TMI Blog2015 (1) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 304B if circumstances prevail triggering these provisions. Some doubts remain on the aspect of presumption of innocence, deemed culpability and burden of proof - Even though there may not be any Constitutional protection to the concept of presumption of innocence, this is so deeply ingrained in all Common Law legal systems so as to render it ineradicable even in India, such that the departure or deviation from this presumption demands statutory sanction. This is what the trilogy of dowry legislation has endeavoured to ordain. The two prosecution witnesses, on whom the entire episode is predicated, are PW 4 and PW 7. The Complainant/PW 4-Angrez Singh appears to be the eldest in the family as he has stated that his brother, i.e. the father of the deceased, had already died. He has stated that sufficient kanyadan was given at the time of marriage; that two months prior to her death the deceased had, on one of her visits to their home, conveyed to her brothers that her husband and his family were harassing her for dowry, especially a motorcycle and fridge - The Complainant has admitted that there were no demands for dowry either at the betrothal or at the time of marriage. Her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the learned Single Judge of the High Court of Punjab and Haryana dismissing the appeal and affirming the conviction and sentence passed against the Appellant by the Trial Court under Sections 304B and 498A of the Indian Penal Code. The marriage between the deceased, Harjinder Kaur and the accused-Appellant took place on 22.2.1997. The case of the prosecution is that two months prior to her death on one of her visits to her parental home, the deceased informed her two brothers of cruelty connected with dowry demands meted out to her by her husband and his family members. They, thereafter, conveyed this information to their uncle-Complainant, Angrej Singh viz. that the accused and his family have been harassing her with a demand for a motorcycle and a fridge. The Complainant advised her to return to her matrimonial house with the assurance that a motorcycle and a fridge would be arranged upon the marriage of her brothers. On 7.2.1998, one Rajwant Singh informed the Complainant that the deceased had committed suicide by consuming some poisonous substance at her matrimonial house in village Danoli. The Complainant, along with the brothers of the deceased and other members of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciate the inconsistencies in the depositions of PWs 4 and 7, which could not be relied upon as both were interested witnesses. It is further submitted that the High Court, on same set of pleadings and evidence, was not justified in acquitting the other accused persons, namely, Devinder Singh (brother-in-law) and Jarnail Singh (father-in-law), while convicting the Appellant. In support of this argument, learned Counsel for the Appellant has relied on the decision of this Court in Narayanamurthy v. State of Karnataka (2008) 16 SCC 512. It is also contended that the prosecution has not established that soon before her death, the deceased had been subjected to any cruelty or harassment in connection with any demand for dowry. Support has been drawn from Durga Prasad v. State of Madhya Pradesh (2010) 9 SCC 73. 5. Out the outset we shall briefly analyse the cauldron of legislation passed by Parliament on the subject which we are presently engaged with. Confronted with the pestilential proliferation of incidents of married women being put to death because of avaricious and insatiable dowry demands, and/ or of brides being driven to take their own lives because of cruelty meted out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to first mean wilful conduct as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life. Since there is no allusion to dowry it converts cruelty, which would ordinarily entitle the wife to seek a dissolution of her marriage, into a criminal act. Parliament rightly restricted the subject offence to only cruelty perpetuated on women since their emancipation, in meaningful terms, largely remains a mirage. One can only optimistically hope that the increasing literacy amongst females, as also amendments in Hindu Law granting a daughter a share in her father's estate, will sooner than later put an end to this malaise. As we are not concerned in this Appeal with events falling within the ambit of Clause (a) of the Explanation, we shall desist from recording any further reflection on the sweep and intent and possible incongruities contained therein as such an exercise on our part would avoidably add to the bludgeoning burden of obiter dicta, which invariably causes confusion. Secondly, broadly stated, Clause (b) to the Explanation of Section 498A Indian Penal Code, postulates harassment meted out to the woman with a view to coercing her or he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own 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. Sub-section (2) makes this offence punishable with imprisonment for a term which shall not be less than seven years and which may extend to imprisonment for life. Section 113B was further incorporated into the Evidence Act; [yet again ignoring the futility, if not ignominy, of retaining the withered appendage in the form of the existing Section 113, and further perpetuating an anachronism.] Be that as may be, the newly introduced Section 113B states that when the question is whether a person has committed the death of a married woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment or in connection with any demand for dowry, the Court shall presume that such person has caused dowry death. The Explanation harks back to the simultaneously added Section 304B of the Indian Penal Code for the definition of dowry death, clarifying thereby that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it is on the husband or his concerned relative that the burden of proof shifts as adumbrated in Section 113B, which finds place in Chapter VII of the Evidence Act. This Chapter first covers 'burden of proof' and then presumption , both being constant bed-fellows. In the present context the deeming or presumption of responsibility of death are synonymous. 9. Death can be accidental, suicidal or homicidal. The first type is a tragedy and no criminal complexion is conjured up, unless statutorily so devised, as in Section 304A; but even there the culpable act is that of the person actually causing the death. It seems to us that Section 304B of the Indian Penal Code, inasmuch as it also takes within its contemplation the death of a woman ..... otherwise than under normal circumstances , endeavours to cover murders masquerading as accidents. Justifiably, the suicidal death of a married woman who was meted out with cruelty by her husband, where her demise occurred within seven years of marriage in connection with a dowry demand should lead to prosecution and punishment under Sections 304B and/or 306 of the Indian Penal Code. However, if the perfidious harassment and cruelt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself. Even though there may not be any Constitutional protection to the concept of presumption of innocence, this is so deeply ingrained in all Common Law legal systems so as to render it ineradicable even in India, such that the departure or deviation from this presumption demands statutory sanction. This is what the trilogy of dowry legislation has endeavoured to ordain. 