JUDGMENT : Both these criminal appeals are directed against the judgment and order of sentence dated 04.05.2017 passed by learned Additional Sessions Judge-XV, Dhanbad in S.T. No.80 of 2015 whereby both the appellants were convicted under Sections 304(B) and 498A of the Indian Penal Code. 2. Appellant in Cr. Appeal (D.B.) No. 1169 of 2017 has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.5,000/- under Section 304B of the Indian Penal Code, further he was sentenced to undergo rigorous imprisonment for three years and fine of Rs.5,000/- under Section 498A of the Indian Penal Code. 3. Appellant in Cr. Appeal (S.J.) No. 937 of 2017 has been sentence to undergo R.I. for seven years with fine of Rs.5,000/- under Section 304B of IPC. She was further sentenced to undergo R.I. for three years with fine of Rs.5,000/- under Section 498A of the Indian Penal Code. 4. Learned Senior counsel for the appellants submit that there is no material to convict the appellants under Section 304B of IPC. He submits that the basic ingredients of Section 304B of IPC has not been established by the prosecution by leading cogent evidence. None of the witnesses have stated that soon before death there was demand of dowry and also there was torture for non-fulfillment of the same. He further submits that so far as the appellant- Sandhya Gupta [Cr. Appeal (S.J.) No.937 of 2017] is concerned, save and accept a bald allegation in the case diary that she was having some affair with the husband of the deceased i.e. appellant, there is no other allegation. He argues that the statement in the case dairy is not a substantive piece of evidence, which proposition, the Trial Court has lost sight of, and has considered the same to be one of the grounds to convict the appellant, which is absolutely illegal. He further argues that even if the same is converted into legal evidence, then also it cannot help the prosecution to prove its case under Section 304B and 498A of IPC. On these grounds, he prays for acquittal. 5. Learned counsel appearing on behalf of the State submits that all the prosecution witnesses, who are witness to the fact and are related to the deceased including the informant had stated that after marriage there was consistent demand of dowry from the in-laws. On these grounds, he prays for acquittal. 5. Learned counsel appearing on behalf of the State submits that all the prosecution witnesses, who are witness to the fact and are related to the deceased including the informant had stated that after marriage there was consistent demand of dowry from the in-laws. He further submits that admittedly the death had occurred within two years from the date of marriage, which would attract Section 304B of IPC. He also submits that the cause of death is asphyxia as a result of hanging. Even if the deceased has committed suicide, it cannot be said that the death has occurred in natural circumstances. As per him, all the necessary ingredients of Section 304B IPC has been established by the prosecution. Once the prosecution has established all the conditions, the onus shifts upon the accused to prove his innocence in terms of Section 113B of the Indian Evidence act. In this case the appellants have miserably failed to discharge the said onus. Thus, as per the legal presumption, being the husband and in-laws of the deceased, it would be presumed that they have caused dowry death. As per him, there are no material to acquit the appellants and these appeals need to be dismissed. 6. The F.I.R. giving rise to the prosecution case is at the instance of P.W.-9 namely, Anita Sao who is the maternal aunt of the deceased, who stated that marriage of the deceased was solemnized with appellant- Bablu Gupta on 08.04.2012 and thereafter a demand of dowry was made and deceased was subjected to torture and assault also. She came to her paternal home where she complained about the demand and torture. Thereafter she was again taken back to her matrimonial home. She was tortured there and a telephone call was also made by her informing her family members that she was being subjected to torture and assault and dowry was being demanded. The informant further stated that they received telephone call and came to know that deceased had died. 7. On the aforesaid written application, Dhanbad (Saraidhela) P.S. Case No.565 of 2014 was registered under Sections 304(B)/34 of the Indian Penal Code. The police after investigation, filed chargesheet against these appellants under Sections 304B/34 of IPC, 8. The Court took cognizance and committed the case to the Court of Sessions. 7. On the aforesaid written application, Dhanbad (Saraidhela) P.S. Case No.565 of 2014 was registered under Sections 304(B)/34 of the Indian Penal Code. The police after investigation, filed chargesheet against these appellants under Sections 304B/34 of IPC, 8. The Court took cognizance and committed the case to the Court of Sessions. As the appellants pleaded not guilty, charges were framed under Sections 304B, 306, 302 and 498A of IPC and they were put on trial. 