Relevancy of article 304b in Dowry Death, Study Guides, Projects, Research of Criminal procedure

Download Relevancy of article 304b in Dowry Death and more Study Guides, Projects, Research Criminal procedure in PDF only on Docsity! lOMoARcPSD|23074926 Downloaded by ANKUR SINGH (21ba012@nluo.ac.in) “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 NATIONAL LAW UNIVERSITY ODISHA EVIDENCE PROJECT “PRESUMPTION AS TO DOWRY DEATH” SUBMITTED TO: NANDITTA BATRA RASHMI REKHA BAUG SUBMITTED BY: RATNESH MUKHRAIYA (2017BALLB073) WORD COUNT: 4951. [LAW OF EVIDENCE] PAGE 1 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 STATUTE Indian Evidence Act 1872, s 11B. 7 Indian Penal Code 1872, s 304B. 14 ONLINE SOURCES ‘Dowry Death: Ingredients Shall Be Proved By Prosecution Beyond Reasonable Doubt To Invoke Presumption’ LiveLaw (18 November 2016) <https://www.livelaw.in/dowry-death-ingredients-shall-proved- prosecution-beyond-reasonable-doubt-invoke-presumption-sc/ http://www.livelaw.in/dowry-death-ingredients-shall-proved- prosecution-beyond-reasonable-doubt-invokepresumption-sc/> accessed 21 August 2019. 10 Ankita Vashisht, ‘A Marriage Be It Valid Or Invalid: A Dowry Is A Dowry’ <https://www.manupatrafast.in/articles/ArticleSearch.aspx?sub=Women %20And%20Child%20Rights> accessed 18 August 2019. 13 Asamanya Roy, ‘Presumption as to dowry deaths under Section 113-B of Indian Evidence Act’, (Share your Essays, 1 May 2018) <http://www.shareyouressays.com/knowledge/presumption-as-to- dowry-deaths-under-section-113-b-of-indian-evidence-act/119152> accessed 29 August 2019. 7 Divyansh-Hanu, ‘Presumption as to dowry dearth’ <https://smhttp-ssl- 70271.nexcesscdn.net/wp-content/uploads/2018/02/Presumption-as-to- Dowry-Death-ByDivyansh-Hanu.pdf> accessed 15 August 2019. 11 The Tribune, ‘Presumption in dowry death should be backed by proof of cruelty: SC’ <http://www.tribuneindia.com/news/nation/presumption-in- 9 [LAW OF EVIDENCE] PAGE 4 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 dowry-death-should-be-backed-by-proof-ofcruelty-sc/325870.html> accessed 21 August 2019. NEWSPAPER ARTICLE ‘Dowry death cases: Presumption of guilt has to be backed by cogent evidence, says Supreme Court’ Scroll.in (20 November 2016). 14 PTI, ‘Presumption In Deaths Related To Dowry Must Be Backed By Proof Of Cruelty: SC’ Huffpost (20 November 2018). 17 PTI, ‘Presumption in dowry death to be backed by cruelty proof: Supreme Court’ The Indian Express (20 November 2016). 9 [LAW OF EVIDENCE] PAGE 5 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 RESEARCH QUESTIONS: 1. Why women are affected by dowry system? 2. What is the connection between dowry demands and suicides committed by women? 3. How presumption is taken in the cases of dowry death? 4. What is the ‘nature of presumption’ in dowry cases? 5. What are the judicially evolved principles/concepts through the cases over the years? METHODOLOGY The study is doctrinal in nature as a result of the researcher's descriptive and analytical methodology, and the pertinent information and data required for its completion have been gathered from both primary and secondary sources available in books, publications, legal cases, research papers, and websites. RESEARCH OBJECTIVES 1. To analyse the laws relating to dowry 2. To compare the Indian evidence act before and after 2005 3. To study about the dowry system in india 4. To study all the preventive measures available for dowry cases [LAW OF EVIDENCE] PAGE 6 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 I. CHAPTER 1: PRESUMPTION AS TO DOWRY DEATH The first national legislation to deal with the problem of dowry is the dowryprohibition Act, 1961 with the main motive to prohibit the heavy demand in dowry;government introduced the Dowry Prohibition Act on 1st July 1961. Unfortunately, thedowry system is still widespread in India despite the provision in the Dowry Prohibition Act1961. According to section 3 of the dowry prohibition Act 1961, the Act prohibits theDemand , payment or acceptance of a dowry, as consideration for the marriage, where dowrydefined as a gift demanded or given as a precondition for a marriage. So asking or giving ofdowry is punishable by an imprisonment of up to six months, a fine of up to fifteen thousandrupees or the amount of dowry, whichever is more, or imprisonment up to five year. Itreplaced several parts of anti-dowry legislation which had been enacted by various Indianstates. A. Dowry Death and Suicide Where the death of a woman is caused by any burns or bodily injury or happensotherwise than under normal circumstances within seven years of her marriage and it isshown that soon before her death she was subjected to cruelty by her husband or any relativeof her husband for or in connection with the demand for dowry, such death shall be calledDowry