JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment & order dated 30-5-2016 passed by the Additional Sessions Judge, Sarangarh, in Sessions Trial No.18/2015, by which the three appellants herein, who are son, father and mother, respectively, have been convicted for offences under Sections 304B read with Section 34 & 302 read with section 34 of the IPC and sentenced to undergo rigorous imprisonment for seven years and imprisonment for life & pay fine of Rs.1,000/-each, in default of payment of fine to further undergo additional rigorous imprisonment for one year, respectively, with a direction to run the sentences concurrently. 2. Case of the prosecution, in brief, is that on 27-4-2015 at 5.35 a.m. on the pretext of demand of dowry, wife of appellant No.1 namely Smt. Lata Chandra (deceased) suffered unnatural death within seven years of marriage in other than normal circumstances and thereby the appellants have committed the offences. Marriage of deceased Lata was solemnized with accused/appellant Dineshwar Chandra (A-1) on 22-4-2015 and within five days of marriage, she suffered unnatural death on account of demand of dowry by the present appellants, who are husband, father-in-law and mother-in-law of the deceased, respectively. 3. The matter was reported to the police pursuant to which inquest was conducted vide Ex.P-5 and FIR was registered vide Ex.P-14. Crime details form was prepared vide Ex.P-1 and morgue intimation was registered vide Exs.P-12 & 13. The dead body of the deceased was sent for postmortem which was conducted by Dr. D. Behra (PW-8) vide postmortem report Ex.P-9 in which cause of death was stated to be shock due to antemortem burns which is sufficient to cause death in the ordinary course of nature. Dying declaration of the deceased was recorded by the Executive Magistrate, which was not brought on record, in which the deceased is said to have stated that her husband, father-in-law & mother-in-law – the appellants herein, have poured kerosene oil on her body and set her ablaze. The doctor gave report that the deceased suffered 95% burn injuries. Thus, prima facie, the deceased sustained burn injuries and died on account of the cruelty meted out to her by her husband, father-in-law and mother-in-law i.e. the appellants herein. The doctor gave report that the deceased suffered 95% burn injuries. Thus, prima facie, the deceased sustained burn injuries and died on account of the cruelty meted out to her by her husband, father-in-law and mother-in-law i.e. the appellants herein. Articles were seized and seized articles were sent for chemical examination to the Food Inspector, who found kerosene oil in the plastic container seized from the spot vide Ex.P-2. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused/appellants were charge-sheeted for offences under Sections 304B read with Section 34 & 302 read with Section 34 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, Raigarh, from where the learned Additional Sessions Judge, Sarangarh, received the case on transfer for conducting the trial and for hearing and disposal in accordance with law. 5. The prosecution, in order to bring home the offence, has examined as many as 16 witnesses and exhibited 24 documents Exs.P-1 to P-24 and Article 1 – Wedding Card. The appellants abjured the guilt and entered into defence. They have examined none, but exhibited three documents namely, Exs.D-1 to D-3 i.e. the statements of Lakshan Bai, Smt. Lata Chandra & Nanda Nayak recorded under Section 161 of the CrPC at their instance in support of their case. The appellants were examined under Section 313 of the CrPC in which they denied the guilt. 6. The trial Court after considering ocular, oral and documentary evidence on record, convicted the accused/appellants under Sections 304B read with Section 34 & 302 read with Section 34 of the IPC against which this appeal has been preferred by the appellants. 7. Mr. The appellants were examined under Section 313 of the CrPC in which they denied the guilt. 6. The trial Court after considering ocular, oral and documentary evidence on record, convicted the accused/appellants under Sections 304B read with Section 34 & 302 read with Section 34 of the IPC against which this appeal has been preferred by the appellants. 7. Mr. Rajesh Kumar Jain, learned counsel appearing for the appellants, would submit that though the appellants have been charge-sheeted for offences under Sections 304B read with Section 34 & 302 read with Section 34 of the IPC, the trial Court having found all the ingredients of Section 304B of the IPC made out against them, could have only convicted them for offence under Section 304B read with Section 34 of the IPC and could not have convicted them for offence under Section 302 read with Section 34 of the IPC, which runs contrary to the decisions rendered by the Supreme Court in the matters of Suresh Kumar v. State of Haryana, (2013) 16 SCC 353 and Muthu Kutty and another v. State by Inspector of Police, Tamil Nadu, AIR 2005 SC 1473 . Therefore, conviction of the appellants under Section 302 read with Section 34 of the IPC is liable to be set aside. 8. Mr. Animesh Tiwari, learned Additional Advocate General appearing for the State/respondent, would support the impugned judgment and submit that the prosecution has been able to prove the case against the appellants beyond reasonable doubt and the trial Court has rightly convicted them for offences under Sections 304B read with Section 34 & 302 read with Section 34 of the IPC. As such, the appeal deserves to be dismissed. