Law Of Evidence -ii Project 365414

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

PROJECT REPORT OF

LAW OF EVIDENCE-II ON

“PRESUMPTION AS TO DOWRY DEATH- SECTION 113-B”

SUBMITTED

BY-

SUBMITTED TOKISHORE GAURAV KUMAR SINGH

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M R. VIJAY

2012 B.A.L.L.B 06

A SSISTANT

PROFESSORACKNOWLEDGEMENT

I take this as an opportunity to thank my Law of Evidence teacher Mr. Vijay Kumar Singh who gave me this enlightening opportunity to work upon this project. I acknowledge my deep gratitude towards her and would also like to take it as an opportunity to thank my friends and be grateful to my parents.

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Table of Contents Cases Reffered.................................................................................................................................4 Introduction......................................................................................................................................5 STATUTORY PROVISION UNDER THE INDIAN EVIDENCE ACT........................................6 113B. Presumption as to dowry death.........................................................................................6 Meaning of Cruelty......................................................................................................................7 "498A. Husband or relative of husband of a woman, subjecting her to cruelty..........................8 Presumption of existence of certain facts........................................................................................9 . Meaning of expression "soon before her death".........................................................................10 CASES...........................................................................................................................................12 CONCLUSION..............................................................................................................................14 CONCLUSION Suggestions And Solutions........................................................................................................14 Solutions

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Cases Reffered Alamgir Sani v. State of Assam, AIR 2003 SC 2108.....................................................................10 Baljeet Singh v. State of Haryana, AIR 2004 SC 1714:.................................................................11 Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209.....................................................................6 Hem Chand v. State of Haryana, AIR 1995 SC 120: (1994) 6 SCC 727.........................................9 Hira Lal v. State (Govt. of NCT) Delhi, AIR 2003 SC 2865.........................................................11 Kaliyaperumalv. State of Tamil Nadu..........................................................................................10 Kunhiabdulla v. State of Kerala, AIR 2004 SC 1731....................................................................10 Paniben v. State of Gujarat, AIR 1992 SC 1817............................................................................10 Pawan Kumar v. State of Haryana...................................................................................................7 Pawan Kumar v. State of Haryana, (1998) 3 SCC 309..................................................................12 Shanti v. State of Haryana, AIR 1991 SC 1226...............................................................................9 Sheikh Ishaque v. State of Bihar, 1995 Cr LJ 2682 (SC)................................................................9 State of Andhra Pradesh v. Raj Gopal Asawa, AIR 2004 SC 1933:..............................................10 State of Himachal Pradesh v. Nikku Ram........................................................................................5 State of Punjab v. Iqbal Singh..........................................................................................................7 Venugopal v. State of Karnataka, (1999) 1 SCC 216.....................................................................12

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Introduction The term “dowry” is defined in Section 2 of the Dowry Prohibition 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 parents 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. The problem of Dowry has always been persistent in India and is also rising at a rapid rate and so are the offences related to dowry demand. Dowry demands can go on for years together. The birth of children and a number of customary and religious ceremonies often tend to become the occasions for dowry demands. The inability of the bride’s family to comply with these demands often leads to the daughter-in-law being treated as a pariah and subject to abuse. In the worst cases, wives are simply killed to make way for a new financial transaction that is, another marriage. The Section 304-B, IPC has been inserted by the Dowry Prohibition Amendment Act, 1986 with a view of combating increased menace of dowry deaths. The Supreme Court in the case of State of Himachal Pradesh v. Nikku Ram1 interestingly started off the judgment with the words ‘Dowry, dowry and dowry’. The Supreme Court went on to explain why it has mentioned the words ‘dowry’ thrice. This is because demand for dowry is made on three occasions: (i) before marriage; (ii) at the time of marriage; and (iii) after the marriage. Greed being limitless, the demands become insatiable in many cases, followed by torture of the girl leading to either suicide in some cases or murder in some.

1 (1995)Cri LJ 4184 (SC). 5

The Supreme Court has explained in this case 2 that though the definition of ‘dowry’ is stated as ‘property or valuable security given or agreed to be given’ demands made after marriage could also be a part of the consideration because an implied agreement has to be read to give property or valuable securities, even if asked after the marriage as a part of consideration for the marriage when the Dowry Prohibition Act 1961 was enacted, the legislature was well aware of the fact that demands for dowry are made and indeed very often even after the marriage has been solemnized and this demand is founded on the factum of marriage alone. Such demands, therefore, would also be in consideration for marriage.

STATUTORY PROVISION UNDER THE INDIAN EVIDENCE ACT 113B. Presumption as to dowry death.

