Law of Crimes First Draft Dowry Death

MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI

LAW OF CRIMES

FINAL SUBMISSION

SEMESTER III

DOWRY DEATH AND THE LAW

SUBMITTED TO

SUBMITTED BY

Prof. CHIRAG BALYAN

PARTH KHANDELWAL ENROLL NO. 2016032

LIST OF ABBREVIATIONS

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I.P.C- Indian Penal Code

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S.C.C- Supreme Court Cases

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Cr.P.C -Criminal Procedure Code

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I.E.A.- Indian Evidence Act

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Q.B.D- Queens Bench Division

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AIR-All India Reporter

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C.R- Curia Regis

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LJ-Law Journal

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 N.C.T- National Capital Territory

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W.R.L- Weekly Law Reports

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CRL-Criminal law journal

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AC-Appellant Court

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1. INTRODUCTION

Dowry death is a burning issue in India. In spite of all the stringent laws and campaigns against dowry, statistics on dowry-related deaths in the country have increased over the years as seen in the national crime records bureau of 2015 as from 2005 where cases reported were 6787 while increasing reached a high of 8233 in 2012 and in 2014 cases reported were 8455. 1  Despite a rapidly expanding middle class, enviable economic growth and measurable strides in modernization since India's 1947 independence, dowry deaths continue to rise year on year Ban on giving and taking dowry the Dowry Prohibition Act, 1961, is enacted. To T o strengthen the law, ssection ection 304  – B was incorporated in the Indian Penal Code. This paper has made an attempt the to analyse the legal provisions pertaining to dowry death in section 304-B of Indian penal code.

DEFINITION OF O F `DOWRY’ 2. DEFINITION

In dowry prohibition act, 1961 under section 2 `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;

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http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Statistics2015_rev1_1.pdf  3

at or before or any time after the marriage in connection with the marriage of said  parties but does not include dower dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. 2 This definition has been used in many cases such as State Of Himachal Pradesh vs Nikku Ram 3  and  Appasaheb And Anr Vs State Of  Maharashtra.4

‘dowry' in Section in Section 304B IPC, Court in the case of Kamlesh Panjiyar v. State of Bihar 5 held as under: The word "dowry" in Section 304-B IPC has to be understood as it is defined in Section in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". As was observed in the said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused ... or occurs otherwise than under normal circumstances" as expressed in Section 304-B IPC."6

In the case of Appasaheb of  Appasaheb7 court held 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 as the said word is normally understood".8 The allegation to the effect that the deceased was asked to bring money for domestic expenses and for purchasing manure in the facts of the case was not found sufficient to be covered by the ‘demand for dowry'. Appasaheb 9 cannot be read to be laying down a complete proposition that a demand for money or property or valuable security on

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 Section 2, the dowry prohibition act, 1961, (act no. 28 of 1961)  (1995) 6 SCC (219) 4  (CRL.)  (CRL.) 1613 Of 2005 5  Kamlesh Panjiyar v. State of Bihar (2014) 2 SCC (424) 6  Pramod Kumar. Das, Protection of women from domestic violence: act & rules (2009) 7  Appasaheb And And Anr vs State Of Maharashtra, (crl.) 1613 of 2005 8  Bachni Devi v. State of Haryana, (2011) 4 SCC (427) 9  Supra, Note. 5 3

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account of some business or financial requirement could not be termed as `demand for dowry' thus showing how dowry is different as in this case it is seen that not every case of asking wife for valuables for some exigent circumstances. It was in the facts of the case that it was held so. If a demand for property or valuable security, directly or indirectly, has a nexus with marriage, such demand would constitute ‘demand for dowry’; the cause for such demand being immaterial. But in the lieu of valuable goods sometimes members of family take harsher steps which leads to death of woman these cases are under dowry death. 10 This helps in understanding how dowry is not just about demanding some form of property from wife but is a contextual based event.

3. LAWS IN RELATION OF DOWRY DEATHS

Guidelines have been laid down by the Government of India for examination of such cases, and the law in respect thereof has been suitably amended. The Indian Penal Code (I.P.C.), Criminal Procedure Code (Cr.P.C.) and Indian Evidence Act (I.E.A.) are amended11 and was approved by President of India to deal effectively with cases of dowry deaths and also the cases of cruelty to married women. The Dowry Prohibitions (Amendment) Act, 1986) has inserted a new section in the Indian Penal Code creating a new offence of dowry death. Sub section 1 of Section 304B defines the offence of dowry death as“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”.

