in order to be 'dowry', must have some nexus with marriage of the parties. A correlation between giving and taking of property or valuable security with the marriage of the parties is essential. 18. 17. In view of the definition of 'dowry', a demand, in order to be 'dowry', must have some nexus with marriage of the parties. A correlation between giving and taking of property or valuable security with the marriage of the parties is essential. 18. In the cited case of Appasaheb v. State of Maharashtra (2007) 9 SCC 721 , it was held that a demand for money, on account of some financial stringency or for meeting some urgent domestic expenses, cannot be treated as a demand for dowry. 19. Here, in this case, even if the evidence of P.W. 1, 2 and 4 are believed, there was no demand for money in connection with the marriage. These witnesses specifically and categorically admit that at the time of marriage, no article could be given and they promised to give furniture later. It is in the evidence of the P.W. 1 that he got the furniture made after marriage and asked the accused person's family to take furniture, but they did not come to lift the same. P.W. 4 has stated that the accused told them that the furniture be given to his wife's younger sister at the time of her marriage. P.W. 1 has admitted, in his cross-examination, that the accused had helped him with money at the time of his marriage, but he could not say the amount of money paid by the accused. P.W. 1 has also stated that when he asked the accused for the expenses the accused had incurred in his (P.W. 1's) marriage, the accused replied by saying that he had spent some amount and asked him not to bother about that. 20. There is nothing in the evidence of P.W. 1 or P.W. 2 or even P.W. 4 to show that the deceased was ever ill-treated by the accused for bringing money or any article. P.W. 2 has stated that he thought that their conjugal life was running peacefully. P.W. 4 only stated that the deceased was not habituated to do domestic works and after marriage, she only asked her why she was not given in marriage in a good family. None of the witnesses examined by the prosecution stated that the deceased was harassed or ill-treated in her matrimonial home. 21. Dr. P.W. 4 only stated that the deceased was not habituated to do domestic works and after marriage, she only asked her why she was not given in marriage in a good family. None of the witnesses examined by the prosecution stated that the deceased was harassed or ill-treated in her matrimonial home. 21. Dr. Keshaba Nanda Goswami (P.W. 3), who held post-mortem examination on the deadbody of Bina Debnath on 19.08.2006, and found as follows: whole body deep burn, mouth open, tongue protruded out and bitten between jaws. 22. In the opinion of the doctor, death was due to deep burn of the whole body and that the burn injury was caused accidentally. 23. There is no dispute that death of the deceased was due to burn injury within 7 years of the marriage of the victim. To convict a person under Section 304B I.P.C. it must be shown that soon before her death, the victim was subjected to cruelty or harassment by her husband or any relative for, or in connection with, any demand of dowry. As and when aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under Section 113B of the Evidence Act. However, no such presumption can be drawn when there was no evidence of cruelty or harassment. 24. In the present case, as discussed earlier, there is nothing on record to show that the said deceased was either treated with cruelty or harassed by making demand for dowry. 25. P.W. 5 (Sukhoy Roy), a neighbour of the accused, has deposed that on hearing from someone that fire had broken in accused person's house, he (P.W. 5) went there and saw the accused trying to break the door of the latrine and, thereafter, he took out Bina. P.W. 5 also found kerosene lamp blown out inside the house. P.W. 5 has, in his cross-examination, stated that he also helped the accused to break the door and that the deceased never told him that she had suffered mental agony due to her husband or in-laws; rather, he (P.W. 5) saw the couple leading peaceful conjugal life and he (P.W. -5) has supported the defence plea stating that he heard people discussing that Bina might have caught fire from open lamp seen in the latrine. It is in the evidence of the P.W. 5 that Bina was wearing a synthetic saree. 26. It is in the evidence of the P.W. 5 that Bina was wearing a synthetic saree. 