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Table of Cases:

Devinder @ Kala Ram and ors. v. State of Haryana. (2013) Cri. L.J. 14

S.C.

Kans Raj v. State of Punjab. 2000 Cri. L.J. 2993 SC.

Mishriya v. State of Rajasthan. 1985 Cr. L.R. (Raj.) 542

Preeti Gupta & ors. v. State of Jharkhand. (2010) IV Cri. L.J. 4303 (SC)

Satvir Singh v. State of Punjab. 2001 Cri. L.J. 4625 SC.

Suresh v. State of Rajasthan. 1999 Cri. L. J. 1787 (Raj.)

Uday Chakrobarthy v. State of West Bengal. (2010) IV Cri. L.J. 3826 SC.

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TOPIC:The case deals with the sections 304-B and 489-A of Indian Penal Code, 1860.

“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 purpose 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.”

This section was inserted in the Penal Code by an amendment in 1986. First sub-section

defines and explains as to what constitutes Dowry death and second sub-section provides

for the punishment. The ingredients essential for the offence are:

1. Death is caused by burns or bodily injury or under circumstances which are not

normal;

2. Death is occurred within seven years of marriage;

3. It is shown that the woman was subjected to cruelty or harassment by her

husband or any relative of her husband, soon before her death.

4. Dowry shall have meaning as assigned under Section 2 of the Dowry Prohibition

Act, 1961.

Section 2 of the Dowry Prohibition Act, 1961 reads as:

“2. Definition of “dowry”- In this Act, “dowry” means any property or valuable security

given or agreed to be given either directly or indirectly-

By one party to a marriage to the other party to the marriage; or

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 after the marriage in consideration for

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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.

Explanation I.- Omitted by Dowry Prohibition Amendment Act, 1984

Explanation II.- The expression “valuable security” has the same meaning as in section

30 of the Indian Penal Code, 1860.”

Thus, there are three occasions related to dowry. One before marriage, second is at the

time of marriage and the third is at any time after the marriage. The third occasion may

appear to be an unending period. But the crucial words are in connection with the

marriage of the said parties. This means that giving or agreeing to give any property or

valuable security on any stages should have been in connection with the marriage of the

parties. The dowry mentioned in the section 304B should be any property or valuable

security given or agreed to be given in connection with the marriage.1

Section 304B of IPC requires that a woman must have died within seven years of her

marriage and she must have died of burns or bodily injury or under such circumstances

which are not normal ion nature. It must be established that soon before her death her

husband or any relative had subjected her to cruelty or harassment for or in connection

with any demand for dowry. It will be presumed that the husband or his relative, as the

case may be, had caused her death.

Where there is no proof on record to show that the death is accidental, the offence is

deemed to have been committed by husband or relatives.2

In the case of Mishriya v. State of Rajasthan,3expression “soon before death” was held to

mean reasonable time and quite close in proximity prior to death. It was held in another

case that “soon before death” is not synonym to the expression “immediately before” and

is opposite of the expression “soon after” as used and understood in section 114,

illustration (a) of the Evidence Act.4 These words would imply that the interval should

not be too long between the time of making the statement and the death. It does not,

1 Satvir Singh v. State of Punjab, 2001 Cri. L.J. 4625 (SC). 2 Suresh v. State of Rajasthan, 1999 Cri. L.J. 1787 (Raj.)3 1985 Cr. L.R. (Raj.). 542.4 “The Court may presume - (a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;”

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however, mean that such time can be stretched to any period. Proximate and live link

between the effect of cruelty based on dowry demand and the consequential death is

required to be proved by the prosecution.5

“The legislative intent is clearly to curb the menace of dowry deaths, etc., with a firm

hand. Court must keep in mind this legislative intent. It must be remembered that since

such crimes are generally committed in the privacy of residential homes and in secrecy,

independent and direct evidence is not easy to get. That is why the legislature has by

introducing sections 113A and 113B in the Evidence Act tried to strengthen the

prosecution's hands by permitting a presumption to be raised if certain foundational 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.”6

A minimum mandatory sentence for seven years has been provided under this section

which may extend to imprisonment for life.

“ 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 pay fine.

Explanation.- For the purpose of this section, “cruelty” means-

Any willful 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 of

physical) of the woman; or

Harassment of the woman where such harassment id 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.”

