The Supreme Court has issued notice in a bail plea filed by a man booked for the dowry death of his wife, who had allegedly hanged herself, within two years of their marriage.
The petitioner has challenged the order of the Uttarakhand High Court which had refused his second bail application. His plea raised substantial question of law before the Apex Court as to whether the High Court was erred in denying bail by raising a presumption under Section 113-B of the Evidence Act before it was sufficiently established by the prosecution that the death was connected to a demand of a dowry?
A two-judge bench of Justice L. Nageswara Rao and Justice B.R. Gavai has issued notice and sought the response of the Uttarakhand Government.
The petitioner’s counsel had argued before the High Court, “Post-mortem report of deceased reveals only a single injury which is on the neck and the doctor has opined that the death was caused due to hanging. He further argued that in the present case any presumption which could have been made is under Section 113-A (Presumption as to abetment of suicide by a married woman) of the Indian Evidence Act, 1872 and not under Section 113-B (Presumption as to dowry death). Thus, the presumption that can be raised is rebuttable.” He further submitted that the chargesheet has already been filed and there is no chance to tamper with the evidence, if the bail is granted.
The High Court in its order had noted, “It is true that according to post-mortem report, there was a ligature mark and the cause of death was asphyxia due to ante-mortem hanging, but merely on the basis of these, it cannot be said that the offence under Section 304-B IPC is not attracted.”
The High Court rejected the bail application while stating that this Court refrains to make deeper discussion about the applicability of Section 304-B. Undoubtedly, there have been allegations of demand of dowry and according to prosecution, they have been made soon after the death of the deceased.
The petitioner was charged under Sections 304-B IPC and Section 3/4 of the Dowry Prohibition Act, 1976 and has been in judicial custody for a period of 1 year and 9 months after the arrest.
According to the prosecution, the petitioner has harassed his wife for the additional demand of dowry of Rs 20 lakh and a four-wheeler, but the demand could not be met and the deceased died on January 19, 2020.
What does Section 113A of Indian Evidence Act 1872 say
113A. Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.1[113A. Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” Explanation.—For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]
What does Section 113B of Indian Evidence Act 1872 say
113B. 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 connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.—For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]
So, the former subsection leads to a less severe punishment than being booked under the latter.