JUDGMENT : DHARNIDHAR JHA, J. The two appellants were put on trial by the learned 1st Additional Sessions Judge, Dharbhanga in Sessions Trial No. 91 of 1990 / 29 of 1990 by being charged jointly under Sections 302 read with Section 34 of the Indian Penal Code and Section 304 B of the Indian Penal Code. By judgment dated the 19th of June, 1991 the learned trial Court held the appellant Sudhir Kumar Thakur guilty of committing offence under Section 304 B read with Section 34 IPC, whereas, appellant Birendra Thakur @ Khakhan Thakur was convicted of offence under Section 304 B IPC. The two appellants were heard on sentence on the same day and each of them was directed to suffer rigorous imprisonment for life. The appellants have preferred the present appeal jointly to challenge the above judgment of conviction and order of sentence. 2. Some of the undisputed facts were that Kiran Devi was the daughter of P.W. 1, namely, Ram Chandra Mishra and she had been married to appellant Sudhir Kumar Thakur on 24.7.1987. It appears undisputed that the deceased had died in the night of 17th September, 1989 and it is also not disputed that at the time of her death she was in her matrimonial house or was residing with her husband and his other family members. As may appear from the evidence of P.W. 1, it was not denied that at the time of marriage no dowry was paid and that the informant had got his daughter married to appellant Sudhir Kumar Thakur through negotiator. The lady Kiran Devi, while residing in her matrimonial house, was blessed with a son who was born in the house of P. W. 1 who had brought her back for that purpose. 3. In the background of above admitted facts, the informant (P.W. 1) alleged that he received letters from the deceased which were marked Exts. 1 and 1/1 in the year 1988 informing him that he should get a job for appellant Sudhir Kumar Thakur else the coming days for the lady was not going to be very happy. It was stated that the accused persons had also started demanding Rs.15,000/- which was due to be paid as consideration for the marriage and non-fulfillment of the demand appeared to have resulted in killing of his daughter and causing her dead body to disappear. It was stated that the accused persons had also started demanding Rs.15,000/- which was due to be paid as consideration for the marriage and non-fulfillment of the demand appeared to have resulted in killing of his daughter and causing her dead body to disappear. The informant had stated that he had learnt from one Satyadeo Mishra (not examined) regarding the killing of his daughter and causing disappearance of the dead body of kiran. 4. On the basis of the first information report lodged by P.W. 1 Ramchandra Mishra, the Kamtaul police registered a case. It appears that after investigation the two appellants were sent up for trial. 5. Smt. Priya Gupta, the learned amicus curiae took us through the evidence of witnesses and submitted that the ingredient of Section 304(B) IPC was not constituted on the facts of the case and two letters (Exts. 1 and 1/1) which were used by the learned trial Court for recording finding, contents thereof had never been put to the accused during their questioning under Section 313 Cr.P.C. It was also submitted that it was seriously disputed by the defence that the letters were written by Kiran Devi and there was no evidence produced by the prosecution to establish that they had indeed been authored by Kiran Devi. Submission was that the said Satyadev Misra from whom the informant had learnt about the incident was not produced on a mere ploy that he had been won over by the accused persons. The next contention was that it was a case based on the solitary statement of P.W. 1, who was, as may appear from his own evidence, not a reliable witness. Submission, lastly, was that Kiran Devi had died of some disease as may appear from the evidence of D.W. 2 Dr Satish Panjiyar, who had treated her and in whose clinic she had breathed her last. 6. Shri Abhimanyu Sharma, learned Additional Public Prosecutor was seriously contesting the submissions of the learned amicus curiae and was vehemently submitting before us that the death was within seven years of the marriage under circumstances which were not natural and evidence suggested as if the lady had been illtreated and tortured for or in connection with demand of dowry and, as such, the statutory presumption under Section 113 B of the Indian Evidence Act had to be drawn against the accused persons. 7. 