And such husband or relative or in law shall be

deemed to have caused her death. Whoever commits dowry death shall be punished

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 Supra, Note. 5  Criminal law (Second Amendment) Act, 1983

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with imprisonment for a term minimum of seven years which may extend to imprisonment for life.12 4. ESSENTIAL INGREDIENT OF SECTION 304B

In case of death of a woman caused under the above circumstances, the husband and the husband’s relatives will be presumed to have caused a ‘dowry death’ and be liable for the offence, unless it is proved otherwise. This is to say, the burden of proof shifts on the part of the accused to prove his innocence unlike other offences wherein the accused is presumed innocent. Clause (2) prescribes a minimum punishment of 7 years of imprisonment which may extend up to life imprisonment in case of dowry death. 13 4.1 SEVEN YEARS PERIOD The period of seven years, as explained by the Supreme Court in State of Punjab v.  Iqbal Singh14, is considered to be turbulent one after which the legislature assumed that the couple would have settled down in life. Section 113B of the Evidence Act 15 states that if it is shown that soon before the death of a woman such woman has been subjected to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person has caused the dowry death accordingly shifts on defence. 16 4.2 PRESUMPTION AS TO DOWRY DEATH 17 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

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 Vij K. Textbook of Forensic Medicine and Toxicology. 5th edition. Elsevier, 2011, p. 206.  Section 304B, Indian penal code 14 State of Punjab v. Iqbal Singh AIR 1961 SC 1532, 1537; Shanti v. State of Haryana, Haryana, AIR 1991 SC 13

1532. 15  The Evidence Act, 1872, Section 113B Presumption as to Dowry Death. Inserted by Act 43 of 1986 Sec. 12 (w.e.f. 5.1.1986). 16  Id. 17 Ins. by Act No. No. 43 of 1986, s. 12.

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dowry’s. dowry’s. 113B, provides that the court shall presume that such person had caused dowry death. Of course, if there is proof of the person having intentionally caused her death that would attract s. 302, IPC.18 Where the prosecution was able to prove that the deceased woman was last seen alive in the company of the accused, she being at the moment in i n her special care and custody, that there was a strong motive for the crime and that the death in question was unnatural and homicidal, it was held that by virtue of the provision in S.106 of the Evidence Act the burden of showing the circumstances of the death was on the accused as those circumstances must be specially known to him only. 19 Where the death was  by strangulation and evidence evidence was available to show that that dowry was being demanded and the accused husband was also subjecting his deceased wife to cruelty, it was held that the presumption under the section applied with full force making the accused liable to be convicted under s. 304B, I.P.C. 20 Section 113B of the Evidence Evi dence Act being  procedural, it has been been held that it is retrospective in operation. operation.21 Presumption –  Presumption  –  when   when may be raised.  — The The presumption under section 113B shall be raised only on the proof of the following essentials: (1) The question before the Court must be whether whether the accused accused has committed the dowry death of a woman. This means that the presumption can be raised only if the accused is being tried for the offence under section 304B, I.P.C.

(2) The woman was subjected to cruelty cruelty or harassment by her husband husband or his relatives. (3) Such cruelty or harassment harassment was for or in connection with with any demand for dowry. dowry. (4) Such cruelty or harassment harassment was taking place soon soon before her death. 22

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State of Punjab v. Iqbal Singh, Singh, (1991) 3 SCC 1.  Amarjit Singh v. State of Punjab, Punjab, 1989 Cr LJ (NOC) 12 (P&H). 20  Hem Chand v. State of Haryana, Haryana, AIR 1995 SC 120 21 ., 1992 Cr LJ 2294 (All).  Bhoora Singh v. State of U.P ., 22  Keshab Chandra Panda Panda v. State of Orissa, Orissa, 1995 Cr LJ 174 (Ori). 19

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The provisions of this section, although mandatory in nature, simply enjoin upon the court to draw such presumption of dowry death on o n proof of circumstances mentioned therein which amount to shifting the onus on the accused to show that the married woman was not treated with wit h cruelty by her husband soon before her death. 23 In a dowry death case, it is a condition precedent to the raising of the presumption that the deceased married woman was subjected to cruelty or harassment for and in connection with the demand for dowry soon before her death. 24 Where the facts showed that a continuous harassment connected with demand for dowry was taking place right up to the time that the th e deceased woman met her parents two-days before her death, the court said that it could be assumed that harassment existed upto a time soon before her death. There were no intervening attempts at a settlement.25 A statement made by the woman to her brother 2-3 days before she was killed, that she was not being allowed to leave her in-laws till their demand for a scooter was met was held to be admissible under s. 32 Evidence act. The court said that demand for dowry was taking place soon before her death and therefore,  presumption under under the section could be drawn. drawn. 26 4.3 DOWRY DEATH SECTION 304-B READ WITH EVIDENCE ACT 113B Evidence of Relative or Interested Witnesses In the case of State v. Orilal Jaiswal 27, it was observed that in cases of dowry deaths, ordinarily, the evidence of close relatives and friends would be available and normally, strangers would neither be aware nor willing to come forward to depose in favour of  prosecution. The testimony of close relatives and friends, therefore, cannot be disbelieved only on the ground that they are relatives and that on that ground he or she had come forward to depose for the prosecution.

