GOPAL PRASAD, J.:–Heard the learned counsel for the parties. 2. The appellant of Cr. Appeal (S.J.) No. 634 of 2012 having been convicted under Section 304B of the Penal Code and sentenced to undergo rigorous imprisonment for ten years and also sentenced to undergo rigorous imprisonment for seven months with a fine of Rs.5,000/- for offence under Section 201 of the Penal Code, the fine will go to the father of the deceased and appellant Geeta Devi of Cr. Appeal (S.J.) No. 456 of 2012 has also been convicted under Section 304B of the Penal Code and sentenced to undergo rigorous imprisonment for seven years and has, further, sentenced under Section 201/34 of the Penal Code to undergo rigorous imprisonment for five years with a fine of Rs.5,000/- and amount of fine will go to the father of the deceased and for default in payment of fine, both the appellants will go simple imprisonment for six months. 3. The prosecution case is that the marriage of Soni Kumari, the deceased and the sister of the informant, Dular Chand Sah, was solemnized with appellant, Jhunlan Sah, in July, 2008. At the time of marriage handsome amount spent and given in dowry. But, at the time of marriage, itself, accused persons demanded Rs.20,000/- cash and motorcycle. They were not satisfied with the dowry. However, at the intervention of the villagers, the bidai was done. The demand continued and the victim subjected to cruelty and after few months the victim was driven out of house, after assault and subjecting cruelty. The victim, Soni Kumari, came to naiher. The sasural people were approached and it was assured tha the victim will be kept after some time. Thereafter, the husband, Jhunlan Sah, took the victim to sasural. After taking the victim, the people used to subjecting her to cruelty and even on 17.05.2010 at 09.00 p.m., the informant contacted Jhunlan Sah on mobile and requested him to have a talk with his sister, Soni Kumari, Jhunlan Sah did not get him talk with his sister. On 18.05.2010 the informant came to know that is sister has been done to death. On the information the informant rushed to the sasural of the victim-deceased, there he found that her sister was not in house. He learnt from the villagers that she has been done to death by burning and she is being cremated. On 18.05.2010 the informant came to know that is sister has been done to death. On the information the informant rushed to the sasural of the victim-deceased, there he found that her sister was not in house. He learnt from the villagers that she has been done to death by burning and she is being cremated. He went near the barge and found that the cremation is being done and accused persons flee away. The informant went to the Police Station, lodged the first information report and the police, after investigation, submitted charge sheet, cognizance taken, case committed to the Court of session and after framing of charge the trial proceeded. 4. During the trial, eight witnesses examined. The defence of the accused that the victim-deceased died of natural death. 5. The defence of the co-accused is that the victim-deceased died of natural death for which the information was given to her naiher people and there is neither demand of dowry nor she was subjected to cruelty and the prosecution party came and participated in the cremation. The defence has also adduced two witnesses, D.Ws. 1 and 2 to the effect that she died of natural death and she was neither subjected to cruelty nor there was any demand of dowry. 6. The trial Court after taking into consideration the evidence, convicted and sentenced as stated above. 7. The learned counsel for the appellants challenged the conviction recorded by the trial Court on the ground that for offence under Section 304B of the Penal Code the requirement to prove the guilt is the solemnization of marriage within seven years, the death is in suspicious circumstance and, further, there must be prove that soon after the death the victim was subjected to cruelty in relation to demand of dowry with specific expression that the prosecution has not proved that soon before the death, the victim was subjected to cruelty for non-fulfillment of demand and if the ingredients of Section 304B of the Penal Code has not been fulfilled, then, the presumption under Section 113B of the Evidence Act is not attracted and it has been contended that the prosecution has neither proved the death in suspicious circumstance by legal and cogent evidence and, further, they have not established that soon before the death victim-deceased was subjected to cruelty in relation to demand of dowry. 8. 8. The learned counsel for the State, however, contends that from the perusal of evidence it is apparent that the marriage solemnized within seven years and the victim-deceased was done to death in suspicious circumstances as the witnesses have deposed about the death due to burnt injury and, further, it has been submitted that there is allegation of demand of dowry at the time of occurrence and since the date of occurrence and the date of marriage is only within two years and soon before the death in Section 304B of the Penal Code is concerned no definite period has been intimated and no straight jacket formula can be laid down as to what would constitute the period of soon before the occurrence and has placed reliance on a decision reported in A.I.R. 2005 S.C., 785 (Kamesh Panjiyar @ Kamlesh Panjiyar Vs. The State of Bihar). 