JUDGMENT : These two appeals have been heard together and are being disposed of by this common judgment as both the appeals arise out of same judgment of conviction dated 23.11.2015 and order of sentence dated 26.11.2015 passed in S.T. No. 241 of 2012/S.T. No. 43 of 2014 arising out of Hilsa P.S. Case No. 289 of 2011, District-Nalanda by Shri Binod Kumar Shukla, Additional Sessions Judge-II, Hilsa, Nalanda by which the appellant Akhilesh Prasad has been convicted under Section 304B of the Indian Penal Code and sentenced to undergo R.I. for 10 years, while, for the same offence the appellants namely Ganauri Prasad, Geeta Devi and Chinta Devi have been convicted and sentenced to undergo R.I. for 7 years for offence under Section 304B of the Indian Penal Code. 2. They have further been convicted under Section 201/34 of the Indian Penal Code and sentenced to undergo R.I. for 3 years and a fine of Rs. 10,000/- each and in case of default of payment of fine, to undergo S.I. for 1 year. However, it has been ordered that both the sentences shall run concurrently. 3. The prosecution case, as alleged, in the First Information Report, by the informant Chandra Bhushan Prasad, the father of the victim alleging therein that on 29.09.2011 at about 7.00 A.M., he got information from his own relation that his daughter Shailu Kumari, aged 23 years, who had been married with Akhilesh Prasad (appellant) about a year ago and who was living in her sasural for the last one and half years, has been done to death by strangulating her neck. It is further alleged that the dead body of the victim has been disposed of, by burning. On the said information, he along with his wife, brother Arvind Prasad and other villagers proceeded to the sasural of his daughter Shailu Kumari then they learnt that his daughter Shailu Kumari has been done to death by her husband Akhilesh Prasad, Bhaisur Ganauri Prasad, Gotni Geeta Devi and Nanad Chinta Devi, all in collusion, subjected the victim to cruelty for non-fulfillment of demand of golden chain and motorcycle. 4. 4. The fardbeyan of the informant Chandra Bhushan Prasad was recorded at 8.30 A.M. by A.S.I. A.K. Dikshit at the house of Late Ramishwar Mahto but the F.I.R. shows that the information received in the police station at 6.30 hours and thereafter on the fardbeyan of the informant, F.I.R. was lodged and the investigation proceeded by A.K. Dikshit, A.S.I. of Hilsa P.S. 5. During investigation, the I.O. (P.W.13) recorded the fardbeyan of the informant, signed it and the informant also signed. The formal F.I.R. was drawn. The Investigating Officer has inspected the place of occurrence, recorded the statement of the witnesses and during investigation, the Investigating Officer was transferred and so the investigation was handed over to another I.O. Raj Kumar Paswan. 6. After submission of the charge sheet, cognizance was taken and case was committed to the Court of Session and during trial, 13 prosecution witnesses were examined. 7. After framing of the charge, 13 witnesses have been examined. P.W.1 Arvind Prasad, P.W.2 Rajeshwar Prasad, P.W.3 Dinesh Prasad, P.W.4 Jagdeo Prasad, the uncle of the victim, P.W.5 Bachchi Devi is the Aunt of the victim, P.W.6 Jeetendra Kumar, P.W.7 Jeetendra Kumar, P.W.8 Malti Devi, the mother of the victim, P.W.9 Chandra Bhushan Prasad, the informant and father of the victim, P.W.10 Raj Kumar Paswan, P.W.11 Guria Kumari, the niece of the victim, who has turned hostile has not supported the prosecution case, P.W.12 Choti Kumari, the niece of the victim and she has also been declared hostile as she has not supported the prosecution case and P.W.13 Arun Kumar Dikshit, the I.O. 8. The defence of the appellants, as appeared from the cross-examination and suggestion is that no demand of dowry was made by the accused persons nor the appellants have subjected the victim to cruelty and the cremation of the victim was done with consent of the parents of the victim and false case has been instituted to vex the accused persons. 9. The documentary evidence proved in this case are:- Ext.-1 is signature of Arvind Prasad on the fardbeyan, Ext.-1/1, 1/2, and 1/3 are signatures of the witnesses on the fardbeyan, Ext.-2 is the Formal F.I.R., Ext.-3 is the writer of fardbeyan, Ext.-3/1 is the endorsement, Ext.-4 is the confessional statement of Chinta Devi and Ext.-5 is the signature of Raj Kumar Paswan. 10. 10. The trial Court after taking into consideration the evidence of 13 witnesses, the documentary evidence as well as the confessional statement of co-accused Chinta Devi, convicted the appellants on the ground that the witnesses have stated that Shailu Kumari was married with Akhilesh Prasad in the year 2010. There was demand of motorcycle and golden chain and the sasural people was not keeping the victim properly and when they went there, the dead body of the victim was disposed of and since the accused persons did not keep the victim properly, indicate that the victim has been done to death and since the victim was residing in her sasural and hence the offence under Sections 304B and 201 of the Indian Penal Code has been proved. 