dowry death

Section 2- in the Dowry Prohibition Act, 1961

Definition of ‘dowry'. —In this Act, “dowry” means 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 parent of either party to a marriage or by any other person, to either party to the marriage or to any other person,

at or before 1 [or any time after the marriage] 2 [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

3 [***] Explanation II.— The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

section 3 - Penalty for giving or taking dowry.-

(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with the fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

* * * Explanation I omitted by Sec.2 w.e.f 2nd October, 1985

(2)Nothing in sub-section (1) shall apply to or, in relation to,-

presents which are given at the time of a marriage to the bride (without nay demand having been made in that behalf):

Provided that such presents are entered in list maintained in accordance with rule made under this Act;presents which are given at the time of marriage to the bridegroom (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with rules made under this Act;

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.

"Cruelty" - By explanations (a) and (b) of Section 498A of IPC cruelty has been defined as:

(a) "Any willful conduct which is of such 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 women where such harassment is with a view of 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.

"Dowry" - Dos muliers. Lat" otherwise called maritagium, or marriage goods, that which the wife brings to the husband in marriage. This word should not be founded with dower - Co. Litt 31. Wharton's Law Lexicon.

SUPREME Court in the case of Tarsem Singh v. State of Punjab [AIR 2009 SC 1454], held that the legislative object in providing such a radius of time by employing the words `soon before her death' is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her. Similar view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh [(2004) 3 SCC 98], where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in  question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case.

Kaliyaperumal v. State of Tamil Nadu [AIR 2003 SC 3828], stated the following ingredients which should be satisfied :

"4...................

1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, IPC).

2) The woman was subjected to cruelty or harassment by her husband or his relatives.

 3) Such cruelty or harassment was for, or in connection with, any demand for dowry.

4) Such cruelty or harassment was soon before her death."

In Soni Devrajbhai Babubhai v. State of Gujarat & Others (1991) 4 SCC 298, this Court dealt with the objects and philosophy behind enactment of Section 304- B IPC. In this case, it has been mentioned that Section 304-B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society and continues unabated. For eradication of social evil, effective steps can be taken by the society itself and social sanctions of community can be more deterrent, yet legal sanctions in the form of its prohibition and punishment are some steps in that direction.

A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and life link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.”

in Hira Lal & Others v. State (Govt. of NCT), Delhi (2003) 8 SCC 80 reiterated that Section 304- B IPC and Section 113-B of the Evidence Act were inserted with a view to combat the increasing menace of dowry deaths. Perhaps the Legislations are outcome of public opinion and a comprehensive 91st Report on "Dowry Deaths and Law Reform: Amending the Hindu Marriage Act, 1955, the Indian Penal Code, 1860 and the Indian Evidence Act, 1872" submitted on 10.8.1983 by the Law Commission of India. In the introductory chapter of the report, it is mentioned that the last few months have witnessed an alarming increase in the number of cases in which married women die in circumstances which, to say the least, are highly suspicious. In the popular mind, these deaths have come to be associated with dowry, which is why, in popular parlance, they have come to be called "dowry- deaths". Even after more than two decades of submitting the said report and enactments of new Legislations, unfortunately cases of dowry deaths are increasing. In the report, deep concern has been shown that once a serious crime is committed, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably committed within the safe precincts of a residential house. The criminal is a member of the family; other members of the family are either guilty associates in crime, or silent but conniving witnesses to it. In any case, the shackles of the family are so strong that truth may not come out of the chains. There would be no other eye witnesses, except for members of the family. Perhaps to meet a situation of this kind, the Legislature enacted Section 304-B IPC and Section 113-B of the Evidence Act.

Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code.

a) To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.

Supreme Court of India

Kashmir Kaur & Anr vs State Of Punjab on 12 December, 2012

a) To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.

b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.

c) Such death occurs within seven years from the date of her marriage.

d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.

e) Such cruelty or harassment should be for or in connection with demand of dowry.

f) It should be established that such cruelty and harassment was made soon before her death.

g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence.

h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.

i) Therefore, 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 or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one.

j) However, the expression “soon before” should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.

k) Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B.

l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied.

m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.