This has been added by way of an amendment in 1983. The object of this section is to

punish a husband and his relatives who torture or harass a woman with a view to coerce

5 Kans Raj v. State of Punjab, 2000 Cri.L.J. 2993 (SC).6 AIR 1991 SC 1532 at para. 4.

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her or any other person related to her to meet any unlawful demand or to drive her to

commit suicide.7

‘Cruelty’ includes both physical and mental torture. ‘Willful conduct’ in Explanation (a)

can be inferred directly or indirectly from the evidence. It varies from place to place and

individual to individual and according to social and economic status of the person

involved.

The concept of cruelty under this section has two-fold dimensions; first, it is a willful

conduct of such a nature as to drive a woman to such a desperate situation as to commit

suicide or grave injury or danger to life, limb or physical or mental health of the woman,

and secondly, it is a harassment of the woman with a view to coerce either her or any

person related to her to meet unlawful demand for any property or valuable security or is

on account of she or her relative having failed to meet such demand.8

Distinction between section 304B and 498A of the Indian Penal Code:

Both the provisions are mutually exhaustive and deal with two distinct offences. Section

304A specifies a time limit of within seven years from the marriage but no such time

limit is required to attract section 498A. Section 304A is wider in the sense that section

498A may apply even if a person is acquitted under section 304B, but vice versa is not

possible. Further, under section 498A, cruelty in itself is an offence whereas, in section

304B, death must occur for its application. Section 304B is attracted only if the death has

direct or indirect relation with the demand for dowry but section 498A has no such

condition, it covers the concept of domestic violence.

7 K.D. Gaur, Textbook on Indian Penal Code (New Delhi: Universal Law Publishing Co., 2011) 880.

8 T. Bhattacharyaa, The Indian Penal Code ( Allahabad; Central Law Agency, 2004) 684.

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Facts of the case:The victim was married 11 months prior to the date of her death. According to victim’s father,

sufficient dowry was given at the time of marriage but the accused persons i.e. father-in-law and

mother-in-law of deceased were not satisfied with it. Three days prior to the death, the deceased

victim went to her father’s house and requested him to arrange for Rs. 30,000 in cash to fulfill

the demand of her in-laws. She also informed her father of being tortured repeatedly at her

matrimonial home. The father promised to arrange the amount in 2-3 days. Jagir Singh, a

witness, stated to have seen the deceased getting tortured in the morning of the day she died. The

witness informed about it to the deceased’s father who subsequently lodged an F.I.R. against the

appellant, mother-in-law as well as her husband. The trial court held the accused persons guilty

and imposed the sentence of seven years rigorous imprisonment each for the offences under

sections 304B read with 34, IPC and two years rigorous imprisonment for the offence under

section 498A, IPC along with a fine of Rs. 1000/- each and in default to undergo further rigorous

imprisonment for three months. The appellants referred the matter to Punjab and Haryana High

Court which rejected the appeal and confirmed the sentence. The appellants further filed an

appeal in Supreme Court of India.

Charges:The charged were made out for offences under sections 304B read with 34, IPC as well as under

498A, IPC.

Arguments:The father of the victim produced letters before the court which were written by the deceased to

him. The Defense witness, a document expert was able to show that there was variation in the

handwriting of the deceased and between the admitted letters. But on cross-examination, he

himself admitted that variation in the writing can occur with the passage of time and for many

other reasons.

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Held:Referring to the decisions of some of previous cases, the apex court explained the ingredients

essential to attract the provision of section 304B. It also interpreted and gave meaning to the

expression “soon before” in the above said section. This term cannot be put under a

straightjacket formula and gave wider meaning to it so as to not defeat the very purpose of the

provision. Also, it laid down that there must be a proximate link between the effect of cruelty or

harassment based on dowry death and the concerned death. Section 304B is an exception to the

cardinal principle of criminal jurisprudence of the presumption of innocence of the accused. The

husband and her relatives have to make out in their defense that the ingredients of the section

were not satisfied. Keeping the above principles in mind, the apex court found out that the death

occurred within the limit mentioned in section 304B, death of deceased was not under normal

circumstances, the demand of the dowry was made by the accused and the deceased was tortured

in that connection. Therefore, the Apex court upheld the decision of the High Court and the Trial

Court and confirmed the sentence of the appellants.

