GOPAL PRASAD, J.:–Both these appeals have been heard together and are being disposed off by this common judgment as they arise out of the same offence. 2. The appellants have been convicted for offence under Section 304B of the Penal Code. Appellant of Criminal Appeal (S.J.) No. 755 of 2013 has been sentenced to undergo rigorous imprisonment for ten years whereas other appellants have been sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case is that the appellant, Prem Sharma, married to the victim, Lalita Kumari, the deceased in the year 2006 and at the time of marriage sufficient give was given as per the capacity and after the marriage the victim went to sasural and after some time there was demand of motorcycle and Rs.50,000/- cash and they compelled the victim-deceased to make demand fulfilled by her father. The victim-deceased used to protest to make the demand as her father was poor and is unable to fulfill the demand. The further case is that for non-fulfillment of the demand the accused persons, the husband, mother-in-law, father-in-law, nanads, Nilu Kumari, Indu Devi, dewar, Nawal Thaur and one Raju Thakur and Madan Thakur subjected her to cruelty by abusing and assaulting. The further case is that the victim-deceased used to disclosed about the occurrence to her naiher people and the victim-deceased even filed a case for subjecting cruelty subjecting cruelty and demand and in this connection there was compromise in the Court and the victim-deceased was taken to the matrimonial home and, thereafter, she was kept for some time and, again, there was demand and subjecting cruelty. The further case is that even after compromise the victim-deceased was subjected to cruelty and even the prosecution party went to the victim-deceased, she disclosed about assault and subjecting cruelty for non-fulfillment of the demand. The further case that on 13.05.2010 at about 06.00 p.m. information was received that the victim-deceased has been done to death. On this information the prosecution party proceeded to the sasural of the victim-deceased and saw her dead body on a chowki (wooden cot) and it was learnt that the victim-deceased has been done to death by pressing the nose and mouth. 4. The matter reported to the police and the first information report was lodged on the fardbeyan of Pintu Sharma, the uncle of the victim-deceased. 4. The matter reported to the police and the first information report was lodged on the fardbeyan of Pintu Sharma, the uncle of the victim-deceased. The police, after investigation, submitted charge sheet, cognizance taken and the case committed to the Court of sessions and consequently charge framed, trial proceeded and during the trial eight witnesses were examined, after the statement under Section 313 of the Criminal Procedure Code. 5. The defence also adduced two witnesses, D.Ws. 1 and 2 and D.W. 1 is the informant himself that the victim-deceased died out of illness. The prosecution has been able to prove the guilt under Section 304B of the Penal Code and sentenced as mentioned above. 6. The learned counsel for the appellants, however, contended that there is no eye witness to the occurrence and the conviction recorded under Section 304B of the Penal Code. It has been contended that the initial burden to prove the ingredients of Section 304B of the Penal Code lies on the prosecution and the prosecution has not been able to establish that the marriage solemnized within seven years with specific date of the marriage and contended that the evidence of the prosecution party on the question of date of marriage is fluctuating, hence, no inference can be drawn about the date of marriage, hence, the prosecution has not been able to prove that the marriage solemnized within seven years. It has, further, been contended that the death of the victim-deceased has not been established to be in a suspicious circumstance rather the victim-deceased might have died out of illness. It has, further, been contended that the third ingredient that soon before her death it must have been shown that the victim-deceased has been subjected to cruelty for or in relation to demand of dowry and if the basic ingredient have not been proved, then, the presumption under Section 113B of the Evidence Act for offence under section 304B of the Penal Code can not be relied. The learned counsel for the appellants has, further, contended that when the allegation is general and omni bus and there is no specific allegation regarding offence the conviction and sentence is not sustainable. 7. The learned counsel for the appellants has, further, contended that when the allegation is general and omni bus and there is no specific allegation regarding offence the conviction and sentence is not sustainable. 7. The learned counsel for the State, however, submitted that the prosecution has been able to prove the charges beyond all reasonable doubt and it is contended that the ingredients for offence under Section 304B of the Penal Code has well been established by the cogent and reliable evidence. 