SECTION 304 B AND 498A ARE NOT MUTUALLY EXCLUSIVE :-

Smt. Shanti And Anr vs State Of Haryana on 13 November, 1990

The appellants, along with three other co-accused, were charged of committing a dowry death. They were prosecuted under sections 201, 304-B and 498-A of the Indian Penal Code. The Trial Court convicted the appellants on all the counts but acquitted the other three co-accused. The appellants preferred an appeal before the High Court which set aside their conviction under section 498-A holding that Sections 304-B and 498-A are mutually exclusive and that when once the cruelty envisaged in section 498-A culminates in dowry death of the victim Section 304-B alone is attracted. Accordingly, the High Court acquitted the appellants under section 498-A. But their convictions under section 304-B and 201 were affirmed.

SUPREME COURT HELD: 1. The view of the High Court that Sections 304-B and 498-A I.P.C are mutually exclusive Is not correct. Sections 304-B and 498-A cannot be held to be mutually exclusive. These provisions deal with two distinct offences. It is true that "cruelty" is a common essential to both the Sections and that has to be proved. The Explanation to

Section 498-A gives the meaning of "cruelty". In Section 304-B there is no such explanation about the meaning of "cruelty" but having regard to the common background to these offences, the meaning of "cruelty or harassment" will be the same as found in the explanation to Section 498-A under which "cruelty" by itself mounts to an offence and is punishable. Under Section 304-B, it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498-A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further a person charged and acquitted under section 304-B can be convicted under Section 498-A without charge being there, if such a case, is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the Section and if the case is established they can be convicted under both the Sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304-B.

There is a clear distinction between section 304B and 498A of the Indian Penal Code. Now,

under section 304B it is a dowry death that is punishable and such death should have

occurred within seven years of marriage and this period of limitation is not there in 498A.

In the case of Soni Devrajbhai Babubhai v. State of Gujarat it was held that Section 304B is

a substantive provision creating a new offence and not merely a provision effecting a change

in procedure for trial of a pre-existing substantive offence. As a consequence, accused cannot

be tried and punished for the offence of dowry death provided in section 304B with the

minimum sentence of seven years’ imprisonment for an act done by them prior to creation of

the new offence of dowry death.

In Shanti v. State of Haryana, in-laws insisted for dowry from the daughter-in-law.

Ultimately, it appeared that she was done to death and her body was cremated without

sending any information to her parents or any relatives. The Supreme Court held that, if it

was natural death, there was no need for the appellants to act in such unnatural manner and

cremate the body in great and unholy haste without even informing the parents. In the result it

was an unnatural death, either homicidal or suicidal. But even assuming that it is a case of

suicide even then it would be death which had occurred in unnatural circumstances. Even in

such a case, section 304B is attracted and this position is not disputed. Therefore, the

prosecution has established that the appellants have committed an offence punishable under

section 304B beyond all reasonable doubts. In Venugopal v. State of Karnataka 29 the

appellant husband was held liable for dowry death under 304B I.P.C. for creating a situation

whereby the wife committed suicide within two years of marriage.

Akula Ravinder And Others vs The State Of Andhra Pradesh on 11 January, 1991

A perusal of the Section 304B shows that one of the essential ingredients that has to be established is that death was otherwise than in normal circumstances. In this case no doubt, the other circumstance namely that the death occurred within seven years of the marriage and that before her death they have harassed her for demand of dowry are established. Coming to the other ingredient we find that the prosecution has miserably failed to establish that death was otherwise than in normal circumstances.

WHAT IS CONSIDERED TO BE DOWRY :

In the case of Ram Singh v. State of Haryana [(2008) 4 SCC 70], held that the payments which are customary payments, for example, given at the time of birth of a child or other  ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression `dowry'.

Again, in the case of Satbir Singh v. State of Punjab [AIR 2001 SC 2828], this Court held that the word `dowry' should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word `dowry'.

This Court, in the case of Madhu Sudan Malhotra v. K.C. Bhandari [(1988) Supp. 1 SCC 424], held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances etc., to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of Section 2 of the Act. The definition of `dowry' is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of this Court in the case of State of Andhra Pradesh v. Raj Gopal Asawa [(2004) 4 SCC 470].

Supreme Court of India

Ashok Kumar vs State Of Haryana on 8 July, 2010

The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression `demand for dowry' will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, `in connection with the marriage' is an expression which has to be given a wider connotation. It is of some significance that these expressions should be given  appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands in consideration and for subsistence of the marriage.

The Courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not  being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of `dowry' under the Act. Section 4 of the Act is the penal Section and demanding a `dowry', as defined under Section 2 of the Act, is punishable under this section.