12. In our opinion, it is beyond cavil that where the same word is used in a section and/or in sundry segments of a statute, it should be attributed the same meaning, unless there are compelling reasons to do otherwise. The obverse is where different words are employed in close proximity, or in the same section, or in the same enactment, the assumption must be that the legislature intended them to depict disparate situations, and delineate dissimilar and diverse ramifications. Ergo, ordinarily Parliament could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or non-existence of a fact in issue. The normal rule is that a Defendant is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case by establishing both the actus reus of the crime and the mens rea. It must first satisfy the evidential burden to show that its allegations have something to support them. If it cannot satisfy this burden, the defence may submit or the judge may direct that there is no case to answer, and the judge must direct the jury to acquit. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent). If, however, the prosecution has established a basis for its case, it must then continue to satisfy the persuasive burden by proving its case beyond reasonable doubt (see proof beyond reasonable doubt). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97) 1 SCC 326, requiring the Court to ascertain the purpose behind the statutory fiction brought about by the use of the word 'deemed' so as to give full effect to the legislation and carry it to its logical conclusion. We may add that it is generally posited that there are rebuttable as well as irrebuttable presumptions, the latter oftentimes assuming an artificiality as actuality by means of a deeming provision. It is abhorrent to criminal jurisprudence to adjudicate a person guilty of an offence even though he had neither intention to commit it nor active participation in its commission. It is after deep cogitation that we consider it imperative to construe the word 'shown' in Section 304B of the Indian Penal Code as to, in fact, connote 'prove'. In other words, it is for the prosecution to prove that a 'dowry death' has occurred, namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust not be adhered to. We have already noted that Article 20 of our Constitution while not affirming the presumption of innocence does not prohibit it, thereby, leaving it to Parliament to ignore it whenever found by it to be necessary or expedient. A percutaneous scrutiny reveals that some legal principles such as presumption of innocence can be found across a much wider legal system, ubiquitously in the Common Law system, and restrictively in the Civil Law system. It seems to us that the presumption of innocence is one such legal principle which strides the legal framework of several countries owing allegiance to the Common Law; even International Law bestows its imprimatur thereto. Article 11.1 of the Universal Declaration of Human Rights, 1948 states - Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. Article 14(3)(g) of the International Covenant on Civil and Political Rights, 1966, assures as a minimum guarantee that everyone has a right not to be compelled to testify against himself or to confess guilt. Article 6 of the European ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpreting the Section is that shown has to be read up to mean prove and the word deemed has to be read down to mean presumed . Neither life nor liberty can be emasculated without providing the individual an opportunity to disclose extenuating or exonerating circumstances. It was for this reason that this Court struck down the mandatory death sentence in Section 303 Indian Penal Code in its stellar decision in Mithu v. State of Punjab AIR 1983 SC 473. Therefore, the burden of proof weighs on the husband to prove his innocence by dislodging his deemed culpability, and that this has to be preceded only by the prosecution proving the presence of three factors, viz. (i) the death of a woman in abnormal circumstances (ii) within seven years of her marriage, and (iii) and that the death had a live link with cruelty connected with any demand of dowry. The other facet is that the husband has indeed a heavy burden cast on his shoulders in that his deemed culpability would have to be displaced and overturned beyond reasonable doubt. This emerges clearly as the manner in which Parliament sought to combat the scourge and evil of rampant bride burning or dowry deaths, to which manner we u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and consider the circumstances, before recording the FIR. Equally preposterous is the argument that once the High Court had seen fit to acquit the other accused, namely, Davinder Singh (brother-in-law) and Jarnail Singh (father-in-law) the husband/Appellant should have been similarly acquitted. It cannot be ignored that the accused was not living with his parents and brother, and it is justified nay necessary to require stronger proof to implicate the family members of the husband. It has been essayed by the learned Counsel for the Appellant to impress upon us that the cruelty postulated in this provision has not been shown to have occurred soon before her death . This argument, assumes on a demurrer, that statutory cruelty had, in fact, been committed. The deceased and the Appellant were married in February, 1997 and the former committed suicide within one year; to even conjecture that it was not soon before death, has only to be stated to be stoutly shot down. 19. We must consider, lastly, whether the prosecution has successfully 'shown' that the deceased was subjected to cruelty which was connected with dowry demands. We may usefully reiterate here that keeping in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er used to harass and torture her and demand dowry in the form of motorcycle and fridge and that he had told these facts to their uncle, Angrez Singh, as well as to his elder brother Jaswant Singh. He has further stated that he made the deceased understand about their financial difficulties and promised to give motorcycle and fridge after his marriage and that of her brother. He was informed of the death of the deceased on 7.2.98 by Angrez Singh/PW 4. In cross-examination even this witness has admitted that no dowry demands were made prior to or at the time of marriage. He has also deposed about a panchayat which included Gurdeep Singh (maternal uncle) as well as Angrez Singh/PW 4 who, as has already been noted, has categorically stated that no such Panchayat took place. The version of the Appellant was put to him and denied, namely, that the deceased was hot tempered, wanted him to shave his hair, forced him to live separately from his parents, wanted him to shift to Karnal and start a business, all of which were against his wishes. The fundamental and vital question that the Court has to ask itself and find a solid answer to, is whether this evidence even preponderantly proves th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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