S. 498-A had been inserted by an amendment in 1986 with the underlying object of curbing & combating the cases of dowry death and to deal with the same with firm hand. By the same amendment S. 113B had been added to Evidence Act, 1872 by virtue of which it raises a presumption as to dowry death against a person, if it is shown that soon before her death such woman had been subjected to cruelty or harassment at the hands of such person, in connection with demand of dowry. However, it is a rebuttable presumption and onus lies on the accused.
II. ESSENTIAL INGREDIENTS OF DOWRY DEATH UNDER S. 304-B
Sub-section (1) defines dowry death. To apply this section, following essentials must be satisfied :
- Death must be caused by burns or bodily injury or it must occur otherwise than under normal circumstances;
- Death must occur within seven years of marriage; and
- It must be shown that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband.
- Such cruelty or harassment must be for or in connection with any demand for dowry.
- Here the dowry shall have the meaning as assigned to it under S. 2 of the Dowry Prohibition Act, 1961 (hereinafter referred as DPA)
Case Law :- Pawan Kumar & ors v. State of Haryana
Held : S. 113B & S. 304B should be conjointly read. The prosecution has to prove the essential ingredients beyond all reasonable doubts after raising the initial presumption of deemed dowry death.
III. EXPLANATION OF ESSENTIALS OF DOWRY DEATH
- Meaning of ‘Dowry’ – The term dowry has not been defined in IPC but in DPA, 1961 it has been defined as any property or valuable security given or agreed to be given :
- By one party to a marriage to the other party to a marriage or
- By the parents of either party to a marriage or by any other person to either party to the marriage or any other person
at or before or any time after (on three occasions) the marriage in connection with the marriage of the said parties. However, customary payments as are prevalent in different societies, such as at the time of birth of child etc, are not covered within dowry. Giving & taking dowry both are offences. Also, to attract S. 304 B it very important to establish that she was subjected to cruelty or harassment for or in connection with demand of dowry. This section makes demand for dowry itself punishable.
- Meaning of ‘Cruelty’ – The meaning of cruelty & harassment for the purposes of this section is taken to be same as given in Explanation to S. 498A as both sections have a common background. It is basically a conduct which is distressing to another. Cruelty can be either physical or mental. U/s 498A cruelty means :
Harassment to an extent so as to coerce her to meet any unlawful demand of dowry (Explanation b), or any wilful conduct on the part of the accused of such a nature as is likely to drive a woman to commit suicide, or to cause grave injury, or danger to life, limb or health of a woman (Explanation a) are required to be established.
Case Law :- Kaliyaperumal v. State of Tamil Nadu
Held : The SC held that S. 304-B & S. 498-A cannot be held to be mutually inclusive sections and both are distinct offences and a person acquitted u/s 304-B for the offence of dowry death can be convicted u/s 498-A. For applicability of S. 304-B death must have occurred within 7 years of marriage but no such period is mentioned in S. 498-A. (Diff b/w S. 304B & 498A).
Case Law :- Harjit Singh v. State of Punjab
Facts : Wife of the accused died due to poisoning within 7 yrs of marriage but there was no evidence to show that she was subjected to cruelty or harassment by husband or relative within the meaning of S. 498-A.
Held : Husband cannot be convicted either u/s 304b or S. 306. It was further held that presumption arising under S. 304 B or 113B of IEA also cannot be invoked.
- Meaning of ‘Husband’ – In Reema Aggarwal v. Anupam, it was held that for the purposes of S. 304B, husband includes not only legally wedded person but also any person who ostensibly enters into a marital relationship and assumes the position of husband. It further observed that purposive construction has to be given to cases of this nature as objective of the section is to prevent harassment of woman for dowry demand who enters into a marital relationship , therefore it would be appropriate to include a person who even proclaims the feigned status of a husband, irrespective of illegitimacy of the marriage.
- Expression ‘soon before’ – The expression soon before death has to be analyzed depending upon facts & circumstances leading to the death of victim and then decide as to whether there is any proximate connection between demand of dowry and act of cruelty or harassment and death. No straight jacket formula can be laid down by fixing time limit and it is a relative term which is to be considered under specific circumstances of each case. However ‘soon before’ is not to be considered synonymous with ‘immediately before’. It is significant with the idea of proximate test.
- Meaning of ‘otherwise than under normal circumstances’ – Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of above expression. But ingredients of S. 304 B must be satisfied. In State v. Kuldeep, though the victim had dies within 7 years but the ingredients of S. 304B were not satisfied, as no neighbour had testified the mal treatment of the deceased and prosecution also failed to prove demand of dowry. The accused was acquitted.
IV. EXPLANATION OF CONCEPTS VIS-A-VIS S. 304B
- Procedure – It is cognizable, non bailable, not compoundable and triable by courts of session.
- Evidence – As observed in State v. Iqbal Singh, that direct evidence is generally not available in such cases and that is why S. 113 A & S. 113 B have been introduced by the legislature by permitting a presumption to be raised in certain circumstances.
- Charge – S. 304B & S. 498B are not mutually exclusive. They deal with two distinct offences. But an accused can be convicted under both the sections and if it is done so, then no separate sentence should be imposed keeping in view the substantive sentence being awarded for major offence u/s 304B.
- Fine – It is one of the few sections of IPC where court is not empowered to impose fine as punishment.
- Punishment – The minimum punishment for a person convicted under this section is 7 years imprisonment which may extend to life imprisonment.
- S. 304 B whether retrospective – No.
- Distinction b/w S. 304B & 498A :- Cruelty is the common element in both.
|Sr. No||498A (Cruelty)||304B (Dowry Death)|
|1.||Cruelty by itself amounts to an offence.||Dowry Death is punishable .|
|2.||No period is mentioned.||Such death must have occurred within 7 years of the marriage.|
|3.||Demand of dowry is not the basic ingredient of the offence.||Demand of dowry is an essential ingredient to attract this section.|
Therefore, if there is an acquittal of a u/s 304B still conviction under S. 498A can be recorded under law.