9. In view of the respective submission the question for consideration whether the prosecution ahs been able to prove the ingredients for offence under Section 304B of the Penal Code, i.e., whether marriage solemnized within seven years, whether the victim was done to death in suspicious circumstance and whether soon before the death the victim subjected to cruelty in relation to non-fulfillment of demand of dowry. P.W. 6, the mother of the victim-deceased, has stated that the marriage solemnized about three years one month before her evidence recorded on 11th August, 2011, hence, it corresponds that Sudama Sah has stated that marriage solemnized about two years back and P.W. 7 has also stated that marriage solemnized about two years back though his evidence recorded on 11th August, 2011. P.W. 10, Dular Chand, who has stated that the marriage of the victim-deceased solemnized in the year 2008, hence, from the evidence of these witnesses, it is apparent that the marriage of the victim was solemnized in 2008 whereas the occurrence alleged in 2010. From the evidence of these witnesses and having regard to the fact that the evidence has not been challenged and no case has been made out that the marriage of the victim-deceased was solemnized beyond seven years rather in the evidence P.W. 1 has deposed that the marriage was solemnized in the year 2008, hence, the admitted case of the parties is that the marriage solemnized in 2008, having been beyond dispute and, hence, marriage solemnized within seven years. 10. 10. However, with regard to the death of the victim, P.Ws. 6, 7 and 8 are not eye witnesses to the occurrence and they have not seen even the dead body, however, they have stated in their evidences that they learnt from the villagers that the victim-deceased has been done to death by burn injury and the dead body has been disposed off. However, it is true that their evidences suffer from hear-say. P.W. 1 in her evidence has stated that Jhunlan Sah died out of burn injury and she reached at the place of occurrence after the occurrence and setting of fire, P.W. 2 has also stated that about 15 months back the victim died out of setting of fire. P.W. 3 has also stated that after the occurrence she went to the place of occurrence, then, saw that fire has set in the body of Soni Kumari and on enquiry it was learnt that she herself has set on fire. P.W. 4 stated that he came out of the house and on the sound and saw Soni Kumari has been died out of burn injury and, both, P.Ws. 3 and 4, claimed to be the eye witnesses as they have seen Soni Kumari in burnt state. P.W. 7 also stated that she saw victim, Soni Kumari, died in burnt state. However, these witnesses have been declared hostile, but, there is nothing in their evidences that these facts have been challenged either by the defence. Hence, from the evidence of these witnesses, P.Ws. 1, 2, 3, 4 and 7, it is apparent that the victim died due to burn injury and death in suspicious circumstance and neither the police officer was intimated nor the post mortem was conducted not any public authority were informed about the occurrence and the dead body of the victim-deceased was disposed without informing the naiher people in heavy haste and, hence, it is apparent that from these evidences and circumstances that the victim died in suspicious circumstance. 11. However, taking into consideration the submissions from the evidence of witnesses 1 to 4, discussed above, witnesses have stated that victim-deceased died due to burn injury and they have seen the victim-deceased burning, however, the witnesses have been declared hostile by the prosecution on several points for which the attention has been drawn. 11. However, taking into consideration the submissions from the evidence of witnesses 1 to 4, discussed above, witnesses have stated that victim-deceased died due to burn injury and they have seen the victim-deceased burning, however, the witnesses have been declared hostile by the prosecution on several points for which the attention has been drawn. However, with regard to evidence that they saw the victim-deceased burning and it was learnt that she was herself set on fire on which Jhunlan Sah and his mother came, but, this part has not been rebutted or challenged by the defence. P.W. 4 ahs also stated that he saw the victim-deceased dieing of burning injury and this part of independent witness has not been challenged by the defence and hence, this is not the law that the witnesses has been declared hostile their statement will not be taken into consideration, but, the witnesses, who deposed about the occurrence can be relied to that part which is not challenged. However, from these evidences it is apparent that the victim-deceased died due to burnt injury and the death in suspicious circumstances and neither the police officer was intimated nor the post mortem was conducted and the public authority was not at all informed. It has, further, been stated that the dead body of the victim-deceased was disposed off without informing the naiher people. 12. Now the question arises whether the victim was subjected to cruelty for non-fulfillment of the demand and, further, whether soon before the occurrence, the victim was subjected to cruelty, hence, to draw the presumption under Section 113B of the Evidence Act that all persons have caused dowry death, which is required to show that soon before the death of the victim she was subjected to cruelty, harassment for or in connection with demand of dowry along with fact that the marriage solemnized within seven years and her death in suspicious circumstances. 