304B. DOWRY DEATH
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation.—For the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]
What is Dowry?
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).
INGREDIENTS FROM THE SECTION.
1. Death.
2. BY ANY BURNS OR BODILY INJURY OR OCCURS OTHERWISE THAN UNDER NORMAL CIRCUMSTANCES.
3. WITHIN 7 YEARS OF HER MARRIAGE.
4. IT IS SHOWN THAT SOON BEFORE HER DEATH.
It should be shown that 'soon before' her death, the woman was subjected to cruelty or harassment by her husband or any relative of her husband.
The prosecution to establish that any cruel treatment or harassment was in close proximity immediately preceding her death.
'Soon before' is a relative term, and it would depend on the circumstances of each case and no strait jacket formula can be laid down. The Determination of ‘soon before’ is left to be determined by the court.
The importance of PROXIMITY TEST is both for the proof of an offence of dowry death, as well as for raising a presumption under s 113B of the Evidence Act.
A) In Keshab Chandra Pande v State 1995
Accused and deceased Married in January 1989. Differences arose due to non-fulfilment of dowry demand made at time of marriage. Accused Assaulted deceased in June 1989 with an iron rod. Deceased went to stay with parents.
She returned to husband’s house in January 1990 after mediation by well-wishers.
In March 1991 - Accused left deceased in her parent's house. After, about a fortnight, she came back to the house of the accused. Two days after that she died. There was No evidence that after her return in January 1990 she wassubjected to any cruelty or harassment by the accused.
Prosecution - Assault by iron rod in June 1989 which left indelible scar in her mind.
Court - If she was so much upset/affected by that assault she could not have waited for two years to vent out her feelings, that too after having reconciled in January 1990. Court held that there was no proximate link between the cruelty based on dowry demand and the concerned death. The Orissa High Court acquitted the accused.
B) In Uday Chakraborty v State of West Bengal
The Wife of the accused died of burn injuries within two years of her marriage, the Supreme Court considered the entire period of two years as 'soon before' as the marriage did not survive even for two years.
The expression 'soon before', thus, is not synonymous with the term 'immediately before'. It normally implies that the interval should not be much between the concerned cruelty or harassment and the death in question.
Cruelty should not be remote in time to become stale enough not to disturb mental equilibrium of the woman concerned. It should neither be too late nor too stale before the date of death of the victim.
5. SHE WAS SUBJECTED TO CRUELTY OR HARASSMENT.
304B does not explain the term 'cruelty'. However, Sec - 498A, IPC, explains as to what amounts to 'cruelty'.
In Shanti v State of Haryana, the Supreme Court held that ss 304B and 498A are not mutually exclusive. And the meaning of 'cruelty' given in explanation to s 498A, having regard to the common background to ss 304B and 498A, can be applied to s 304B.
Section 498A explains cruelty to mean:
(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 is on account of failure by her or any person related to her to meet such demand. The explanation of cruelty as given in s 498A can be relied on for the purposes of s 304B as well.
6. BY HER HUSBAND OR ANY RELATIVE OF HER HUSBAND.
State of Punjab V. Gurmit Singh 2014
‘Relative of Husband’ means – only such persons who are related by blood, marriage, or adoption. People other than these can be prosecuted for other offences e.g. Sec-306
Therefore, in this case brother of chichi (Aunt) can’t be accused of dowry death – 304B.
7. FOR OR IN CONNECTION WITH ANY DEMAND FOR DOWRY
Ø WHETHER A PRIOR AGREEMENT FOR DOWRY IS REQUIRED OR NOT?
A. In Nunna Venkateswarlu v State of Andhra Pradesh 1996
The deceased had consumed pesticides and died an unnatural death after five years of marriage. There was evidence that she was tortured continuously and was harassed to sell the five acres of land gifted to her by her father at the time of marriage and to give the sale proceeds to her husband. Unable to bear the harassment, she committed suicide. There was Ample evidence - demands for dowry were made.
High Court - Prosecution has to prove - Prior agreement by the parents of the girl to the husband or the in-laws to pay a valuable security, money, etc. Unless it was proved the accused would not be liable under Sec- 304B, IPC. Accused convicted under ss 498A and 306, IPC, and not under s 304B. High court was influenced by the words 'agreed to be given' in the definition of dowry in the Dowry Prohibition Act 1961.
