The presumption of dowry death under Section 113B IPC cannot be applied without proof of unlawful dowry demand, and mental health issues may be the proximate cause of death.

JUDGMENT :

Gautam Kumar Choudhary, J.

Heard learned counsel for the appellant and learned counsel for the State.

1. The instant Criminal appeal is directed against Judgment of conviction dated 14.01.2015 and order of sentence dated 15.01.2015, passed by learned Addl. Sessions Judge-II, Hazaribagh, in Sessions Trial No.501 of 2011 (arising out of Sadar P.S. Case No.212 of 2011 and G.R. No.929 of 2011), whereby the sole appellant has been convicted for the offence under Section 304B of the Indian Penal Code and sentenced him to undergo rigorous imprisonment of 10 years.

2. Informant is the father of the deceased and Hazaribagh (Sadar) P.S. Case No.212 of 2011 under Sections 304B IPC and under Sections 3 /4 of the D. P. Act against the appellant and three others (in-laws) was registered on the basis of written report lodged by him.

3. Daughter of the informant was married to the appellant on 06.06.2010 and the normal conjugal life lasted only for 2-3 months. After the appellant (husband) lost his job and in order to start a business, he asked his daughter to make demand of Rs.4 Lakhs from him. This was intimated to him by his daughter, to which he expressed his inability. It is alleged that the accused persons started subjected the deceased to cruelty in reference to dowry demand. On 13.04.2011, he received information regarding death of his daughter.

4. After investigation, charge-sheet was submitted against the appellant and his mother and they were put on trial for the offence under Sections 304B/34 IPC with alternative charge under Sections 302/34 IPC was also framed.

5. Learned Trial Court acquitted the mother in law (Nitu Gupta) of the charges and convicted the appellant.

6. It is argued by learned Senior counsel for the appellant that there is no direct eye-witness to the incidence and presumption of dowry death has been drawn by the learned Trial Court under Section 113B of the Indian Evidence Act without any legal evidence to support dowry demand. The main contention raised at Bar is that the informant, in Paras 13 and 14 of his cross-examination, has specifically stated that neither his daughter nor the appellant (son-in-law) had ever made any dowry demand or any other demand.

7. It is submitted that the other prosecution witnesses who are relatives of the deceased being P.W.3 (Bikash Kumar Gupta), P.W.4 (Ayodhya Prasad Gupta) have also not at all supported the case of prosecution and were declared hostile.

8. It is further argued that the deceased was suffering from mental depressive disorder and was under the treatment of Psychiatrist. The Doctors who had treated the deceased have been examined as D.W.1 and D.W.2. D.W.1 (Dr. M. Zalil) has deposed that the deceased was diagnosed as suffering from depressive disorder. Patient was referred to him by Dr. Umesh Naryan Choudhary (D.W.2) and it has been deposed by him that he has been posted in Mental Hospital, Kanke from 1996-97 and in Para-3 he has deposed that the husband (appellant) informed that she was suffering from depression and loss of sleeping and she was referred for treatment to Dr. Zalil.

9. Learned Spl.P.P. for the State has defended the impugned judgment of conviction and sentence. As per the post-mortem examination report (Ext.2), the deceased died due to Asphxia by hanging. P.W.9 (Dr. P. K. Sinha) who has deposed that he was one of the members of the Medical Board constituted by Civil Surgeon, Hazaribagh who conducted post-mortem examination on the person of the deceased.

10. Heard, learned counsel for the parties and perused the materials available on record. Unlawful demand of dowry soon before death is sine-qua-non for the offence under Section 304 B IPC. It is not in dispute that the deceased died unnatural death within 7 years of the marriage, but the informant has completely resiled from his statement as made in the examination in chief, that there was any unlawful demand. The other witnesses have also not supported the case of prosecution regarding unlawful dema