In Satvir Singh v. State of Punjab MANU/SC/0588/2001, the Hon'ble Apex Court considered the definition of "dowry" as defined under Section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under Section 304B of the I.P.C., and held that it should be any property or valuable security given or agreed to be given in connection with the marriage, Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of "dowry".

The relevant para No. 21 of the judgment reads as under:

"21. Thus, there are three occasions related to dowry. One is before the marriage, second is "at any time" after the marriage. The third occasions may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage."

In K. Prema S. Rao v. Ydla Srinivasa Rao MANU/SC/0890/2002, the Hon'ble Apex Court considered the definition of "dowry" in the context of offence under Section 304A, I.P.C., along with Section 113B of the Evidence Act and held that one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment "in connection with the demand for dowry" shortly before her death. Para 16 of the judgment reads as under:

"16. The evidence which has been found acceptable by the Courts below against accused I is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death "otherwise than under normal circumstances". To attract the provisions of Section 304B, I.P.C., one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry". There is no evidence on record to show that the land was demanded as dowry. It was given by the father to the deceased in marriage ritual as pasupukumkuma. The harassment or cruelty meted out to the deceased by the husband after marriage to force her to transfer the land in his name was "not in connection with any demand for dowry". One of the main ingredients of the offence of "demand of dowry" being absent in this case, the High Court cannot be said to have committed any error in acquitting accused 1 for offence under Section 304B, I.P.C."

In Appasaheb and Anr. v. State of Maharashtra MANU/SC/7002/2007 : 2007 (1) Crimes 110 : AIR 2007 SC 763 (SC), there Lordships of the Hon'ble Supreme Court considered the similar point in the context of offence under Section 304B, I.P.C. with the meaning of "dowry" as defined under Section 2 of the Dowry Prohibition Act, 1961, and held that giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. 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 as the said word is normally understood. Para 9 of the judgment reads as under:

9. Two essential ingredients of Section 304B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for "dowry". The explanation appended to Sub-section (1) of Section 304B, IPC says that "dowry" shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.

Section 2 of Dowry Prohibition Act reads as under:

2. Definition of "dowry" - In this Act "dowry" means 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:

(b) By the parent of 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 mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of statute that if the act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, (See Union of India v. Garware Nylons Ltd. MANU/SC/0967/1996 : AIR 1996 SC 3509) and Chemical and Fibres of India v. Union of India MANU/SC/0147/1997 : AIR 1997 SC 558). 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 as the said word is normally understood. The evidence adduced by the prosecution does not. Therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B, IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.

In para Nos. 11,12 and 13 in the case of Vikaram Singh v. State of Rajasthan reported in MANU/RH/0018/2007 : 2007 Cri LJ 1622 discussed about the definition of dowry and the same are reproduced hereinunder:

In Satvir Singh v. State of Punjab MANU/SC/0588/2001, the Hon'ble Apex Court considered the definition of "dowry" as defined under Section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under Section 304B of the I.P.C., and held that it should be any property or valuable security given or agreed to be given in connection with the marriage, Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of "dowry".

The relevant para No. 21 of the judgment reads as under:

21. Thus, there are three occasions related to dowry. One is before the marriage, second is "at any time" after the marriage. The third occasions may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.

In Reema Aggarwal v. Anupam MANU/SC/0022/2004 : 2004 AIR SCW 344 : AIR 2004 SC 1418 : 2004 Cri LJ 892, the Apex Court discussed about the definition of term "dowry" under Section 2 of the Dowry Act, which is available in para 14 of the said judgment. Para 14 is reproduced herein under:

"14. The definition of the term 'dowry' under Section 2 of the Dowry Act shows that any property or valuable security given or, "agreed to be given" either directly or indirectly by one party to the marriage to the other party to the marriage "at or before or after the marriage" as a "consideration for the marriage of the said parties" would become "dowry" punishable under the Dowry Act. Property or valuable security so as to constitute 'dowry' within the meaning of the Dowry Act must, therefore, be given or demanded "as consideration for the marriage."

