Dowry death u/s 304 b
Manoj
(Querist) 14 July 2012
This query is : Resolved
Hello,
My friends sister got married in the month of June 2011. She committed suicide to the end of June 2012, She lived with her husband in a rented house and her in-laws leave in a different city. She was forced to stay with her in-laws for a month just before she committed suicide in her rented house where she lives with her husband. she was harrased and tortured for additional dowry. She left out a suicide note and mentioned that her father-in-law use daily torture her by words and demanded for additional dowry. she mentioned to her family days before she committed the suicide but did not mentioned the same in her suicide letter. She also mentioned that she was trapped by her husband and his family to love him before marriage so that they can get these two married and torture my friends family(deceased parents) by torturing her.
Police filed a case against the her husband, father-in-law and husband's brother U/s 304 B. In the FIR Police did not mentioned anything about the suicide note but I believe that it was mentioned in the initial panchanama done by the police on the spot.
My Qeuries/Concerns.
1) Is it mandatory to suicide note to be part of the FIR.
2) How to prove that she was tortured for additional dowry.
3) How do we come to know that the accused are out on bail.
4) What is the procedure if we do not want to continue with the Public Prosecutor.
5) Is it good idea to go to women's court in these kind of cases (304 B)?
Devajyoti Barman
(Expert) 14 July 2012
1. No
2. By oral evidence
3.By engaging an advocate
4. Apply to the Magistrate for his change.
5.I ma not aware of any women court at least in WB.
Nadeem Qureshi
(Expert) 14 July 2012
Dear Manoj
[304B. 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 purpose 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.]
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment of not less than 7 years but which may extend to imprisonment for life—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.
COMMENTS
Applicability
It was argued that the husband or any of his relative could be guilty of the offence only if he or she directly participated in the actual commission of the offence. This contention was rejected by the Andhra Pradesh High Court. It observed that in its real import, section 304B of the Indian Penal Code would be applicable if cruelty or harassment was inflicted by the husband on any of his relative for, or in connection with demand for dowry, immediately preceding the death by bodily injury or by burning. In short she should have died in abnormal circumstances within seven years of the marriage. In such circumstances the husband or the relative, as the case may be, will be deemed to have caused her death and will be liable to punishment; Vadde Rama Rao v. State of Andhra Pradesh, 1990 Cr LJ 1666.
Burden of Proof
The prosecution under section 304B of Indian Penal Code cannot escape from the burden of proof that the harassment to cruelty was related to the demand for dowry and such was caused “soon before her death”. The word “dowry” has to be understood as it is defined in section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry, i.e., before marriage, at the time of marriage and at an unending period. The customary payment in connection with the birth of child or other ceremonies, are not involved within ambit of “dowry”; Satvir Singh v. State of Punjab, AIR 2001 SC 2828: (2001) 8 SCC 633.
Dowry
(i) Where the evidence revealed that accused—husband killed deceased—wife for not satisfying his dowry demand but nothing on record to show involvement of co-accused in-laws with the offence committed by the accused, co-accused in-laws are not guilty of offence under sections 304B; Patil Paresh Kumar Jayanti Lal v. State of Gujarat, 2000 Cr LJ 223 (Guj).
(ii) The parties were married on 24-5-1962. After staying in the matrimonial home for two months, she returned to her parents’ house and told them that her husband wanted a television set and a fridge. Her father gave her a sum of Rs. 6,000 and she left for the matrimonial home. Her husband again demanded a sum of Rs. 25,000 for purchasing a plot. Thereafter the husband took his wife to her parents’ home saying that he would not take her back unless a sum of Rs. 25,000 was paid to him. After one year he took her back but he did not give up the demand for Rs. 25,000. Soon thereafter she left for her parents’ home and came back with a sum of Rs. 15,000 with a promise that the rest of the amount would be paid later on. In her husband’s home she died of strangulation. The trial court found the accused guilty. The death of the deceased took place within seven years of marriage and persistent demands of dowry were made on her and she died under mysterious circumstances. The trial court framed charge under section 304B. The Supreme Court held that no ground for quashing the charge was made out; Nem Chand v. State of Haryana, (1994) 3 Crimes 608 (SC).
Essential ingredients
To attract the provisions of section 304B, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand of dowry”; Prema S. Rao v. Yadla Srinivasa Rao, AIR 2003 SC 11.
Expression ‘soon before her death’: meaning of
The expression ‘soon before her death’ used in the substantive section 304B, I.P.C. and section 113B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression ‘soon before her death’ is not defined. The determination of the period which can come within the term ‘soon before’ is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. 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; Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828. See also Yashoda v. State of Madhya Pradesh, (2004) 3 SCC 98.
Presumption: Applicability
(i) The presumption shall be raised only on proof of the following essentials:—
(1) The question before the court must be whether the accused has committed the dowry death of a woman.
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828.