death and such husband or relative shall be deemed to have caused her death. The Dowry Prohibition Act goes to the utmost limit of creating criminal offence to prescribe the giving or taking of dowry as a consideration for marriage or demanding or abetting the same .The statute intended to eradicate the kind of corruption and commercialization of the concept of dowry. mention in the oldest of Hindu scriptures and is continued today with a greater zeal. In the case of KunjuMoideen v. Sayed Mohammedan3, amount paid by Mohammedan in connection with daughter’s marriage, to future bridegroom for buying of property in joint names of daughter and son-in-law is not dowry within the meaning of section4 2. Therefore, the giving or taking of property or valuable security must have some connection with the 3Kunju Moideen v Sayed Mohammed, AIR 1986 Ker 48 (40). 4Prem Kumar v State of Rajasthan, AIR 2009 SCC 1242. [LAW OF EVIDENCE] PAGE 9 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 marriage of the parties and a relation between the giving and taking of property or valuable security with the marriage of the parties is essential.5 Definition of dowry can be understood with the other sections of the DowryProhibition Act such as section 3 which, mentions to giving or taking dowry and section 4 Which , deals with a penalty for demanding dowry. This makes it clear that even demand ofdowry on other ingredient being satisfied is punishable. In Prem Kumar v. State of Rajasthan, the Supreme Court says that it is not alwaysessential that there be any agreement for dowry because section 3 prohibits the demand,acceptance or payment of a dowry, as consideration for the marriage, where dowry defined asa gift demanded or given as a precondition for a marriage. Taking or giving of dowry ispunishable by an imprisonment up to six months, a fine of up to fifteen thousand rupees orthe amount of dowry, whichever is more, or imprisonment up to five year. However inaccordance with section 3 of the Act, both the giver and receiver are pursued to be punished.Demanding of dowry also is punishable under section 4 of this Act.6 In S. Gopal Reddy v. state Andhra Pradesh,7 the Supreme Court stated that thedemand, though it was made prior to the marriage has to be considered as offence undersection 4 of the Dowry Prohibition Act. In this case the court stated that, mere demand ofdowry is enough to bring home the offence to an accused and that any demand of property ormoney made from the bride or her relatives by the bridegroom or his parents or vice versawould fall in the troubles of dowry under section 4 of Dowry Prohibition Act. The considerable point stated by the Supreme Court is that marriage in this situation would contain a future marriage also more special where the non-fulfillment of the demand of dowry leads to the bad result of the marriage not happening at all. 5 PTI, ‘Presumption in dowry death to be backed by cruelty proof: Supreme Court’ The Indian Express (20 November 2016). 6 The Tribune, ‘Presumption in dowry death should be backed by proof of cruelty: SC’ <http://www.tribuneindia.com/news/nation/presumption-in-dowry-death-should-be-backed-by-proof-ofcruelty- sc/325870.html> accessed 21 August 2019. 7 S Gopal Reddy v State Andhra pradesh, 1996 4 SCC 596. [LAW OF EVIDENCE] PAGE 10 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 B. Cruelty Relating to Dowry Traditionally woman is subjected to the whims and caprices of man, particularly whenit relates to the relationship of husband and wife it becomes worst. Woman in a family or arelationship with her husband sometimes becomes intolerable and miserable which drags thewoman towards suicide. Section 498-A of IPC comes into play on such situation.Section 498-A of IPC can only be invoked by a married woman against the husband or hisrelatives for cruelty. This section was added with the intention to protect women from dowryharassment , domestic violence and to end the offences of cruelty by husband or in- laws ofwife and providing punishment to the husband or relative of the husband of a womansubjecting to cruelty. section 498-A, manifests with four types of cruelty: Any conduct that islikely to drive a woman to commit suicide; any conduct which is likely to cause seriousinjury to the life, limb or health of the woman, harassment with the aim of forcing the womanor her relatives to give some property; or harassment because the woman or her relatives areeither incapable to yield to the demand for more money or do not give some share of theproperty.8 The Supreme Court stated that, Consequences of cruelty which are likely to drive awoman to suicide or to cause grave injury or danger to life, limb, or health, whether mental orphysical of the woman is necessary to be established in order to bring home the