Critical Appraisal:Keeping in mind the ingredients and requirements of sections 304B and 498A of IPC, the

Supreme Court rightly upheld the decision of the lower courts. The sentences awarded were also

in accordance with the purpose of the provisions to punish for domestic violence and cruelty

against women.

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Latest Cases:-

In Uday Chakroborthy v. State of West Bengal,9the deceased was married to one of the

appellant. The brother in law and mother in law of the deceased were other appellants in this

case. Evidences showed that the deceased was harassed for insufficient dowry and was burnt to

death for non-fulfillment of the same within two years of the marriage. The father of the

deceased stated that his daughter told him several times that she was tortured by her in-laws and

constant demand was made by them for dowry. It was alleged that they forcibly burnt the

deceased to death. The trial court and High Court convicted the accused persons under section

304B and 498 A of The Indian Penal Code and an appeal to Supreme Court was made,

subsequently. The Supreme Court found the evidences which showed clear intention on part of

the appellant to take dowry. Therefore, the Apex court upheld the conviction by explaining that

the concept of reasonable time would be applicable to determine ‘soon before death’.

In Devinder @ Kala Ram & Ors. Vs. The State of Haryana,10the deceased was married to the

appellant Devinder @ Kala Ram in 1989. However, according to the parents’ statements, she

kept coming to their house complaining harassment and demand for dowry. In 1992, the father of

the deceased was informed about the death of her daughter because of burns. A case was

registered against the husband, mother-in-law and brother-in-law of the deceased. Trial court and

the High Court held them guilty under the sections 304B and 498A of IPC. The Supreme Court

found out that there was lack of evidence to prove that the death caused by burned was purposely

done by the in-laws. Evidences showed that it was caused by the kerosene from the stove while

9 (2010) IV Cri. L.J. 3826 (S.C.) 10 (2013) Cri. L.J. 14 (S.C.)

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the deceased was preparing tea. The court explained that the word ‘deemed’ in section 304 B

means that the court ‘shall presume’ that if all conditions under the section are fulfilled, the death

is caused by the husband or his relatives unless their innocence is proved beyond reasonable

doubt. The court set aside the conviction under section 304B but upheld it under 498A.

In Preeti Gupta and others v. State of Jharkhand,11a complaint was filed by wife against

husband and his relatives regarding harassment and demand for dowry. No specific allegations

were made against the two relatives. Appellants were residing at different place. They neither

visited place of incident nor lived with complainant and her husband. It was held in the view of

these facts the implication of relatives in complaint was meant to harass and humiliate husband’s

relatives. Therefore, permitting complainant to pursue complaint would be abuse of process of

law. Therefore, it was held liable to be quashed. It was also held that the members of the Bar

should treat every such complain as basic human problem and must make serious endeavor to

help parties in arriving at amicable solution of that problem.

Recent trends:Total incidents for the years 2008-2011 for sections 304B and 498A are as follows:

Years 2008 2009 2010 2011

304B 8172 8383 8391 8618

498A 81344 89546 94041 99135

Source: Crime in India-2011.

The trend shows an increase in the rate of both the offences from year 2008-2011 but the rise for

cruelty by husband and relatives is comparatively steep.

State wise incidence and rate for years 2008-2011 on ‘Dowry Death’ in India:

11 (2010) IV Cri. L.j. 4303 (S.C.)

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Year 2008 2009 2010 2011

I R I R I R I R

Punjab 439 0.7 126 0.5 121 0.4 143 0.5

Haryana 302 1.1 281 1.2 284 1.2 255 1.0

Chandigarh 3 0.3 2 0.2 5 0.4 2 0.2

State wise incidence and rate for years 2008-2011 on ‘Cruelty by Husband and Relatives’ in

India:

2008 2009 2010 2011

I R I R I R I R

Punjab 984 3.7 5498 20.4 1163 9.3 1136 4.1

Haryana 2345 10.2 3977 16.4 2720 11.1 2740 10.8

Chandigarh 49 4.9 63 5.7 41 3.6 46 4.4

For the year 2011, total incidences for Dowry death (section 304B) for Punjab, Haryana and

Chandigarh have been 143, 255 and 2 respectively. Highest incidents have been in the state of

Bihar. Total incidences for Cruelty by Husband and Relatives (section 498A) for the same year

have been 1136, 2740 and 46 for Punjab, Haryana and Chandigarh respectively. Highest

incidents for 498A have been in the state of West Bengal in 2011.