JUDGMENT : ADITYA KUMAR TRIVEDI, J.:–In spite of calling out of instant appeal, learned counsel for the appellant did not turn up and on account thereof, Shri Shrinath Manjhi has volunteered to assist the court as Amicus Curaie. 2. Sole appellant Md. Ulfat @ Md. Nashim @ Md. Ulfad Nashim, who has been found guilty for an offence punishable under Section 304(B) read with Section 34 of the IPC vide judgment dated 05.11.2011 and sentenced to undergo R.I. for 10 years vide order dated 09.11.2011 by Additional Sessions Judge, FTC-IInd, Madhubani in Sessions Trial No.31 of 2010 preferred instant appeal. 3. Md. Musafir (PW-4) filed written report before the Officer-in-charge, Madheypur alleging inter alia that his daughter Zaheera Khatoon was married on 13.06.2007 with Md. Ulfat, son of Md. Panchayati Miayan @ Md. Rashid of village-Purani Pokhar. In spite of having been gifted according to their means, her Sasuralwala advanced demand of Rs.10,000/- and for that her (daughter?s) Nanad Jumani Khatoon and her mother-in-law, “Mauaar Wali” have assaulted her. Even he was abused by them after his arrival at the Sasural of his daughter however, to maintain the prestige of the family he had not taken any legal step. Today i.e. 26.03.2009 his son-in-law, Md. Ulfat informed his son over mobile regarding precarious condition of his daughter. They accordingly rushed and after arrival at Sasural of his daughter found his daughter dead. He apprehended hands of Md. Ulfat, Jumani Khatoon and Mauaar Wali respectively for committing murder. 4. After registration of Madheypur P.S. Case No. 42 of 2009, the investigation commenced. Because of the fact that appellant was apprehended during course of investigation as such charge sheet was submitted against appellant Md. Ulfat @ Md. Nashim @ Md. Ulfad Nashim along with Md. Rashid @ Md. Panchayati Miayan (since acquitted) retaining further investigation against others and on the basis thereof, appellant along with Md. Rashid @ Md. Panchayati Miayan (since acquitted) faced trial during course of which Md. Rashid was acquitted while appellant has been convicted, the subject matter of instant appeal. 5. The defence as is evident from the nature of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C., is of complete denial of occurrence. However, no DW has been examined nor any sort of exhibit has been brought up on record on behalf of appellant. 6. 5. The defence as is evident from the nature of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C., is of complete denial of occurrence. However, no DW has been examined nor any sort of exhibit has been brought up on record on behalf of appellant. 6. From the lower court record, it is evident that altogether seven PWs have been examined out of whom PW-1 is Dr. Chandrakant Singh who had conducted postmortem over the dead body, PW-2 is Md. Yusuf who did not support the case of the prosecution and accordingly was declared hostile. PW-3, Md. Murtuza Hasan, brother of deceased, PW-4 Md. Musafir, father of deceased as well as informant, PW-5 is Umar Khan who also failed to support the case of the prosecution and as such was declared hostile. PW-6 is Umesh Mishra the part Investigating Officer who had, after receipt of postmortem report submitted charge sheet in two parts the first happens to be against Md. Ulfat @ Md. Nashim @ Md. Ulfad Nashim , Md. Md. Rashid @ Md. Panchayati while the subsequent happens to be against Jamila Khatoon and PW-7 is Ram Bahadur Ram, the main Investigating Officer who had investigated the case after registration thereof, visited the place of occurrence, prepared inquest, recorded statement of witnesses and then thereafter handed over investigation to PW-6 on account of his transfer. The prosecution had also exhibited series of document as Exhibit-1 – Postmortem Report, Exhibit-2 – Written Report, Exhibit-3 – Inquest Report, Exhibit-4 – Formal FIR, Exhibit-5, 5/1, the respective charge sheet and marked ‘X’ for identification, the protest petition. 7. The following ingredients are necessary to be fulfilled while attracting application of Section 304(B) of the IPC.— a. The death should be within 7 years of marriage. b. The cause of death should be otherwise than in natural one. c. There should be demand of dowry and d. Torture with regard to demand and its fulfillment soon before death of deceased. Unless and until the aforesaid four criterias are found satisfied on the basis of the evidence adduced on behalf of the prosecution as well as from the circumstances visualizing therefrom, no conviction under Section 304(B) of the IPC would be permissible. 8. Unless and until the aforesaid four criterias are found satisfied on the basis of the evidence adduced on behalf of the prosecution as well as from the circumstances visualizing therefrom, no conviction under Section 304(B) of the IPC would be permissible. 8. Keeping the aforesaid ingredients in mind, the facts of the case is to be taken into consideration along with the evidences having been adduced by the prosecution during course of trial. 