11. Learned counsel for the appellants, however, challenged the judgment of conviction and order of sentence recorded by the trial Court and it has been contended by the learned counsel for the appellants that none of the ingredients of Section 304B of the Indian Penal Code is made out. Learned counsel for the appellants drawn up presumption under Section 113B of the Evidence Act and further ingredient of Section 304B of the Indian Penal Code. With regard to presumption of dowry death, it must be shown that soon before her death, she was subjected to cruelty in connection with demand of dowry. 12. Learned counsel for the State, however, submits that the victim was residing in her sasural and further there is specific evidence regarding the fact that the marriage of the victim has been solemnized within seven years and the victim had gone to sasural hardly one and half years back and while residing in her sasural, she was done to death and the in-laws of the victim did not report about the death of the victim and the dead body of the victim was disposed of, give rise to the presumption that the death has been caused in suspicious circumstances and subsequently the dowry death has been established. 13. Taking into consideration the respective submission the question for consideration whether the prosecution has proved the ingredient for offence under Section 304B of the Indian Penal Code to draw an inference under Section 113B of the Act. 13. Taking into consideration the respective submission the question for consideration whether the prosecution has proved the ingredient for offence under Section 304B of the Indian Penal Code to draw an inference under Section 113B of the Act. however, it is well settled that in order to prove conviction under Section 304B of the Indian Penal Code, the prosecution has to prove that:- (a) the death of a woman was caused by bodily injury or occurs otherwise than under normal circumstances; (b) such death should have been occurred within seven years of marriage; (c) the deceased was subjected to cruelty or harassment by her husband or any relatives of her husband; (d) such cruelty or harassment was for, or in connection with, any demand for dowry; (e) Such cruelty or harassment was soon before her death. 14. If these conditions are fulfilled then under Section 113B of the Evidence Act, the presumption can be drawn. Of a dowry death, it is to establish that soon before the death; the victim was subjected to cruelty by such a person. 15. However, taking into consideration the fact that out of 13 prosecution witnesses examined in this case, P.W.1 to P.W.7 are the witnesses, who have mostly said that the marriage of the victim was solemnized with the appellant Akhilesh Prasad within seven years. However, with regard to demand of dowry and subjecting cruelty, they are only hearsay. However, the evidence of informant, the father of the victim (P.W.9) and mother of the victim (P.W.8), P.W.10 Raj Kumar Paswan, who has proved the charge sheet and P.W.11 Guria Kumari and P.W.12 Choti Kumari are the prosecution witnesses, who have been declared hostile by the prosecution and P.W.13 Arun Kumar Dikshit is Investigating Officer of the case. However, it is not disputed that the marriage of the victim was solemnized within seven years and with regard to the evidence of the informant, who has stated that the marriage of the victim was solemnized in the year 2010 with Akhilesh Prasad (appellant) and after the marriage she went to her sasural. However, he has stated that the sasural people were not keeping his daughter properly. However, he has stated that the sasural people were not keeping his daughter properly. He has further stated that there was demand of motorcycle and golden chain from the victim by Ganauri Prasad, Akhilesh Prasad, Geeta Devi and Chinta Devi and he got information on telephone from his daughter and he could not fulfill the demand and for this reason, his daughter was done to death by all the four appellants and when he learnt about the death of the victim then he along with Arvind Prasad and other witnesses went to the sasural of the victim but none was found in the sasural and they found the house was washed out and when they inquired from the villagers then they learnt that the victim was done to death and her dead body was disposed of by burning and then they informed the Hilsa police station. Hence, from the evidence, it is apparent that though there is demand of motorcycle and golden chain but there is no evidence regarding subjecting cruelty for non-fulfillment of the demand of dowry. The only evidence in this regard is that the sasural people were not keeping the victim properly and the evidence was lacking regarding subjecting cruelty. 