(ii) In dowry death cases and in most of such offences direct evidence is hardly available and such cases are usually proved by circumstantial evidence. This section as well as section 113B of the Evidence Act enact a rule of presumption, i.e., if death occurs within seven years of marriage in suspicious circumstances. This may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage, this section will not apply; Ratan Lal v. State of Madhya Pradesh, 1994 Cri LJ 1684. See also, N.V. Satyanandam v. Public Prosecutor, AP High Court, AIR 2004 SC 1708.
Section 304B and Section 498A - Distinction
Section 304B is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre-existing substantive offence. As a consequence, accused cannot be tried and punished for the offence of dowry death provided in section 304B with the minimum sentence of seven years’ imprisonment for an act done by them prior to creation of the new offence of dowry death; Soni Devrajbhai Babubhai v. State of Gujarat, 1991 Cr LJ (313) (SC).
Scope
(i) A perusal of section 304B clearly shows that if a married woman dies 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 in connection with demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused the death. The conditions precedent for establishing an offence under this section are as follows:
(a) that a married woman had died otherwise than under normal circumstances; (b) such death was within seven years of her marriage; and (c) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death; Baljit Singh v. State of Haryana, AIR 2004 SC 1714: (2004) 3 SCC 122.
(ii) Offence under section 304B of the Indian Penal Code is triable by the Court of Session. It is a cognizable and non-bailable offence. The minimum punishment for the offence is seven years imprisonment which may extend to life imprisonment. Section 304B applies not only when death is caused by her husband or in-laws but also when death occurs unnaturally whoever might have caused it. The section will apply whenever the occurrence of death is preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in unnatural circumstances. It may be emphasised that occurrence of death in such circumstances is enough though death might not have been in fact caused by the husband or in-laws. Thus the intention behind the section is to fasten death on the husband or in-laws though they did not in fact caused the death. Thus a fiction has been created. It is because in these circumstances, the misery and agony created thereby which compels the unfortunate married woman to end her life; Premwati v. State of Uttar Pradesh, 1991 Cr LJ 263.
Unnatural death
In-laws insisted dowry demands on one married young woman. Ultimately, it appeared that she was done to death and her body was cremated without sending any information to her parents or any relatives. The Supreme Court held that, if it was natural death, there was no need for the appellants to act in such unnatural manner and cremate the body in great and unholy haste without even informing the parents. In the result it was an unnatural death, either homicidal or suicidal. But even assuming that it is a case of suicide even then it would be death which had occurred in unnatural circumstances. Even in such a case, section 304B is attracted and this position is not disputed. Therefore, the prosecution has established that the appellants have committed an offence punishable under section 304B beyond all reasonable doubts; Shanti v. State of Haryana, AIR 1991 SC 1226.
1.The suicide note can be mentioned in Case Dairy.
2. The burden of proof lies upon the accused not the deceased person, it is the prsumption of the law 113B. 4[ Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Explanation.-- For the purposes of this section," dowry death" shall have the same meaning as in section 304B of the Indian Penal Code.]
3. You have to watch the case day to day before the court.
4. You have right to engage private lawyer for your case and your lawyer can be assist Public Prosecutor.
5. gernally, this type of the cases, trail by the women judges.
Feel free to call
Manoj
(Querist) 15 July 2012
Thank you Devajyoti Barman you have provided with precise answers.
Thanks a lot Nadeem Qureshi, you have really provided ample information. It really helped with us with the section and provided clarity and our future course of action. Thank you again. I will get back to you for further information.
Sudhir Kumar, Advocate
(Expert) 15 July 2012
nothing left to be added.
You have ben given clear position that the burden of prooof is on the accused so even if the suicide note is not there in the evidence still the death itself is a suicide note as the statute says that "husband or relative shall be deemed to have caused her death"
Manoj
(Querist) 15 July 2012
Thank you Sudhir...
Manoj
(Querist) 16 September 2012
Hello All,
i)Can the accused get bail before filing the charge sheet. If he has already got bail do we have right to know when did he got bail and can we ask police take back him to custody.
ii)With in how many days a charge sheet should be filed after the crime/event.
iii) If a suicide note is sent for forensic dept, normally with in how many days we report is expected.
iv) Can we ask police to speed up the process of filing charge sheet.
v) Will the police inform us when they file the charge sheet.
Thank you in advance....
Sudhir Kumar, Advocate
(Expert) 16 September 2012
i)Can the accused get bail before filing the charge sheet. If he has already got bail do we have right to know when did he got bail and can we ask police take back him to custody.
Ans : You have right to engage your advocate who will be present each time the case is heard
ii)With in how many days a charge sheet should be filed after the crime/event.
Ans : 90 days if the accused is not on bail otherwise he gets bail.
iii) If a suicide note is sent for forensic dept, normally with in how many days we report is expected.
Ans : Highly subjective.
iv) Can we ask police to speed up the process of filing charge sheet.
Ans : Not practical.
v) Will the police inform us when they file the charge sheet.
Ans : May not. You engage your counsel who will be present on each date and know the progress.
Manoj
(Querist) 26 September 2012
Thanks a lot Sudhir..
