ORDER : 1. The appellants, Ujjawal Mahto and Kishori Mohan Mahto in Criminal Appeal (D.B.) No. 406 of 2015 and Kajal Mahto in Criminal Appeal (D.B.) No. 481 of 2015, have challenged the judgment of conviction under section 304B/34 of the Indian Penal Code dated 08.05.2015 and the order of sentence of R.I for ten years dated 13.05.2015 for the said offence passed in S.T. Case No. 406 of 2010. 2. The informant of this case is father of Chhabi Rani Mahto, the victim lady. She was married to Kajal Mahto about eight months prior to her death. Kishori Mohan Mahto is her father-in-law and Ujjawal Mahto is her brother-in-law. To prove the charge under section 304B/34 of the Indian Penal Code, the prosecution has laid evidence on demand of dowry, death of Chhabi Rani Mahto under the circumstances otherwise than normal circumstance and medical evidence. 3. The essential ingredients for constituting the offence of dowry death are: (i) death within 7 years of marriage, (ii) death of a woman otherwise than under normal circumstance, and (iii) soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of the husband for or in connection with demand of dowry. It has been held that before a presumption of dowry death is raised it must be shown that soon before her death the victim lady was subjected to cruelty or harassment. On harassment and torture of the victim in connection to demand of dowry which must be proved for establishing the offence under section 304B IPC, in Baijnath and Others vs. State of Madhya Pradesh, (2017) 1 SCC 101 , the Supreme Court has observed as under: “29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith. 30. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith. 30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the abovereferred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.” 4. The expression “soon before death” has not been defined or explained in the Code. On this aspect, in Kamesh Panjiyar vs. State of Bihar, (2005) 2 SCC 388 , the Supreme Court has observed as under: “11.........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 the circumstances of each case and no straitjacket formula can be laid down as to what would constitute 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 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B 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 the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. No definite period has been indicated and the expression “soon before” is not defined. A reference to the 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 or 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 the 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 cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the 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.” 5. On demand of dowry, the prosecution has laid evidence through PW-3 and PW-6. The informant who has been examined as PW-3 has admitted in his cross-examination that any demand of dowry was not made from him. However, he has stated that his wife had informed him about demand of dowry from their daughter, but in the same breath he has admitted that his wife had informed him about demand of dowry in the year 2012; the incident has happened in the year 2009. He has also admitted that in the night when his daughter was admitted in T.M.H the accused persons had stayed at his home and they were served food. In the hospital, he has found the husband, father-in-law and other relatives of her daughter. He has also admitted that he had cordial relationship with the accused persons. He has further stated that his daughter was happy in her marital home and she was admitted in Women's College at Ghatsila in the Intermediate course by her in-laws. In paragraph no. 11 of his cross-examination, he has stated that about three months after death of his daughter his statement was recorded by the police. He has further stated that his daughter was happy in her marital home and she was admitted in Women's College at Ghatsila in the Intermediate course by her in-laws. In paragraph no. 11 of his cross-examination, he has stated that about three months after death of his daughter his statement was recorded by the police. His wife who has been examined as PW-6 has alleged that her daughter has been killed by throttling but the doctor who has conducted the post-mortem examination has not found sign of throttling and admitted during his cross-examination that he has not found any mechanical injury on Chhabi Rani Mahto. PW-6 has admitted that her son-in-law has got her daughter admitted in the college and her father-in-law had informed him about the occurrence. She has further admitted that she has found the husband, brother-in-law and others in the hospital where her daughter was admitted. However, she has alleged that her daughter who was happy in her marital home for about three months has informed her about harassment and torture in connection to demand of gold jewellery and motorcycle by the accused persons. In this context, we notice that PW-6 has not made any specific allegation of demand of dowry by any of the appellants. The neighbours who have been examined during the trial have not spoken about harassment and torture of Chhabi Rani Mahto by the accused persons in connection to demand of dowry. On the contrary, they have stated that she had cordial relation with her in-laws. 6. We are of the opinion that on the basis of the above evidence laid through PW-3 and PW-6 the prosecution has failed to establish that soon before her death Chhabi Rani Mahto was subjected to harassment and torture in connection to demand of dowry by her husband or family members of her husband. 7. Chhabi Rani Mahto has died under the circumstances other than the normal circumstance has been sought to be proved by the medical evidence. 8. Dr. Akhilesh Kumar Choudhary PW-7, who has conducted the post-mortem examination, has found burn of first degree on Chhabi Rani Mahto. He has not found any mechanical injury or ligature mark on her body. Though he has stated that it was not a case of accidental death but his evidence in his cross-examination whereunder he has admitted such facts which would contradict him on this aspect. He has not found any mechanical injury or ligature mark on her body. Though he has stated that it was not a case of accidental death but his evidence in his cross-examination whereunder he has admitted such facts which would contradict him on this aspect. Under section 45 of the Evidence Act which talks of opinion of the experts, evidence of the doctor is only a relevant fact. In State of H.P. vs. Jai Lal and Others, (1999) 7 SCC 280 , the Hon'ble Supreme Court has held that an expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. 9. The defence set up by the accused persons is that Chhabi Rani Mahto caught fire accidentally and at that time they were in the fields and when they got information about the incident they brought Chhavi Rani Mahto to the hospital. PW-1 and PW-5, who are co-villagers, have deposed in the court that they heard news of Chhabi Rani Mahto catching fire in her house from local boys. When they had gone to her house they found that the accused persons were taking her to the hospital. PW-1 has stated that Chhabi Rani Mahto informed him that she caught fire as an earthen lamp (dhibri) accidentally fell on her when she was cleaning the house. PW-1 and PW-5 have not been declared hostile by the prosecution and while so, their evidence would bind the prosecution [Refer Masood vs. State of Rajasthan, (2010) 3 SCC 528]. 10. Therefore, on the basis of testimony of the doctor accidental death of Chhabi Rani Mahto cannot be ruled out altogether. 11. The above being the factual scenario and the state of evidence, we find that the prosecution has failed to establish the charge of dowry death against the appellants and, accordingly, their conviction under section 304B/34 of the Indian Penal Code is set-aside. 12. The appellants, namely, Ujjawal Mahto and Kishori Mohan Mahto are acquitted of the criminal charge framed against them in S.T. Case No. 406 of 2010. 13. Mr. 12. The appellants, namely, Ujjawal Mahto and Kishori Mohan Mahto are acquitted of the criminal charge framed against them in S.T. Case No. 406 of 2010. 13. Mr. S.K. Srivastava, the learned APP, states that the appellant, namely, Kajal Mahto is in custody and the appellants, namely, Ujjawal Mahto and Kishori Mohan Mahto are on bail. 14. The appellant, namely, Kajal Mahto, who is in jail, shall be set free forthwith, if not wanted in connection with any other criminal case. 15. The appellants, namely, Ujjawal Mahto and Kishori Mohan Mahto, who are on bail, shall stand discharged of liability of the bail-bonds furnished by them. 16. In the result, Criminal Appeal (DB) No. 481 of 2015 and Criminal Appeal (DB) No. 406 of 2015 are allowed. 17. Let the lower-court records be transmitted to the court concerned, forthwith.