DOWRY DEATH
Section 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.]
The offence of dowry death has been inserted in the IPC as section 304B by the Dowry Prohibition (Amendment) Act 1986 (43 of 1986). Section 304B has been inserted with a view to curb the growing atrocities against woman, where thousands of young women were being done to death due to failure to pay up the dowry demanded. The Amendment Act has also made a couple of consequential amendments in the CrPC and the Evidence Act, in order to make the prosecution of offenders in cases of dowry death more effective.
The essential ingredients of section 304B are;
1. The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
2. Such a death should have occurred within seven years of her marriage;
3. She must have been subjected to cruelty or harassment by her husband or by any relative of her husband;
4. Such cruelty or harassment should be for, or in connection with, the demand for dowry; and
5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 304B imposes a statutory obligation on a court to presume that the accused has committed the dowry death when the prosecution proves that;
I. Death of his wife has occurred otherwise than under normal circumstances within seven years of her marriage; and
II. Soon before her death she was subjected to cruelty or harassment by her husband or his relatives in connection with demand for dowry. If any accused wants to escape from the said catch, the burden is on him to disprove it. If he fails to rebut the presumption, the court is bound to act upon it.
DEMAND FOR DOWRY
The main component of section 304B is that the death of the woman should not only be under the circumstances specified in the section, but should also be the consequence of demand for dowry. According to Explanation to section 304B, the term ‘dowry’ shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. Section 2(1) of the Dowry Prohibition Act, 1961, defines dowry as follows;
…
Any property or valuable security given or agreed to be given either directly or indirectly;
(a) By one party to a marriage to the other party to the marriage; or
(b) By the parents of the either party to a marriage or by any other person, to either party to the marriage or to any other person.
At or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehar in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I—For the removal of doubts, it is hereby declared that any persons made at the time of a marriage to either party to the marriage in the form of cash ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.
Explanation II—The expression ‘valuable security’ has the same meaning in Section 30 of the IPC (45 of 1860).
In Nunna venkateswarlu V State of Andhra Pradesh, the deceased had consumed pesticides and died an unnatural death after five years of marriage. There was evidence that she was tortured continuously and was harassed to sell the five acres of land gifted to her by her father at the time of marriage and to give the sale proceeds to her husband. Unable to bear the harassment, she committed suicide. Though there was ample evidence that the demands for dowry were made, the High Court of Andhra Pradesh observed that the prosecution has to prove that there was a prior agreement by the parents of the gift to the husband or the in-laws to pay a valuable security, money, etc. Unless the existence of the prior agreement between the parties was proved, the court held that the accused would not be liable to be punished for an offence under section 304B, IPC. The High Court held that since the demands made by the accused were not demands which were agreed to be paid by the father of the deceased at the time of the marriage, they would not amount to demands for dowry. So, it convicted the accused only under section 498A and 306, IPC, and not under section 304B. The High Court, it seems, was influenced by the words ‘agreed to be given’ in the definition of dowry in the Dowry Prohibition Act, 1961.
However, the above-mentioned judgment of the Andhra Pradesh may not be good law in view of the judgment of the Supreme Court in State of Himachal Pradesh V Nikku Ram. The Supreme Court interestingly started off the judgment with the words ‘Dowry, dowry and dowry’. It went on to explain why it has mentioned the words ‘dowry’ thrice. This is because demand for dowry is made on three occasions;
(I) Before marriage;
(II) At the time of marriage;
(III) After the marriage.
Greed being limitless, the demands become insatiable in many cases, followed by torture of the girl leading to either suicide in some cases or murder in some. The Supreme Court has explained in this case that through the definition of ‘dowry’ is stated as ‘property or valuable security given or agreed to be given…’ demands made after marriage could also be a party of the consideration because an implied agreement has to be read to give property or valuable securities, even if asked after the marriage as a party of consideration for the marriage. When the Dowry Prohibition Act 1961 was enacted, the legislature was well aware of the fact that demands for dowry are made and indeed very often even after the marriage has been solemnised, and this demand is founded on the factum of marriage alone, Such demands, therefore, would also be in our mind as consideration for marriage.