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 Krishan Lal v. Union of India, India, (FB), 1994 Cr LJ 3472 (P&H).  Bhoora Singh v. State of U.P., U.P., 1993 Cr LJ 2636 (All). 25  Kans Raj v. State of Punjab, Punjab, 2000 Cri Lj 2993. 26  Mahesh Kumar v. State, State, 2001 Cri LJ 4417 (All). 27 State v. Orilal Jaiswal  (1994),  (1994), AIR SC 1418. 24

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4.4 SOON BEFORE THE DEATH To prove the offence of dowry death, there must be concrete and specific demand of dowry on behalf of the husband and his family members and the lady must be harassed or subjected to cruelty by them on account of demand of dowry. If there is i s no demand of dowry and vague allegations are made therein, then the death of the bride if occurred  because of any other reason that would not be termed termed as dowry death. death. 28 The legislative object in providing radius ra dius of time by employing “soon before her death” that her death in all probability was due to harassment or suicide i.e. having direct nexus. 29 As seen in case of Satya Narayan Tiwari v. state of U.P. 30 where on demand of car for 6 months husband started nagging, beating and torturing wife she from time to time informed her family but thinking things will settle she stayed but later she was murdered. 4.5 PROXIMITY TEST This test doesn’t provide a specified time period but expression of ‘soon before death’ implies short interval between concerned cruelty and death in question. This requires that mental equilibrium of woman has been displaced to such a level in a short period of time.31 Thus it depends upon the mental state and the proximity of the event and the interval of time between cruelty and death. 5. ATTEMPT TO COMMIT OFFENCE OF DOWRY DEATH

In case of Satvir Singh v. State of Punjab 32 the Apex Court discussed at length whether the attempt to commit offence as provided by Section 511 of Indian Penal Code could  be applied to dowry death cases punishable under Section 304B, I.P.C. Section 511, I.P.C. provides that whoever attempts to commit an offence punishable by this Code

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koppisetti subharao v. state of A.P  AIR  AIR 2009 SCC 2684 Tarsem Singh v. state of Punjab Air Punjab Air 2009 SCC 1454 30 Satya Narayan Tiwari v. state of U.P  2011  2011 Cr LJ 445 31  Mustafa Shahadal Shaikh vs State Of Maharashtra 2012 Maharashtra 2012 AIR (SCW 5308) 32 Satvir Singh v. State of Punjab , Appeal (crl.) 1319 of 1998 29

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with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence shall, where no express provisions made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment of life, or as the case may be, one-half of the longest term of imprisonment provided for the offence or with such fine as is provided for the offence or with both. Cruelty as Defined under Section 498A of Indian Penal Code Under Section 498A, Indian Penal Code, ‘cruelty’ means any an y 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 it is mental or physical of the woman 33; or 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 b y her or any related to her to meet such demand. 34 While 304B deals with death it has a wider scope covering suicide, grave injury to limbs even harassment with a view to coerce woman.35 Thus helps in 6. DIFFERENCE BETWEEN MURDER AND DOWRY DEATH

Section 300 of the Code 36 says when the offence is ‘murder’ and when it is ‘culpable homicide not amounting to murder’. Section 300, I.P.C. begins by setting out the circumstances when culpable homicide turns into murder which is punishable under Section 302, I.P.C. While essentials of 304-B as stated stat ed are intentional act to cause death by b y bodily injuries which is sufficient in normal course to cause death of a person. But the death under Section 304B, I.P.C. of a woman is caused by harassing physical and mentally the

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 Explanation, Section 498A, Indian Penal Code.  Ibid 35  DINESH SETH V/S STATE OF N.C.T. OF DELHI (2008) 14 SCC 94 36  Section 300, Criminal 34

