THE INDIAN PENALCODE Part I

THE INDIAN PENAL CODE

(45 OF I860)

[tin-October, I860]

(RELEVANT PROVISIONS)

 [304-B. 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 purposes 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.]             

Form of charge under section 304-B

J,……………………….(name and designation of the Court of Session), hereby charge you…………..(name of the accused) as follows:

That you, on or about the…………..day of……………. at…………… (place of commission of the offence) committed dowry death by causing the death of……,…….(name), and thereby committed an offence punishable under section 304-B, I.P.Code, and within the cognizance of the Court of Session.

And hereby direct that you be tried on the said charge by the said Court,

COMMENTS

Applicability.—S. 306, I.P.Code when read with S. 113-A of the Evidence Act has only enabled the Court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in S. 498-A, I.P.Code) if such woman committed suicide within 7 years of her marriage. It is immaterial for S. 306, I.P.Code whether the cruelty or harassment was caused “soon before her death” or earlier. If it was caused “soon before her death” the special provision in S. 304-B, I.P.Code would be invokable, otherwise resort can be made to S. 306, I.P.Code: Satvir Singh v. State of Punjab A.I.R. 2001 S.C. 2828: (2001) 8 S.C.C. 633.

Explanation to S. 304-B refers to dowry “as having the same meaning as in S. 2 of the Dowry Prohibition Act”, the question is: what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring therein, and in the absence of any such evidence, it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage: State of Andhra Pradesh v. Raj Gopal Asawa A.I.R. 2004 S.C. 1933: (2004) 3 S.C.C. 470:2004 Cr.L.J. 1791.

S. 304-B, I.P.Code makes “demand of dowry.” itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When S. 304-B refers to “demand of dowry”, it refers to the demand of property or valuable security as referred to in the definition of “dowry” under the Act. “Dowry” definition is to be interpreted with the other provisions of the Dowry Prohibition Act, 1961 including S. 3, which refers to giving or taking dowry and S. 4 which deals with a penalty for demanding dowry, under the Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry: State ofAndhra Pradesh v. Raj Gopal Asawa A.I.R. 2004 S.C. 1933: (2004) 4 S.C.C. 470: 2004 Cr.L.J. 1791.

1. Inserted by Act 43 of 1986, S. 10 (w.e.f. 19-11-1986).

A conjoint reading of S. 113-B of the Evidence Act and S. 304-B, I.P.Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where S. 113-B of the Evidence Act and S. 304-B, I.P.Code are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. No definite period has been indicated and the expression “soon before” is not defined. 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: State ofAndhra Pradesh v. Raj Gopal Asawa A.I.R. 2004 S.C. 1933: (2004) 4S.C.C. 470:2004 Cr.L.J. 1791.

When a person is charged with an offence under Ss. 302 and 498-A, I.P.Code on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under S. 304-B, I.P.Code would stand established. In such a case the accused can be convicted for offence under S. 304-B without the said offence forming part of the charge, but the conviction would be valid only if it did not occasion a failure of justice in view of S. 464(1) of the Cr.P.Code: Shamnsaheb M. Multtani v. State of Karnataka 2001 Cr.L.J. 1075 (S.C.).

Demand for dowry and harassment for that reason are the essential ingredients of the offence under S. 304-B: Sakhi Mandalani v. State ofBihar (1999) 5 S.C.C. 705:1999 S.C.C. (Cr.) 1039.

Ss. 3 and 4 of the Dowry Prohibition Act make out independent offences, but in the instant case it was the demand for dowry coupled with harassment which constitutes the basis of the prosecution case. Once the main part of the charge under S. 304-B was not found established, it was not possible to record conviction under Ss. 3 and 4 of the Dowry Prohibition Act: Sakhi Mandalani v. State of’Bihar (1999) 5 S.C.C. 705:1999 S.C.C. (Cr.) 1039.