16. Malti Devi, the mother of the victim (P.W.8) has stated in her evidence that her daughter was not keeping properly by sasural people and there was demand of motorcycle and golden chain as dowry. Though, she has stated that sasural people used to assault the victim and also used to demand dowry from the victim. However, attention of this witness has been drawn towards para-8 that at the time of occurrence, Ganauri Prasad was residing at Delhi and he was working there for the last fifteen years. Though he has stated that he has stated before the police that sasural people was not keeping her daughter properly. In this regard the evidence of P.W.13 (I.O.) is relevant as he has stated in his evidence in para-10 that Malti Devi has not stated before him that sasural people was not keeping her daughter properly and she has also not stated that she went to the house of Akhilesh Prasad. Hence, the statement of these witnesses on the point stands contradicted. In the F.I.R. also, there is no specific allegation regarding subjecting cruelty. Hence, the statement of these witnesses on the point stands contradicted. In the F.I.R. also, there is no specific allegation regarding subjecting cruelty. Though there is whisper in the F.I.R. that the daughter of informant on 26.09.2011 informed regarding the demand and subjecting cruelty. However, there is no such evidence in the evidence of P.W.9 ( informant) that the sasural people was not keeping the victim properly and there is no evidence regarding the fact that the victim was subjecting to cruelty at sasural and hence keeping into consideration of P.W.8 and P.W.9, it is apparent that though the prosecution has been able to prove that the marriage of the victim was solemnized within seven years and the demand of motorcycle and golden chain but evidence regarding subjecting cruelty soon before the death is lacking. Though he has asserted that the informant went to the sasural of the victim but he did not find any dead body. The only evidence he found that none was present in the house and the house was washed out. However, it has been asserted that the informant learnt by the villagers that the victim was killed and her dead body was disposed of but not a single person of village has come to support that the victim was done to death and the dead body was disposed of. Hence, there is no evidence regarding the fact that victim was done to death nor there is evidence that her dead body was disposed of as none of the villagers in person has come to support this fact regarding the death of victim nor there is any evidence to show the cause of death and hence any evidence regarding the death of victim in suspicious circumstances is merely on conjecture and surmises. 17. The argument advanced that since the victim was living in her sasural and she was not found at sasural and so, on the basis of presumption, it can be said that the victim has been done to death and her dead body was disposed of. However, the death of the victim as well as the evidence regarding the fact that the victim was subjected to cruelty has not been proved by any cogent and reliable evidence. 18. However, the death of the victim as well as the evidence regarding the fact that the victim was subjected to cruelty has not been proved by any cogent and reliable evidence. 18. It is well settled principle that ingredients for offence under Section 304B of the Indian Penal Code is required to be proved by cogent and reliable evidence and unless these ingredients have been established, the presumption under Section 113B of the Evidence Act of Dowry death cannot be taken. 19. Under the facts and circumstances, though the prosecution has been able to prove that the marriage of the victim was solemnized within seven years and there was demand of motorcycle and chain as dowry, however, ingredients that the victim died in suspicious circumstances and further ingredient that soon before the death the victim was subjected to cruelty for non-fulfillment of the demand of dowry has not been established by any cogent and reliable evidence and taking presumption under Section 113B of the Evidence Act, regarding dowry death, the trial court has taken the statement of co-accused Chinta Devi. However, the statement is not admissible in evidence in view of the fact that any confessional statement made under the custody of the accused is not admissible under Section 25 & 26 of the Evidence Act and hence, the trial Court misdirected in convicting the appellants placing reliance upon the confessional statement of co-accused in the custody of the police. 20. Hence, the order of conviction and sentence of the learned trial Court is hereby set aside. 21. The appeals are allowed. Appeal allowed.