Important point
Presumption u/s 113B Evidence Act is a presumption of law and on proof of essentials mentioned therein it becomes obligatory on Court to raise a presumption that accused caused dowry death.

Headnote:(i) Indian Penal Code, 1860—Section 304B—Evidence Act, 1872—Section 113B—Dowry death—Essential ingredients—Presumption u/s 113B Evidence Act is presumption of law and on proof of essentials it becomes obligatory on Court to raise a presumption that accused caused the death—Prosecution has to rule out possibility of a natural, or accidental death so as to bring it within purview of death occurring otherwise than in normal circumstances—Expression “soon before” would normally imply that interval should not be much between concerned cruelty or harassment and death in question and there must be existence of a proximate and live link between the effects of cruelty based on dowry demand and concerned death.
Held : A conjoint reading of Section 113B of the Evidence Act and Section 304-B IPC 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 Section 113B of the Evidence Act and Section 304B IPC 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. Evidence in that regard has to be led by prosecution. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression ‘soon before her death’ used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. 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 effects 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. (Para 11)
(ii) Indian Penal Code, 1860—Section 304B—Dowry death—Deceased was married to appellant in 1988 and Duragaman was subsequently performed in August 1989—Deceased died in matrimonial house on 28-11-1989—Conviction by Courts below and sentence of 7 years imprisonment—Appeal—Doctor had opined that possible cause of death was not ascertainable—Post mortem report however noted black stained rough skin on both sides of neck and trickling of blood stained fluid from mouth—No evidence that death was due to normal reasons—Evidence amply established demand of dowry and ill-treatment of deceased shortly before occurrence—Conviction and sentence called for no interference. (Para 15)

Judgment

Arijit Pasayat, J.—Leave granted.

2. Marriages are made in heaven, is an adage. A bride leaves the parental home for the matrimonial home, leaving behind sweet memories therewith a hope that she will see a new world full of love in her groom’s house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be a daughter-in-law, but a daughter in fact. Alas! the alarming rise in the number of cases involving harassment to the newly wed girls for dowry shatters the dreams. In-laws are characterized to be outlaws for perpetrating terrorism which destroys the matrimonial home. The terrorist is dowry, and it is spreading tentacles in every possible direction.

3. Appellant calls in question legality of the judgment rendered by a learned Single Judge of the Patna High Court upholding his conviction for offences punishable under Section 304-B of the Indian Penal Code, 1860 (in short the ‘IPC’), while reducing sentence to seven years rigorous imprisonment from ten years imprisonment as was awarded by learned Sessions Judge, Sitamarhi.

4. Prosecution version as unfolded during trial is as follows:

Jaikali Devi (hereinafter referred to as the deceased) was sister of the informant, Sudhir Kumar Mahto (PW-6). She was married to appellant in 1988. Duragaman was subsequently performed in the month of August, 1989. A sum of Rs. 40,000/- was demanded in dowry at the time of marriage and the same was paid. Subsequently, demand for a she-buffalo was made by the appellant at the time of Duragaman which could not be fulfilled. Informant Sudhir Kumar Mahto (PW-6) went several times to the house of her sister and made request for Bidagari of her sister, but the same was not allowed, and on the contrary demand of she-buffalo was pressed. The deceased complained of ill-treatment and torture at the hands of the appellant and other members of his family. The informant was also abused. On 28.11.1989 at about 7.00 a.m., the informant heard some rumour in the village that her sister-the deceased was murdered by the appellant and his family members, and they were contemplating to dispose of the dead body. Thereafter, the informant along with his father Bachu Mahto (PW-3), brother Anup Mahto (PW-5) and uncle Bhuneshwar Mahto (PW-7) went to the village of the appellant and found that the dead body of her sister was lying in the verandah of the appellant’s house and some blood was oozing from her mouth and there were mark of violence on her neck and it appeared that his sister was murdered by strangulation in the previous night. The officer In-charge of Kanhauli Police Station reached in the village Araria on hearing rumours about murder of a lady and he recorded the Fardbeyan (Ext.1) of the informant. He sent Fardbeyan to the Officer In-charge of Kanhauli Police Station for instituting a case. He made inquest on the dead body of the deceased and prepared inquest report and sent the dead body to Sitamarhi Sadar Hospital for post mortem examination and a formal FIR was drawn up. The police after completion of investigation submitted charge sheet.

5. Appellant pleaded innocence. In order to further its version prosecution examined 9 witnesses. As noted above, Sudhir Kumar Mahto (PW-6) was the informant. According to his evidence shortly before the occurrence, he had talked with his sister i.e. the deceased, who told him about the tortures meted out to her for not bringing the dowry articles. To similar effect is the evidence of Dayanand Mahto (PW-1) who claimed to have accompanied PW-6 and heard deceased telling PW-6 about the torture. Bachu Mahto (PW-3) the father of the deceased also stated about the demand. PW-8 is the doctor who conducted the post-mortem. Three witnesses were examined by the accused to substantiate his plea that the deceased had rheumatic disease and she died because of this. The trial Court considered the evidence on record and came to hold that the presumption in terms of Section 113(

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2005 Supreme(SC) 176

Important pointPresumption u/s 113B Evidence Act is a presumption of law and on proof of essentials mentioned therein it becomes obligatory on Court to raise a presumption that accused caused dowry death.

Cases Referred (2)

Important point
Presumption u/s 113B Evidence Act is a presumption of law and on proof of essentials mentioned therein it becomes obligatory on Court to raise a presumption that accused caused dowry death.