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. As such, the appeal deserves to be dismissed. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. In order to consider the plea raised at the Bar, it would be appropriate to extract relevant provisions of Section 304B of the IPC which relates to dowry death:- “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. Explanation.-For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (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.” The above provision was inserted by Act 43 of 1986 and came into force with effect from 19-11-1986. 11. In order to convict an accused for the offence punishable under Section 304B of the IPC, the following essentials must be satisfied- The death of a woman should be caused by burn or bodily injury or otherwise than under normal circumstances. Such death should have occurred within seven years of the marriage. Soon before the death of deceased, she must have been subjected to cruelty or harassment by her Husband or any relative of her Husband. Such cruelty or harassment should be for or in connection with demand for dowry. Thus, if the aforesaid ingredients are established by the prosecution by leading appropriate reliable evidence, such death shall be called dowry death and the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. 12. Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death, which reads as under:- "113B. 12. Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death, which reads as under:- "113B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)." 13. The aforesaid provision shows that if the woman has been subjected to cruelty as defined in Section 498A of the IPC, the court may presume that such person has caused dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides as under:- 2. Definition of "dowry". In this Act," dowry" means any property or valuable security given or agreed to be given either directly or indirectly- a. by one party to a marriage to the other party to the marriage; or b. by the parents of either party to a marriage or by a other person, to either party to the marriage or to any other person; at or before or after the marriage us consideration for the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies." 14. To attract the provisions of Section 304B of the IPC, one of the main ingredients of the offence, which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B of the IPC and Section 113B of the Evidence Act is present with the idea of proximity test. 15. In the matter of Appasaheb and another v. State of Maharashtra, (2007) 9 SCC 721 , it has been held by the Supreme Court as under:- “9. The expression "soon before her death" used in Section 304B of the IPC and Section 113B of the Evidence Act is present with the idea of proximity test. 15. In the matter of Appasaheb and another v. State of Maharashtra, (2007) 9 SCC 721 , it has been held by the Supreme Court as under:- “9. Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. 10. Section 2 of the Dowry Prohibition Act reads as under: “2. Definition of ‘dowry’.- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly. (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.” 11. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving and taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (see Union of India v. Garware Nylons Ltd and Chemical and Fibres of India Ltd. v. Union of India). A demand for money on account of some financial stringency or for making some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for 'dowry' as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz demand for dowry is not established, the conviction of the appellants cannot be sustained.” 16. The Supreme Court in the matter of Mustafa Shahadal Shaikh v. State of Maharashtra, 2012 (11) SCC 397 , while considering the term "soon before her death", has held that term of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case and it would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question and there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. It has been further held that if the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 17. It has been further held that if the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 17. Reverting to the facts of the present case in light of the statements of Dwarika (PW-2) – father of the deceased, Kheekram Chandra (PW-3) – maternal uncle of the deceased, Lakshan Bai (PW-5) – sister-in-law (bhabhi) of the deceased, Banwarilal Chandra (PW-10)– brother of the deceased and Nanda Nayak (PW-13) – person residing in the locality and further that the deceased has been subjected to cruelty in connection with demand of dowry within seven years from the date of marriage and she died unnatural death within 5 days of marriage, the finding recorded by the trial Court that the appellants are guilty of the commission of offence under Section 304B read with Section 34 of the IPC is correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 18. Now, the question is whether the trial Court is simultaneously justified in convicting the appellants for offence under Section 302 read with Section 34 of the IPC along with 304B/34 IPC? 19. In this regard, two pertinent decisions of the Supreme Court may be noticed herein. 