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TMI Blog2015 (1) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... o her matrimonial house with the assurance that a motorcycle and a fridge would be arranged upon the marriage of her brothers. On 7.2.1998, one Rajwant Singh informed the Complainant that the deceased had committed suicide by consuming some poisonous substance at her matrimonial house in village Danoli. The Complainant, along with the brothers of the deceased and other members of the village, rushed to the matrimonial house of the deceased and after confirming her death, lodged an FIR on the next day i.e., on 8.2.1998. 2. In all, four accused persons, namely, Appellant/Sher Singh (husband), Devinder Singh (brother-in-law), Jarnail Singh (father-in-law), and Sukhvinder Kaur (mother-in-law) were tried by the learned Sessions Judge, Karnal under Sections 304B and 498A Indian Penal Code. After considering the material on record the learned Sessions Judge had convicted all the accused and sentenced them to undergo rigorous imprisonment for seven years under Section 304B; and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- and, in default of payment of such fine, to further undergo rigorous imprisonment for a period of six months under Section 498A. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Out the outset we shall briefly analyse the cauldron of legislation passed by Parliament on the subject which we are presently engaged with. Confronted with the pestilential proliferation of incidents of married women being put to death because of avaricious and insatiable dowry demands, and/ or of brides being driven to take their own lives because of cruelty meted out to them by their husband and his family also because of dowry expectations, Parliament enacted the Dowry Prohibition Act, 1961 (for short 'the Dowry Act') in an endeavour to eradicate the social evil of giving and taking of dowry. Section 2 thereof defines 'dowry' as including any property or valuable security given or agreed to be given by one party to the other party around the time of marriage. Section 3 makes it punishable to give or take or abet the giving or taking of dowry; the punishment for the offence being not less than five years, and with a fine of Rs. 15,000/- or the amount of the value of such dowry, whichever is more. Sub-section (2) thereof understandably makes an exclusion in respect of presents given at the time of marriage provided they are of a customary nature and the value the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the sweep and intent and possible incongruities contained therein as such an exercise on our part would avoidably add to the bludgeoning burden of obiter dicta, which invariably causes confusion. Secondly, broadly stated, Clause (b) to the Explanation of Section 498A Indian Penal Code, postulates harassment meted out to the woman with a view to coercing her or her relatives to meet any unlawful demand for any property or valuable security. Although this Clause does not employ the word 'dowry', it is apparent that its object is to combat this odious societal excrescence. Act 46 of 1983 simultaneously incorporated changes in Section 174(3) of the Code of Criminal Procedure pertaining to the suicide or death of a woman within seven years of her marriage; it mandated the examination by the nearest Civil Surgeon of the body of the unfortunate woman. In addition thereto, Section 113A was introduced into the Indian Evidence Act, 1872. [Although not relevant to the present context, it is poignant that even though Section 113 was under its active scrutiny, Parliament did not think it necessary to excise the existing and entirely irrelevant Section 113 which speaks of the cession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown that soon before her death such woman had been subjected by such person to cruelty or harassment or in connection with any demand for dowry, the Court shall presume that such person has caused dowry death. The Explanation harks back to the simultaneously added Section 304B of the Indian Penal Code for the definition of dowry death, clarifying thereby that the person alluded to in this Section is her husband or any relative of her husband. It is noteworthy that whilst Section 113A of the Evidence Act reposes discretion in the Court to draw a presumption so far as the husband's abetment in his wife's suicide, Parliament has mandated the Court to draw at least an adverse inference under Section 113B in the event of a dowry death. It seems to us that where a wife is driven to the extreme step of suicide it would be reasonable to assume an active role of her husband, rather than leaving it to the discretion of the Court. 8. The legal regime pertaining to the death of a woman within seven years of her marriage thus has numerous features, inter alia: (i) the meaning of "dowry" is as placed in Section 2 of the Dowry Prohibition Act. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he death of a woman ..... otherwise than under normal circumstances", endeavours to cover murders masquerading as accidents. Justifiably, the suicidal death of a married woman who was meted out with cruelty by her husband, where her demise occurred within seven years of marriage in connection with a dowry demand should lead to prosecution and punishment under Sections 304B and/or 306 of the Indian Penal Code. However, if the perfidious harassment and cruelty by the husband is conclusively proved by him to have had no causal connection with his cruel behaviour based on a dowry demand, these provisions are not attracted as held in Bhagwan Das v. Kartar Singh (2007) 11 SCC 205, although some reservation may remain regarding the reach of Section 306. 10. It is already empirically evident that the prosecution, ubiquitously and in dereliction of duty, in the case of an abnormal death if a young bride confines its charges to Section 304B because the obligation to provide proof becomes least burdensome for it; this is the significance that attaches to a deeming provision. But, in any death other than in normal circumstances, we see no justification for not citing either Section 302 or Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond cavil that where the same word is used in a section and/or in sundry segments of a statute, it should be attributed the same meaning, unless there are compelling reasons to do otherwise. The obverse is where different words are employed in close proximity, or in the same section, or in the same enactment, the assumption must be that the legislature intended them to depict disparate situations, and delineate dissimilar and diverse ramifications. Ergo, ordinarily Parliament could not have proposed to ordain that the prosecution should "prove" the existence of a vital sequence of facts, despite having employed the word "shown" in Section 304B. The question is whether these two words can be construed as synonymous. It seems to us that if the prosecution is required to prove, which always means beyond reasonable doubt, that a dowry death has been committed, there is a risk that the purpose postulated in the provision may be reduced to a cipher. This method of statutory interpretation has consistently been disapproved and deprecated except in exceptional instances where the syntax permits reading down or reading up of some words of the subject provisions. 