B. However, in State of Himachal Pradesh v Nikku Ram 1995
The Supreme Court started off the judgment with the words 'Dowry, dowry and dowry'. This is because demand for dowry is made on three occasions:
(i) before marriage;
(ii) at the time of marriage;
(iii) after the marriage.
The demands become insatiable in many cases, followed by torture of the girl leading to either suicide in some cases or murder in some.
The Supreme Court has explained in this case that 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 Act was enacted, the legislature was well aware of the fact that demands for dowry are made and indeed very often even after the marriage has been solemnised, and this demand is founded on the factum of marriage alone. Such demands, therefore, would also be consideration for marriage.
C. In Pawan Kumar v State of Haryana
The Supreme Court held:
The word 'agreement' referred to in section 2 has to be inferred on the facts and circumstances of each case. The plea that conviction can only be if there is agreement for dowry is misconceived. This would be contrary to the mandate and object of the Act.
'Dowry' definition is to be interpreted with the other provisions of the Act including section 3, which refers to giving or taking dowry, and section 4- penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for TV and scooter are made from the bride after marriage or from her parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of section 304B , IPC . It is not always necessary that there be any agreement for dowry. In the instant case, After a few days of the marriage, there was demand of scooter and fridge, which when not being met, led to repetitive taunts and maltreatment. Such demands cannot be said to be not in connection with the marriage. Hence, the evidence qualifies to be demand for dowry in connection with the marriage and in the circumstances of the case constitutes to be a case falling within the definition of 'dowry' under section 2 of 1961 and section 304B.
D. The APPASAHEB DICTUM - Appasaheb & anr V. State of Maharashtra 2007
The apex court ruled that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a 'demand for dowry'. The court set aside conviction of the appellant under s 304B.
This Appasaheb dictum was used in a lot of other cases by the courts.
In Bachni Devi v State of Haryana 2011
Supreme Court clarified that the Appasaheb dictum cannot be read as an absolute proposition that a demand for money or some property on account of some financial stringency or meeting some urgent domestic expenses cannot be termed as a demand for dowry and stressed that the dictum should be understood in its factual settings.
It accordingly refused to treat the demand of a motorcycle for starting milk-vending business as 'demand for dowry'. It ruled that a demand for property or valuable security constitutes 'demand for dowry' if it has direct or indirect nexus with marriage. The cause or reason for such demand is immaterial.
Ø PRESUMPTION AS TO DOWRY DEATH
At the time of introducing the offence of dowry death in the IPC, the legislature had simultaneously brought in amendments to the Evidence Act . Section 113B of the Evidence Act provides for presumption as to dowry death. As per this section:
Section 113B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman 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 such dowry death.
Explanation - For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860.)
This presumption will arise only when the prosecution has established the basic element of demand for dowry.
The initial burden lies on the prosecution to prove the ingredients of s 304B, including the fact that
A. Soon before her death,
B. She had been subjected by the accused persons to cruelty or harassment
C. for, or in connection with, any demand for dowry.
If the prosecution succeeds in discharging this initial burden, then provisions of Sec- 113B of the Evidence Act come into play and can be used for drawing the presumption against the accused that he has caused dowry death.
The presumption, therefore, needs to be invoked by having regard to the proximity of the cruelty or harassment and death of the victim. It cannot be invoked merely because the alleged death occurred within seven years of her marriage.
Once statutory requisites are established, a court is bound by law to invoke the presumption as Sec -304B, IPC, and s 113, Evidence Act, use the words 'shall presume'.
And it is for the accused to rebut the presumption. If he fails, the court is bound to act upon it.
The presumption cannot be said rebutted by the accused even if his co-accused, put on trial with him under the said presumption, has been given benefit of doubt and acquitted of the charge of dowry death, if primary evidence is against him.
The period of operation of the presumption is only seven years from the date of marriage of the deceased woman. In case of death of married woman resulting from cruelty or harassment by her husband or his relatives after seven years of her marriage, the husband or his relatives, as the case may be, cannot be presumed perpetrator of the death. If it is proved that cruelty or harassment by her husband or his relatives for dowry was the causal factor of her death, liability of the perpetrator would be governed by s 498A of the IPC.
The presumption, thus, makes the traditional criminal law dictum that an accused is presumed to be innocent unless proved guilty inapplicable to dowry death cases. It helps the prosecution to overcome the difficulty proving case against the accused.
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Very informative!
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