The Law Point
In Ajayakumar and Another v. State of Kerala, [Crl. A. No. 500 of 2007], the Kerala High Court held that merely because an accused is liable for an offence under Section 498A of the IPC and the woman subsequently, committed suicide, it does not mean that he must be held liable for the offence of abetment to suicide under Section 306 of the IPC.
The accused person married the victim. During the marriage, he was to be given dowry within 2 years of marriage. The accused person committed cruelty and harassed her to demand dowry which was not paid even after one year of marriage. Also, the mother (Accused no. 2) of the accused told victim to commit suicide if she cannot pay her dowry. Thereafter, the victim committed suicide. Hence, an FIR was registered against the accused under Sections 304B and 306 read with Section 34 of the Indian Penal Code, 1860 (‘IPC’). Later, the accused was convicted by the Trial Court for the same offences. However, the prosecution evidence failed to establish that the mother of the accused, who is also impleaded as accused in this case, committed cruelty and harassment upon the deceased. Therefore, Kerala High court upheld the conviction of the accused person under Sections 304B and 306 of the IPC but the conviction of the mother of the accused person, who is also impleaded as another accused, is set aside. Section 306 of the IPC makes the person liable who abets the commission of suicide, liable for imprisonment of either description for a term extending up to ten years and a fine.
Dowry Death: Ingredients of Section 304B IPC
Section 304 B (1) of the IPC
Section 304B (1) of the I.P.C, 1860 has 2 limbs.
- First limb defines dowry death and
- The second limb deals with the legal consequence of occurrence of dowry death namely, that the husband or such other relative of the husband who soon before the death of the lady was found to have subjected the lady to cruelty or harassment shall conclusively be held to be guilty of the offence of dowry death.
In the decision reported in [AIR 2004 SC 1714], Baljeet Singh v. State of Haryana the Apex Court set out the condition precedent for establishing offence under Section 304B of I.P.C as under:
a) That a married woman had died otherwise than under normal circumstances.
b) such death was within 7 years of her marriage; and
c) the prosecution has established that there was cruelty and harassment in connection with the demand for dowry soon before her death.
The ingredients to constitute an offence under Section 304B IPC (dowry death) are:
(a) There was an unnatural death of a woman.
(b) that woman had been married within 7 years preceding her aforesaid unnatural death, and
(c) soon before her death she was subjected to cruelty or harassment.
Additionally:
(i) such cruelty or harassment had been caused to her by her husband or husband’s other relative.
(ii) that such cruelty or harassment was for or in connection with any demand for dowry.
Role of Section 113 B of Indian Evidence Act
In all dowry death cases the standard of appreciation of evidence must be in the light of the provisions contained in Section 113A of the Evidence Act
It is relevant to note that when an offence under Section 304B of I.P.C is alleged, the same has a proximate nexus with Section 113B of the Evidence Act, 1872 which reads as follows:
Section 113B of the Indian Evidence Act: 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 the dowry death. Section 113B of the Evidence Act in the later part mandates drawing of presumptions that the husband or relative of the husband of the victim girl have caused her death and this presumption of dowry death corresponds to presumption as to dowry death envisaged in Section 113B of the Evidence Act, 1872.
Explanation: — For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code.”
Section 304B IPC read with Section 113 A and 113B of Indian Evidence Act
In the decision reported in [2015 (8) Scale 270 : AIR 2015 SC 3043 : 2015 Crl.J 4021 (SC)], V.K.Mishra v. State of Uttarakhand, a three Judge Bench of the Apex Court while dealing with Section 304B of IPC and section 113B of the Indian Evidence Act, inter alia, held, after referring another decision reported in [AIR 2015 SC 980], Shersing alias Partapa v. State of Haryana that the word `shown’ instead of `proved’ in Section 304B of I.P.C indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability.
- In other words, `shown‘ would have to be read upon to mean `proved‘, but only to the extent of preponderance of probability.