“When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.” Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code.3 This should be noted that, the provision is procedural, therefore, section 113A has retrospective application.4.

2 ibid 3 (45 of 1860). 4 Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209 6

A cont reading of Section 113-B of the Act and 304-B I.P.C.5 shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. 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’. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period soon before the occurrence. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. Meaning of Cruelty The Apex Court said that the incorporation of section 113A of the Evidence Act, in the statute book depicted a legal presumption though however the time period of within seven years of marriage is a prerequisite for such presumption. The circumstances in the contextual facts and the materials on record substantiate the need of section 113A and having regard to the language used in section 498A of the Indian Penal Code there cannot be any hesitation in coming to a finding that cruelty was writ large as regards the conduct of the appellant towards the deceased. The explanation to section 113A provides that 'cruelty' shall have the same meaning as under section 498A of the Indian Penal Code. With the situation existing and having regard to statutory presumptions the Supreme Court held that the circumstances pointedly point out the accused as guilty persons, as abettors and in the wake of the order of conviction which cannot be interfered

5 304-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."Explanation - For the purposes of this sub-section, "dowry" shall have the same meaning as in Section2 of the Dowry Prohibition Act, 1961 (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

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with as held in Pawan Kumar v. State of Haryana.6 Section 113B provides when the question is whether a person has committed the dowry death of a woman, and it is shown that, soon after her death, she had been subjected by that person to cruelty or harassment in connection with any demand for dowry, the court shall presume that such a person had caused the dowry death.The basic burden is on the prosecution to establish the requirement for application of the presumption, e.g., the incident took place within seven years of marriage.7 "498A. Husband or relative of husband of a woman, subjecting her to cruelty .-Whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation-For the purpose of this section "cruelty" means(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or any person related to her to meet such demand." A careful analysis of section 304B shows that this section has the following essentials:"(1) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances; (2) Such death should have occurred within seven years of her marriage; (3) She must have been subjected to cruelty of harassment by her husband or any relative of her husband; 6 (2001) 3 SCC 628 ; AIR 2001 SC 1324. 7 Baljeet Singh v. State of Haryana AIR 2004 SC 1714.

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(4) Such cruelty or harassment should be for or in connection with demand for dowry." Section 113B of the Evidence Act lays that if soon before the death such woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, that the court shall presume that such person committed the dowry death. The meaning of "cruelty" for the purposes of these sections can be gathered from the language as found in section 498A and as per that section cruelty" means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life etc. or full demand for any property or valuable security or is on of failure by her or any person related to her to meet such demand." As per the definition of "dowry" any property or valuable security given or agreed to be given either at or before or any time after the marriage, comes within the meaning of "dowry"8 It would be a travesty of justice if sympathy is shown when such cruel act is committed i.e., bride burning bride killing cases are on the increase and therefore serious view has to be taken. Section 304B, I.P.C. lays down minimum sentence be seven years, but awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.9Undue sympathy would be harmful to the cause of justice.10

Presumption of existence of certain facts The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case.In Kaliyaperumalv. State of Tamil Nadu11 it has been held that presumption under section 113B of the Evidence Act is a presumption of law. On proof of the essentials mentioned in that section, it becomes obligatory 8 Shanti v. State of Haryana, AIR 1991 SC 1226 (Paras 4, 5). 9 Hem Chand v. State of Haryana, AIR 1995 SC 120: (1994) 6 SCC 727;Sheikh Ishaque v. State of Bihar, 1995 Cr LJ 2682 (SC). 10 Paniben v. State of Gujarat, AIR 1992 SC 1817 (p. 1): (1992) 2 SCC 474 9

