Kallegowda and another vs State of Karnataka. Criminal Appeal 539 & 504/2014 decided on 21 October 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345479/1/CRLA539-14-21-10-2020.pdf
Relevant Paragraphs: 25. In order to prove the dowry death as contemplated under Section 304B of IPC and presumption under Section 113B of Indian Evidence Act, necessary ingredients are required to be placed on record by the prosecution. The initial burden of proving the case by bringing the evidence against the accused will not shift. However, if the prosecution is able to bring all the circumstances and after discharging the burden of proving the fact that the deceased was subjected to harassment due to demand of dowry soon prior to the death, then the burden shifts on the accused to rebut the same by leading evidence. The Hon’ble Supreme Court has held in Baijnath and others vs. State of Madhya Pradesh reported in (2017) 1 SCC 101 at paragraph 29 and 30 as follows:
“29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.”
27. In order to attract Section 304B of IPC and Section 113-B of Indian Evidence Act for drawing a legal presumption, the prosecution has to satisfy the ingredients of 304B is very much essential. The Hon’ble Supreme Court in the case of Hira Lal vs. State (Government of NCT of Delhi) reported in (2003) 8 SCC 80, at paragraph-8 has held as under:
(Section 304B IPC extracted) The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304B IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. (Section 113-B Evidence Act extracted) The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10-8-1988 on “Dowry Deaths and Law Reform”. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of “dowry death” in Section 304B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death.”
28. In view of the law laid down by the Hon’ble Supreme Court in the above said case and on perusal of the evidence on record, the prosecution failed to place any evidence on record to show that the accused has harassed the deceased in connection with the demand of dowry soon prior to the death in order to attract Section 304B of IPC or to draw a legal presumption under Section 113-B of Indian Evidence Act, that the death of the deceased was dowry death.
30. On perusal of the explanation (b) to 498A clearly goes to show that accused No.1 harassed the deceased for receiving the fixed deposit and to encash the same but the deceased refused to do so which amounts to cruelty under Section 498A of IPC. Therefore, we hold the prosecution though failed to prove the offences against the accused Nos.2 and 4 for the offences punishable under Sections 498A, 304B of IPC and Sections 3 and 4 of DP Act and also failed to prove the offence against accused No.1 under Section 304B of IPC and Sections 3 and 4 of DP Act, but, successful in proving the offence under Section 498A.
Compiled by S.Basavaraj, Advocate, Daksha Legal.
Daksha Legal 