8. However, the respective submission for consideration is that conviction and sentenced recorded by the lower Court is sustainable. However, it is well settled that for proving the offence under Section 304B of the Penal Code the ingredients for the offence is required to be proved to attract the presumption under Section 113B of the Evidence Act. 9. However, taking into consideration the point raised in the light of the submission, the informant, the uncle of the deceased, stated that the marriage solemnized in 2006, but, no specific date has been given. However, the informant, who is uncle of the deceased, has been examined as D.W. 1 on the point of marriage. He has stated that the marriage of the victim-deceased solemnized with Prem Sharma about 4-5 years back. He has been examined on 5th June, 2012, and this part of the evidence is in the cross examination. P.W. 4, Radhey Shyam Thakur, is brother of the victim-deceased, specifically stated that the marriage solemnized on 13.06.2007. This part of the evidence has not been challenged nor has any suggestion been given on this part of the evidence. P.W. 3 is Babita, the sister of the deceased and she has stated that the marriage solemnized about five years back. P.W. 5 is Johra Devi, who is the mother of the victim-deceased, has stated that the marriage solemnized about six years back and P.W. 6 is Arjun Thakur, the brother of the victim-deceased, who stated that the marriage solemnized about six and half years back. 10. However, the contention of the learned counsel for the appellants is that some of the witnesses stated that marriage solemnized five years back, some stated six years back and some stated seven years back, hence, there is variation in the statements of the witnesses regarding the date of marriage. 10. However, the contention of the learned counsel for the appellants is that some of the witnesses stated that marriage solemnized five years back, some stated six years back and some stated seven years back, hence, there is variation in the statements of the witnesses regarding the date of marriage. Except P.W.4 none has stated specifically about the date of marriage and it has been stated in the evidence of P.W. 4 that the marriage solemnized on 13.06.2007. The date of marriage has been stated by the witnesses on the basis of their memory and it can not be taken in the evidence with all mathematical precision. However, from the evidence of the witnesses, it is apparent that P.W. 4 has specifically sated the date which has not been challenged and other witnesses have given the time of marriage on estimation and even D.W. 1 has stated that date with due estimation which is well within seven years, hence, the marriage took place within seven years. The learned counsel for the petitioners, however, relied upon a decision reported in 2004(2) Supreme, 279 (Baljeet Singh & Anr. Vs. State of Haryana) and has asserted that the prosecution must have to establish the date of death to prove the case with specific date. However, the decision relied upon by the learned counsel for the appellants not applicable to the facts and circumstance of the present case. The facts and circumstances of the case relied upon is that the prosecution case with a case that the marriage took place within seven years. But, the defence, in contrary, raised the plea that the marriage has taken place eleven years prior to the death of the deceased and a plea was taken that the prosecution has failed to establish that the death has occurred within seven years of marriage. However, the Court rejected the plea on the ground that since the defence has taken plea that the marriage has taken place eleven years back, then, the onus is on the defence to establish that the marriage had not been solemnized within seven years of the marriage and presumed that the marriage is within seven years, hence, the onus was on the prosecution to establish the ingredients that the marriage solemnized within seven years. It was held that onus to prove is on prosecution to establish that marriage solemnized within seven years, this onus can not be shifted to the defence. 11. However, having regard to the facts and circumstances of the present case, at hand, the prosecution has been able to prove, by cogent and reliable evidence that the marriage solemnized within seven years, hence, I find and hold that the prosecution has been able to establish the ingredients that marriage solemnized within seven years. 12. With regard to the death of the victim, it is true that there is no eye witness to the occurrence and the only material that when the witnesses reached to the place of occurrence learnt that the victim has been done to death. The dead body was found lying on a wooden cot. 13. P.W. 8, the doctor, in his evidence, has deposed that the he conducted the post mortem examination of the victim-deceased on 13.05.2010 at 01.25 p.m.opined that time elapsed since death is 4 to 24 hours of the examination, the cause of death is asphyxia due to smothering lead to cardio respiratory failure, which led to death. 14. An argument has been advanced by the learned counsel for the appellants that since there was neither any mark on the neck nor there is mark of any hanging and the trachea was not fractured so it can not be a case of either suicidal or homicidal and it may be a case of death for other reason and the possibility that the death has been caused by some accident. The doctor having been opined that the death was due to smothering and in case of smothering the possibility of pressing the nose and mouth may be a cause of death and the possibility of fracture of hybrid bone is not at all required in a case of death by smothering, hence, from the evidence of the doctor it can well be settled that the death of the victim-deceased was in suspicious circumstance. 