In Pawan kumar V State of Haryana, the Supreme Court held;
The word ‘agreement’ referred to in section 2 has be inferred on the facts and circumstances of each case. The plea that conviction can only be if there is agreement for dowry is misconceived. This would be contrary to the mandate and object of the Act. ‘Dowry’ definition is to be interpreted with the other provisions of the Act including section 3, which refers to giving or taking dowry, and section 4- penalty for demanding dowry, under the 1961 Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for TV and scooter are made from the bride after marriage or from her parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of section 304B, IPC. It is not always necessary that there be any agreement for dowry,. In the instant case, the evidence of the prosecution witnesses was very clear. After a few days of the marriage, there was demand of scooter and fridge, which when not being met, led
to repetitive taunts and maltreatment. Such demands cannot be said to be not in connection with the marriage. Hence, the evidence qualifies to be demand for dowry in connection with the marriage and in the circumstances of the case constitute to be a case falling within the definition of ‘dowry’ under section 2 of 1961 and section 304B, IPC.
In k Prema S Rao & State of Andhra Pradesh V Yadla Srinivas Rao, the Supreme Court, in a set of facts similar to that of the Nunna Venkateshwarlu case, refused to treat death of the deceased resulting fro harassment and cruelty of her husband as ‘dowry death’. After three to four months of the marriage, the husband started demanding that his wife to execute a deed of transfer in his favor of five acres of land and a house site gifted to her as Pasupukumkuma (Sridhana) by her father in the marriage. When she refused, he started harassing and ill-treating her. When it became grave and unbearable, she committed suicide by consuming poison. The Andhra Pradesh High Court as well as the Supreme Court held that the harassment and cruel treatment meted out to the deceased by the husband to force her to transfer the land and the house site in his name was not ‘in connection with any demand for dowry’ and thereby refused to invokes section 304B of the IPC. The demand for transfer of the land and of the house site, according to both the courts, was not ‘demand for dowry’. Similarly, in Baldev Singh V State of Punjab, the Supreme Court held that demand for wife’s share in estate of her late father and the consequential pressure put on her by her husband, leading to her suicidal death, does not amount to ‘demand for dowry’ under section 304B, the IPC.
In Appasaheb & Anr V State of Maharashtra, the apex court ruled that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a ‘demand for dowry’. The court set aside conviction of the appellant under section .304B.
The Appasaheb dictum is followed in Vipin jaiswal V State of Andhra Pradesh, Rep by Pub Pros and Modinsab Kasimsab Kanchagar V State of Karnataka.
In Vipin Jaiswal, wherein propriety of conviction by the trial court and approved by the high court of husband of the deceased under section 304B for his demand or Rs 50,000 for purchasing a computer to start his own business was questioned, the Supreme Court, placing its reliance on Appasaheb dictum, opined that the demand was not in connection with the marriage and was not really a ‘dowry demand’ within the meaning of section 2 of the Dowry Prohibition Ac.
In Modinsab Kasimsab Kanchagar, the Supreme Court, seeking support from Appasaheb, held that a demand of Rs 10,000 through the deceased wife to repay a Society loan does not fit into explanation appended to section 304 (1) of the IPC as the amount of demand was not directly or indirectly agreed to be given at the time of marriage, and hence does not qualify to be a ‘dowry demand’. Accordingly, it ruled that the demand of Rs 10,000 to repay a society loan was not a demand in connection with the dowry and hence section 304B was not attracted.
However, the Appasaheb is distinguished and thereby not followed in Bachni Devi V State of Haryana, Kulwant Singh & Ors V State of Punjab, Surinder Singh V State of Haryana, Raminder Singh V State of Punjab, and Rajinder Singh V State of Punjab.
In Bachi Devi, the Supreme Court clarified that the Appasaheb dictum cannot be read as an absolute proposition that a demand for money or some property on account of some financial stringency or meeting some urgent domestic expenses cannot be termed as a demand for dowry and stressed that the dictum should be understood in its factual settings. It accordingly refused to treat the demand of a motorcycle for starting milk-vending business as ‘demand for dowry’. It ruled that a demand for property or valuable security constitutes ‘demand for dowry’ if it has direct or indirect nexus with marriage. The cause or reason for such demand is immaterial.