7. Before we proceed to examine the rival contentions of the learned counsel of the parties, we want to clear one misunderstanding about the interpretation of application of Section 113 B of the Indian Evidence Act vis-a-vis Section 304 B of the Indian Penal Code. In order to expressing our opinion we find it advisable that we first have a glance of the provisions of Section 304 B IPC which runs as under:- 304 B. Dowry death — (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” As may appear on a mere perusal of the provision, it itself directs that the accused persons shall be deemed to have committed an offence under Section 304 B IPC. As soon as the legislature in its wisdom employed the word ‘deemed’ in our opinion, the very section was creating a burden upon the accused to explain that he had not committed that offence. Besides the provision of section 304 B IPC there are many such provisions in the Indian Penal Code which create statutory presumptions against the accused who are accused of committing those offences or any of those offence and require the accused to explain his liability or offer his explanation either by eliciting the same from the prosecution evidence or by producing his own evidence that the presumption could not be drawn up against him. But that burden which is shifted upon the accused statutorily could not be automatic only because the accused had been charged with committing those offences which create statutory burden upon him. The burden could be shifted upon the accused only when the prosecution has discharged its onus of establishing the offence by evidence which could create each and every ingredient constituting such an offence. The burden could be shifted upon the accused only when the prosecution has discharged its onus of establishing the offence by evidence which could create each and every ingredient constituting such an offence. We may refer to a series of decisions in support of the above views of ours and one of the leading cases which comes to our mind is K. M. Nanavati vs. State of Maharashtra, reported in AIR 1962 SC 605 in which the Apex Court was explaining the standard of proof required of the prosecution as regards the commission of an offence by the accused and the discharge of his burden in a case of having pleaded the defence of general exception which is covered by Section 105 of the Evidence Act. If one could consider the very provision of Section 105 of the Evidence Act, one may very well find that it also creates some sort of legal presumption which is to be displaced by the accused in certain class of cases in which he has taken or raised the statutory defence of general exceptions. The presumption in such cases is that the Court shall start on presumption that no such defence enlisted in the general exception chapter of the IPC were available to the accused. Thus, when one considers the provision of Section 105 of the Evidence Act then one could find that it is somewhere around the degree of discharging the onus by the prosecution that an almost equal a burden is created upon the accused by that provision. This Court had considered the provision of Section 105 of the Evidence Act in Vivekanand Mishra vs. State of Bihar, reported in 2008(56) 1 BLJR 0839 (Pat) by referring to at least two decisions of the Supreme Court, i.e., in K. M. Nanavati vs. State of Maharashtra (Supra) and Vijayee Singh & others vs. State of U. P. reported in AIR 1990 SC 1459 . The law on onus of proof and burden of proof in a case statutory presumption was discussed and laid down elaborately by the Supreme Court in Rabindra Kumar Dey vs. State of Orissa reported in 1976 SCC (Cri) 566. The law on onus of proof and burden of proof in a case statutory presumption was discussed and laid down elaborately by the Supreme Court in Rabindra Kumar Dey vs. State of Orissa reported in 1976 SCC (Cri) 566. The Supreme Court while elucidating the difference between onus of proof and burden of proof had noticed AIR 1966 SC 97 Harbhajan Singh vs. State of Panjab and (1974) 4 SCC 764 State of U. P. vs. Ram Swaroop as may appear from para 6 of Rabindra Kumar Dey (Supra). 8. We had digressed a bit by referring to Section 105 of the Evidence Act, but it appeared to us necessary for pointing out that even if there had not been a provision, like, Section 113 B in the Evidence Act, the provision of Section 304 B IPC appears definitely creating a burden upon the accused, but that burden is shifted upon him only when the prosecution had proved: (i) that the death of a lady had occurred within seven years, (ii) that it had occurred under circumstances not natural, and (iii) finally, that soon before her death the lady had been subjected to cruelty or harassment for or in connection with dowry either by her husband or any of his relatives. 9. The prosecution while attempting to establish the charge under Section 304 B IPC has to establish all the ingredients individually by admissible and reliable evidence. If any of the above ingredients is not established or, in other words, if the prosecution fails in establishing any of the above ingredients then the offence under Section 304 B IPC could never be established and, as such, there is no question for the Court turning towards the accused to seek his explanation as regards his culpability. We have already noted that there is some confusion or wrong notion among us as prevailing also amongst members of the Bar as regards the applicability of Section 304 B IPC to a particular set of facts and drawal of presumption as per Section 113 B of the Indian Evidence Act. It was felt necessary by us to clarify the prevailing notion as regards the above legal question. 