15. The third ingredient is the question whether soon before the death the victim-deceased has been subjected to cruelty for or in relation to demand. 15. The third ingredient is the question whether soon before the death the victim-deceased has been subjected to cruelty for or in relation to demand. Further, the prosecution case is that after the marriage the victim-deceased went to matrimonial home and after some time/some days of her stay in sasural, the accused persons started subjecting her to cruelty for compelling to ask her father to fulfill the demand of motorcycle and Rs.50,000/- cash as dowry and the for consideration was expressing her inability to demand as the father of the victim was unable to fulfill the demand due to his poverty and the witnesses in their depositions have stated and supported the factum of demand and subjecting to cruelty for non-fulfillment of the demand and assault on the victim-deceased by permeating her cruelty, which led even to the institution of a case as per evidence of P.Ws. 3 and 4 and after compromise the accused persons took the victim-deceased and kept and, again, the victim-deceased was subjected to cruelty for the said demand of motorcycle and Rs.50,000/- and, again, at the intervention of Lalganj police the compromise made and the victim-deceased went to sasural and, again, three months prior to the occurrence she was, again, subjected to cruelty by assault and even two days prior to the occurrence, P.Ws. 3 and 4 went to the sasural of the victim-deceased, then, she disclosed about the assault and subjecting cruelty for non-fulfillment of the demand and this has been supported by the evidence of P.W. 5 as well. 16. Hence, having regard to the evidences of P.Ws. 3, 4 and 5, it is apparent that since after the marriage there was persistence demand and subjecting cruelty with regard to dowry, both, in cash and kind and from the evidence of the witnesses that in pursuance of the dispute a compromise arrived at between the parties and even Panchayati done, but, even after that the demand and subjecting cruelty continued. 17. Having regard to the facts and circumstances, as per evidence of the witnesses, the victim-deceased was continuously subjected to cruelty for non-fulfillment of the demand and the cruelty permeated till two days before the occurrence. However, the expression, ‘soon before’ the death is not defined no time has been fixed nor there is any straight jacket formula and has been left to be determined in the facts and circumstances of each case. However, the expression, ‘soon before’ the death is not defined no time has been fixed nor there is any straight jacket formula and has been left to be determined in the facts and circumstances of each case. The only test is proximity test. It only implies that the interval should not be much between the concerned death and subjecting cruelty for demand and there must be living link between the death and subjecting cruelty. 18. the learned counsel for the appellants, however, has relied upon the decision reported in A.I.R. 1997 S.C., 1873 (Shyamlal Vs. State of Haryana) and analogous case wherein the fact remained that the victim, Neelam Rani, died of the burn injury, the prosecution case that the appellants were prosecuted that there was demand of more dowry, both, in cash and kind and on account of failure to meet the demand for dowry, Neelam Rani was taken by her parents to their house about one and half years before her death. Further, evidence that an attempt was made to patch up between two sides for which a Panchayati was held in which it was resolved that she would go back to her matrimonial home, pursuant to which she was taken by her husband to his house. This happened about 10 to 15 days prior to the death. There was nothing on the record to show that she was either treated with cruelty or harassment for the demand of dowry during the period between her having been taken from parental home to sasural and her tragic death and held that in absence of any such evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113B of the Evidence Act. It was further held that the rule of evidence is prescribed in law to aviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband as then it would be a burden of the accused to rebut the prosecution, hence, in view of these facts and the view taken in A.I.R. 1997 S.C., 1873 (supra) that offence under Section 304B of the Penal Code not made out. 19. 19. However, it is pertinent to mention that in case reported in A.I.R. 1997 S.C., 1873 (supra) under the peculiar facts and circumstances that the victim-deceased went to naiher remained there for one and half years and, thereafter, came to sasural on Panchayati and, then, till death there was no allegation or evidence of demand or subjecting cruelty during the said period. So, apparently no evidence of allegation of demand and subjecting cruelty for one and half years. 