304B

section-304b indian penal code -dowry death.

304b

Section 304b Indian penal code Dowry Death

Section 304b Indian penal code Dowry Death
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 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.

Classification of Offence

Cognizable,
Non-bailable,
Non-compoundable
Trial- Court of Session
Punishment
Imprisonment of not less than 7 years but which may extend to
imprisonment for life,

Applicability

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 (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.

Dowry

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)

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

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).

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).

Purpose of the Reform Suggestion

The proposals under this law reform suggestion are aimed to curb the
menace of dowry and dowry deaths and precisely address the consequent
legal technicalities that may arise. The question of amendment of Section
304-B of the Indian Penal Code, 1860 to have more precise and
stringent punishments according to facts of the case would be examined
through this proposal. The distinction between the different possible causes
of dowry death needs to be sought, for which punishment would need to be
awarded accordingly, as opposed to one punishment for any offence falling
under that section. It will also take into consideration making offences
under Section 498A of the Indian Penal Code compoundable, due to the
present situation of frequent occurrences of misuse of this Section. Factors
are to be evaluated in every individual case, without blind assumptions, but
with certain methods of drawing probable conclusions. It should work
efficiently and adequately but at the same time should not be counter-
productive.

Why there is a need for Amendment?

The issues that stand today with these laws are owed to the lack of clarity
and lack of distinction and classification within the laws concerning
interrelated areas of Dowry, Cruelty and Dowry Death.

This ambiguity, though it may have had its advantages at one point in time
in bringing the victims to justice, is in recent years causing many counter-
productive results. On the other hand, in some cases, the facts may not
meet certain conditions and may not fall into pigeon-holes of known
offences. Peculiarities of the case may cause it to avoid falling under a
certain offence, and proper procedure may not be taken as a result. Cruelty,
as dealt with in Section 498-A of IPC, may be present in numerous forms,
but may not be recognised in peculiar cases if the facts do not satisfy the
required legal ingredients. Proof required for certain offences causes a
burden on the victim, and lack of evidence should not be the reason for
denial of justice.

Measures ought to be taken to ensure that in cases of dowry death, there

are different possibilities as to how the death of the wife could have
occurred, and whether it would necessarily be classified as dowry
death. Section 304-B of IPC should be amended to include and specify the
distinction between murder and suicide that cause the death in the case of
dowry death. It is a vital fact that should significantly affect the case and the
suitable punishment given. Because it is currently treated as murder, one
would have to ponder if the same degree of punishment is applicable in all
the cases. Since it is considered as murder, the death sentence, if awarded,
would be acceptable legally though the dictum of rarest of rare case, may
have to be adhered to.
Dowry Death

Punishment for Dowry Death is explicitly specified in the Indian Penal Code.
It is stated inSection 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.

In recent times, the issue of allowing a

death sentence for the act of Dowry Death has been a contentious one. In
the 202nd Law Commission Report, it has been concluded and expressed that
though there is a scope for providing death sentence for the offence of
dowry death underSection 304-B, there is no substantive reason to do so.
They concluded that because there is no warrant, it would not be amended.
[1]

However, the commission did find that there was a need for a classification
and distinction to be made regarding dowry death and murder, which are
frequently confused for one another. This would greatly affect the case and
proceedings, creating a significantly different outcome. With the view in
mind that dowry death is to be taken seriously, and justice is to be duly
served, it has been treated as a criminal offence with a general definition
and punishment.

Sub-section (1) defines dowry death as: 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[2]

Created with a good intention, this law is not necessarily incompetent, but
rather vague, with limitations. It requires amendment in the area of defining
and specifying the nature of the offence so that the definition is widened and
allows more acts to be charged as offences. If an offence dowry death is just
classified under a single category, it may exclude certain cases that may
otherwise be considered dowry death. This creates another problem, where
an offence may be considered dowry death although it is in fact not. This
grey area should be eradicated, and a clear distinction should be made
between dowry death and other offences.

In the 202nd Law Commission Report after examination had suggested

through a valedictory remark:

Reiterating the rider voiced in the case of K. Prema S.Rao Vs Yadla

Srinivasa Rao by the Supreme Court, the Legislature has by amending the
Penal Code and Evidence Act made Penal Law more strident for dealing with
punishing offences against married women. Such strident laws would have
a deterrent effect on the offenders only if they are so stridently implemented
by the law courts to achieve the legislative intention [3]
It was expressed that the system would need to be sensitive and responsive
to the needs of the situation arising from the incidents of dowry
death. Dowry deaths are manifestation of socio-economic maladies
prevailing in the society. It is necessary that this is addressed at different
levels, instead of legal redressal level alone, to curb the menace of dowry
deaths.