9. PW-1 had conducted the postmortem over the dead body of Jahira Khatoon on 27.03.2009 and found following ante-mortem injury:— (i) Both eye closed, mouth half opened with protrude tongue, face congested, fist opened, rigor mortis present. (ii) Abrasion on lateral side of left neck ½” x ½”. (iii) Bruise on interior surface of neck 2” x ½” (iv) Abrasion on interior surface of right clavicular region 2” x ½”. (v) Bruise on interior surface of left clavicular region 2” x ½”. On dissection:- (i) Brain and maniges congested (ii) Heard right chamber full and left chamber empty (iii) Lungs, lever, spleen, kidney congested (iv) Stomach contains nucoid materials. (v) Intesting contains faccacl materials and gases (vi) Uterus not gravit (vii) Urinary bladder empty Time since death within 24 hours. In the opinion of doctor, the death was due to asphyxia caused by aforesaid ante-mortem injury-throttling. 10. However, from the evidence of PW-3, the brother of deceased as well as PW-4 the father of deceased along with the evidence of PW-8, the I.O coupled with Exhibit-3 the inquest report, none had stated that dead body was carrying any mark of violence over her neck. But it is apparent from the evidence of PW-1 that he was not cross-examined by the defence on any option available therefor. As such, the death of deceased on account of ante-mortem injury more particularly by way of throttling is apparent therefrom. In likewise manner from the evidence of PW-3 and PW-4, it is evident that marriage of deceased was solemnized with appellant on 03.06.2007, therefore death within 7 years of marriage otherwise than normal circumstance is found fully proved. 11. Now coming to the remaining ingredients with regard to demand of dowry and torture consequent thereof for its procurement extending soon before her death is to be gathered from the evidence. 11. Now coming to the remaining ingredients with regard to demand of dowry and torture consequent thereof for its procurement extending soon before her death is to be gathered from the evidence. It is apparent from the written report that there happens to be specific disclosure that just after six months of marriage, there was demand of Rs.10,000/- and for having procurement thereof, as the deceased resisted, she was given a lesson at the hands of in-laws over which PW-4, the informant had approached. During evidence, as is evident PW-4 though had supported the case of the prosecution by reiterating his earlier version in his examination-in-chief became soft during course of cross-examination and from para-5 thereof, it is evident that he had completely diffract his own breathe. He had said that his daughter was living happily at her Sasural after marriage she was duly honoured at her Sasural. She had not raised any sort of grievance or made complaint against her Sasural. She had not spoken anything relating to demand. In Para-6, he had stated that they were duly informed. Further he said that this case has been launched out of suspicion. 12. PW-3 is brother of deceased. During his examination-in-chief he had supported the case of the prosecution, however during course of cross-examination at para-6, he had stated that he is unable to say the date on which there was demand by the accused persons. He had further stated that he had not complained any where with regard thereto. In para-7, he had stated that his brother-in-law, Md. Ulfat @ Md. Nashim @ Md. Ulfad Nashim had informed him over mobile regarding ailment of his sister. He had gone there on 26.03.2009 itself. In para-8, he had again stated that he had got no talk with his brother-in-law on 26.03.2009. After getting information with regard to ailment he along with others have gone there. 13. As stated above, evidences of PW-2 as well as PW-5 is of no use as they have completely disowned the prosecution version and in likewise manner the evidence of PW-6 and PW-7, the Investigating Officer happens to be as they failed to throw light over material aspect of the case. 14. After analyzing the evidence of PW-3 and PW-4 who are son and father, it is evident that there happens to be inconsistency amongst them relating to demand followed with torture. 14. After analyzing the evidence of PW-3 and PW-4 who are son and father, it is evident that there happens to be inconsistency amongst them relating to demand followed with torture. While the father had dismantled the mason on his own, the son tried to preserve it though having infirmities therein and in the aforesaid background major deficiency in the prosecution case appears to be. 15. From the lower court, it is evident that only a charge under Section 304(B) of the IPC is found there, and account thereof all the ingredients attracting application of Section 304(B) IPC is to be proved by the prosecution and then only the presumption in terms of Section 113(B) of the Evidence Act will come into play wherein after accused is under obligation to rebut the same. 16. Now coming to the floor, it is apparent that deceased met with death otherwise than normal circumstance within seven years of her marriage. With regard to demand of dowry as well as torture having meted out by the deceased soon before her death, it is apparent that father had given a complete go by while from the evidence of PW-3, the brother taken in consonance with the evidence of his father PW-4 coupled with his cross-examination para-6 & 8 is also not found aboveboard and on account thereof, at least appellant is found entitle for benefit of doubt. Consequent thereupon, the judgment impugned is set aside. Appeal is allowed, Appellant is under custody, hence is directed to be released forthwith, if not wanted in any other case. The first and last page of the judgment be handed over to the learned Amicus Curaie for the needful. ?