Further in para 18 of Reema Aggarwal (supra), the Apex Court dealt with the concept of dowry as well as the aim of the legislation introducing the provision of Section 498A as well as 304B IPC. For better understanding para 18 of the aforesaid judgment is quoted herein under:

"18. The concept of "dowry" is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498A and 304B, I.P.C. and Section 113-B of the Indian Evidence Act, 1872 (for short the "Evidence Act") were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smokescreen to contend that since there was no valid marriage the question of dowry does not arise? Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature 'dowry' does not have any magic charm written over it. It is that a level given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that Legislature which was conscious of the social stigma attached to children of valid and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given it would not further the legislative intent. On the contrary, it would be against the concerned shown by the Legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction". It would be appropriate to construe the expression 'husband'; to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B, IPC. Such an interpretation, known and recognized as purposive construction has come into play in a case of this nature. The absence of a definition of 'husband' to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as 'husband' is no ground to exclude them from the purview of Section 304B or 498-A, I.P.C. viewed in the context of the very object and aim of the legislations introducing those provisions."

HOW TO DEAL WITH TESTIMONIES OF WITNESSES :-

Section 304-B deals with dowry death. The death may be of following two natures:-(i) Natural death (ii) Unnatural death. Law does not take cognizance of the natural death but in case if it is unnatural death, then the provisions of law and the criminal jurisprudence comes into picture. Unnatural death may be of following kinds:-

(i) Accidental death

(ii) Suicidal death

(iii) Homicidal death

(iv) Dowry death

In the case of Ramesh Panjiyar vs. State of Bihar, (2005) 2 SCC 388, the Court held that the prosecution has to rule out the possibility of a natural or incidental death so as to bring it within the purview of "Death occurring otherwise than in the normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC are pressed into service. Hence, the prosecution is obliged to show that soon before the occurrence there was cruelty or harassment only attracting the provision of Section 113-B.

In the case of Kanas Raj vs. State of Punjab & Ors., (2000) 5 SCC 207, it was held that in case of dowry death the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instances but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand of dowry is shown to have persisted, it shall be deemed to be "soon before death".

Prima facie neither definite period has been indicted in the aforementioned section nor the expression "soon before" has been defined.

In Balka Singh & Ors. v. State of Punjab, AIR 1975 SC 1962, the Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 and held as under:

"The Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."

In Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001 SC 3678, the Court held as under:

"It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account."

A similar view has been reiterated in Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696, wherein the Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now a days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.

In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, the Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus (false in one thing,false in everything) has no application in India and the witness cannot be branded as a liar.In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, truth is the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.

In Sunil Kumar Sambhudayal Gupta and others v. State of Maharashtra - JT 2010 (12) SC 287, while dealing with the issue of material contradictions, the Court held:

"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons.

State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."

In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:

"11. .... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."

In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:

"7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

In the case of State of U.P. v. Anil Singh-1988 (Supp.) SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

In Mohan Singh and another v. State of M.P.-(1999) 2 SCC 428, this Court has held:

"11. The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eyewitnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans (sic), clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt."

In Krishna Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:

"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time".

(The ingredient of cruelty is common to Sections 304B and 498A IPC, but the width and scope of two sections is different, inasmuch as Section 304B deals with cases of death as a result of cruelty or harassment within seven years of marriage, Section 498A has a wider spectrum and it covers all cases in which the wife is subjected to cruelty by her husband or relative of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether mental or physical) or even harassment caused with a view to coerce the woman or any person related to her to meet unlawful demand for property or valuable security.

In our country the bride burning, bride hanging or poisoning cases have become common. These kind of offences are not the ordinary crimes committed in anger or for property. These are crimes against society on account of which the entire social fabric is disrupted. Time has come when everybody is to seriously think over the nature and gravity of the crime. It is very pathetic situation when the young girl aged about 20-25 years leaves her parents to serve another family who is totally unknown to her. She is to be extended even more love, affection and the help in comparison to our own daughter as the lady after marriage is just a part of the family where she is married. She takes care of all the members of the family right from young to old, and therefore, any kind of indiscipline, misconduct with the young lady can be termed as inhuman and nobody can claim any sympathy and deserves any leniency. vide Ram Asrey v. State of UP )

SUICIDE IS COVERED UNDER THE EXPRESSION "DEATH OCCURRING OTHERWISE UNDER NORMAL COURSE OF CIRCUMSTANCES"

Supreme Court of India

Kans Raj vs State Of Punjab & Ors on 26 April, 2000

It was established that the death of Sunita Kumari by suicide had occurred within 7 years of her marriage and such death cannot be stated to have occurred in normal circumstances. The term "normal circumstances" apparently means not the natural death. Supreme Court in Smt.Shanti & Anr.v. State of Haryana [AIR 1991 SC 1226] held that: "....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 the death of the woman she was subjected to cruelty or harassment by her husband or his relations for or in connection with any demand for dowry, such death shall be called 'dowry death' and the husband or relatives shall be deemed to have caused her death and shall be punishable with imprisonment for a minimum of seven years but which may extend to life imprisonment."