Burden on prosecution.—Prosecution, in a case of offence under S. 304-B, LP.Code cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused “soon before her death”. The word “dowry” in S. 304-B has to be understood as it is defined in S. 2 of the Dowry Prohibition Act, 1961: SatvirSingh v. Stateof’Punjab A.I.R. 2001 S.C. 2828:(2001) 8S.C.C. 633.

The essential components of S. 304-B are: (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage, (if) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under S. 304-B: Satvir Singhv. State of Punjab A.I.R. 2001 S.C. 2828: (2001) 8 S.CC. 633.

Dowry death.—S. 304-B has been inserted in the Indian Penal Code by Dowry Prohibition (Amendment) Act, 1986 with a view to combat the increasing menace of dowry deaths. S. 304-B lays down that where the death of a woman is caused by burns or bodily injury or occurs otherwise than normal circumstances within 7 years of marriage and it is shown that soon before the death of the woman she was subjected to cruelty or harassment by her husband or his relation for or in connection with the demand for dowry, such death shall be called dowry death and the husband or the relative shall be deemed to have caused her death: Shanti v. Stateof Haryana A.I.R. 1991 S.C. 1226:1991 Cr.L.J. 1713.

Not retrospective.—S. 304-B is not retrospective. So offence committed prior to coming into force of S. 304-B does not attract the section: Lakhjit Singh v. State (1994) 1 (Supp.) S.C.C. 173; WazirChandv. State of Haryana MR. 1989S.C.378.

Doxvry death, when proved.—When there is a unnatural death of a married woman within 7 years of her marriage presumption of dowry death can be raised if before her death she had been subjected to cruelty or harassment by the accused in connection with any demand of dowry. In such a case the proof of direct connection of the accused with her death is not essential. He is guilty under S. 304-B: Hem Chand v. State of Haryana (1994) 6 S.C.C. 727. When death of the deceased wife was caused by a fall into the well within 7 years of her marriage and there is proof that the deceased was subjected to cruelty and harassment in connection with the demand of dowry amount, the offence under S. 304-B has been made out: State of Kerala v. Rajayyan 1995 Cr.LJ. 989 (Ker.).

When the wife’s suicidal death was due to harassment on account of demand for dowry within 7 years of marriage, the offence under S. 304-B, I.P.Code is proved. But the Supreme Court upheld the conviction of husband alone as there was clear evidence that there were frequent quarrels between the husband and wife. But as against the father-in-law and mother-in-law of the deceased the evidence was general in nature. So the Supreme Court acquitted them of the charge under S. 304-B/34, I.P.Code: Sakmat AH v. State ofBihar 1997 S.C.C. (Cr.) 842.

Dowry death, not proved.—When it was not proved that the accused-husband and his mother used to maltreat and harass the deceased for dowry soon before her death the offence of S. 304-B, I.P.Code with the presumption of S. 113-B of the Evidence Act cannot be established: Bhakhar Ram v. State of Rajasthan 1995 Cr.LJ. 1345 (Raj.). When there was no evidence that the deceased committed suicidejaecause of dowry harassment, the husband cannot be convicted under S. 304-B: Attuluri Krishna Murthy v. State ofA.P. 1995 Cr.LJ. 1653 (Andh. Pra.).

The presumption of dowry death attracting S. 113-B of the Evidence Act is not available when the alleged demand of dowry has not been proved and the allegation of cruelty or harassment to the deceased soon before her death was vague and not trustworthy. So the husband cannot be found guilty under S. 304-B: Joy Ram v. State 1995 Cr.LJ. 1020 (Raj.). But when the deceased was continuously harassed and subjected to cruelty with demand of-dowry and also on the ground of being barren, the presumption under S. 113-AandS. 113-B of the Evidence Act is applicable. The accused is guilty under S. 304-B: P.P. Rao v. State of A.P. 1994 Cr.LJ. 2632 (Andh. Pra.).