- It was held further that in a case of demand for dowry, independent and direct evidence about the occurrence is ordinarily not available. That is why the legislature had introduced Section 113A and 113B in the Evidence Act by permitting presumptions to be raised in certain circumstances.
In another decision of the Apex Court reported in [AIR 2016 SC 5313: 2016 KHC 6768] Baijnath & Ors. v. State of Madhya Pradesh, the Apex Court considered the legislative mandate to invoke the presumption under Section 113B of the Evidence Act and held as under:
“33. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in S.113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
- The legislative premature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person Crl.Appeal No.500/2007 17 charged, cannot be overeased to gloss – over and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty.
Connection to be established in dowry death- “Soon before clause.”
The scope and purport of S.304B of the Code and S.113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of S.304B as in Shindo Alias Sawinder Kaur and another Vs. State of Punjab – 2011 (11) SCC 517 and echoed in Rajeev Kumar Vs. State of Haryana – 2013 (16) SCC 640.
One of the essential ingredients of dowry death under S.304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under S.113B of the Act.
The decision of the apex Court in K.Prema S.Rao v. Yadla Srinivasa Rao – 2003 (1) SCC 217 to the effect that to attract the provision of Section 304B of the Code, 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”.
Similarly, in another decision reported in [AIR 2014 SC 227: 2013 (13) Scale 410], Rajeev Kumar v. State of Haryana, the Hon’ble Supreme Court referred another decision reported in [AIR 2003 SC 11], K.Prema S.Rao & anr. v. Yadla Srinivasa Rao & ors. and held as under:
“One of the main ingredients of the offence of dowry death under Crl. Appeal No.500/2007 18 section 304-B of the Indian Penal Code, 1860 which is required to be established is that “soon before the death” the accused must have subjected a woman to cruelty in connection with demand of dowry.”
In the decision reported in [2015 SC 1359], Rajinder Singh v. State of Punjab, the Apex Court held that “soon before” in Section 304B, is not synonymous with “immediately before”. The same proposition is laid by the Apex Court in another decision reported in [AIR 2021 SC 2627 : 2021 KHC 6284], Satbir Singh & anr. v. State of Haryana.
In another decision reported in [AIR 2009 SC 913], Baldev Singh v. State of Punjab the expression “soon before her death” used in the substantive section of 304B of I.P.C and Section 113B 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 expression “soon before” in Section 114 illustration (a) of the Evidence Act is relevant. It lays down that a man who is in the possession of goods “soon after theft” is either the thief or has received the goods knowing the same to be stolen, unless he can account for his possession. The determination of the period which can come with 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 concerned cruelty or harassment and the death in question.
In the same decision, in para.17 it was observed as under:
“The law on Section 304-B IPC and Section 113-B of the Evidence Act has been pithily summarized as follows:
(1) Section 304-B IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.
(2) The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304B IPC. Once these ingredients are satisfied, the rebuttable presumption of casualty, provided under Section 113B of the Evidence Act operates against the accused.
(3) The phrase “soon before” as appearing in Section 304B IPC cannot be construed to mean “immediately before”.
The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.
(4) Section 304B IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non-categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.”
In the said judgment while confirming the conviction imposed by the trial court and the High Court under Section 304B and under Section 498A of I.P.C, the Apex Court also upheld acquittal found by the High Court under Section 306 of I.P.C.
In a latest decision of the Apex Court reported in Crl.Appeal No.500/2007 22 [(2022) 5 SCC 401], State of Madhya Pradesh v. Jogendra & anr., 3 Bench of the Apex Court considered the menace of dowry death while dealing with a case alleging commission of offences under Section 304B, 498A and Section 306 of I.P.C. In the said case also the Apex Court in para.9 set forth the following as the most fundamental constituent for attracting the provisions of Section 304B of I.P.C.
(i) that the death of a woman must have been caused by burns or bodily injury or occurred otherwise than under normal circumstance.
(ii) that such a death must have occurred within a period of seven years of her marriage.