13. In Section 113A of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judge must direct the jury to acquit. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent). If, however, the prosecution has established a basis for its case, it must then continue to satisfy the persuasive burden by proving its case beyond reasonable doubt (see proof beyond reasonable doubt). It is the duty of the judge to tell the jury clearly that the prosecution must prove its case and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the Defendant is entitled to be acquitted. There are some exceptions to the normal rule that the burden of proof is upon the prosecution. The main exceptions are as follows. (1) When the Defendant admits the elements of the crime (the actus reus and mens rea) but pleads a special defence, the evidential burden is upon him to prove his defence. This may occur, the example, in a prosecution for murder in which the Defendant raises a defence of self-defence. (2) When t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construe the word 'shown' in Section 304B of the Indian Penal Code as to, in fact, connote 'prove'. In other words, it is for the prosecution to prove that a 'dowry death' has occurred, namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry and (v) that the cruelty or harassment meted out to her continued to have a causal connection or a live link with the demand of dowry. We are aware that the word 'soon' finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the Indian Penal Code. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its imprimatur thereto. Article 11.1 of the Universal Declaration of Human Rights, 1948 states - "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence." Article 14(3)(g) of the International Covenant on Civil and Political Rights, 1966, assures as a minimum guarantee that everyone has a right not to be compelled to testify against himself or to confess guilt. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, firstly, promises the right to a fair trial and secondly, assures that anyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. We may immediately emphasise that the tenet of presumed innocence will always give way to explicit legislation to the contrary. The presumption of innocence has also been recognised in certain circumstances to constitute a basic human right. Parliament, however, has been tasked with the responsibility of locating myriad competing, if not conflicting, societal interests. It is quite apparent that troubled by the expone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, viz. (i) the death of a woman in abnormal circumstances (ii) within seven years of her marriage, and (iii) and that the death had a live link with cruelty connected with any demand of dowry. The other facet is that the husband has indeed a heavy burden cast on his shoulders in that his deemed culpability would have to be displaced and overturned beyond reasonable doubt. This emerges clearly as the manner in which Parliament sought to combat the scourge and evil of rampant bride burning or dowry deaths, to which manner we unreservedly subscribe. In order to avoid prolixity we shall record that our understanding of the law finds support in an extremely extensive and erudite judgment of this Court in P.N. Krishna Lal v. Government of Kerala 1995 Supp (2) SCC 187, in which decisions spanning the globe have been mentioned and discussed. It is also important to highlight that Section 304B does not require the accused to give evidence against himself but casts the onerous burden to dislodge his deemed guilt beyond reasonable doubt. In our opinion, it would not be appropriate to lessen the husband's onus to that of preponderance of probability as that would annihilate the deemed gui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th". This argument, assumes on a demurrer, that statutory cruelty had, in fact, been committed. The deceased and the Appellant were married in February, 1997 and the former committed suicide within one year; to even conjecture that it was not soon before death, has only to be stated to be stoutly shot down. 19. We must consider, lastly, whether the prosecution has successfully 'shown' that the deceased was subjected to cruelty which was connected with dowry demands. We may usefully reiterate here that keeping in perspective the use of "shown" instead of "proved" the onus would stand satisfied on the anvil of preponderance of evidence. 20. The two prosecution witnesses, on whom the entire episode is predicated, are PW 4 and PW 7. The Complainant/PW 4-Angrez Singh appears to be the eldest in the family as he has stated that his brother, i.e. the father of the deceased, had already died. He has stated that sufficient kanyadan was given at the time of marriage; that two months prior to her death the deceased had, on one of her visits to their home, conveyed to her brothers that her husband and his family were harassing her for dowry, especially a motorcycle and fridge. On lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh/PW 4 who, as has already been noted, has categorically stated that no such Panchayat took place. The version of the Appellant was put to him and denied, namely, that the deceased was hot tempered, wanted him to shave his hair, forced him to live separately from his parents, wanted him to shift to Karnal and start a business, all of which were against his wishes. The fundamental and vital question that the Court has to ask itself and find a solid answer to, is whether this evidence even preponderantly proves that the Appellant had treated the deceased with cruelty connected with dowry demands. It is only if the answer is in the affirmative will the Court have to weigh the evidence produced by the Appellant to discharge beyond reasonable doubt, the assumption of his deemed guilt. We have not lost sight of the fact that the deceased was pregnant at the time of her suicide and that only extraordinary and overwhelming factors would have driven her to take her life along with that of her unborn child. The fact remains that she did so. What motivated or compelled her to take this extreme and horrific step will remain a mystery, as we are not satisfied that the prosecution has proved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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