The prosecution must prove all essential elements of dowry death under Section 304-B IPC; failure to do so results in acquittal, regardless of marriage validity.

JUDGMENT :

This Criminal Appeal is preferred on behalf of the appellants being aggrieved by the judgment of conviction dated 22.05.2018 and order of sentence dated 29.05.2018 passed by Learned Additional Sessions Judge-II, Spl F.T.C. (C.A.W.), Bermo at Tenughat, in Sessions Trial No.26 of 2015, whereby and wherein the appellants have been convicted for offences under Sections 304-B/34 and 498-A/34 of the I.P.C. They were sentenced to undergo rigorous imprisonment for 10 years under Section 304-B/34 of the IPC and sentenced to undergo rigorous imprisonment for 3 years with fine of Rs.5,000/-for the offence under Section 498-A/34 of IPC.

2. Heard learned counsel for the appellants and learned counsel for the State and perused the material available on record.

3. Learned counsel representing the appellants submits that none of the ingredients to attract Section 304B of the IPC is established and proved by the prosecution. The appellant No.1 is the husband of deceased and appellant No.2 is the first wife of appellant No.1.

4. It is submitted that the deceased was the second wife of appellant No.1. The appellant No.1 solemnized marriage with the deceased on the ground that his first wife i.e. appellant No.2 was unable to bear child from the wedlock. He submits that none of the witnesses have stated that soon before death there was demand of dowry and the appellants tortured the deceased for non-fulfilment of the dowry. In absence of proof of the same, the appellants cannot be convicted under Section 304B of the IPC. Learned counsel takes us through the post-mortem report and the evidence of the Doctor and submits that from the evidence of the Doctor and also from the post-mortem report, the prosecution cannot substantiate that the death which had occurred is otherwise than under normal circumstances.

5. It is further submitted that death was not due to burn injury or any bodily injury and there is nothing to suggest that the deceased died otherwise than under normal circumstances. The Doctor found that the cause of death is pulmonary oedema and cardiac failure. As per the explanation given by the Doctor, pulmonary oedema means filling of water in the lungs. The Doctor also opined that the cardiac arrest can be due to fear of assault or death also. Injuries were superfluous in nature. Learned counsel refers to para-11 of deposition of the Doctor where the Doctor says that the injuries which are present on the body of the deceased are not sufficient to cause death of anyone.

6. The deceased was the second wife of appellant No.1 during subsistence of the first marriage. The parties are governed by the Hindu law. Thus, the marriage of appellant No.1 with the deceased is a void marriage. Thus, neither Section 498A of the IPC nor Section 304B of the IPC will be attracted in this case. It is further argued that the questions which were put to the accused person under Section 313 Cr.P.C. was bad, in as much as, incriminating circumstances against the appellants which were not in the evidence against appellant No.2 were also put to her in her examination under Section 313 Cr.P.C.

7. Alternatively, it is argued that even Section 302 of the IPC will not be attracted in this case as there is nothing to suggest that the death was homicidal. He lastly submits that the circumstances that the appellants were not present at the house cannot be used against them to come to a conclusion that they have committed the offence. On this score, he prays for acquittal of the appellants.

8. Learned Spl. P.P. representing the State submits that even if the marriage which can be said to be void, but since the fact which cannot be ignored that the appellant No.1 himself has admitted that he had married the deceased, the penal provision of Sections 498A and 304B of the IPC will be attracted. There is nothing in the Statute to suggest that Section 304B and 498A of the IPC will be attracted only if there was a valid marriage. Further, without there being any declaration t