26. P.W. 6, Arpana Sarkar, is also a neighbour. According to the evidence of this witness, on the date of occurrence, accused person's mother called her to massage oil since she was ailing and when she went there, she saw the accused through the window counting money and his wife, Bina, sitting near him and that she, thereafter, went to the room of mother of the accused and while she was massaging oil, Bina came and offered betel-nut to her mother-in-law and, then, Bina went out and after 1/1:30 hours, P.W. 6 heard screams and saw smoke coming out of the latrine, whereupon the accused went there in a run, poured water on the latrine and broke the door open. 27. It is in the evidence of P.W. 6 that she went to fetch a lamp and when she came back, she saw the accused and P.W. 5 had brought out Bina from inside the latrine. 28. In her cross-examination, P.W. 6 has reaffirmed that accused had thrown water through the gap between the C.I. sheet roof and the wall of the latrine and from inside the latrine, Bina had been screaming, "save me, save me". 29. It is also in the evidence of P.W. 6, Bina used to wear synthetic saree and she had worn the same at the time of her death too and that the accused informed the police and, on arrival of the police, the accused was at home. P.W. 6 is assertive that she never witnessed any quarrel between the accused and the deceased. 30. From the evidence of P.W. 5 and P.W. 6, it transpires that door of the latrine, where the occurrence took place, was closed from inside and it was the accused, who had broken the door open with the help of P.W. 5 and taken out Bina from the latrine. This apart the accused also slapped water to douse the fire and there was an open kerosene lamp inside the latrine and that the deceased was wearing a synthetic saree. 31. P.W. 7, Ranjit Paul, is a photographer by profession, who took the photographs of the site, wherein an open lamp and burnt cloth lying inside the latrine were visible. 32. 31. P.W. 7, Ranjit Paul, is a photographer by profession, who took the photographs of the site, wherein an open lamp and burnt cloth lying inside the latrine were visible. 32. P.W. 8, Seema Debnath, sister-in-law of the accused, has stated that she saw the accused and P.W. 5 breaking the door of the latrine open. She has also stated that relationship of the accused with his wife was cordial and very good. It is in the evidence of P.W. 8 that there was no electricity connection in the latrine and if one were to go to latrine at night, he was to take an open lamp along. 33. P.W. 9, Moran Debnath, saw the dead body of the deceased on the following day and heard that Bina died by catching fire from an open lamp. 34. P.W. 10, Subal Ch. Roy, is a reported witness and police seized the open lamp and a pair of sandals in his presence. P.W. 10 has stated that he had seen the accused and his wife going out together on motorcycle on several occasions and that he did not hear about any quarrel between them. 35. P.W. 11, Gouri Kanta Lahakar, was In-charge of Jugijan out post. He received the First Information Report, lodged by the accused, and registered it as U.D. Case No. 20/06, dated 18.08.2006. He went to the P.O. and found the dead body of Bina lying outside the latrine. He also found one kerosene lamp and burnt portion of saree inside the latrine. The door of the latrine was broken. He seized the lamp made of bottle. On 19.8.2006, i.e. next day, an Ejhar was lodged by P.W. 1 and, on the basis of subsequent Ejhar, Hojai P.S. Case No. 269/2006 was registered. 36. In his cross-examination, the Investigating Officer has deposed that he reached the place of occurrence at 10:30 p.m., though the incident had occurred one hour prior to his arrival there and that accused told him that he (accused) himself had broken the door of the latrine and brought out Bina. 37. 36. In his cross-examination, the Investigating Officer has deposed that he reached the place of occurrence at 10:30 p.m., though the incident had occurred one hour prior to his arrival there and that accused told him that he (accused) himself had broken the door of the latrine and brought out Bina. 37. It is also in the evidence of the Investigating Officer that there was no electricity connection in the latrine and that P.W. 1 did not tell him that dead body of his sister was found lying in front of the bathroom, that her hair was cut and some hair were lying inside the bathroom and that P.W. 1, 2 and 4 did not tell him (P.W. 11) that the accused demanded money for running his business. 38. In view of the discussions made above, we find that the prosecution failed to prove that the accused demanded money in connection with marriage. There is nothing on record showing that the deceased was ill treated soon before her death. The defence plea that the deceased caught fire accidentally from the open kerosene lamp, being probable, deserves acceptance. 39. In result, the appeal is allowed. The impugned judgment and order convicting and sentencing the appellant under Section 304B/498A are hereby set aside. The accused-appellant is hereby held not guilty of offences under Section 304B and 498A and he is acquitted and set at liberty accordingly. Send back the LCR.