Scope and Application of Section 113B of Indian Evidence Act PDF

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Scope and Application of Section 113B of Indian Evidence Act, 1872 Contents  Abstract  Introduction  Definition of dowry  Dowry death  Need for amendment  Section 113B of the Indian Evidence Act, 1872.  Conditions  Essential ingredients  Burden of proof  Applicability  Scope  Cases  Sec...

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Sc opeandAppl i c at i onofSe c t i on 1 13 BofI ndi anEvi de nc eAc t ,1 87 2

Cont e nt s  Abstract

 Introduction  Definition of dowry  Dowry death  Need for amendment  Section 113B of the Indian Evidence Act, 1872.  Conditions  Essential ingredients  Burden of proof  Applicability  Scope  Cases  Sections 304B and 498A: Distinction  Section 113A  Conclusion  Bibliography

Abstract

This project on the ‘Scope and Applicability of Section 113B of Indian Evidence Act, 1872’ gives the definitions of ‘dowry’, ‘dowry death’, ‘cruelty’ and ‘soon before’. It gives a brief outline of the Dowry Prohibition Act, 1961. The need for the inclusion of this section is

mentioned in the project. The conditions, essential ingredients, applicability and scope of the section are also included. The burden of proof to rebut the presumption is on the accused.

The sections 304B and 498A of the IPC are also briefly outlined in the project. There is also some mention about section 113A of the Indian Evidence Act, which is like a sister to section 113B.

There some important cases related to this section mentioned also. The problems related to the application of this presumption are also given.

Introduction

Dowry is an evil system, which has been plaguing the society for many decades and centuries. Dowry death is an even bigger evil that exists today. It is a problem, which is so deep rooted in the society that sometimes people do not see it as the evil it actually is. We

have to go to all lengths to solve this problem.

One woman dies every hour due to dowry related reasons on an average in the country, which has seen a steady rise in such cases between 2007 and 2011, according to official data. National Crime Records Bureau (NCRB) figures state that 8,233 dowry deaths were reported in 2012 from various states. The statistics work out to one death per hour. The number of deaths under this category of crime against women was 8,618 in 2011 but the overall conviction rate was 35.8 per cent, slightly above the 32 per cent conviction rate recorded in the latest data for 2012.1

Seema Sirohi, in her interesting and relevant book Sita's Curse, Stories of Dowry Victims (HarperCollins, 2003), gives this humorous yet apt description of dowry as it has come to be today: Dowry has become a bribe paid to a husband to keep the bride's body and soul together. A woman is a mere conduit to a ‘good' dowry — the definition of good being flexible and expandable. The boys are on sale and there are few discounts in the marriage market. There is no ‘buy one, get one free' here. It is a transaction weighted against the woman. In fact, it is a sale where even after the price is paid, satisfaction is not guaranteed. And ironically, the sale is never complete with marriage — the buyer is expected to keep paying in cash and in kind during festivals, to celebrate childbirth and to mark ritualistic occasions. Any excuse is good enough to keep the one-way street laden and moving with gifts.

Definition of dowry Before going into the legislations in connection to the dowry prohibitions, we can first look in to what ‘dowry’ and ‘dowry death’ means. In simple language ‘dowry’ can be understood as a 1One woman dies every hour, Times of India.

payment, in cash or kind, given by the bride’s family to the groom while giving away the bride. And ‘dowry death’ is the death of a woman as a result of abuse done to her by the groom or his family in connection with demand for dowry. Gifts given without a precondition are not considered dowry, and are legal.

Section 2 of THE DOWRY PROHIBITION ACT, 1961 defines dowry as: `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 said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

By the Criminal Law (Second Amendment) Act 1983 (Act 46 of 1983) Chapter XXA was introduced in the Penal Code with Section 498A, creating a new offence of cruelty, which provides for punishment to the husband or relatives of they harass the women with a view to coerce her to meet any unlawful demand for property. Section 174 Cr.PC was also amended to secure Post Mortem in case of suicide or death of a woman within seven years of her marriage. In Shanti v. State of Haryana2 , the Supreme Court has stated that the term dowry is not defined in the IPC.

Section 304B of the Indian Penal Code defines ‘dowry death’ as:

Dowry death 2 1991(1)SCC 371.

(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.

The section also defines the punishment for the same.

(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.

(i)

There must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry death of a woman.

(ii)

The words “soon before” in section 113B cannot be limited by fixing time limit. It is left to be determined by the courts, depending upon the facts and circumstances of the case.