10. It was felt necessary by us to clarify the prevailing notion as regards the above legal question. 10. Coming to the facts of the case, the informant had definitely stated in his evidence that it was Satyadeo Mishra who had informed him about the killing of his daughter and causing disappearance of her dead body by the accused persons. The said Satyadeo Mishra had not been examined and an explanation was offered by the informant that he had been gained over by the accused. In our opinion that was not a sufficient and acceptable explanation for the non-examination of such an important witness who was the vehicle of information as regards the details of the occurrence. If the informant was desirous of getting approval of his evidence then, in our opinion, he ought to have filed a petition before the Court below requesting him to summon the said Satyadeo Mishra and should have got him produced before the trial court for his evidence and if he had either not turned up or had turned up and not supported the prosecution case, then should have shown to the Court either the unwillingness of Satyadeo Mishra to support his case or the probability of the witness having been won over by the accused person. It is one of the worst defects in the prosecution case. 11. The other defect which we could find in the evidence of informant was that he admitted that there was no demand of dowry and if it was demanded, he would never pay a single farthing as dowry for or in consideration of the marriage of his daughter and further that he was to go through the marriage proceedings only by offering petals of flowers to the bridegroom side. The evidence of P.W. 1 in paragraph 9 further indicates that there was no talk between him and the accused persons at any moment of time either prior to marriage or after the marriage that he was required to pay any amount or give any article. He was pointing out that one Lal Bahadur Mishra who had acted as an Agua (mediator/negotiator) had conveyed to him that the accused persons were desirous of getting Rs.15000-20000/-. He was pointing out that one Lal Bahadur Mishra who had acted as an Agua (mediator/negotiator) had conveyed to him that the accused persons were desirous of getting Rs.15000-20000/-. In spite of giving this evidence he was admitting that none of the accused persons had directly demanding anything from him and further that whatever was given by him was out of his own volition either to his daughter or to his son-in-law. The same defect of non-examination of an important witness stares in the face of the prosecution when the said mediator/negotiator Lal Bahadur Mishra, who had been named in the last line of paragraph 8, was not examined. There is no evidence of the informant that he ever had received any request or demand from any accused person after he had solemnized the marriage of his daughter or she had gone to live into her matrimonial house. The prosecution evidence, on the contrary, indicated that it was a happy living for the deceased so much so that she also gave birth to a son which appears admitted by the informant in paragraph 12 of his deposition. The evidence on demand of any amount appears completely absent from the deposition of P.W. 1. However, what the learned trial Judge did was to place reliance upon two letters Exts. 1 and 1/1. In both the letters it was stated by their authors that accused Sudhir Kumar Thakur was pressuring Kiran Devi to ask her father to get a job for him else her coming days was not going to be very pleasant. The defence had seriously cross-examined P.W. 1 in paragraphs 4, 5, 6, etc. and what appears from consideration of those paragraphs is that the defecnce was seriously challenging that the writings were, firstly, of one person and, secondly, that of Kiran Devi. The informant categorically admitted that he did not have any further writings of Kiran Devi nor he could produce any writings of her from the school in which she was reading at Tenughat. The defence was comparing the writings of two letters Ext. 1 and 1/1 as appears from paragraph 5 at page 10 of the paper book and was suggesting to P.W. 1 that the alphabets in the two letters were varying from each other making it probable that the letters had not been written by one person. The defence was comparing the writings of two letters Ext. 1 and 1/1 as appears from paragraph 5 at page 10 of the paper book and was suggesting to P.W. 1 that the alphabets in the two letters were varying from each other making it probable that the letters had not been written by one person. The learned trial Judge had received the letters in evidence and has also held that those appeared written by Kiran Devi. We want to point out that except the evidence of P.W. 1 the father of Kiran Devi, there was no further evidence which could put it beyond dispute that the letters were written by Kiran Devi. Being confronted with controversies which were raised in the Court below, we applied ourselves to the writings of the two letters and we found that the probability is always there to