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victim to such an extent that the victim commits suicide.37 The punishment for murder under Section 302, I.P.C. is death or life imprisonment, but the punishment under Section 304B, I.P.C. is from seven years to life imprisonment. The murder under Section 302, I.P.C. is graver and the death under Section 304B has been recognized as a grave but to a lesser extent than that under Section 302. 38 There are exceptions under Section 302, I.P.C. If the case of murder comes in the ambit of any exception, then it is a culpable homicide which attracts lesser punishment. But in case of Section 304B, I.P.C., there is no exception. 39  In this case, harassment whether is physical or mental must be proved beyond reasonable doubt to bring a  person, who has harassed harassed the women, in the ambit ambit of Section 304B, I.P.C. In Ashok In  Ashok Kumar v. State of Rajasthan40, the Hon’ble Supreme Court has laid down that motive for a murder may or may not be. But in dowry deaths, it is inherent. And hence, what is required of the court is to examine is as to who translated it into action as motive for it is not individual, but of family. 6.1 FRAMING OF CHARGE –  CHARGE –  WHETHER  WHETHER U/S 302 OR 304 B: In Shamnsaheb M. Multtani v. State of Karnataka 41The Hon’ble Supreme Court has observed: “The question raised before us is whether in a case where prosecution failed to prove the charge under Section 302 IPC, but on the facts the ingredients of Section 304-B have winched to the fore, can the court convict him of that offence in the absence of the said offence being included in the charge. While section 221 and 222 42 say that court on satisfaction might charge under different 37

 Section 304B, I.P.C.  Narender Kumar, DOWRY DEATHS-A Critical Study of Emerging Judicial Trends in India, Maharshi Dayanand University 39  Section 304B, Indian penal code; Section 302, Indian penal code 40  Ashok Kumar v. State of Rajasthan, AIR1991 (1) SCC 166 41  Shamnsaheb M. Multtani v. State of Karnataka, AIR (2001) 2 SCC 577. 42  Section 221, Indian penal code; Section 222, Indian penal code 38

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offence of minor nature even if same has not been put forth in front of court. A two-Judge Bench of the Supreme Court has held in  Lakhjit Singh v. State of  Punjab43, that if a prosecution failed to establish the offence under Section 302 IPC, which alone was included in the charge, but if the offence under Section 306 IPC was made out in the evidence it is permissible for the court to convict the accused of the latter offence. In this context, a reference to Section 464(1) of the Code is made. In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice. We often hear about “failure of justice” and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could  be fitted in any an y situation of a case. The expression “failure of justice” would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord from  Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment 44, The criminal court,  particularly the superior court should make a close examination to ascertain Whether there was really a failure of justice or whether it is only a camouflage. We have now to examine whether, on the evidence now on record the appellant can be convicted under Section 304-B IPC without the same being included as a count in the charge framed. CONCLUSION

Researcher after going through various documents regarding dowry and dowry death has realized the importance of the topic and the legal framework of the same. According to researcher’s understanding law is in place but the inconsonance is in its functioning mainly as mentioned there is rise in the dowry deaths thus even though on  paper efforts are present but the omnipotent understanding of the issue decentralized context is not present. Thus, there is requirement of various state as well as non-state actors should work together for an aware society and researcher thinks that punishment

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 Lakhjit Singh v. State of Punjab, AIR 1994 supp. 1 SCC 173.  Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, AIR (1977) 1 All E.R 813: 1978 AC 359: (1977) 2 WLR 450 (HL).

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 provided for dowry death i.e. 7 years is less as it is (if not stated) murder in the literal sense of the act and this needs to be understood and penalty in terms t erms of imprisonment needs to be increased. LEGAL Speedy clearance of Dowry cases: -Under the directive of the Supreme Court, these cases should be cleared within six months. Instead, some of the cases have been lingering for 12 to 16 years, since the arrests made under dowry related sections are non-bailable. Those who lack resources to get legal aid remain locked in jail for years. Most of these victims are senior citizens. Legal help to victims: -Since most victims cannot interpret the law, while many accused had not even even ‘heard of’ 498 A & 304B till they found themselves behind bars. Legal help may be provided to protect the interest of thousands of accused and arrested men and their family members. SOCIAL Awareness: The first and foremost solution to the problem of dowry deaths is awareness, taking into account the illiteracy rates in India most of the women who are subject to the evil of dowry harassment are unaware of their legal rights. Education: This is another approach to increase awareness by ed-ucating people about such issues and imbibing such social issues in to t o the curriculum of primary education. Stringent Punishments and speedy trials: Imparting Stringent punishments to the  people convicted of such crimes can can also help to create a deterrence. Also, speedy trial system also works in favour of the victim and acts as a deterrent. Enforcement Mechanisms to be strengthened: In the Indian scenario, there are legislations like the Dowry Prohibition Act, the Indian Penal Code and also l egislations like The Protection of Women from Domestic Violence Act, 2005 are in place but still the problem of dowry demand continues, thus it is high time that the enforcement of 13

these legislations should be strengthened. BIBLIOGRAPHY

CASES 

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 Kamlesh Panjiyar V. State Of Bihar  (2014)  (2014) 2 SCC 424 State Of Himachal Pradesh vs Nikku Ram (1995) 6 SCC 219