(iii)

Husband being the direct beneficiary can be inferred to have caused life of wife so miserable that she was compelled to commit suicide.

The expression “cruelty” has not been defined under section 304B but Section 498A defines it. “Cruelty” means: -

(a) Any willful conduct which is of such 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 meet any unlawful demand for any property or valuable security or any person related to her to meet such demand.

Need for the amendment

To eradicate the evil of dowry, The Dowry Prohibition Act was enacted in 1961. It came into force on July 1, 1961. This Act cannot be considered as a very successful one as the evil of demand for dowry and dowry death exists in large numbers even today. For these very reason certain new legislations have been introduced in order to make the Act more effective. Section 304-B of Indian Penal Code and Section 113-B of the Indian Evidence Act was inserted by the Dowry Prohibition (Amendment) Act, 1986. The need for insertion of section 113B in the IEA as also section 304B in the IPC has been stated in the 91st Report of the Law Commission (1983) on ‘Dowry Death and Law Reform’.

Section 113B of Indian Evidence Act, 1872

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.

It is a presumption of law. The provisions of this section, although mandatory in nature, simply enjoin upon the court to draw such presumption of dowry death on proof of circumstances mentioned therein which amounts to shifting the onus on the accused to show that the married woman was not treated with cruelty by her husband soon before her death. This was held in Krishna Lal v. Union of India.3.

Where the death was caused by strangulation and evidence available (in Hem Chand v. State of Haryana4) showed that dowry was being demanded and the accused husband was also 3 1994 Cri LJ 3472 4 (1994) 6 SCC 727

subjecting his deceased wife to cruelty, it was held that the presumption under this section applied with full force.

The law, both substantive and procedural, appears to have gone to the farthest limits to facilitate the punishment of guilty and create terror in minds which are criminally inclined. Thus the legislature has done all it could but the problem remains and perhaps assumes alarming proportions. The law may be adequate but the enforcement is below expectations with a marginal impact in society. A custom consistently followed and increasingly glamourized cannot be wished away by criminal sanctions and legislative contrivances. Law can be ahead of public opinion but, if the gulf is too wide, there is every likelihood of its nonobservance and violation.5

Thus, a publicity drive should be mounted to inform people about the level of the deleterious consequences of this practice and the enforcement scheme should be made preventive. Exemplary punishment including deprivation of social and political rights, a change in the definition of dowry to include customary gifts, and enforcement through its agencies may be some of the areas to be stressed and focused on.

Conditions:

In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:

(i)

The death of a woman was occurred by burns or bodily injury or had occurred otherwise than under normal circumstances;

(ii)

Such death should have occurred within 7 years of marriage;

(iii)

The deceased was subjected to cruelty or harassment by her husband or any relative of her husband;

(iv)

Such cruelty or harassment should be for or in connection with the demand for dowry; and

5 N.R. Madhava Menon : “Dowry Prohibition Act : Does the law provide solution or itself constitute the problem.” Indian Bar Review, Vol. 14(4), 1987.

(v)

To such cruelty or harassment the deceased should have been subjected to soon before her death.

If these are proved, the court ‘shall presume’ the person caused the dowry death. Of course, the words ‘shall presume’ mean that the court is, in such circumstances, bound to presume that such person had caused the dowry death but still the presumption is rebuttable.

Essential Ingredients

To attract the provisions of section 304B, 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 of dowry.”6

Expression ‘soon before death’: meaning of:

The expression ‘soon before her death’ used in the substantive section 304B, IPC and section 113B of the Evidence Act is present within the idea of proximity text. No definite period has been indicated and the expression ‘soon before her death’ is not defined. The determination of the period which can come within 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. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If 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.7 6 Prema S. Rao v. Yadla Srinivasa Rao, AIR 2003 SC 11. 7 Kaliyaperumal v. State of TN, AIR 2003 SC 3828. See also Yashoda v. State of MP, (2004) 3 SCC 98.