application ofsection 498-A of IPC. Section 498-A, IPC, manifests that whoever being the husband orrelative of the husband of a woman subject such woman to cruelty shall be punished withimprisonment for a term which may extend to three years and shall also be liable to fine. Clause (b) of the Explanation to that section shows that the harassment of the woman wheresuch harassment is with a view to coercing her or any person related to her to meet anyunlawful demand for property or valuable security or is on account of the failure by her orany person related to her to meet such demand would amount to cruelty for the purpose ofsection 498-A, IPC. 8 ‘Dowry Death: Ingredients Shall Be Proved By Prosecution Beyond Reasonable Doubt To Invoke Presumption’ LiveLaw (18 November 2016) <https://www.livelaw.in/dowry-death-ingredients-shall-proved- prosecution-beyond-reasonable-doubt-invoke-presumption-sc/ http://www.livelaw.in/dowry-death-ingredients- shall-proved-prosecution-beyond-reasonable-doubt-invokepresumption-sc/> accessed 21 August 2019. [LAW OF EVIDENCE] PAGE 11 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 II. CHAPTER 2 A. Presumption as to Dowry Death The term "dowry death" and "dowry murder" first began to be used around 1977-78when investigations revealed that deaths of married women, which for years had beencamouflaged by the police as accidents or suicides, were actually murders or abetted suicides,preceded by prolonged physical and mental torture by the husband and in-laws in connectionwith dowry demand. Instead of describing them as "wife murders" or "abetted suicides" thewomen's organizations began calling them "dowry deaths".14 Section 113B Penal Code has been added by the Dowry Prohibition (Amendment)Act No.43 of 1986 which was with effect from 19th November 1986. This was done in orderto solve the increasing problem of dowry death. The word dowry death has been defined in304B Indian Penal Code and the term dowry has been defined in Section 2 of the DowryProhibition Act 1961.15 The Section 113B Indian Evidence Act,1872 deals with the dowry death. Section113B states that: “Presumption as to dowry death -When the question is whether a personhas committed the dowry death of a woman and it is shown that soon before her death suchwoman 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 dowrydeath”. meaning as in Section 304-B, Indian Penal Code,1860.16 Section 304 B of the Indian Penal Code states that “Dowry death - (1) where the deathof a woman is caused by any burns or bodily injury or occurs otherwise than under normalcircumstances within seven years of her marriage and it is shown that soon before her deathshe was subjected to cruelty or harassment by her husband or any relativeor in 14 Indian Penal Code 1872, s 304B. 15 Ibid. 16 Ankita Vashisht, ‘A Marriage Be It Valid Or Invalid: A Dowry Is A Dowry’ <https://www.manupatrafast.in/articles/ArticleSearch.aspx?sub=Women%20And%20Child%20Rights> accessed 18 August 2019. [LAW OF EVIDENCE] PAGE 14 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 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.17 B. Nature of Presumption Section 113B uses the word "shall" and not 'may' so it is a presumption of law .On proof of the essentials mentioned above, it becomes obligatory on the court to raise a presumption that the accused caused the "dowry death". The court has no discretion to draw the presumption under this section if the essential ingredients are proved then they are bound to draw this presumption under S.113B of the Indian Evidence Act. The legislature has made this presumption a mandatory presumption of law, of course, rebuttable, Though this may sound to be a violent departure from the accepted norms of criminal law. The legislature thought that the presumption under Section 113B should be a mandatory presumption if the evil of dowry deaths is to be eradicated from the roots of our society. If it is proved that soon before her death, the victim was subjected to cruelty or harassment in connection of a dowry demand, then the presumption under s 113B can be raised. If the prosecution has failed to prove the case under s 304B, IPC, even then, no presumption can be raised under 113B of the Indian Evidence Act. So 304B is an integral part of 113B of the Indian Evidence Act. Cruelty need not be physical. Even mental torture in a given case would be a case of cruelty or harassment under 304B and 498A. In Nem Chand v State of Harayana18 the parties were married on 24-5-1962. After staying at the matrimonial home for two months, she returned to her parents' house and told them that her husband wanted a television set and a fridge. Her father gave her a sum of Rs. 6,000 and she left for her matrimonial home. Her husband again demanded a sum of Rs. 25,000 for purchasing a plot. There after the husband took his wife to her parents' home saying that he would not take her back unless a sum of Rs. 25,000 was paid to him. After one year he took her back but he did not give up his demand for Rs. 25,000. Soon thereafter she left for her parents home and came back with a sum of Rs. 15,000 with a promised that the rest of the amount would be would be paid later on. She died of strangulation in her husband's home. The trial court found accused guilty. Supreme Court held that accused should be convicted. 