In Kulwant Singh, the court, placing reliance on Bachni, reiterated that that the Appasaheb dictum needs to be understood in the context of facts of a given case, and it cannot be read as laying down an absolute proposition that a demand for money or some property or valuable security on account of some business of financial requirement cannot be termed as a demand for dowry. In Surinder Singh, the court, distinguishing Appasaheb, ruled that the demand of Rs 60,000 for setting up business or getting job amounts to dowry. In fact, the demand was made in pursuance of the marriage dowry agreement.
In Raminder Singh, the contention of the appellant, relying upon Appasaheb, that the demand for money for construction of house does not amount to dowry and therefore section 304B cannot be invoked against him was turned by the Supreme Court. It reiterated that the Appasaheb ruling, as observed in Bachni, as well as Modinsab Kasimsab ruling do not lay down any proposition of universal application. It held that any demand of money or property or valuable security, directly or indirectly, which has nexus with the marriage, constitutes ‘demand for dowry’.
Recently, the Supreme Court, in Rajinder Singh, taking not of the Appasaheb as well as post –Appasaheb rulings, held that demand for money for constructing home from his in-laws through his deceased wife amounts to ‘demand for dowry’.
It is, however, important to note that it is not necessary that there should be demand of a particular item to make a ‘dowry demand’.
CRUELTY
Section 304B does not explain the term ‘cruelty’. However, section 498A, IPC, explains as to what amounts to ‘cruelty’. In Shanti V State of Haryana, the Supreme Court held that section 304B and 498A are not mutually exclusive, And the meaning of ‘cruelty’ given in explanation to section 498A, having regard to the common background to section 304B and 498A, can be applied to section 304B, Section 498A explains cruelty means;
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health.,whether mental or physical, of the woman;or
(b) Harassment of the woman where such harassment is with a view to coercing her, or any person related to her, to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. The explanation of cruelty as given in 498A can be relied on for the purposes of section 304B as well.
In State of Punjab V Gurmit Singh, an appeal against an order of the high court quashing the order summoning the respondent-accused (under section 304B, IPC), by accepting his contention that he, being the brother of the aunt(chichi), cannot be said to a ‘relative’ of the deceased’s husband and thereby cannot be accused of section 304B, read with section 498A of the IPC. In an appeal against the order of the high court, the Supreme Court, in rune with its earlier pronouncements, ruled that the word ‘relative of the husband’ in section 304B meant only such persons who are related by blood, marriage or adoption. Nevertheless, it made it clear that this should not be perceived that a person who is not a relative for the purpose of section 304B cannot be prosecuted for any other offence (like section 306, IPC), even if allegation against him constitute offence other than a 304B of the Penal Code.
‘SOON BEFORE’
Section 304B used the words that it should be shown that ‘soon before’ her death, the woman subjected to cruelty or harassment by her husband or any relative of her husband. In view of these words. It is crucial for the prosecution to establish that any cruel treatment or harassment was in close proximity immediately preceding her death. ‘soon before’ is a relative term, and it would depend on the circumstances of each case and no straight jacket formula can be laid down as to what would constitute a period ‘soon before’ the occurrence. It would be hazardous to indicate any fixed period. It needs to be judged in the light of facts and circumstances of the case at hand. Time lags may differ from case to case. The importance of proximity test is both for the proof of an offence of dowry death, as well as for raising a presumption under section 113B of the Evidence Act. The determination of the period which can come within the term ‘soon before’ is left to be determined by the courts depending upon the facts and circumstances of each case. It cannot be constructed as any determinate period of time that can be mechanically applied in each case irrespective of its facts. It needs to be decided by the court after analyzing facts and circumstances leading to the victim’s death. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and had become stale enough not so disturb the mental equilibrium of the woman concerned, it would be of a consequence.
In Keshab Chandra Pande V State, the accused married the deceased in January 1989. There was differences between them due to non-fulfillment of demands of dowry made at the time of marriage. The accused assaulted the deceased in June 1989 with an iron rod. The deceased went to stay with her parents thereafter. She returned to the house of her husband in January 1990, after some mediation between them by well-wishers. In March 1991, the accused left the deceased in her parent’s house. After, about a fortnight, she came back to the house of the accused. Two days after that, she died. There was no material evidence to show that after her return in January 1990, she had been subjected to any cruelty or harassment by the accused. It was submitted by the prosecution that the assault by iron rod in June 1989, must have left an indelible scar in the mind of the deceased. However, the court felt that if she was no much upset or affected by the assault, she could not have waited for about tow years to vent out her feelings, that too after having reconciled in January 1990. In view of this, the court held that there was no proximate link between the cruelty based on dowry demand and the concerned death. The Orissa High Court acquitted the accused.