suggest as if Ext. 1 could not have been written by the person who had written Ext. 1/1. The spelling of important word but as simple as ‘Maan’ which appears in Ext. 1 is quite different from the spelling of the word in Ext. 1/1. The formation of the letters, the loop and strokes in writing different letters also varies in the two letters making it quite probable that they had not been written by one and the same person. Moreover, whatever the contents of Ext. 1 or 1/1, what appears is that it was a mere suggestion to her father to get his son-in-law engaged anywhere and it was not for the first time that the informant was being asked to seek some employment for his son-in-law. The informant himself admitted in his evidence in cross-examination in paragraph 9 at page 15 of the paper book that at the time of the Faldan-ceremony the accused persons had suggested to him to get the groom engaged somewhere by obtaining some employment for him. There was no suggestion or no inkling coming out of this evidence that it was in or for consideration of marriage of the bridegroom. Shri Sharma, the learned Additional Public Prosecutor was submitting before us that demanding a job for the groom was also seeking some consideration for or in connection with a marriage and it was fully covered by Section 2 of the Dowry Prohibition Act. Shri Sharma, the learned Additional Public Prosecutor was submitting before us that demanding a job for the groom was also seeking some consideration for or in connection with a marriage and it was fully covered by Section 2 of the Dowry Prohibition Act. We, respectfully, differ with the opinion of Shri Sharma because had it been so then it would have been more vigorously and tenaciously pursued by the accused persons. The words of P.W. 1 when he was narrating the request appears a mere formal request for obtaining some sort of employment for the groom. It was never a demand as a consideration for or in connection with the marriage. As such, what appears to us is that there was no demand of any dowry ever from the deceased and even going by the contents of letters Ext. 1 and 1/1 or by the evidence of P.W. 1 there is absolutely no evidence suggesting that the lady had been ever tortured in that connection least to talk of soon before her death. We have already noted that merely because the lady had died within seven years of her marriage, it may not constitute an offence under Section 304 B IPC. The ingredients constituting the offence had to be established by admissible, acceptable evidence and after having considered the evidence of P.W. 1 what we find is that the charge under Section 304 B IPC was not established to the hilt. 12. We may also take note of one aspect of the trial proceedings. The contents of the two letters were used against the accused persons for recording a finding as regards the proof of charge but while examining the accused persons under Section 313 Cr.P.C., the circumstances which were created by the contents of those letters were not put to them. We do not want to say much about the non-compliance of the provisions of Section 313 Cr.P.C. except that once that particular circumstance had not been put to the accused, the recoding of finding based on that circumstance was simply not permissible under law. Viewing the judgment from that angle also we find the same vitiated. 13. There was a definite defence by the accused persons that Kiran Devi had suffered from Cerebro Spinal Fever, Aneurysry (sic.) and jaundice. Viewing the judgment from that angle also we find the same vitiated. 13. There was a definite defence by the accused persons that Kiran Devi had suffered from Cerebro Spinal Fever, Aneurysry (sic.) and jaundice. We have just recorded that the charge had not been proved to the hilt by the prosecution and in that view there was no necessity for us to consider the defence of the accused, but for the sake of propriety we want to note that the defence had led evidence by examining the doctor (D.W. 2) who had admitted her into his clinic and who had stated the fact that she died of illness. The prosecution evidence is not the evidence which is only credible part of trial proceedings, the defence evidence also carries value and weight. The defence of the accused is that the deceased might have died of some illness. 14. Having regard to the relevant evidence available to us we find that it was a case in which the charge had not been proved to the hilt which entitled the two appellants to an order of acquittal. 15. In the result, the appeal succeeds, the judgment of conviction and order of sentence are hereby set aside by allowing the present appeal. The two appellants are on bail. They shall stand discharged from the liabilities of their respective bonds. 16. We have been assisted by Smt. Priya Gupta, who was appointed Amicus curiae to assist this Court. We direct that Smt. Priya Gupta be paid the prescribed fee of one hearing by the Patna High Court Legal Services Committee for assisting the Court. Let the first and last pages of the judgment be handed over to her for that end.