9. To prove the prosecution case the prosecution has examined altogether twelve witnesses, who are as follows:- (i) P.W.-1 Vijay Kumar Sinha (ii) P.W.-2 Dipak Sao (iii) P.W.-3 Sushil Sao (iv) P.W.-4 Sunil Sao (v) P.W.-5 Putul Sao (vi) P.W.-6 Parmatma Sharma (vii) P.W.-7 Dhiraj Lal Ram (viii) P.W.-8 Gita Devi (xi) P.W.-9 Anita Sao, informant of this case (x) P.W.-10 Dr. Swapan Kumar Sarak (xi) P.W.-11 Ajay Kumar Shahni (xii) P.W.-12 Renu Gupta, Investigating Officer of this case 10. The following documentary evidence and material exhibits were exhibited by the prosecution:- Exhibit-1- signature of P.W.-4 on the inquest report. Exhibit-1/1 Inquest Report. Exhibit-2 Fardbeyan Exhibit-3 Postmortem report. Exhibit-4 Forwarding of this case registered by Renu Gupta Exhibit- 4/1 Charge of Investigation Exhibit- 5 supplementary chargesheet No.646/2015 11. The Trial Court after conclusion of the trial, considering the evidence of witnesses and the documentary evidence, convicted the appellants under Section 304B and 498A of IPC. Be it noted that there is no conviction under Section 302 of IPC or under Section 306 of IPC. The aforesaid judgment is under challenge. 12. Since the main conviction is under Section 304B of IPC, the prosecution has to establish the ingredients of Section 304B of IPC. Section 304B of IPC, reads as follows:- “304B. 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). 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.” From perusal of the aforesaid provision of law, we find that there are main three ingredients which needs to be established by the prosecution, which are as follows:- i. the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; ii. such death must have occurred within seven years of her marriage. iii. soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband and such cruelty or harassment must be for, or in connection with, demand for dowry.” 13. The Hon’ble Supreme Court in the case of Maya Devi and another vs. State of Harayan, reported in (2015) 7 SCC 405 has held that once prosecution is able to prove these three conditions, onus shifts upon the accused to prove their innocence in terms of Section 113B of the Indian Evidence Act. Section 113B of the Indian Evidence Act, reads as follows:- 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand to 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). 14. Thus, if Section 304B of IPC and Section 113B of the Indian Evidence Act are read in conjunction, it is clear that if all the conditions are fulfilled and thereafter, if the reverse burden under Section 113B of the Indian Evidence Act is not discharge by the accused persons, it will be presumed that in-laws have committed dowry death. 15. Considering the aforesaid proposition of law, let us now discuss what is the material to convict the appellant under Section 304B of IPC. 16. 15. Considering the aforesaid proposition of law, let us now discuss what is the material to convict the appellant under Section 304B of IPC. 16. As narrated earlier the prosecution had examined twelve witnesses. Out of these twelve witnesses, six witnesses are on the facts of this case, on the point of demand of dowry and torture and the date of marriage. From the evidence of all these witnesses i.e. P.Ws.-3, 4, 5, 7, 8 and P.W.-9, we find that it is consistent case and it is also an undisputed case that the deceased was married on 08.04.2012 and she died on 13.06.2014. It is also an undisputed fact that the deceased was married to appellant - Bablu Gupta. Thus, we find that the prosecution has been able to establish the fact that deceased died within seven years of marriage. 17. Now the question, which will call for consideration is what is the cause and nature of death. To prove the aforesaid, the prosecution has exhibited the postmortem report and has examined P.W.-10, who is the Doctor, who conducted the postmortem of the deceased. As per the Doctor, there are three injuries on the person of the deceased. One is the ligature mark and the other is the lacerated wound which is muscle deep front of left elbow and another is abrasion over the nose. The Doctor had opined that the cause of death is due to asphyxia as a result of hanging. In cross-examination, he stated that there is difference between hanging and strangulation and this case is a case of hanging and hanging is usually suicidal and he did not find any symptom of strangulation. Thus, from his evidence, we are satisfied that the deceased had committed suicide. The death, as a result of suicide is also unnatural death. It cannot be said that the such death occurs in natural or normal circumstances. Thus, the prosecution has been able to prove that the deceased died an unnatural death which is otherwise than in normal circumstances. 18. Now, the prosecution has to establish the third condition which is demand of dowry and torture soon before the death. We are well aware that phrase soon before death has not been defined and also nor there can be any straightjacket formula to come to the conclusion whether there was any demand soon before death. 