In Rajinder Amar Singh V State of Haryana, the Punjab High Court set aside the conviction of the accused on the ground that the unnatural death of his wife, though took place within seven years of the marriage, occurred after about two years after his demand for dowry. In Uday Chakrabotty V State of West Bengal, wherein the wife of the accused died of burn injuries within two years of her marriage, the Supreme Court considered the entire period of two years as ‘soon before’ as the marriage did not survive even for two years.
The expression ‘soon before’, thus, is not synonymous with the term ‘immediately before’. It normally implies that the interval should not be much between the concerned cruelty or harassment and the death in question. Cruelty should not be remote in time to become stale enough not to disturb mental equilibrium of the woman concerned. It should neither be too late nor too stale before the date of death of the victim. The expression needs to be interpreted liberally ignoring the semantics. It does not mean ‘immediately before’ but must be construed according to its true import. The term does not employ ‘at any time before’, it has been employed to refer to cruelty or harassment which was meted out in proximity to death. While interpreting the phrase ‘soon before her death’ one should not overlook that the legislative intent in providing such a radius of time (through expression) is to emphasise the idea that the death of a married woman, in all probabilities, has been aftermath of the cruelty or harassment.
PRESUMPTION AS TO DOWRY DEATH
At the time of introducing the offence of dowry death in the IPC, the legislature had simultaneously brought in amendments to the Evidence Act. Section 113B of the Evidence Act provides for presumption as to dowry death. As per the section;
Section 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 has been subjected by such person to cruelty or harassment for, or in connection with, any demand for 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).
The presumption will arise only when the prosecution has established the basic element of demand for dowry. The initial burden lies on the prosecution to prove the ingredients of section 304B, including the fact that soon before her death, she had been subjected by the accused person to cruelty or harassment for, or in connection with, any demand for dowry. If the prosecution succeeds in discharging this initial burden, then positively the provision of section 113B of the Evidence Act come into play and can be pressed into service for drawing the presumption against the accused person that he has caused dowry death.
In Sher Singh V State of Haryana, the Supreme Court was urged to delve into true ambit of the word ‘show’ used in section 113B, IEA. The court was, inter alia, called upon to look into the propriety of the high court’s insistence that the prosecution is required ‘to prove beyond reasonable doubt’, in contradiction to ‘show’, that the accused-husband and his relatives (brother, father and mother) have, ‘soon before death’, ‘subjected’ the deceased ‘to cruelty or harassment for, or in connection with, or demand for, dowry (a motor cycle and fridge). The High Court, in the absence of such proof, acquitted the appellant-convicts’s brother and father. But it refused to acquit the appellant-husband because of his failure to explain that the unnatural death of his wife was not due to cruelty meted out to her in the matrimonial home. He contended before the apex court that his conviction is liable to be set aside as the prosecution has failed to ‘prove’ beyond reasonable doubt that he ‘soon before’ his wife committed suicide, had subjected her to cruelty or harassed her for, or in connection with. or demand for, dowry. He further stressed that the prosecution is nor merely required to ‘show’ but to ‘prove’ beyond reasonable doubt the essential ingredients of dowry death. And in case of its failure to do so he deserves acquittal. Recalling its ruling in Pathan Husain Basha, wherein a view is expressed that art 20 of the constitution contains a presumption of innocence in favour of suspect, and the concept of deeming fiction is hardly applicable to criminal jurisprudence, the Supreme Court ruled that the word ‘show’ in section 304B of the IPC, in fact, connotes ‘prove’. It ruled that the proper manner of interpreting section 304B is that ‘shown’ should be read ‘proved’ and ‘deemed’ should be read as ‘presumed’. Section 304B does not require the accused to give evidence against himself but casts the onerous burden to dislodge his deemed guilty beyond reasonable doubt. Tracing and stressing the legislative intent of section 304B and 113A of the IEA, the court held that lessening the husband’s onus to prove it on preponderance of probability will ‘annihilate the deemed guilt’ expressed in section 304B of the IPC and 113B of the IEA and will ‘defeat and neutralize the intention and purpose of Parliament’. Once the essence of the dowry death are established or shown or proved by the prosecution, even by preponderance of probability, the initial presumption of innocence is replaced by an assumption of guilty of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilty beyond reasonable doubt.