on the Court to raise presumption that the accused caused the dowry death. Mere because the accused was acquitted under section 302, I.P.C. that would not stand automatically rebutted about the presumption of dowry death if the conditions of section 113B of the Evidence Act are satisfied.12 A cont reading of section 113B of the Evidence and section 304B, I.P.C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Presumption of dowry death shall be raised only on proof of the following essentials: (1) Whether the accused has committed the dowry death of a woman, (2) Whether the woman was subjected to cruelty or harassment by her husband or his relatives, (3) Whether such cruelty or harassment was for, or in connection with any demand for dowry, (4) Whether such cruelty or harassment was soon before her death.13 Presumption against accused for dowry death under section 113B of the Evidence Act is dependant on conditions precedent by way of proved facts which the prosecution is required to bring on record. Merely because allegation of death within seven years of marriage was made, that cannot be ground to presume against the accused. Onus of proving the date of marriage cannot be shifted on the accused without the prosecution having proved the required preliminary facts.14 Meaning of expression "soon before her death" A cont reading of section 113B of the Evidence Act and section 304B of the Indian Penal Code shows that there must be material to show that soon before her death the victim was 11 AIR 2003 SC 3828 12 Alamgir Sani v. State of Assam, AIR 2003 SC 2108: (2002) 10 SCC 277. 13 State of Andhra Pradesh v. Raj Gopal Asawa, AIR 2004 SC 1933: (2004) 4 SCC 470: 2004 Cr LJ 1791; see Kunhiabdulla v. State of Kerala, AIR 2004 SC 1731. 14 Baljeet Singh v. State of Haryana, AIR 2004 SC 1714: (2003) 8 SCC 80: 2003 Cr LJ 3711: (2004) 3 SCC 122. 10

subjected to cruelty or harassment. This expression is very relevant when the said two sections are pressed into service. 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. A reference to expression "soon before" used in section 114 Illustration (a) of the Evidence Act is relevant. The expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.15 CASES 1) State of Punjab v. Iqbal Singh16 - In this case of the Supreme Court clarified the position as to why the necessity to introduce Section 113-B in the Indian Evidence Act was felt – The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. It must be ed that since crimes are generally committed in privacy of residential houses and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Section 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundation facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry. Section 113-B, Evidence Act provides that the court shall presume that such person had caused the dowry death.

15 Hira Lal v. State (Govt. of NCT) Delhi, AIR 2003 SC 2865. 16 AIR 1991 SC 1532 11

2) In Kaliyaperumalv. State of Tamil Nadu17 -it has been held that presumption under section 113B of the Evidence Act is a presumption of law. On proof of the essentials mentioned in that section, it becomes obligatory on the Court to raise presumption that the accused caused the dowry death. Mere because the accused was acquitted under section 302, I.P.C. that would not stand automatically rebutted about the presumption of dowry death if the conditions of section 113B of the Evidence Act are satisfied.18 3) Venugopal v. State of Karnataka – The case related to Section 113B, Unnatural death,Conviction under sections 304B and 498A of the Indian Penal Code.The Supreme Court observed that what is held proved against the appellant is that his wife died an unnatural death within two years of their marriage and that before her death, she was subjected to harassment by him because she was not bringing from her parents the remaining amount of dowry promised to him. As regards demand of dowry and harassment both the Courts below have thought it fit to accept the evidence. The High Court accepting the version of suicide thought it fit to acquit the appellant under section 302, Indian Penal Code and convict him under section 304B. The Supreme Court held that the High Court has correctly appreciated the evidence and has given good reasons for convicting the appellant under section 304B and section 498A of the Indian Penal Code.19 4) Pawan Kumar v. State of Haryana -The Supreme Court observed that according to section 8A of the Dowry Prohibition Act, 1961 the burden to explain for taking or abetting dowry, is placed upon such person against whom the allegation of committing an offence is made. Similarly under explanation to section 113B of the Evidence Act, which was also brought in by Act 43 of 1986, there is presumption that such death is on of dowry death. Thus the burden, if at all, was on the accused to prove otherwise.20

17 AIR

2003 SC 3828

18 Alamgir Sani v. State of Assam, AIR 2003 SC 2108: (2002) 10 SCC 277. 19 Venugopal v. State of Karnataka, (1999) 1 SCC 216: 1998 SCC (Cri) 1592. 12

CONCLUSION

Suggestions And Solutions

1. Awareness : The first and foremost solution to the problem of dowry deaths is awareness, taking into the illiteracy rates in India most of the women who are subject to the evil of dowry harassment are unaware of their legal rights. Thus the most important task is to create awareness this can be achieved by setting up awareness programmes and initiative in different sections of the society. 2. Education: This is another approach to increase awareness by educating people about such issues and imbibing such social issues in to the curriculum of primary education. 3. Stringent Punishments and speedy trials: trials Imparting Stringent punishments to the people convicted of such crimes can also help to create a deterrent effect. Also, speedy trial system also works in favor of the victim and acts as a deterrent. 4. Enforcement Mechanisms to be strengthened: strengthened We see that in the Indian scenario there are legislations like the Dowry Prohibition Act, the Indian Penal Code and also legislations like The Protection of Women from Domestic Violence Act are in place but still the problem of dowry demand continues, thus it is high time that the enforcement of these legislations should be strengthened.

20 Pawan Kumar v. State of Haryana, (1998) 3 SCC 309. 13