In the absence of evidence on the point that soon before her death the deceased was subjected to cruelty or harassment for or in connection with the demand of dowry, no presumption could be raised under section 113B Indian Evidence Act, 1872. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble justice Ajay Tyagi.
The fact of the case revolved around the mysterious disappearance and murder of the complainant’s married daughter. It was the contention of the complainant that she was murdered by her in-law in regard to the non-fulfillment of dowry.
Analysing the evidence on record in the perspective of offence under Section 304B IPC, to convict the accused under Section 340B IPC, the prosecution has to establish the following ingredients:-
(i) the death of a woman should have been caused by burns or bodily injuries or otherwise than under normal circumstances,
(ii) Such a death must have occurred within seven years of her marriage,
(iii) Soon before her death, she must have been subjected to cruelty or harassment by her husband and her in laws or any relative of her husband,
(iv) Such cruelty or harassment must be for or in connection with demand of dowry.
As per definition of “dowry death” under Section 304B of IPC and the wordings under Section 113B of the Indian Evidence Act, it is necessary to show that “soon before her death” the woman concerned had been subjected to cruelty or harassment for or in connection with the demand of dowry. On proof of the essential ingredients mentioned in Section 113B of Indian Evidence Act, it becomes obligatory on the Court to raise a presumption that the accused had caused the dowry death.
In Balvinder Kaur Vs State of Punjab 2015(1) JIC 71 (SC), it is held by the Hon’ble Apex Court that a combined reading of Section 113B of Indian Evidence Act with Section 304B IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Thus the prosecution is obliged to show that soon before the occurrence of death there was cruelty or harassment and only in that case presumption under Section 113B of Indian Evidence Act operates.
In Kamesh Panjiyar @ Kamlesh Vs. State of Bihar (2005) 2 SCC 388, the Hon’ble Apex Court considered the expression (soon before death) and held as under:- “The expression ‘soon before’ is very relevant where Section 113B of Indian Evidence Act and Section 304B of 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 the prosecution.”
It is also held by the Hon’ble Apex Court in the above case that “soon before” is relative term and it would depend upon circumstances of each case and no straight jacket formula can be laid down as to what would constitute a period of soon before the occurrence. 25. The same view was expressed in Thakkan Jha and other Vs. State of Bihar (2004) 13 SCC 348 and Baldev Singh and others Vs. State of Punjab 2009 (1) JIC 120 (SC).
Hence, it is clear that to attract the provisions of Section 113B of Indian Evidence Act and Section 304B of IPC and to bring the death of a woman within the purview of ‘dowry death’.
The Hon’ble High Court observed that no witness produced by the prosecution from PW1 to PW2 has mentioned a single word about dowry demand or harassment due to dowry demand before the death of the deceased. Hence, there is the live link or proximity to the death of the deceased. Further, the Hon’ble High court also stated that “But, trial court has written “उस दिन भी उसे हेज़ के लिलए उत्पीड़न दिकया गया तथा गला बाकर हत्या कर ी गयी”.