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Soni Devrajbhai Babubhai Versus State of Gujarat

Criminal Appeal No. 533 of 1991 - Dated:- 28-8-1991 - VERMA, JAGDISH SARAN AND SHARMA, L.M. JJ. H.S. Zaveri for the Appellant. Dushayant Dave, Ashish Verma and Anip Sachthey. for the Respondents. JUDGMENT: The Judgment of the Court was delivered by VERMA, J. Petitioner's daughter Chhaya Was married to Respondent No. 2 Satish on5. 12. 1984 and they started living together in their marital home at Bagasara. On 13.8. 1986, Chhaya died at Bagasara. The petitioner and his wife got some vague info .....

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1988 for an offence under section 498-A read with section 34 I.P.C. The petitioner filed an application for committing the case to the Court of Session for trial for .an offence punishable under section 304-B I.P.C. which was inserted in the Indian Penal Code by Act No. 43 of 1986 w.e.f. 19.11.1986. On 29.11.1988, the Learned Magistrate dismissed the petitioner's application holding that this amendment being prospective was inapplicable to a death which occurred on 13.8.1986, prior to the am .....

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s the applicability of section 304-B of the Indian Penal Code to the present case where the death alleged to be a dowry death occurred prior to insertion of section 304-B in the Indian Penal Code. This is the only ground on which the. appellant claims trial of the case in the Court of Session. . . The reason given by the High Court to support its view is that the offence was committed prior to the date of insertion of section 304-B in the Indian Penal Code on account of which the section can hav .....

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this background that the point raised by the appellant regarding applicability of section 304-B is decided by us. Section 304-B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society 'and continues unabated in spite of emanicipation of women and the women's liberation movement. This all prevading malady in our society has only a few lucky exception in spite of equal treatment and opportunity to boys and girls for educat .....

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eport of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil as under: "Legislation cannot by itself normally solve deep-rooted social problems, One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape." The e .....

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of dowry and its prejudicial effect on the bride. This experience has led to several other legislative measures in the continuing battle to combat this evil. The Criminal Law (Second Amendment) Act, 1983 (No. 45 of 1983) was an act further to amend the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. Section 498-A was inserted in the Indian Penal Code and corresponding amendments were made in the Code of Criminal Procedure which included section 198A th .....

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der: "(e) Offences under the Act are proposed to be made non-bailable. "(g) A new offence of "dowry death" is proposed to be included in the Indian Penal Code and the necessary consequential amendments in the Code of Criminal Procedure, 1973 and in the Indian Evidence Act, 1872 have also been proposed." Accordingly by section 7 of the Amendment Act, section 8 of the Dowry' Prohibition' Act, 1961 was amended to make every Offence under this Act non-bailable while .....

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her marriage and it is shown that soon before her death she was subjected to cruelty or harass- ment 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, 196 1 (28 of 1961). (2) Whoever commit .....

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ble ' Session." lesS' than seven years but which may extend to imprisonment for life. ' "12. In the Indian Evidence Act, 1872, after section 113-A, the following section shall be inserted, namely:- "11.3-B. 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 has been subjected by such person to cruelty or harassment for, or in connecting with, any demand .....

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orce. The offence under section 304-B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session. The corresponding amendments made in the Code of Criminal Procedure and the Indian Evidence Act relate to the trial and proof of the offence. Section 498; A inserted in the Indian Penal Code by the Criminal Law (Second Amendment)Act, 1983 (Act No. 46 of 1983) is an offence triable by a Magistrate of the First Class and is punishable .....

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than section 498-A. Section 304-B 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. Acceptance of the appellant's contention would amount to holding that the respondents can be tried and punished for the offence of dowry death provided in section 304-B of the Indian Penal Code with the minimum sentence of seven years' imprisonment for an act done by them prior to creation of the .....

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