In other words the expression 'otherwise than under normal circumstances' would mean the death not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury.

Supreme Court upheld the judgment of the Trial Court regarding conviction of accused under Section 304B and both 306 .

Supreme Court of India

Satvir Singh And Ors vs State Of Punjab And Anr on 27 September, 2001

No doubt Section 306 IPC read with Section 113A of the Evidence Act is wide enough to take care of an offence under Section 304B also. But the latter is made a more serious offence by providing a much higher sentence and also by imposing a minimum period of imprisonment as the sentence. In other words, if death occurs otherwise than under normal circumstances within 7 years of the marriage as a sequel to the cruelty or harassment inflicted on a woman with demand of dowry, soon before her death, Parliament intended such a case to be treated as a very serious offence punishable even upto imprisonment for life in appropriate cases. It is for the said purpose that such cases are separated from the general category provided under Section 306 IPC (read with Section 113A of the Evidence Act) and made a separate offence.In Smt. Shanti and anr. vs. State of Haryana {1991(1) SCC 371} and in Kans Raj vs. State of Pubjab and ors. {2000(5) SCC 207} Apex Court has held that suicide is one of the modes of death falling within the ambit of Section 304B IPC.

The Supreme Court has observed that seeking financial assistance can also constitute 'demand for dowry :-

Jatinder Kumar vs. State of Haryana on 17 December, 2019

accused in this case was found guilty of subjecting his deceased wife to cruelty or harassment in connection with demand for dowry coupled with cruelty during the subsistence of her marriage during her stay in her matrimonial home His mother and two brothers were also convicted by the Trial Court. The High Court, while confirming the conviction of the accused, acquitted others.

Can a husband can be prosecuted under S 304B and S 498A of IPC even if he is not legally married with prosecutrix?

Reema Aggarwal Vs. Anupam and Ors. Decided On: 08.01.2004

Can a person who enters into a marital arrangement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature "dowry" does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction". It would be appropriate to construe the expression "husband" to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions - Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B Indian Penal Code. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as "husband" is no ground to exclude them from the purview of Section 304B or 498A Indian Penal Code, viewed in the context of the very object and aim of the legislations introducing those provisions.

Date of Marriage :

Supreme Court of India

Baljeet Singh & Anr vs State Of Haryana on 24 February, 2004

The law requires the prosecution to establish first by cogent evidence that the death in the case occurred within 7 years of the marriage.

FOR PRACTICE and ACADEMIC PURPOSE AND CRPC ONLY , IPC BATCH NEED NOT REFER IT :-

Whether court can convict accused of an offence U/S 304B of IPC if he was charged only under S 302 ofOR 306 OF IPC?

Shamnsaheb M. Multtani Vs State of Karnataka MANU/SC/0047/2001

K.T. Thomas, R.P. Sethi and B.N. Agrawal, JJ.

" The question raised before us is whether in a case where prosecution failed to prove the charge under Section 302 IPC, but on the facts the ingredients of section 304B have winched to the fore, can the court convict him of that offence in the absence of the said offence being included in the charge.{Para 14}

Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits "to convict the accused" of the offence of which he is shown to have committed though he was not charged with it." But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 IPC, at least at the time of framing the charge.

Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The Section permits the court to convict the accused "of the minor offence, though he was not charged with it." Sub-section (2) deals with a similar, but slightly different, situation. "When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it."

What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence.

The composition of the offence under Section 304B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498A IPC (Husband or relative of husband of a women subjecting her to cruelty). As the word "cruelty" is explained as including, inter alia, "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."

So when a person is charged with an offence under Sections 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304B IPC without the said offence forming part of the charge?

The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite:

"No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby." (emphasis supplied)

In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (The simile is borrowed from Lord Diplock in Town Investments Ltd. vs. Department of the Environment 1977(1) A E R 813. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

One of the cardinal principles of natural justice is that no man should be condemned without being heard, ("Audi alteram partem"). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.