Cruelty in Marriage

Cruelty is enumerated under Section 498-A in the Indian Penal Code.[4]

As mentioned in the 243rd Law Commission Report, the criticism of over-

implication observed by the Courts is justified by the statistical data of the
cases under Section 498-A.This misuse of the Section 498-A is evident
from the high number of cases pending in various courts across the country.
Based on data provided by High Courts during 2011, 3.4 lakh cases
under Section 498-A of the IPC were pending trial in various courts by the
end of 2010. There have been as many as 9.38 lakh accused implicated in

these cases.

There has been an evident unnecessary accusation of more than one person
within cases.[5] This may be due to the fact that the definition allows for
wide interpretation and can be seen as an easy opportunity. A burden of
requirement of proof needs to be imposed on the party that allows for only
certain cases to be accepted. Since the number of cases being accepted into
courts is the reason for ineffectiveness, it may be suggested to permit
allowance for bailable, cognizable cases that are compoundable with
permission of courts. There should also be punishment for parties in case of
proven misuse of this section.

In the 237th Law Commission Report, proposed to add sub-section (2A) to

Section 320 CrPC. The proposed provision will ensure that the offer to
compound the offence is voluntary and free from pressures and the wife has
not been subjected to ill-treatment after the offer of compounding.
Incidentally, it underscores the need for the Court playing an active role
while dealing with the application for compounding the offence under Section
498-A.[6]

Intersection of Cruelty and Dowry Death

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. However, from the perspective of practice
and procedure and to avoid technical shortcomings, it is sensible in such
cases to frame charges under both the Sections. If the case is established
against the accused he can be convicted under both the Sections but no
separate sentence need be awarded underSection 498A in view of a
substantive sentence being awarded for a major offence underSection
304B.[7] [8]

In Panakanti Sampath Rao Vs State of A.P: Accused was charged with

the commission of offences under Sections 498A, 302 and 304B of the
IPC and Sections 3 and 4 of the Dowry Prohibition Act. He was
acquitted of the offence of murder under Section 302but was convicted on
the other counts. Life imprisonment was awarded under Section 304Bother
than the punishment awarded under other charges. On appeal, the High
Court found the accused guilty of the offence under Section 302 of the
IPC, which the Supreme Court affirmed.[9]

It is thus demanded a law that takes into regard the following

findings:

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.
[10]

With the argument against offences under Section 498-B being

compoundable that state that it may lead to an increase in dowry deaths, 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, as well as deaths caused because of dowry.
Categorizing the offence, changing the requirement of proof, and adopting
presumption methods would bring clarity as to how it should be dealt with.
Bailable, compoundable offences would contribute in making courts more
efficient, and categorizing offences of dowry deaths along with a method of
presumption would yield better results of punishments.

[1] 202nd Law Commission Report: Proposal to Amend Section 304-B of

Indian Penal Code, (2007).

[2] Section 304-B, Indian Penal Code

[3] K. Prema S.Rao Vs Yadla Srinivasa Rao AIR 2003 SC 11 at p.11 (para 27)

[4] Section 498-A, Indian Penal Code

[5] 243rd Law Commission Report: Section 498A IPC, (2012).

[6] 237th Law Commission Report: Compounding of (IPC) Offences, (2011).

[7] Shanti Vs State of Haryana 1991(1) SCC 371

[8] 202nd Law Commission Report: Proposal to Amend Section 304-B of

Indian Penal Code,supra note 1.

[9] Panakanti Sampath Rao Vs State of A.P., (2006) 9 SCC 658

[10] 202nd Law Commission Report: Proposal to Amend Section 304-B of

Indian Penal Code.
Subject : Women and Child rights

Title : Bride Burning And Dowry System In India

Author : Mr. Abhishek Sharma

Abhishek Sharma*

The Problem of Dowry

The problem of Dowry has always been persistent in India and is also rising at a rapid rate and so
are the offences related to dowry demand. Dowry demands can go on for years together. The birth
ofchildren and a number of customary and religious ceremonies often tend to become the
occasions for dowry demands. The inability of the brides family to comply with these demands
often leads to the daughter-in-law being treated as a pariah and subject to abuse. In the worst
cases, wives are simply killed to make way for a new financial transactionthat is, another
marriage. The Section 304-B, IPC has been inserted by the Dowry Prohibition Amendment Act,
1986 with a view of combating increased menace of dowry deaths. The Supreme Court in the case
of State of Himachal Pradesh v. Nikku Ram(1995)Cri LJ 4184 (SC). interestingly started off the
judgment with the words Dowry, dowry and dowry. The Supreme Court went on to explain why it
has mentioned the words dowry thrice. This is because demand for dowry is made on three
occasions:

(i) before marriage;

(ii) at the time of marriage; and

(iii) after the marriage.