20. The Supreme Court in Suresh Kumar (supra) held that if the prosecution establishes all the ingredients of Section 304B of the IPC against accused, any death (whether homicidal or suicidal or accidental) and whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances, as per the legislative mandate, shall be called a “dowry death”, and observed in paragraph 27 as under: - “27. Importantly, Section 304-B IPC does not categorise death as homicidal or suicidal or accidental. This is because death caused by burns can, in a given case, be homicidal or suicidal or accidental. Similarly, death caused by bodily injury can, in a given case, be homicidal or suicidal or accidental. Finally, any death occurring “otherwise than under normal circumstances” can, in a given case, be homicidal or suicidal or accidental. This is because death caused by burns can, in a given case, be homicidal or suicidal or accidental. Similarly, death caused by bodily injury can, in a given case, be homicidal or suicidal or accidental. Finally, any death occurring “otherwise than under normal circumstances” can, in a given case, be homicidal or suicidal or accidental. Therefore, if all the other ingredients of Section 304-B IPC are fulfilled, any death (whether homicidal or suicidal or accidental) and whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a “dowry death” and the woman's husband or his relative “shall be deemed to have caused her death”. The section clearly specifies what constitutes the offence of a dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death.” 21. Similarly, in Muthu Kutty (supra), the Supreme Court has held that if the accused persons are direct participants in the commission of the offence of death, the provisions of Sections 300, 302 and 304 of the IPC will attract, and observed in paragraph 20 as under: - “20. A reading of Section 304-B, IPC and Section 113-B, Evidence Act together makes it clear that law authorizes a presumption that the husband or any other relative of the husband has caused the death of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It, therefore, follows that the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions incorporated in Sections 300, 302 and 304. The provisions contained in Section 304-B, IPC and Section 113-B, of the Evidence Act were incorporated on the anvil of the Dowry Prohibition (Amendment) Act, 1984, the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands or their relatives from the clutches of Section 302, IPC if they directly cause death. This conceptual difference was not kept in view by the Courts below. But that cannot bring any relief if the conviction is altered to Section 304, Part II. No prejudice is caused to the accused-appellants as they were originally charged for offence punishable under Section 302, IPC along with Section 304-B, IPC.” 22. Reverting to the facts of the present case finally in light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that the trial Court in paragraph 42 of the judgment firstly recorded finding that Smt. Lata Chandra died unnatural death otherwise than in normal circumstances by burns and such death has occurred within seven years of marriage and soon before death, she has been subjected to cruelty and harassment by the three appellants herein i.e. her husband, father-in-law and mother-in-law, in connection with demand of dowry. But thereafter, without recording any further finding, the trial Court in paragraph 78 of the judgment has simultaneously convicted the appellants under Section 302 read with Section 34 of the IPC also which in our considered opinion runs contrary to the principles of law laid down by their Lordships of the Supreme Court in Suresh Kumar (supra) and Muthu Kutty (supra), as the trial Court has found proved all the ingredients of Section 304B of the IPC against the appellants and thereafter, even the trial Court did not record finding that death of Smt. Lata Chandra was homicidal in nature by any specific finding and that the three appellants are guilty of offence under Section 302 of the IPC, that is culpable homicide amounting to murder and yet proceeded to convict the appellants under Section 304B of the IPC which is contrary to law and facts and circumstances of the case as also the evidence available on record. 23. In view of the aforesaid finding, while confirming the conviction & sentence of the appellants under Section 304B read with Section 34 of the IPC, we hereby set aside the conviction & sentences imposed upon them under Section 302 read with Section 34 of the IPC and they are hereby acquitted of the charge under Section 302 read with Section 34 of the IPC. The appellants had already suffered the punishment awarded to them by the trial Court under Section 304B read with Section 34 of the IPC i.e. seven years rigorous imprisonment as they are in jail since 28-4-2015. They be set at liberty at once. They be released forthwith, if not required in any other case. 24. In that view of the matter, the appeal is allowed partly to the extent of their conviction & sentences under Section 302 read with Section 34 of the IPC. 25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence.