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Presumption as to Dowry Death | Overview
Presumption as to dowry death is dealt in section 113B of the Indian Evidence Act, 1872. The article aims to explain the concept of presumption as to dowry death. The explanation to this section says that for the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code, 1860.
Section 113B
This section was inserted by the Dowry Prohibition (Amendment Act 43 of 1986).
This section says that “When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.”[1]
According to this section, two things are needed to be proved in case there is a question with regard to the death of a woman. Firstly, she was subjected to cruelty or harassment soon before her death and secondly that the cruelty or harassment was in relation to the demand for dowry. Only cases satisfying these two conditions will come under this section. this was said in the case of Bhoora Singh v. State.[2]
In the case of Om Prakash v. State of U.P.,[3] it was said that no cases are applicable to this section that occurred prior to its introduction. In such cases, a greater burden lies on the prosecution to prove that the cause of the death was homicidal.
Essentials ingredients of section 113B
In the case of Kaliyaperumal v. State of T.N.,[4] four essentials were given based on which this section can be applied:
- 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 304B, IPC).
- The woman was subjected to cruelty or harassment by her husband or his relatives.
- Such cruelty or harassment was for or in connection with, any demand for dowry.
- Such cruelty or harassment was soon before her death.
As said in the case of Sultan Singh v. State of Haryana[5], the presumption under Section 113B. But the presumption under this section is a presumption of law, on satisfying of the essential conditions of this section the court is obliged to take the presumption that the accused has caused the dowry death. this was said in the case of Rajinder Kumar v. State of Haryana.[6]
If anyone of the essentials of the section is not made out, the onus does not shift to the defence. For the presumption to take place all of the essential ingredients will have to be satisfied. This was observed in the case of Gurdeep Singh v. State of Punjab.[7]
In the case of Public Prosecutor, A.P. High Court v. T. Basava Punnaiah[8], the death was caused by asphyxia due to hanging within three years of marriage and it is not under normal circumstances. The court held that it would come under the purview of section 304-B of the Indian evidence act when cruelty or harassment by the husband or any of his relative is proved. The actual participation of the husband or any of his relative is not required to be proved.[9]
In the case of Alamgir Sani v. State of Assam[10], the death was caused within 7 years of marriage and there was sufficient proof for demand of dowry, the court said that merely because the husband was acquitted under section 302 of IPC the presumption of dowry death will not be presumed to be rebutted.
In the case of Kamesh Panjiyar v. State of Bihar[11], black stained rough skin on both sides of neck of the deceased wife was found and the doctor who conducted the post-mortem noticed that blood-stained fluid was trickling from the side of the mouth and brain matters were found congested also the Investigating Officer had seized a blood-stained pillow. There was no evidence that death was due to normal reasons and the evidence of the witnesses established the demand of dowry and ill-treatment shortly before the date of occurrence of the death, the presumption under this section was available.
Cruelty or harassment
Cruelty or harassment differs from case to case. It depends on the mindset so it differs from person to person. Cruelty can be of two types of physical cruelty and mental cruelty. Mental cruelty includes humiliating or ridiculing a woman, putting restraint in her movement, not allowing her to talk to the outside world, giving threats to her or her near and dear ones etc. Physical cruelty means actual beating or harming the body of the woman.[12]
Every instance of physical or mental cruelty can put a lasting impact on the woman’s mind. if there is any instance where her dignity is harmed those memories can cause a grave impact on the person’s mind[13]. However, in this section cruelty and harassment is not meant to be a single instance of cruelty or harassment it generally refers to a course of action stretched over a period of time.[14]
Soon Before
The term ‘soon before’ is not defined anywhere. The section says that the cruelty or harassment will have to happen soon before the death of the deceased in question only then we can presume that the death was caused due to dowry. The term is relative and it is left in the court’s discretion how soon is equivalent to ‘soon before’.
In the case of Keshab Chandra Panda v. State[15], it was said that the term would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question.
The cruelty or harassment and the death of the deceased in question should not be too remote in time so that it can be safely considered that the effects of the cruelty or harassment are dissipated.[16]
In the case of Kans Raj v. State of Punjab[17], the deceased was subjected to harassment till the time she met her parents after two days of which she died in this case the court held that the harassment that the deceased had to face will be considered as soon before.
In the case of Premchand Mahto v. State of Jharkhand[18], the deceased wife told her parents before returning to her in-laws that she is being ill-treated by them, then she died after one month of return. The court, in this case, said that the cruelty or harassment met to the lady can be safely considered to have occurred ‘soon before’ her death.
In the case of Sham Lal v. State of Haryana[19], there was a dispute between the husband and the wife after which the wife went away to her father’s house. She returned after the panchayats resolved the dispute. The death of the lady occurred 10-15 days after the dispute was resolved and there was no evidence she was treated with cruelty or harassment soon before the death. the court held that in this case the presumption of dowry death could not be taken.
In the case of State of U.P. v. Satya Narain Tiwari[20], the accused people were demanding a Maruti car as dowry even after 6 months of marriage has elapsed. The deceased wife from time to time during her visit to her parental house said that she is being ill-treated because of the non-fulfilment of the dowry demanded. Even when people went to ask the accused to stop ill-treatment of the deceased they were turned out of the house and asked never to enter there. The death occurred within three months of the incident. The court said that in this case the cruelty meted to the wife can be considered ‘soon before’ her death occurred.
Suicide note
In the case of Naresh Kumar v. State of Haryana[21], it was written in the suicide note that no one was responsible for her that and also, she wrote that all doors were closed on her and she had no other way. The court held that when all the available evidence categorically shows that there was a demand for dowry and ill-treatment by the husband and his relatives than just because it is written in the suicide note that no one was responsible cannot be taken as a conclusive proof that there was, in fact, no one responsible.
References
[1] Indian Evidence Act 1872, s 113B
[2] 1993 Crlj 2636 (para 14)
[3] 2004 Crlj 3939, 3947
[4] AIR 2003 SC 3828
[5] (2014) 14 SCC 664
[6] (2015) 4 SCC 215
[7] (2011) 12 SCC 408
[8] 1989 CrLJ 2330 (AP).
[9] Ramarao v. State of A.P.
[10] AIR 2003 SC 2108
[11] AIR 2005 SC 785
[12] Ratanlal and Dhirajlal p.587 ed.24
[13] Surinder Singh v. State of Haryana, (2014) 4 SCC 129
[14] Ratanlal and Dhirajlal p.587 ed.24
[15] 1995 CrLJ 174 (para 6) (Ori)
[16] Ratanlal and Dhirajlal p.588 ed.24
[17] AIR 2000 SC 2324
[18] 2005 Crlj 3672, 3675 (para 14) (Jhar)
[19] AIR 1997 SC 1873
[20] 2005 Crlj 3684, 3690 (para 23)
[21] (2015) 1 SCC 797