We have now to examine whether, on the evidence now on record the appellant can be convicted under Section 304B IPC without the same being included as a count in the charge Section 304B has been brought on the statute book on 9-11-1986 as a package along with Section 113B of the Evidence Act. Section 304B(1) IPC reads thus:

"304-B. 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."

In the Explanation to the Section it is said that the word "dowry" shall be understood as defined in the Dowry Prohibition Act, 1961.

The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused dowry death."

Under Section 4 of the Evidence Act "whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and until it is disproved." So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both.

Section 113A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death "the court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc." When the law says that the court may presume the fact, it is discretionary on the part of the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the court to act on the presumption the accused can persuade the court against drawing a presumption adverse to him.

But the peculiar situation in respect of an offence under Section 304B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. 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 on it.

Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304B IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years.

The serious consequence which may ensue to the accused in such a situation can be limned through an illustration:- If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304B IPC read with Section 113B of the Evidence Act. But if the murder of his wife was actually committed either by a decoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304B, IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal.

The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law.

In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the count affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption.

As the appellant was convicted by the High Court under Section 304B IPC, without such opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. "

BUT LATER IN DALBIR SINGH V. STATE OF UP SUPREME COURT TOOK ANOTHER VIEW BY RELYING WHOLLY ON 464 OF CRPC AND DID NOT REFER SHAMNASAHEB JUDGMENT (SUPRA) . SO THE SITUATION IS THAT WE HAVE 3 JUDGES BENCH DIFFERING ON THE SAME POINT LEADING TO A SITUATION THAT A TWO JUDGES BENCH IN SUPREME COURT STARTED APPLYING THE RATIO OF EITHER OF THE DECISIONS IN ACCORDANCE WITH THEIR DISCRETION .

Supreme Court of India

Dalbir Singh vs State Of U.P on 8 April, 2004

Bench: S. Rajendra Babu, Dr. Ar Lakshmanan, G.P. Mathur.

In this case accused was charged with 302 and 304B but was convicted of 306 (s. 306 charge was not there specifically)

"In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."

It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.

In Willie Slaney v. State of Madhya Pradesh AIR 1956 SC 116, a Constitution Bench examined the question of absence of charge in considerable detail. The observations made in paras 6 and 7, which are of general application, are being reproduced below :

"6. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well-established and well-understood lines that accord with our notions of natural justice.

Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions."

. In Narwinder Singh v. State of Punjab [(2011) 2 SCC 47: (2011) 1 SCC (Cri) 601], while accepting the finding of the High Court that the prosecution has not been able to establish the charge under Section 304-B IPC and had, therefore converted the punishment to one under Section 306 IPC, this Court observed that cruelty or harassment sans demand of dowry which drives the wife to commit suicide attracts the offence of abetment of suicide under Section 306 IPC. The Court further observed that mere omission or defect in framing charge would not disable the court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Sections 221(1) and (2) CrPC.

CHARGE UNDER 201 CONVICTION UNDER 304B:

Section 201 IPC reads as follows:

201. Causing disappearance of evidence of offence, or giving false information to screen offender. Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, if a capital offence.-shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

if punishable with imprisonment for life.-and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

if punishable with less than ten years' imprisonment.-and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

The first paragraph of the Section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 of IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.

In Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator) Apex Court had said that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; that the accused knew or had reason to believe that such offence had been committed; with requisite knowledge and with the intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. It was observed that the Court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be.

CHARGED UNDER 201 CONVICTED UNDER 304B AND 498A :

Supreme Court of India

Sukhram vs State Of Maharashtra on 17 August, 2007

True that Section 222 Cr.P.C. clothes the Court with the power to convict a person of an offence which is minor in comparison to the one for which he is charged and tried, but by no stretch of imagination, offences under Sections 304-B and 498-A IPC, under which appellant A-2 was convicted by the Trial Court, could be said to be minor offences in relation to that under Section 201 IPC, for which he was charged. In fact, the three offences are distinct and belong to different categories. The ingredients of the offences under the said Sections are vastly different. Therefore, Section 222 Cr.P.C. had no application on facts in hand.

Supreme Court in the decision reported as (2014) 12 SCC 595 Mangat Ram v. State of Haryana also held:

" We have already indicated that the trial court has found that no offence under Section 304-B IPC has been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused. The scope and ambit of Section 306 IPC has not been properly appreciated by the courts below. Section 306 IPC reads as under:

"306.Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide.