Even where woman was set on fire by the in-laws and the motive was greed and avarice for dowry yet the ingredients of the offence of dowry death not having been proved, but the offence of murder having been proved the conviction of the accused for murder S. 302, I.P.Code cannot be disturbed; Sant Gopal v. State of U.P. 1995 Cr.LJ. 312 (AIL). When the allegation that the accused-husband caused death of the deceased wife by strangulation has not been proved by medical evidence and there was no evidence to show that the deceased was subjected to cruelty or harassment by the accused in connection with the demand of dowry, the death of the deceased cannot be held a dowry death only because she died within 7 years of marriage. The acquittal of the husband of the charge under S. 304-B is proper: Public Prosecutor v. Narsu Bai 1995 Cr.LJ. 704 (Andh. Pra.). But when mal-treatment and cruelty to deceased-wife on the part of her husband and mother-in-law in order to compel her to. bring dowry soon before her death is established and the death of the deceased was due to asphyxia by drowning within 7 years of marriage, the charge against the accused under S. 304-B is proved: Nirmal Singh v. State of Haryana 1994 Cr.LJ. (N.O.C.) 351 (P.&K).

Even where the wife committed suicide within four months of the- marriage, the Supreme Court upheld the acquittal of her husband and in-laws when there is no evidence that dowry was ever demanded before or at the time of marriage. It is also proved that the marriage of the deceased-wife was at the instance of her in-laws: Meka Ramaswamy v. Dasari Mo/wn 1998 Cr.LJ. 1105 (S.C.).

Prosecution case is that the deceased-wife committed suicide by consuming poison within four months of marriage on account of cruelty and harassment meted out by the

husband and her relations. But letter written to the wife by her relatives clearly showed that there was cordial relation between the deceased and her husband and her relatives. So when the evidence did not prove that the wife was subjected to cruelty and harassment in connection with the demand for dowry, then there is no scope for presumption of dowry death under S. 113-B of the Evidence Act to arise. So the conviction of the accused-husband under S. 304-B, I.P.Code cannot be sustained: Rajnesh Tandon v. State of Punjab 1995 S.C.C. (Cr.) 817. When the suicide of the wife within seven years of marriage was not due to any demand for dowry and harassment and ill-treatment for such demand but some other depressing factors which prompted her to take her own life, the accused-husband cannot be convicted under S. 304-B, I.P.Code: Pyarelnlv. State of Haryana (1997) 11 S.C.C. 552.

Though the death of the deceased was caused by the burns within seven years of marriage yet soon before her death she was not subjected to cruelty or harassed by the appellants for or in connection with the demand of dowry, no presumption could be drawn under S. 113-B of the Evidence Act against the appellants: Chandra Devi v. State ofRajasthan 2002 Cr.L.J. 1075 (Raj.),

494. Marrying agffti during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception,—This section does not extend to any person, whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction,

nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Form of charge under section 494

I………………………………..(name and office of the Magistrate, etc.), hereby charge

you…………..(name of the accused) as follows:

That you, on or about the…………..day of……………. at…………… had a wife (or

husband) AB living, having been validly married, and that you married CD again during the lifetime of AB, the said second marriage also being duly performed, and thereby committed an offence punishable under section 494, I.P.Code, and within my cognizance.

And I hereby direct that you be tried by the said Court on the said charge.

COMMENTS

Bigamy.—In order to prove the charge of bigamy the complainant being the first wife has not only to prove that she is lawfully married with the accused and that the accused has married for the second tirru.-. When the factum of second marriage is not proved, the charge of bigamy fails: L. Obulamma v. L. Venkata Reddy A.I.R. 1979 S.C. 848. However, the Supreme Court having found that the accused has been living with the alleged second wife, even though the complainant could not prove the second marriage directed the accused-husband to pay Rs. 25,000 as compensation to the complainant first wife: Laxmi Devi v. Satyanarayan (1994) 5 S.C.C. 545.

When the second marriage is alleged to be performed according to Arya Samaj custom but no saptapadi has been performed, the second marriage has not been validly performed: Urmilav. State ofUt tar Pradesh 1994 Cr.L.J. 2910 (All.).