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 Appasaheb And Anr Vs State Of Of Maharashtra, Maharashtra, (CRL.) 1613 Of 2005 2005

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 Bachni Devi V. State Of Haryana Haryana,, (2011) 4 SCC 427

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Tolson V. Tolson, Tolson, (1880) 23 Qbd 168

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State Of Punjab V. Iqbal Singh, Singh, Air 1961 SC 1532, 1537;

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Shanti V. State Of Haryana, Haryana, Air 1991 SC 1532.

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State Of Punjab V. Iqbal Singh, Singh, (1991) 3 SCC 1.

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 Amarjit Singh V. State Of Punjab, Punjab, 1989 Cr Lj (Noc) 12 (P&H).

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 Hem Chand V. State Of Haryana Haryana, Air 1995 SC 120

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 Bhoora Singh V. State Of U.P ., ., 1992 Cr Lj 2294 (All).

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 Keshab Chandra Panda Panda V. State Of Orissa, Orissa, 1995 Cr Lj 174 (Ori).

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 Krishan Lal V. Union Of India, India, (Fb), 1994 Cr Lj 3472 (P&H).

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 Bhoora Singh V. State Of U.P , 1993 Cr Lj 2636 (All).

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 Kans Raj V. State Of Punjab, Punjab, 2000 Cri Lj 2993.

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 Mahesh Kumar V. State, State, 2001 Cri Lj 4417 (All).

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State V. Orilal Jaiswal (1994), Air SC 1418.  Koppisetti Subharao V. State State Of A.P  AIR  AIR 2009 SCC 2684

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Tarsem Singh V. State Of Punjab P unjab Air  Air 2009 SCC 1454

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Satya Narayan Tiwari V. State Of U.P  2011  2011 Cr Lj 445

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 Mustafa Shahadal Shahadal Shaikh Vs State Of Maharashtra Maharashtra 2012  2012 AIR (Scw 5308)

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 Dinesh Seth V/S State Of N.C.T. Of Delhi (2008) Delhi (2008) 14 SCC 94

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 Hemchand V State Of Haryana Haryana,, Air 1994 (6) SCC 727.

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 Ashok Kumar V. State Of Rajasthan, Rajasthan, Air 1991 (1) SCC 166 14

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Shamnsaheb M. Multtani V. State Of Karnataka, Karnataka , Air (2001) 2 SCC 577.

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 Lakhjit Singh V. State Of Punjab Punjab, Air 1994 Supp. 1 SCC 173.

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 Lord Diplock In Town Investments Ltd. V. Deptt. Of The Environment , Air (1977)

1 All E.R 813: 1978 Ac 359: (1977) 2 WRL 450 (Hl). 

V.N. Pawar V. State Of Maharashtra, Maharashtra, Air 1980 SC 1271.

STATUTES AND ACTS

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Section 113b, The Evidence Act, 1872,

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Section 304B, Indian Penal Code

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Section 304b, Indian Penal Code; Section 302, Indian Penal Code

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Section 221, Indian penal code

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Section 222, Indian penal code

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The Protection of Women from Domestic Violence Act, 2005

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The Criminal Law (Second Amendment) Act, 1983

ARTICLE 

Section 2, The Dowry Prohibition Act, 1961, (Act No. 28 Of 1961), Ministry Of

Women And Children 

 Narender Kumar, Dowry Deaths-A Critical Study Of Emerging Judicial Trends In

India, Maharshi Dayanand University

BOOKS 

P. K. Das, Protection Of Women From Domestic Violence

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B. M. Gandhi, Indian Penal Code (2008)

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Ratanlal Ranchhoddas et al., The Indian penal code (2016)

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Vij K. Textbook Of Forensic Medicine And Toxicology. Toxicology. 5th Edition. Elsevier,

2011, P. 206.

LAW REPORT 15

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PROPOSAL TO AMEND SECTION 304-B OF INDIAN PENAL CODE, 202 ND

REPORT, LAW COMMISSION OF INDIA, http://lawcommissionofindia.nic.in/reports/report202.pdf 

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