(iii) that the woman must have been subjected to cruelty or harassment at the hands of her husband, soon before her death; and
(iv) that such a cruelty or harassment must have been for or related to any demand for dowry.
Thus when the four essentials required to prove offence under Section 304B, viz;
- death of a woman should have occurred otherwise than under normal circumstances.
- within 7 years of her marriage;
- soon before her death she should have been subjected to cruelty or harassment by the accused, and
- in connection with any demand for dowry to presume that the accused has committed dowry death.
Once the prosecution succeeded in establishing that the death of the lady was the outcome of cruelty or harassment by her husband or any relative of her husband soon before her death within a period of 7 years of her marriage, if the accused wants protection from the said catch, the burden is on him to disprove and if he fails to rebut the presumption under Section 113B of the Evidence Act, the court is bound to act on it.
Section 113B of the Evidence Act, casts a reverse burden on the accused to disprove the prosecution case.
Standard of Proof under reverse burden
Then the question is, what is the standard of proof in cases involving reverse burden?
The Apex Court considered the same in the decision reported in [(2008) 16 SCC 417: 2008 KHC 5054], Noor Aga v. State of Crl.Appeal No.500/2007 24 Punjab & anr., while interpreting the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, wherein also a reverse burden is cast upon the accused. In this judgment, the Apex Court considered the draconian provisions in the NDPS Act and it was held that though the Act contains draconian provisions, it must, however be borne in mind that the Act was enacted having regard to the mandate contained in international conventions on narcotic drugs and psychotropic substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, would not render the impugned provisions unconstitutional. It was concluded in the said judgment that Sections 35 and 54 are not ultra-vires the Constitution of India and ultimately it has been held that the constitutionality of a penal provision placing burden of proof on the accused must be tested on the anvil of the State’s responsibility to protect innocent citizens.
Even then, an initial burden exists upon the prosecution and only when it stands satisfied, the reverse burden would arise, and the standard of proof required to prove the guilt of the accused on the prosecution is `beyond all reasonable doubt’. But it is `preponderance of probabilities on the accused. Thus, the law is clear on the point that proof of reverse burden shall be discharged on the basis of `preponderance of probabilities’.
In the decision reported in [AIR 2001 SCC 2828], Satwir Singh v. State of Punjab, the Apex Court considered the meaning of dowry, and it was held that some customary payment 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.
Section 306 IPC
Coming to Section 306 of I.P.C, the ingredients to constitute an offence under Section 306 may be useful. Section 306 provides as under:
“306. Abetment of suicide:If any person commits suicide, whoever abets the commission of such suicide, shall be punished with Crl.Appeal No.500/2007 26 imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Classification of Offence: The offence under this section is cognizable, non-bailable, non-compoundable and triable by Court of Session.
In the decision reported in [AIR 1989 SC 378: (1989) 1 SCC 244 : 1989 SCC (Cri.) 105 : 1989 CriLJ 809], Wazir Chand & anr. v. State of Haryana, the Apex Court held that in order to convict any person for instigating any person to commit suicide, it has to be established that the victim committed suicide.
In the decision reported in [(2001) 9 SCC 618 : 2002 SCC (Crl) 1088], Ramesh Kumar v. State of Chattisgarh, the Apex Court held that Sections 498A and 306, I.P.C are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section Crl.Appeal No.500/2007 27 498A, I.P.C, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned.
Coming to Section 306, wherein also presumption of abetment is embodied under Section 113A of the Evidence Act, 1872. Section 113A of the Evidence Act, 1872 is extracted hereunder:
“Section 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.
Explanation: — For the purposes of this section, “cruelty” shall have the same meaning as in section 498A, Indian Penal Code, 1860.”
In the decision reported in [2014 CrLJ 2425 : AIR 2014 SC 1782], Mangat Ram v. State of Haryana, the Apex Court held that a woman may attempt to commit suicide due to various reasons, such as depression, financial difficulties, disappointment Crl.Appeal No.500/2007 28 in love, tired of domestic worries, acute or chronic ailments and soon and need not be due to abetment.
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