In the instant case, of course, the wife died few months after the marriage and the presumption under Section 113-A of the Evidence Act could be raised. Section 113-A of the Evidence Act reads as follows:

"113-A.Presumption as to abetment of suicide by a married woman.--When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.

We are of the view that the circumstances of the case pointed out by the prosecution are totally insufficient to hold that the accused had abetted his wife to commit suicide and the circumstances enumerated under Section 113-A of the Evidence Act have also not been satisfied".

In Pinakin Mahipatray Rawal v. State of Gujarat [(2013) 10 SCC 48 : (2013) 4 SCC (Civ) 616 : (2013) 3 SCC (Cri) 801] , this Court has examined the scope of Section 113-A of the Evidence Act, wherein this Court has reiterated the legal position that the legislative mandate of Section 113-A of the Evidence Act is that if a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, as per the presumption defined in Section 498-A IPC, the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by the husband or such person. The court held that, though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution. The court held that the burden is on the prosecution to establish the fact that the deceased committed suicide and the accused abetted the suicide. In the instant case, there is no evidence to show whether it was an accidental death or whether the deceased had committed suicide.

In K.V Prakash Babu v. State of Karnataka while dealing with the issue whether involvement of husband in an extra-marital affair invites his conviction for offence punishable under Section 306 IPC for abetment to commit suicide by the wife, observed as under:

"Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty the explanation

(a) to Section 498-A of the IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below:--

"True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A Indian Penal Code would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extramarital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no. 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section498-A which includes cruelty to drive a woman to commit suicide, would not be attracted."

The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one's endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts.

Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A Indian Penal Code. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 Indian Penal Code.

We are absolutely conscious about the presumption engrafted under Section 113-A of the Evidence Act. The said provision enables the Court to draw presumption in a particular fact situation when necessary ingredients in order to attract the provision are established. In this regard, we may reproduce a passage from Pinakin Mahipatray Rawal (supra):--

Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A Indian Penal Code, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A Indian Penal Codeis on the prosecution." We have reproduced the aforesaid passage only to highlight that the Court can take aid of the principles of the statutory presumption.

In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, the daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Deepa, being not able to digest the humiliation, committed suicide. The mother and the brother of Deepa paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the Indian Penal Code.

Having said that we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the Indian Penal Code but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments. And we so clarify.''

however recently in Supreme Court of India

Siddaling vs State Of Karnataka Through Kalagi ... on 9 August, 2018

through a very non reasoned judgment and without referring above judgments of the supreme court The bench of Supreme Court upheld the conviction of a man whose illicit relationship with another woman allegedly ‘abetted’ his wife’s suicide. Kavita had committed suicide by jumping into well within four months of her marriage with Siddaling. The reason for the suicide, according to the prosecution, was stated to be harassment due to alleged dowry demand and also cruelty meted out to her as Siddaling was having an illicit relationship.

The prosecution had also produced before the court an agreement executed by Siddaling before the panchayat in which the accused admitted to be living with another woman and that was seen by his wife.

The trial court convicted Siddaling and his father under Sections 498-A and 304-B r/w 34 IPC and Sections 306 r/w 34 IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act. The high court partly allowed the appeal sustaining conviction under Sections 498-A and 306 of the husband.

Although Girish Ananthamurthy, the counsel for the accused, relying on apex court judgments on this aspect, contended that abetment involves a mental process of instigating a person or in any manner aiding that person in doing of the thing, the apex court bench comprising Justice R Banumathi and Justice Vineet Saran was not inclined to interfere with the concurrent convictions.

Upholding the high court judgment, the bench said: “In the case in hand, the witnesses - PW-1, PW-6, PW10 and PW-22 have clearly in their statement stated that the appellant continued his relation with another woman. The appellant’s illicit relation with another woman would have definitely created the psychological imbalance to the deceased which led her to take the extreme step of committing suicide. It cannot be said that the appellant’s act of having illicit relationship with another woman would not have affected to negate the ingredients of Sections 306 I.P.C.”

It is submitted that this judgment is contradictory to earlier position which is settled by numerous judgments and for now cannot be relief upon. Also , judgment was very brief (of 4 pages) and not very reasoned.