17 ‘Dowry death cases: Presumption of guilt has to be backed by cogent evidence, says Supreme Court’ Scroll.in (20 November 2016). 18 Nem Chand Jain v State Of Haryana, Cr Misc No 18391 of 2012. [LAW OF EVIDENCE] PAGE 15 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 In a Shanti v State of Harayana19, where the death took place within seven years of marriage, the in-laws of the deceased did not inform deceased's parents about the death but hurriedly cremated the deceased. The prosecution succeeded in establishing cruel treatment towards the victim. The death could not be said to be natural death and the presumption under s 113B of the Evidence Act was attracted. The cruelty or harassment should be meet to the victim soon before the victim's death to bring under this presumption. In a case , there was dispute between parties regarding dowry and that wife, was sent back to her parent's home and was again taken back to her matrimonial home after a 'panchayat' which was held to resolve the dispute. This event happened 10-15 days prior to the occurrence of the incident as the death of the deceased. However, there was no evidence, which indicate that she was treated with cruelty or harassed with the demand for dowry during the period of between her taken back home to and her tragic end. In these circumstances, the presumption for dowry death cannot be raised. The court held that the, presumption of 113B could not be brought in. In another case Mangal Ram &Anor v State of Madhya Pradesh,20 the wife committed suicide within five years of her marriage. She was living with her parents for about two-three years. Within one month of returning to her matrimonial home, she jumped in to a well, and committed suicide. Harassment by husband and her in-laws during this month has not been proved beyond reasonable doubt. In these circumstances, the presumption cannot be raised against the husband. In another example Prem Singh v State of Harayana, there was, unnatural death of married woman in her husband's house within seven years of her marriage. Evidence showed that the husband had harassed her for not bringing sufficient dowry. Further, the medical evidence showed that the deceased died due to asphyxia as a result of smothering which is an unnatural death. No explanation offered by the husband as to how the deceased sustained several injuries on her body. The Court held, in the circumstances, the presumption of dowry death could be raised against the husband. As a result the High Court was justified in reversing his acquittal. 19 Smt Shanti v State Of Haryana, 1991 AIR 1226. 20 Mangal Ram v State of Madhya Pradesh, 1999 CriLJ 4342. [LAW OF EVIDENCE] PAGE 16 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 In the case of Keshab Chandra Pandey v State24 the presumption under s 113B of the Indian Evidence Act shall be raised only on the proof of the following essentials: (i) Whether the accused has committed the dowry death of a woman. So the presumption can be raised if the accused is being tried for an offence under s 304B, Indian Penal Code. (ii) The woman was subjected to cruelty or harassment by her husband or his relatives. (iii) Such cruelty or harassment was for or in connection with the any demand for dowry. (iv) Such cruelty or harassment was soon before her death. 24 M.C. Sarkar, Law on Evidence, (16th ed, Wadhwa and Company) 1991. [LAW OF EVIDENCE] PAGE 19 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 CONCLUSION The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. It must be remembered 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 marriage19. 