13. The expression, soon before, has not been defined nor does it indicate any fixed period and has been left to be determined the Court as proximate test or rule of proximity and, in this regard, it is relevant to quote paragraph 11 of a decision report in A.I.R. 2005 S.C., 785 (supra) :— ........... “the expression ‘soon before’ is very relevant where Section 113B of the Evidence Act and Section 304B, IPC are pressed into service. “the expression ‘soon before’ is very relevant where Section 113B of the Evidence Act and Section 304B, 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 constitution 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 113B of the Evidence Act. The expression soon before her death used in the substantive Section 304B, IPC and Section 113B 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 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 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 proximate and live-link between the effects 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. Hence, question is required to be determined in the facts and circumstances of each case taking into consideration that there must be a proximate link between the death and subjecting to cruelty for demand of dowry. Hence, question is required to be determined in the facts and circumstances of each case taking into consideration that there must be a proximate link between the death and subjecting to cruelty for demand of dowry. However, reverting back to the facts and circumstances of the case, at hand, the occurrence took place within two years of the marriage as marriage solemnized in 2008 and the victim was done to death on 17/18.05.2010 by burn injury and the dead body was disposed off in heavy haste without informing the public authority, there is evidence of demand of Rs.20,000/- cash and a motorcycle at the time of marriage. After the marriage the demand continued and persisted and the victim was subjected to cruelty and by assault driven out of the matrimonial home. Thereafter, at the intervention of the parties or Panchayati, a request made to the mother-in-law, Geeta Devi, who assured to keep the victim after a month. She was sent to sasural. However, as per the evidence of P.W. 10, the accused persons, she was, again, subjected to cruelty and, further, two months prior to the occurrence, the victim was said to have sent to sasural and, thereafter, on 17.05.2010 the informant was not permitted to talk with the victim and the informant got information on 18.05.2010 about the death of the victim. 15. In view of these facts since the occurrence took place within two years of the marriage and within the said period the demand made and the victim was subjected to cruelty for non-fulfillment of the demand and was driven out of the house and on the request by father to mother-in-law she was, again, permitted to be called and the husband took her to sasural and, again, she was subjected to cruelty and ultimately done to death, hence, in the facts it can well be inferred that the demand and subjecting cruelty persisted throughout there is living link between the death complained of subjecting cruelty for or in relation to demand of dowry to attract the presumption against the appellants under Section 113B of the Evidence Act for fastening the liability of the appellants for committing the dowry death of the victim. 16. However, the defence of the appellants that the victim died of natural death is concerned, there is no evidence except the evidence of D.Ws. 1 and 2. 16. However, the defence of the appellants that the victim died of natural death is concerned, there is no evidence except the evidence of D.Ws. 1 and 2. Nothing has been brought on record or on documentary evidence to suggest that the death was natural rather contrary to it P.Ws. 1, 2, 3, 4 and 7 have supported the prosecution case regarding the death of the victim by burn injury and her death by burn and dead body disposed off in heavy haste, hence, the defence that the victim died of natural death falls to ground and conviction and sentence under Section 304B of the Penal Code is sustained. 17. So far the conviction recorded under Section 201 of the Penal Code is concerned, there must be disappearance of some evidence of the commission of crime. There is no evidence that the appellants did any act to conceal the evidence nor there is anything to suggest that they have given any information respecting the offence which he knows and believe to be false. There is no evidence that who took the dead body of the victim to be buried with intention to conceal the fact. A charge of causing disappearance of evidence without legal evidence is not sustainable. A presumption about the disappearance of evidence by the accused persons or the appellants can not be inferred or presumed and there can not be any presumption that the accused persons have disposed off the dead body with intention that appellants have caused any evidence of the commission of offence to disappearance with intention to screen offender from legal punishments, hence, the conviction and sentence under Section 201 of the Penal Code by the trial Court is not sustainable is hereby set aside. 18. Having regard to the facts and circumstances of the case, the order of conviction and sentence recorded under Section 304B of the Penal Code against appellants, Jhunlan Sah and Geeta Devi, sustained and confirmed, but, the conviction and sentence recorded under Section 201 of the Penal Code against the appellants in Criminal Appeals (S.J.) No. 634 and 456 of 2012 is set aside. 19. In the result, this appeal are allowed in part. ?