Once statutory requisites are established by the prosecution, a court is bound by law to invoke the presumption under section 304B, IPC, and section 113B, IEA. Once it is proved that death of woman took place within seven years of her marriage otherwise than in normal circumstances, and ‘soon before her death’ she was subjected to cruelty or harassment by the accused person for or in connection with dowry demand, the court has to presume that the accused has caused dowry death. The Court is bound to raise the section 113B, IEA, presumption against him. The expression ‘the court shall presume’ used in section 113B, IEA, leaves no option with the court but to presume that the accused brought before it has caused dowry death and is guilty of the offence.
In Rajiv Singh V State of Bihar & Ors, the apex court made it very clear that the deeming fiction created by section 304B of the IPC, and further strengthened by section 113B of the IEA, cannot be invoked when the essential ingredients of the offence of dowry death remain unproved. When the prosecution fails to prove the charge against accused with certain and explicit evidence, the presumption cannot be pressed for. Suspicion alone cannot take the place of proof. In a criminal trial, it stressed, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The prosecution case to succeed has to be in the category of ‘must be’ and not ‘may be’, a distance to be covered by way of clear, cogent and unimpeachable evidence to rule out any possibility of wrongful conviction of the accused and resultant miscarriage of justice.
Once, the prosecution discharges its onus of proof, it is for the accused to rebut the presumption. If he fails, the court is bound to act upon it.
The presumption has to be rebutted by proving that the death was neither suicidal or homicidal, but accidental and it does not meet the statutory canons of dowry death.
It cannot be said rebutted by the accused even if his co-accused, put on trial with him under the said presumption, has been given the benefit of doubt and acquitted of he charge of dowry death, if primary evidence is against him. In Naresh Kumar V State of Haryana, wherein the appellant-convict, whose mother and brother, who were convicted along with him but were acquitted by the High Court by giving them benefit of doubt, contended that he, on a parity, deserved same treatment and acquittal. The apex court, in the backdrop[ of the fact his case was distinguishable from that of his co-accused mother & brother, rejected his claim of parity. It stressed that the husband is not only primarily responsible for safety of his wife, he is expected to be conversant with her state of mind more than any other relative. Responsibility of the husband towards his wife is qualitatively different and higher as against his other relatives.
The Presumption, however, needs to be invoked by having regard to the proximity of the cruelty or harassment and death of the victim. The court is required to satisfy itself the demand for dowry and the consequential harassment was caused by all the named persons. The apex court reminded the courts below that the possibility of naming all family members, in over enthusiasm and anxiety of the complainants to seek conviction of maximum persons in dowry death, is not ruled out. And allegations against all the family members particularly against brothers and sisters and other relatives do not stand on the same footing as husband and parents, who are in position to harass.
It cannot be invoked merely because the alleged death occurred within seven years of her marriage. The period of operation of the presumption is only seven years from the date of marriage of the deceased woman, In case of death of married woman resulting from cruelty or harassment by her husband or his relatives after seven years of her marriage, the husband or his relatives, as the case may be, cannot be presumed perpetrator of death. It if is proved that cruelty or harassment by her husband or his relatives for dowry was the causal factor of her death, liability of the perpetrator would be governed by section 498A of the IPC.
The Presumption, thus, makes the traditional criminal law dictum that an accused in presumed to be innocent unless proved guilty inapplicable to dowry death cases. It shifts the onus of proof on the accused to prove as to how the deceased died. It is for accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. It reverses the onus of proof that the death was accidental and to prove is innocence. It helps the prosecution to overcome the difficulty proving case against the accused. The Presumption is seemingly introduced to overcome the difficulty of getting direct evidence in the cases of dowry death as it is committed in privacy, and the complainant, hoping that the matrimonial relations, in due course of time, will improve and become normal, generally suffer in silence.