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. Under S. 113-B, when the question is whether a person has committed the dowry death of a woman, and it is shown that, soon before 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 term “dowry death” has the same meaning as in S. 504-B of the Indian Penal Code.) S. 113-B raises a presumption of guilt against any person who has been proved to have subjected the deceased woman, soon before her death, to cruelty or harassment, in connection with dowry. Needless to state, it is a presumption intended to be raised against the husband and his relatives in the case of dowry deaths, which have become increasingly common in India. [LAW OF EVIDENCE] PAGE 20 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 ANNOTATED BIBLIOGRAPHY BOOKS KD GAUR, TEXT BOOK ON INDIAN EVIDENCE ACT, UNIVERSAL LAW PUBLISHING Prof. KD Gaur has written an authoritative book on Law of Evidence. With this object in view, the author has endeavoured to write this book so that long felt need of students, teachers, members of the Bench and Bar, prosecutors, defence, police personnel, NGO’s and those interested in the administration of justice be met. The importance of an exhaustive and standard text book on Law of Evidence can be visualized from the very fact that Law of Evidence is applicable to both civil and criminal cases including local and special Acts. ABHINANDAN MALIK, VEPA P. SARATHI’S LAW OF EVIDENCE, EASTERN BOOK COMPANY Vepa P. Sarathi’s Law of Evidence is a classic work on the subject that clarifies and explains the complicated rules governing the law of evidence in a straightforward and easily comprehensible style. While maintaining the flair of this admired work, the author has updated the current seventh edition of the book with the latest case laws and statutory changes which have happened since the last edition. RATANLAL & DHIRAJLAL, LAW OF EVIDENCE, WADHWA PUBLICATION NAGPUR It adopts an integrated approach and the provisions of the Indian Penal Code, 186 and the Code of Criminal Procedure, 1973 are referred to wherever necessary for better understanding of the complex legal issues. Technical rules of evidence have been illustrated and explained in a lucid, comprehensive and systematic manner. This edition has been [LAW OF EVIDENCE] PAGE 21 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 S HANTI V S TATE OF H ARAYANA Where the death took place within seven years of marriage, the in-laws of the deceased did not inform deceased's parents about the death but hurriedly cremated the deceased. The prosecution succeeded in establishing cruel treatment towards the victim. The death could not be said to be natural death and the presumption under s 113B of the Evidence Act was attracted. However, there was no evidence, which indicate that she was treated with cruelty or harassed with the demand for dowry during the period of between her taken back home to and her tragic end. In these circumstances, the presumption for dowry death cannot be raised. The court held that the, presumption of 113B could not be brought in. M ANGAL R AM & A NOR V S TATE OF M ADHYA P RADESH The wife committed suicide within five years of her marriage. She was living with her parents for about two-three years. Within one month of returning to her matrimonial home, she jumped in to a well, and committed suicide. Harassment by husband and her in-laws during this month has not been proved beyond reasonable doubt. In these circumstances, the presumption cannot be raised against the husband. P REM S INGH V S TATE OF H ARAYANA There was, unnatural death of married woman in her husband's house within seven years of her marriage. Evidence showed that the husband had harassed her for not bringing sufficient dowry. Further, the medical evidence showed that the deceased died due to asphyxia as a result of smothering which is an unnatural death. No explanation offered by the husband as to how the deceased sustained several injuries on her body. The Court held, in the circumstances, the presumption of dowry death could be raised against the husband. As a result the High Court was justified in reversing his acquittal. H EM C HAND V S TATE OF H ARYANA Victim was married to accused , a police officer, on 1982. She was sent back to her maternal home whenever the persistent dowry demands were not met. On 1984, accused left victim with her parents to get some money. 1997, victim died of strangulation in her matrimonial home. The husband took her body to -his village. Victim father alleged that his daughter had been murdered for dowry. The police sent the highly decomposed Since the husband had [LAW OF EVIDENCE] PAGE 24 “PRESUMPTION AS TO DOWRY DEATH” lOMoARcPSD|23074926 subjected the wife to cruelty before her death, the presumption that he had caused her death, offered by section 113 B of the Indian Evidence Act, could be made. K ESHAB C HANDRA P ANDEY V S TATE The presumption under s 113B of the Indian Evidence Act shall be raised only on the proof of the following essentials: (i) Whether the accused has committed the dowry death of a woman. So the presumption can be raised if the accused is being tried for an offence under s 304B, Indian Penal Code. (ii) The woman was subjected to cruelty or harassment by her husband or his relatives. (iii) Such cruelty or harassment was for or in connection with the any demand for dowry. (iv) Such cruelty or harassment was soon before her death. [LAW OF EVIDENCE] PAGE 25