State Of Punjab vs Iqbal Singh And Ors on 10 May, 1991

The relationship between husband and wife were strained over dowry to a level that wife sought police protection apprehending danger to her life.One day she set herself and her 3 children ablaze at the residence of her husband. Before attempting suicide she left a note behind which stated that , her husband demanded additional dowry from her and her mother in law and sister in law made false accusations against her and also conspired to kill her one night by sprinkling on her kerosene but their plan misfired. It was held that husband was responsible for creating the situations where his wife committed suicide and was responsible under 306.

State v. Anil Kumar (Cr LJ 3131 P& H )

In another case a husband merely stood by and while his wife set her ablaze due to a consistent demand for dowry. High Court held him liable for it.

State v. Kirpal Singh (CR Lj 2724 P&H)

However where wife never complained of demand of dowry or harassment but for the mere fact that she committed suicide in few months after marriage was held insufficient to hold a the accused liable for 306.

In Swamy Prahaladdas v. State of M.P. & Anr. , 1995 Supp. (3) SCC 438, the appellant was charged for an offence under Section 306 I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die' . This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.

In Mahendra Singh v. State of M.P., 1995 Supp.(3) SCC 731, the appellant was charged for an offence under Section 306 I.P.C basically based upon the dying declaration of the deceased, which reads as under:

"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."

Supreme Court, considering the definition of 'abetment' under Section 107 I.P.C., found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.

Bombay High Court

Jeevan Babu Desai vs State Of Maharashtra on 31 January, 1992

In this case the appellant had made life impossible for Ratan (deceased) . His drunkenness and increasing recourse to the bottle had made him violent, suspicious, intemperate and indiscriminate. That drove Ratan to desperation and the extent thereof was such that she took her own life. He was convicted under section 306 .

Delhi High Court

Shri Mohan Chand Kholia vs State on 6 September, 2002

Briefly stated, the facts are that Bhagwati Kholia was brought to the hospital with burn injuries on 20.8.2000. She gave her statement to the Police wherein she stated that she was married to the petitioner 12 years back. Her husband/ petitioner used to suspect her character and used to quarrel with her every day. On the day of incident at about 6 a.m. when she came down stairs with her children, the petitioner started abusing her. Her brother Ashok who also resides in the same area was called and after some time her brother Ashok went out of the house and the petitioner also went out. The petitioner came back after some time and abused her saying " You bloody whore why dont you die". Thereafter she locked herself and bolted the room and set herself on fire after pouring kerosene oil and died consequently. He was accordingly held liable for 306 and 498A .

Andhra High Court

Bommidi Rajamallu vs State Of Andhra Pradesh on 29 December, 2000

the accused used to quarrel with the deceased-Shiva Kumari and used to beat her in a drunken state. The deceased has been informing of this conduct of the accused to her parents and elder brother from time to time. The elders advised the accused to mend himself. While so, on 29-1-1993 at about 7.30 p. m., the accused went to his house in a drunken state, abused and beat the deceased. She questioned him about his drunkenness and insisted him not to drink. Unable to bear his torture, she poured kerosene on her and set herself ablaze.

In her dying declaration deceased stated " "Since my marriage my husband is addicted to drink, used to come home in drunken state, torture me, abuse me and beat me. He used to spend more money on drinks. He previously without hearing my words used to abuse me and beat me. Several times, unable to bear the torture and thought of dying. Today, i.e., on 29-1-1993 my husband Rajamallu came in drunken state abused me and attempted to beat me. When I asked him that why you are coming in drunken state and why you are doing like this? For that he abused me saying that it is my will, are you earning the money, also abused me that he do not bother if I live or die, and asked me to die." Accused was held not liable for 306 but for 498A .

Madhya Pradesh High Court

Girjashankar And Ors. vs State Of Madhya Pradesh on 19 April, 1988

Daughter in law was subject to maltreatment and starvation with the superadded fact of looking for another girl for the boy , this was held to be enough to constitute offence of abetment for purpose of section 306.

In State of West Bengal v. Orilal AIR 1994 SC 1418 : (1994 Cri LJ 2104) it has been held by the Supreme Court that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hyper sensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

Madhya Pradesh High Court

Balram And Anr. vs State Of M.P. on 28 April, 1999

Where deceased wife was not given proper food or clothing and due to poverty of her husband and due to that she committed suicide . It was held that the case does not fall under section 306.

020A. Dowry death

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