The term dowry is defined in the Dowry Prohibition Act, dowry means any property or valuable
security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the
marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of the said parties, but
does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat)
applies.

Greed being limitless, the demands become insatiable in many cases, followed by torture of the girl
leading to either suicide in some cases or murder in some. The Supreme Court has explained in
this case that though the definition of dowry is stated as property or valuable security given or
agreed to be given demands made after marriage could also be a part of the consideration
because an implied agreement has to be read to give property or valuable securities, even if asked
after the marriage as a part of consideration for the marriage when the Dowry Prohibition Act 1961
was enacted, the legislature was well aware of the fact that demands for dowry are made and
indeed very often even after the marriage has been solemnized and this demand is founded on the
factum of marriage alone. Such demands, therefore, would also be in consideration for marriage.

Section 304-B of the Indian Penal Code:

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.

To invoke Section 304B of the Indian Penal Code the following ingredients are essential:

1. The death of a woman should be caused by burns or bodily injury or otherwise than
under normal circumstances.

2. Such a death should have occurred within seven years of her marriage.

3. She must have been subjected to cruelty or harassment by her husband or any relative
of her husband.
4. Such cruelty or harassment should be for or in connection with the demand of dowry.

5. Such cruelty or harassment is shown to have been meted out to the woman soon before
her death.

One of the important ingredients to attract the provision of dowry death is that the death of the bride
must relate to the cruelty or harassment on account of demand for dowry. It is true that Section 304-
B does not define cruelty. However, under explanation of Section 113-B of the Evidence Act, by
which presumption of dowry can be drawn, it has been provided that cruelty shall have the same
meaning as in section 498-A of the Indian Penal Code. As per requirement of clause (b) appended
to section 498-A I.P.C. there should be a nexus between harassment and any unlawful demand for
dowry.

If these conditions are fulfilled then a presumption acts under the Indian Evidence Act and the
burden of proof shifts on the accused to prove that he is innocent. The section states:

113B. Presumption as to Dowry Death

When the question is whether a person has committed the dowry death of a women 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.

In the case of State of Punjab v. Iqbal SinghAIR 1991 SC 1532. the Supreme Court clarified the
position as to why the necessity to introduce Section 113-B in the Indian Evidence Act was felt

The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. It must be
remembered that since crimes are generally committed in privacy of residential houses and in
secrecy, independent and direct evidence is not easy to get. That is why the legislature has by
introducing Section 113-B in the Evidence Act tried to strengthen the prosecution hands by
permitting a presumption to be raised if certain foundation facts are established and the unfortunate
event has taken place within seven years of marriage. This period of seven years is considered to
be the turbulent one after which the legislature assumes that the couple would have settled down in
life. When the question at issue is whether a person is guilty of dowry death of a woman and the
evidence discloses that immediately before her death she was subjected by such person to cruelty
and/or harassment for, or in connection with, any demand for dowry. Section 113-B, Evidence Act
provides that the court shall presume that such person had caused the dowry death.

A conjoint reading of Section 113-B of the Act and 304-B I.P.C. 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. Soon before is a relative term and it
would depend upon circumstances of each case and no straitjacket formula can be laid down as to
what would constitute a period soon before the occurrence. There must be existence of a proximate
and live link between the effect of cruelty based on dowry demand and the concerned death.

Suggestions and Solutions

1. Awareness : The first and foremost solution to the problem of dowry deaths is
awareness, taking into account the illiteracy rates in India most of the women who are
subject to the evil of dowry harassment are unaware of their legal rights. Thus the most
important task is to create awareness this can be achieved by setting up awareness
programmes and initiative in different sections of the society.

2. Education: This is another approach to increase awareness by educating people about

such issues and imbibing such social issues in to the curriculum of primary education.

3. Stringent Punishments and speedy trials: Imparting Stringent punishments to the

people convicted of such crimes can also help to create a deterrent effect. Also, speedy trial
system also works in favour of the victim and acts as a deterrent.

4. Enforcement Mechanisms to be strengthened: We see that in the Indian scenario

there are legislations like the Dowry Prohibition Act, the Indian Penal Code and also
legislations like The Protection of Women from Domestic Violence Act are in place but still
the problem of dowry demand continues, thus it is high time that the enforcement of these
legislations should be strengthened.

__________________

* Abhishek Sharma, Student, School of Law, Christ University, Bangalore.

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