The prosecution must establish all essential ingredients of Section 304B IPC for a conviction; failure to prove any ingredient negates the possibility of guilt.

JUDGMENT :

PER ANANDA SEN, J.

We have heard learned counsel appearing for the appellant and learned counsel for the State at length.

2. This appeal arises out of judgment of conviction dated 17.01.2018 and order of sentence dated 23.01.2028 passed by learned Additional Sessions Judge-1st-cum Special Judge, FTC, Jamshedpur, East Singhbhum in Sessions Trial No. 01 of 2014 whereby and whereunder appellants have been convicted under section 304B of IPC. Appellant no. 1 was sentenced to RI for 8 years and appellant no. 2 was sentenced to RI for life.

3. Mrs. Moushmi Chatterjee, the learned counsel for the appellants submitted that the prosecution has failed to establish basic ingredients of Section 304B of the Indian Penal Code. None of the witnesses have stated that soon before death there was demand of dowry and the deceased was subjected to cruelty in reference to it. In absence of the aforesaid ingredients the appellants cannot be convicted under section 304B of the Indian Penal Code. It is argued that alternative charge under section 302 of the Indian Penal Code has failed and there is no evidence of dowry death to prove the charge under section 304B of IPC.

4. The learned APP submits that PW1 who is the father and PW2 the brother of the deceased stated that there was demand of money and gold chain and due to non-fulfillment of the same the deceased was done to death. Admittedly the deceased died within seven years of marriage. From the postmortem report it is clear that the death is not natural. He submits that there is demand of dowry and death has occurred within seven years of marriage and the death is unnatural and in terms of Section 113B of the Evidence Act, the onus shifts upon the appellants to prove their innocence. In this case the reverse burden has not been discharged by the appellants, thus, as per the legal presumption they are to be held guilty and the Court has rightly convicted the appellants.

5. In order to appreciate the rival argument made on behalf of both the sides it will be desirable to extract Section 304B of IPC which 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 purpose 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.”

6. The basic ingredient of section 304B of IPC is that the prosecution has to establish that the deceased-wife died within seven years from the date of marriage, the death was unnatural or by burn or any bodily injury which occurred otherwise than under normal circumstances and soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband or in connection with any demand for dowry. If the prosecution establishes all these three ingredients then in terms of section 113B of Evidence Act the burden would shift upon the accused to prove their innocence. Only after the prosecution has established these three main ingredients then a question of reverse burden would arise and not before that.

7. Considering the proposition of law, we have to analyse the evidence led by the prosecution. PW7 is the doctor who conducted the postmortem of the deceased. He found tip of tongue protruded and clinched in between teeth. Blood discharge through nostrils. On dissection soft tissues under skin along temporal region of scalp found contused, brain was found contused and so