20. However, the facts and circumstances of that case at hand it is apparent that the demand and subjecting to cruelty by the accused persons who are persisting all along between the parties and even after the compromise and sending the victim-deceased by Court, the demand and subjecting cruelty continued and even after Panchayati there is evidence to suggest that there was demand and subjecting to cruelty and even two days prior to the occurrence there is material to suggest that the witnesses, the mother and sister, went to the victim-deceased and she reported about the assault and subjecting cruelty in relation to demand of dowry, hence, the principle applicable to the facts and circumstances reported in A.I.R. 1997 S.C., 1873 (supra) is not applicable and it can well be said in the facts and circumstances that the prosecution has been able to prove that soon before the occurrence the victim-deceased was subjected to cruelty for or in relation to demand of dowry and, hence, the three ingredients having been established, at least against the husband. 21. However, there is allegation that the husband along with father-in-law, mother-in-law, nanad, devar and others demanded Rs.50,000/- and motorcycle and subjected to cruelty, the allegation and evidence against them are general and omni bus and there is no specific allegation regarding demand and subjecting cruelty against he father-in-law, mother-in-law, nanad, devar and other appellants and, further, it has come that one of the nanads, Neelu Kumari, is unmarried and the other, Indu Devi, is blessed with children and is a widow and resides at her sasural at Amargaon and there is general tendency to implicate as many as relatives of the husband, particularly, in case of matrimonial dispute. 22. 22. A point has been raised that in the statement of the witnesses recorded under Section 313 of the Criminal Procedure Code the question asked to the accused are in most general and omni bus and the evidence, adduced against the witnesses, has not specifically asserted as put in proper form. Separate question has not been asked about time of marriage, death of victim and cruelty. It has been asserted that the question has been asked under Section 313 of the Criminal Procedure Code is in most cryptic and general manner as no circumstance has been separately asked. However, there might have been some irregularity in recording the evidence separately making out a distinct question, but, the lacunae pointed out not as such to set aside the order of conviction. However, the appellants have not been able to show what prejudice have been caused to the appellants for not asking the question separately and no objection raised at the stage of trial and accused has not been able to show that any prejudice has been caused nor any argument has been advanced about the probable prejudice in laying difference and they have stated only in their defence that they are innocent, hence, no prejudice has been shown to cause from the said statement, recorded under Section 313 of the Criminal Procedure Code, hence, is of no consequence. 23. Reliance has been placed on a decision reported in A.I.R. 1995 S.C., 1863 (Slamat Ali & Anr. Vs. State of Bihar) where it has been held that when allegation about demand of dowry and subjecting cruelty is general and omni bus without a clear and cogent evidence against the family members of husband. However, though there is evidence that marriage solemnized within seven years and the death in suspicion circumstances, but, the evidence about subjecting cruelty and demand of dowry are common against the family members of the husband are general and omni bus and there is neither specific evidence of demand nor of subjecting cruelty against them,, thus, there is strong doubt about their implication and are entitled to benefit of doubt, their conviction on the basis of those evidences is neither justified nor reasonable. 24. 24. Hence, taking into consideration the evidence, adduced, the three ingredients that the marriage having been solemnized within seven years, the death of the victim-deceased in suspicious circumstances and, further, soon before the death victim-deceased was subjected to cruelty for or in relation to demand of dowry having been established against the husband, hence, the ingredients of Section 304B of the Penal Code having been established, the presumption of dowry death can well be drawn under Section 113B of the Evidence Act against the husband. However, since evidence regarding the implication of the other appellants, who are the family members, like father, mother, nanad, devar and other there is no specific allegation of demand and subjecting to cruelty, which is in the nature of general and omni bus allegation, hence, it can well be said that ingredients of Section 304B of the Penal Code has not been established against them and they are entitle for the benefit of doubt, hence, the order of conviction and sentence against the appellants of Criminal Appeal (S.J.) No. 878 of 2012 has not been established, their conviction and sentence recorded by the lower Court is hereby set aside and they are acquitted of the charges and Criminal Appeal (S.J.) No. 878 of 2012 stands allowed. 25. Having regard to the fact that the appellants of Criminal Appeal (S.J.) No. 755 of 2012, who is husband of the victim-deceased, the charge, against him, and his conviction and sentence recorded under Section 304B of the Penal Code having been established and so Criminal Appeal (S.J.) No. 755 of 2012 is hereby confirmed and the appeal is dismissed. ?