JUDGMENT : R.D. Kothari, J. In this appeal, one of the main question raised at the time of hearing is meaning and scope of "showing cruelty and harassment soon before the death by the accused" - one of the essential condition of Section-304(B). 2. In the opinion of the learned advocate for the appellants-accused, Section-304(B) is not attracted in the present case while learned A.P.P. Ms. Punani submits that the learned trial Court has committed no error of facts or law in convicting present appellants for offence under Sections-304(B). 3. Relevant facts are, thus :- The incident has said to have occurred on 19.03.2008. Earlier, the incident was recorded as an accidental death vide Entry No.18 of 2008, then after two days, the father of the deceased has lodged the complaint for the offences under Section-498(A), 304(B) and 114 of the Indian Penal Code, whereby, Adalaj Police Station has recorded the complaint. The same was registered as I-C.R.No.-62/2007. The complaint was lodged against the husband and parents of the husband. It is important to note that the husband was found to be minor, therefore, his case was separated and he was separately tried by the Juvenile Court. The trial Court proceeded against the parents of the husband. The learned trial Court was pleased to convict as observed as above the present appellants. It further appears from the record that the marriage has taken place about 10 or 11 months prior to the date of incident. Other odd and shocking fact is that, the engagement had taken place 10 years' back from the date of incident. The deceased is one Jamnaben. The complainant-father of the deceased has two daughters, Jamnaben is younger daughter. The parties – complainant and accused are labourers, they are said to be engaged in excavating earth on river side. In substance allegation of the complainant side is-the accused family were demanding Rs. 50,000/- to pay instalment of J.C.B. machine. It is the case of the prosecution that the present appellants and husband of deceased were giving physical and mental torture to the deceased by making demand by way of Rs. 50,000/- towards the instalment of J.C.B. machine. 4. The prosecution has examined 11 witnesses before the trial Court. They are, parents of the deceased [Exh.19 and 24], brother-in-law of the complainant [Exh.16] and doctor and police personnel and panch-witnesses. 5. 50,000/- towards the instalment of J.C.B. machine. 4. The prosecution has examined 11 witnesses before the trial Court. They are, parents of the deceased [Exh.19 and 24], brother-in-law of the complainant [Exh.16] and doctor and police personnel and panch-witnesses. 5. Common say of the material witnesses is – the accused were demanding Rs. 50,000/- to pay instalment of J.C.B. machine. On that account, the accused were giving physical and mental torture to the deceased. It is also say of the witnesses that the deceased was used to visit the parental home on occasion of festival and otherwise also. Lastly, she had attended her parents home on the eve of 'Maha-Shivratri'. She had stayed with parents for about one week. Her husband has odd name 'Panchhiji', had come to take back the deceased, at that time, the complainant had said to have said few word of advise to the husband of the deceased. The deceased was sent to her in-laws house. Thereafter, it is the case of the prosecution that the nephew of the complainant [P.W.-5] had informed complainant about the death of the deceased. The complainant along with his wife rushed to the residence of the accused. Later on, the complainant has lodged the present complaint. It is the case of the prosecution that the deceased had died by hanging. 6. The learned trial Court after referring the oral evidence and documentary evidence produced before it by the prosecution and upon hearing the learned advocates for the parties, was pleased to conclude that the prosecution has successfully established the case against the accused, for which, they are charged what weighed with the trial Court is, assertion by the complainant about the demand of dowry, assertion by the witnesses about physical and mental cruelty and harassment, relatively short span of marriage period i.e. 10 months and lastly, statutory presumption under Section-113(A) of the Evidence Act. 7. Heard Mr. K.T. Dave, learned advocate for the appellants and Ms. Hansa Punani, learned A.P.P. for the respondent-State. 8. Mr. Dave, learned advocate for the appellants has submitted that the learned trial Court has committed serious error of fact and law in recording the conviction for the offence under Section-304(B) and Section 498(A) of I.P.C. It was submitted that the evidence of witnesses is not in nature of inspiring confidence. Hansa Punani, learned A.P.P. for the respondent-State. 8. Mr. Dave, learned advocate for the appellants has submitted that the learned trial Court has committed serious error of fact and law in recording the conviction for the offence under Section-304(B) and Section 498(A) of I.P.C. It was submitted that the evidence of witnesses is not in nature of inspiring confidence. Further, the learned advocate has emphasised that the complaint in the present case, is recorded on plain paper. It was submitted that there was no necessity of recording complaint on plain paper instead of not prescribed statutory form. In the opinion of the learned advocate, recording of complaint in such a way gives scope of manipulation and to make change in the complainant and in the result, rendering the complaint unreliable. Mr. Dave, learned advocate relying on 'D. Jayana's Case, (2009) 6 SCC 575 ' in the alternate, has submitted that following D. Jayana v. State of Karnataka, (2009) 6 SCC 575 , in the present case also, the conviction and sentence under Section 304(B) should be set aside and conviction under Section-498(A) may not be interfered with by this Court. 