18. Now, the prosecution has to establish the third condition which is demand of dowry and torture soon before the death. We are well aware that phrase soon before death has not been defined and also nor there can be any straightjacket formula to come to the conclusion whether there was any demand soon before death. It has to be gathered from the circumstances and evidence led by the parties. 19. We have gone through the evidence of P.Ws.- 3, 4, 5, 7, 8 and P.W.-9. All in one voice have stated that after the marriage there was demand of dowry and there was torture perpetrated upon the deceased by in-laws. There is no time or the period mentioned in their evidence. Definitely they have stated that demand was made, but from the entire evidence, we could not find any material to suggest that “soon before death” there was any demand for dowry. They stated that only Rs.2 lakh was being demanded and there was torture. Be it noted that the marriage was solemnized on 08.04.2012 and the deceased died on 13.06.2014. There is nothing in the evidence to suggest that there was any demand made in the year, 2014 also. Thus, absence of this evidence forces us to come to a conclusion that the prosecution has failed to establish that “soon before death” there was demand of dowry and there was torture in connection with the said demand of dowry. The prosecution thus has failed to establish one of the ingredients of Section 304B of IPC, which is an essential ingredient to bring home the charge under Section 304B of IPC. 20. It is also well settled that all three ingredients should exist simultaneously in this case. Since one of the ingredients was not established by the prosecution, it was not proper for the Trial Court to convict the appellant under Section 304B of IPC. The question of reverse burden under Section 113B of the Indian Evidence Act will also not apply in this case. 21. So far as the allegation of illicit relationship between both the appellants is concerned, we find that there is no legal evidence or any corroboration to that effect. The Trial Court has considered some of the statement of some of the witnesses recorded in the case diary. The statement of any witness in the case diary is not an evidence. So far as the allegation of illicit relationship between both the appellants is concerned, we find that there is no legal evidence or any corroboration to that effect. The Trial Court has considered some of the statement of some of the witnesses recorded in the case diary. The statement of any witness in the case diary is not an evidence. It is a process of collecting evidence during investigation, which is recorded by the I.O. Those, statement in the case diary may transform in as legal evidence, only when the said witness is brought to the Court to depose any, they stand by their statement given before police under Section 161 of Cr.P.C. What the witness deposes in the Court orally is the legal evidence. What he says before the police during investigation is not an evidence and cannot be considered in trial nor can be a ground to convict any accused. Thus, reliance of the statement under Section 161 Cr.P.C. in the case diary by the Trial court is unwarranted. 22. So far as Section 498A is concerned, we hold that the prosecution has not been able to establish and prove the illicit relationship between both the appellants. We also find that the witnesses have clearly stated that there was demand for dowry and torture, but that was not the proximate cause of death nor the said demand and torture is soon before death. 23. Though offence under Section 304B of IPC is not made out or established by the prosecution against both the appellants, the offence under Section 498A of IPC is definitely made out against the appellant- Bablu Gupta @ Babloo Gupta. Thus, his conviction under Section 498A of the Indian Penal Code is sustained, but the conviction under Section 304B of IPC is set aside. Accordingly, Criminal Appeal (D.B.) No.1169 of 2017 qua the appellant- Bablu Gupta @ Babloo Gupta stands partly allowed. Since, he has already served the sentence, no order need be passed against him. 24. So far as appellant- Sandhya Gupta is concerned, her conviction under Section 304B of IPC is set aside. Further, we find from the evidence that she had not made any demand nor there was any allegation against her that she has tortured the deceased for demand for dowry. Thus, the conviction of appellant-Sandhya Gupta under Section 498A of IPC is also bad. Further, we find from the evidence that she had not made any demand nor there was any allegation against her that she has tortured the deceased for demand for dowry. Thus, the conviction of appellant-Sandhya Gupta under Section 498A of IPC is also bad. Thus, appellant-Sandhya Gupta is acquitted of the charges. Criminal Appeal (S.J.) No.937 of 2017 is allowed. As she is already on bail, she and her bailors are discharged of the liabilities of the bail bonds. 25. Let Trial Court Records along with a copy of this judgment be sent to the concerned trial court forthwith. 26. Interlocutory application(s), if any, also stands disposed of.