Quarrel not relating to dowry: - Where the quarrel between husband and wife was explained as a quarrel not relating to dowry, the burden is not sufficient to discharge the presumption under Section 113B of Evidence Act.8

Dispute stood resolved: - No presumption under section 113B would be drawn against the accused if it were shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty and harassment thereafter.9

Burden of proof

The burden is on the accused by leading positive evidence or establishing the circumstances to rebut the presumption. In the absence of such positive evidence or circumstances on behalf of the accused the Court is well within its power to base the conviction. Sections 304B and 498A in the IPC and 113A and 113B of the Evidence Act have been inserted to raise a presumption of certain facts in a given situation, which are otherwise difficult to be proved by leading evidence. As such these provisions should be given their true and full effect by the Courts than to find out some lame excuses for acquittal of the offender. The prosecution under section 304B of IPC cannot escape from the burden of proof that the harassment to cruelty was related to the demand for dowry and such was caused “soon before her death”. The word “dowry” has to be understood as it is defined in section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry, ie, before marriage, at the time of marriage and at an unending period. The customary payment in connection with the birth of child or other ceremonies, are not involved within the ambit of “dowry.”10

Applicability 8 1998(3) SCC 309. Pawan Kumar v. State of Haryana. 9 AIR 2000 SC 2324, Kans Raj v. State of Punjab. 10 Satvir Singh v. State of Punjab, AIR 2001 SC 2828: (2001) 8 SCC 633.

(i) The presumption shall be raised only on proof of the following essentials:(1) The question before the court must be whether the accused has committed the dowry death of a woman. (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3)Such cruelty or harassment was soon before her death. (ii) In dowry death cases and in most of such offences direct evidence is hardly available ans such cases are usually proved by circumstantial evidence. This section as well as section 113B of the IEA enact a rule of presumption, ie, if death occurs within seven years of marriage in suspicious circumstances. Thus may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show the death occurred within seven years of marriage. If the prosecution would fail to establish the death did not occur within seven years of marriage, this section will not apply.11

Scope

A perusal of section 304B clearly shows that of a married woman dies otherwise than under normal circumstances within seven years if her marriage and it is shown that soon before her death she was subjected to cruelty or harassment.

Cases

In Hemchand vs. State of Haryana12, the deceased was found dead in the matrimonial house. She had hung herself. During the post mortem report the doctor found that there were strangulation marks on her neck and hands. It was clear that she had died of strangulation but 11 Ratan Lal v. State of MP, 1994 Cr LJ 1684. See also, N.V. Satyanandam v. Public Prosecutor, AP High Court, AIR 2004 SC 1708. 12 AIR 1995 SC 120

the husband claimed that he found her dead when he had come back from the office. Before the incident the husband had demanded dowry from the wife’s family twice or thrice, had even sent her back to her father’s house and took her back only after the demanded amount was given to him. The deceased died in unnatural circumstances within seven years of marriage and was subject to cruelty by her husband. Therefore the accused was found to be guilty of dowry death as under Section 304B of the Indian Evidence Act. When a question arises whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. It can therefore be seen that irrespective the fact that whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of the marriage.

Section 304B and Section 498A- Distinction

Section 304B is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of pre-existing substantive offence. As a consequence, accused cannot be tried and punished for the offence of dowry death provided in section 304B within the minimum sentence of seven years’ imprisonment for an act done by them prior to creation of the new offence of dowry death; Soni Devrajbhai Babubhai v. State of Gujarat.13

Section 113A of the IEA 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 other 13 1991 Cr LJ (313) (SC).

circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Conclusion Over the years, Dowry has grown as a deep-rooted social evil. It has become bane for our society. It is the cause of atrocity o women and many unfortunate deaths of young ladies. It is an offence heinous, brutal and barbaric. The Hon’ble Supreme Court in Kamlesh Panjiyar v. State of Bihar14 has made the observation: 14 (2005)2 SCC 388

“Marriages are made on heaven, is an adage. A bride leaves the parental house for matrimonial home leaving behind sweet memories therewith s hope that she will see a new world full of love in her groom’s house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be daughter in law, a daughter in fact. Alas! The alarming rise in the number of cases involving harassment to the newly wed girls for dowry shatter the dreams. In-laws are characterized to be outlaws for perpetrating terrorism which destroys the matrimonial home. The terrorist is dowry, and it is spreading tentacles in every possible direction.”

Despite a 1989 amendment to Section 304B of the Indian Penal Code (IPC), shifting the burden of proof to the husband and his family, the process of getting a conviction remains fraught because of loopholes in the law and the inability of the victim's family to establish the link between dowry demands and the death. Often, it is impossible to take the dying declaration, as the victim is barely alive. Even when it is taken, the police handling is shoddy and careless, allowing a clever defense to tear it apart during trial.

As rightly pointed by the Supreme Court in Bhagwant Singh v. Commr. Of Police, Delhi15: “Young women of education, intelligence and character do not set fire to themselves to welcome the embrace of death unless provoked and compelled to that desperate step by the intolerance of their misery.”