Prosecution must establish all ingredients of Section 304(B) IPC for conviction; failure to prove demand for dowry soon before death results in acquittal.

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. 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