9. Ms. Punani, lerned A.P.P. has submitted that the learned trial Court has correctly appreciated the material on record and no interference is called for in the judgment. Learned A.P.P. has pointed out that the meaning of "soon before the death of deceased" ought not to be so narrow and literal that cruelty and harassment, that has taken place around time of death, is not be taken into consideration by the Court. Considering the circumstances of the present case, it was submitted that it is possible to infer that the appellant had persisted with their demand and that there was demand just before few days of incident and it is the demand that had led to the death of the deceased. 10. What prosecution is required to be established in order to bring home the charge for the offence under Section-304(B)? It is true that the prosecution has benefit of statutory presumption under Section-113(B) of the Evidence Act. 10. What prosecution is required to be established in order to bring home the charge for the offence under Section-304(B)? It is true that the prosecution has benefit of statutory presumption under Section-113(B) of the Evidence Act. Considering the Section-113(B) of the Evidence Act and Section 304(B) of the I.P.C., the Hon'ble Supreme Court in 'Tarsem Singh v. State of Punjab's case reported in AIR 2009 SC 1454 , has laid down following essentials:- "Para-12: The necessity for insertion of the two provisions has been amply stated by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediments in the pre-existing law in securing evidence to prove dowry-related deaths, the Parliament in its wisdom thought to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that a provision of presumptive evidence by way of Section 113B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304B, I.P.C. and the wording in the presumptive provision of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, is that the 'woman' must have been "soon before her death" subjected to cruelty or harassment "for, or in connection with, the demand for dowry". Presumption in terms of Section 113B is one 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 304B, I.P.C.) (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." 11. In Tarsem Singh's Case (supra) also, the husband of the deceased was employed in the Army as a Naik. The complainant family were very poor. It was the case of the prosecution that on the ground of insufficient dowry, the deceased was tortured. (4) Such cruelty or harassment was soon before her death." 11. In Tarsem Singh's Case (supra) also, the husband of the deceased was employed in the Army as a Naik. The complainant family were very poor. It was the case of the prosecution that on the ground of insufficient dowry, the deceased was tortured. The deceased had died by consuming a poison. It is important to note that few days before the incident, the deceased had written few letters, which were marked as PJ and PH. It appears that before the Sessions Court, the husband and other in-laws were charged for the offence under Section-302 of I.P.C. However, at the end of trial, they came to be convicted for the offence under Section-304B of I.P.C. In appeal, the High Court had acquitted all the accused except the husband. In further appeal by the husband, the Hon'ble Supreme Court considering the Law laid down in earlier case, was pleased to allow the husband's appeal. The Hon'ble Supreme Court has considered the Law laid down in the case of 'Harjit Singh v. State of Punjab' reported in (2006) 1 SCC 463 , which reads as under:- "16. A legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death, the deceased was subjected to cruelty or harassment by her husband or any of his relative; for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death" Noticing the provisions of Section 113-B of the Evidence Act, it was opined: "17. From a conjoint reading of Section 304B of the Indian Penal Code and Section 113-B of the Indian Evidence Act, it will be apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Section 304B of the Indian Penal Code. xxx xxx xxx 19. In the case of unnatural death of a married woman as in a case of this nature, the husband could be prosecuted under Section 302, Section 304B and Section 306 of the Indian Penal Code. xxx xxx xxx 19. In the case of unnatural death of a married woman as in a case of this nature, the husband could be prosecuted under Section 302, Section 304B and Section 306 of the Indian Penal Code. The distinction as regards commission of an offence under one or the other provisions as mentioned hereinbefore came up for consideration before a Division Bench of this Court in Satvir Singh and Ors. v. State of Punjab and Anrs., (2001) 8 SCC 633 , wherein it was held : (SCC P.643, para 21-22) "21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage. 22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened "soon before her death". The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasis the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasis the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death". 