Difference between 304-B & 498A IPC
The import of Section 304-B is quite different from 498A. They cannot be held to be mutually inclusive. They deal with two distinct offences. Cruelty is a common factor in both the sections.
Under Section 304-B dowry death alone is punishable. Such a death should have occurred within seven years of marriage. In Section 498-A no such period is mentioned. If the case is established, there can be a conviction under both the sections.
Ingredients of 304-B
The Supreme Court in Sandeep Kumar and others v State of Uttarakhand and others (SLP(Crl) No.1512-1513 of 2017) says the ingredients of the offence under 304-B are well-settled.
A marriage performed within seven years before the death of the wife. The death must be unnatural. Soon before the death, the deceased wife must have been at the receiving end of cruelty or harassment, on account of demand for dowry. It is described as dowry death. The relatives concerned, including husband, become liable. Section 113B of the Evidence Act comes to the rescue of the prosecutor by providing for a presumption that a person has caused dowry death if, it is shown that soon before her death, she was subjected by such person for cruelty or harassment for or in connection with demand for dowry.
How to establish offence under 304-B
In order to establish the offence under Section 304-B IPC the prosecution is obliged to prove that the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances.
Such death should have occurred within 7 years of her marriage. And soon before her death she would have been subjected to cruelty or harassment by her husband or any of his relative. Such harassment and cruelty must be in connection with any demand for dowry.
If the prosecution is able to prove these circumstances then the presumption under Section 113-B of the Evidence Act will operate. It is a rebuttable presumption. Then the onus to rebut the presumption shifts on to the accused. If he rebuts the presumption he would be acquitted, otherwise punished.
SC guidelines on trial in 304-B cases
The Supreme Court (SC) summarised the guidelines to be followed in trial under Section 304B, IPC read with Section 113 B, Evidence Act. It is in Satbir Singh v State of Haryana (LL 2021 SC 260) case delivered on 28th May 2021.
The guidelines are as follows:
- Section 304 B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.
- The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304 B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113 B, Evidence Act operates against the accused.
- The phrase “soon before” as appearing in Section 304 B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.
- Section 304 B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.
- Due to the precarious nature of Section 304 B, IPC read with 113 B, Evidence Act, Judges, prosecution and defence should be careful during conduction of trial.
- It is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution.
- The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution, keeping in consideration the peculiarities of Section 304 B, IPC read with Section 113 B, Evidence Act.
- Section 232, CrPC provides that, “If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Such discretion must be utilized by the Trial Courts as an obligation of best efforts.
- Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233, CrPC, which is also an invaluable right provided to the accused.
- In the same breath, Trial Courts need to balance other important considerations such as the right to a speedy trial. In this regard, we may caution that the above provisions should not be allowed to be misused as delay tactics.
- Apart from the above, the presiding Judge should follow the guidelines laid down by this Court while sentencing and imposing appropriate punishment.
- Undoubtedly, as discussed above, the menace of dowry death is increasing day by day. However, it is also observed that sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places. In these cases, the Court needs to be cautious in its approach.
References
- Satbir Singh v State of Haryana (LL 2021 SC 260) https://main.sci.gov.in/supremecourt/2009/70857/70857_2009_31_1501_28042_Judgement_28-May-2021.pdf
- Sandeep Kumar and others v State of Uttarakhand and others https://indiankanoon.org/doc/6883308/
