Sections 498 (A) VS 304(B) IPC are not mutually exclusive

INTRODUCTION

Sections 304-B and 498-A are not mutually exclusive. These provisions deal with 2 distinct offences but they overlap on many occasions. It is true that 'cruelty' is a common essential to both the sections and that has to be proved.

S. 498A was enacted in the year 1983 to deal with the rising number of cases of harassment and cruelty related to dowry. But the legislature had to come up with a new section, S.304B, related to dowry after just 3 years in 1986

It is true that “cruelty” is a common ingredient essential to both the sections and it has to be proved by the prosecution. The Explanation to Section 498-A gives the meaning of "cruelty". In Section 304-B there is no such explanation about the meaning of "cruelty" but having regard to the common background to these offences the meaning of "cruelty of harassment" will be the same as given in explanation to section 498-A under which "cruelty" by itself amounts to an offence and is punishable. Under Section 304-B it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498-A and the husband or his relative would be liable for subjecting the woman to "cruelty" at any time after the marriage.

Ingredients OF 304 B

Essential Ingredients of Dowry Death are as follows :

(i) Death of woman should be caused by burns or bodily injured or otherwise than under normal circumstances.
(ii) Death should have occurred within Seven years of her marriage
(iii) The woman must have been subjected to cruelty or harassment by her husband or relatives of her husband
(iv) Such Cruelty or harassment should be for or in connection with the demand for dowry.
(v) Such cruelty or harassment should have been subjected soon before her death

If death of woman caused under the above circumstances , the husband and husband's relatives will be presumed to have caused a 'dowry death' and be liable for the offence, unless it is proved otherwise.

The expression “otherwise than under normal circumstances” would mean death not in the usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury. Kans Raj v. State of Punjab, (2000) 5 SCC 207

The basic essentials of 498 A are:

a) The woman must be married

b) She must be subjected to cruelty or harassment; and

c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband

The word 'cruelty' covers any or all of the following elements:

Any 'wilful' conduct which is of such a nature as is likely to drive the woman to commit suicide; or
Any 'wilful' conduct which is likely to cause grave injury to the woman; or
Any 'wilful' act which is likely to cause danger to life, limb or health whether physical or mental of the woman

Also, the word 'harassment' is free of 'cruelty' and punishable in the following instances:

(i) Where the harassment of the woman 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

(ii) Where the harassment is on account of failure by her or any persons related to her to meet such demand It is evident that neither every cruelty nor harassment has criminal culpability for the purposes of Section 498-A. In cases of physical violence and infliction of injury likely to cause grave injury or danger to life, limb or health,

This law deals with four types of cruelty:

Any conduct that is likely to drive a woman to suicide,
Any conduct which is likely to cause grave injury to the life, limb or health of the woman,

(iii) Harassment with the purpose of forcing the woman or her relatives to give some property, or

(iv) Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property

JUDICIAL ANALYSIS

It was held by the Honorable Apex Court in Shanti Vs State of Haryana, that Section 304B and 498A are not mutually exclusive. Two distinct offences are observed and dealt with. A person that is charged and acquitted under Section 304B can be convicted under Section 498A without a charge being framed if such a case is made.

The Supreme Court has said that for seeking the conviction of a person accused of causing dowry death, the prosecution has to produce evidence that establishes that the demand for dowry was coupled with acts of harassment and cruelty.

For the court to draw the presumption that the accused had caused the dowry death, the "prosecution has to prove, besides the demand of dowry, harassment or cruelty caused by the accused to the deceased soon before her death", the Supreme court bench of Justice A.K. Patnaik and Justice S.J. Mukhopadhaya said in a judgment

Speaking for the bench, Justice Patnaik said: "In any case, to hold an accused guilty of both the offences under Sections 304B (dowry death) and 498A (cruelty), IPC, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused."

The Supreme Court said that since the prosecution has not been able to prove beyond reasonable doubt this ingredient of harassment or cruelty, "neither of the offences under Sections 498A and 304B, IPC has been made out by the prosecution".

Section 498-A, IPC provision is distinguishable from section 4 of the Dowry Prohibition Act, because in the latter mere demand of dowry is punishable and the existence of an element of cruelty is not necessary, whereas section 498-A, IPC punishes an act of cruelty caused to a newly married woman. (Inder Raj Malik vs Sunita Malik (1986) Cr LJ 1510)

Sec.304 B, 306 498 A I.P.C. and sec.3 &4 of Prohibition of Dowry Act - Mere demand of dowry in absence of cruelty can not fasten any liability = All family members are not liable for Dowry death case under sec.304 B I.P.C. r/w sec.113 B of Evidence Act, Unless it is proved their active role or passive connivance in committing the offence , no presumption could be drawn automatically against all = Bhola Ram …..Appellant Versus State of Punjab …..Respondent = Published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40958

The Supreme Court in the case of Satvir Singh and Ors v. State of Punjab and Anr, stated that, in the cases of dowry death, the circumstances of harassment and cruelty to the victim have to be seen soon before her death. The expression 'soon before death' used in section 304-B of IPC is present with the idea of proximity test. No definite period has been indicated and this expression is not defined. The determination of period soon before is to be determined by the Courts depending upon facts and circumstances of the case. Normally the expression 'soon before' would imply that the time should not be much of the concerned harassment or cruelty and the death of deceased. On proof of necessary in section 304-B, it becomes essential on the court to raise an assumption that the accused caused the dowry death.

In Atmaram v. State of Maharashtra ,woman was subjected to harassment by her husband and his relatives, purposely. The Supreme Court held that, Clause (a) of section 498-A, deals with aggravated forms of cruelty which cause grave injury, and convicted her husband for cruelty. In Shobha Rani v. Madhukar Reddi [18], the court defined the concept of cruelty and a new dimension has been given, cruelty while granting a divorce to the woman on the context of demand for dowry. Explanation to section 498-A provides that any willful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such willful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. 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 would also constitute cruelty.

OPINION

The offence of dowry death in Section 304B, IPC does not fall into the categories of the offences for which death penalty has been provided in the Penal Code. Dowry death is different from the offence of murder. The death of a bride may fall under both the categories of offences, namely, murder and dowry death, in which case, a death sentence may be awarded for committing the offence of murder in appropriate cases depending upon the facts and circumstances of each case. Punishment for Dowry Death is explicitly specified in the Indian Penal Code. It is stated in Section 304-B of Indian Penal Code, of which sub-section (2) specifies the punishment for Dowry Death as 'imprison­ment for a term which shall not be less than seven years but which may extend to imprisonment for life.' it is important to consider the outcome when both Section 498-A and 304-B are amended. Broadly speaking, it would serve a dual purpose in curbing the menace of cruelty.