12. In Harjit Singh's case, the Court was pleased to allow the accused's appeal. In the present case, there is no substance in say of the prosecution that harassment and cruelty was shown towards the deceased on account of dowry. Apart from the fact that initially, as observed above – the incident was registered as an accidental death, admittedly, the parents were not charged for the offence under Dowry Prohibition Act. No case under Dowry Prohibition Act. Besides that, the circumstances of the case are also heavily against the prosecution. In order to avail assistance of the statutory presumption under Section- 113B of Evidence Act, the circumstances as set out in Section-304B is to be established. [Harjit Singh's Case (Supra) Para-17]. In other-wards, it is for prosecution to establish primary facts so that statutory presumption comes into play. In the event of failure to bring on record the preliminary facts, mere reference and reliance on Section-113B of the Evidence Act cannot help. It is basic and primary facts that would ignate and activate Section-113B. Primary facts in the facts of case on hand, means say of the prosecution as to demand of Rs. 50,000/- to pay instalment of J.C.B. which ought to be prima-facie made believable by the prosecution. On going through evidence, it is not possible to believe this assertion of the prosecution. It is on record that the accused and complainant family are doing labour work, they were engaged in as observed above in excavating earth on the bank of the river. On going through evidence, it is not possible to believe this assertion of the prosecution. It is on record that the accused and complainant family are doing labour work, they were engaged in as observed above in excavating earth on the bank of the river. It is also on record that the cost of J.C.B. is about Rs. 32 lacs. It is not possible in the facts and circumstances of the case to believe that the accused persons were in a position to afford J.C.B. machine. The story of payment of instalment is difficult to believe. It is say of the I.O. that during the investigation, it was not revealed that the accused either themselves or in a partnership owned J.C.B. machine. The case of the prosecution as to demand of Rs. 50,000/- to pay instalment, fails in view of specific say by I.O. The learned trial Court has committed serious error in ignoring this say of I.O. and in observing that in present era of "machine age", the accused or complainant side would not be engaged in doing their work viz. excavating the earth/sand manually. To say the least, drawing presumption as to owning J.C.B. machine by the accused family and ignoring the say of the I.O. and accepting the case of the prosecution as to demand of dowry is not only illegal and bad, but perverse findings. The possessing of the J.C.B. machine ought to have been made believable prima-facie. 13. The case is only about the demand to pay instalment of JCB, demand of dowry on any other ground is not alleged. Further, the circumstances in the present case viz. the fact that the deceased was used to visit her parents home on the eve of festival, etc. and after visit, she was returned to in-laws house in absence of any complaint is the circumstance in favour of the appellants. On the last occasion, when the deceased had been at her parents house on the eve of 'Maha-Shivratri', the husband of the deceased has come to take her and complainant had given few word of advise to him. It is not that the accused family has not shown any interest to take her back nor it is the case of the complainant, that the complainant was not willing to send her back to in-laws house in view of cruelty and harassment shown to him. It is not that the accused family has not shown any interest to take her back nor it is the case of the complainant, that the complainant was not willing to send her back to in-laws house in view of cruelty and harassment shown to him. Further, fact that engagement of deceased and minor husband was fixed 10 years back which means survival of engagement for 10 years, and fact that daughter of present appellant is wife of son of elder brother of complainant are the relevant facts in favour of the appellant. Then how the incident had occurred, is not clearly brought on record by the prosecution in the sense that the say of the nephew of complainant is, - on the day of incident when he was going to his home, he noticed that the mother-in-law, father-in-law and sister-in-law of the deceased were outside the Sabarmati hospital, on seeing them, he made inquiry and on coming to know about the death of deceased he informed the complainant. This say of nephew of complainant and complaint about how they came to know about the incident may not be incorrect but it is somewhat dramatic and does not appear as natural. 14. In view of the above, the submission of learned A.P.P. that 'soon before the death' should be considered to be sufficiently elastic in nature and shall not receive constricted meaning does not require consideration' as the case for cruelty and harassment on account of dowry i.e. demand of Rs. 50,000/- to pay instalment is found not acceptable at all. Thus, even if we agrees with the submission of learned A.P.P. that soon before the death is elastic in nature, it does not carry case of the prosecution any further, as the prosecution has no case. There should be case to apply stretched net of - "soon before the death". 15. For the forgoing reasons, the conviction imposed by the learned trial Court under Section 304(B) of I.P.C. is hereby set aside. The conviction imposed by the learned trial Court for the offence under Section-498(A) of I.P.C. is hereby confirmed. There should be case to apply stretched net of - "soon before the death". 15. For the forgoing reasons, the conviction imposed by the learned trial Court under Section 304(B) of I.P.C. is hereby set aside. The conviction imposed by the learned trial Court for the offence under Section-498(A) of I.P.C. is hereby confirmed. However, the jail remarks made available by the learned A.P.P. shows that the appellant no.1 has served sentence of 03 years 06 months and 28 days and the appellant no.2 has served sentence of 03 years 05 months and 19 days as imprisonment whereas the learned trial Court has awarded 02 years imprisonment for the offence under Section-498(A) of I.P.C. meaning thereby the appellants have already served the said sentence. In view of the above, the appellants are ordered to be released forthwith, if they are not required in connection with any other offence/case. Direct service permitted. Order accordingly.