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Dowry deaths and dying declarations

By Rakesh Shukla

Dying declarations are vital evidence in establishing dowry deaths. When a woman dies without making such a statement, but has earlier alleged harassment and threats to her life, can her statements be considered a 'dying declaration'?

Generally in a criminal case, the testimony of a person for the purpose of evidence is considered after the individual has been cross-examined by the lawyers for the accused. However, statements made by a person as to the cause of his/her death, or any of the circumstances surrounding the death, are an exception to this rule and are referred to as ‘dying declarations’. These are admissible under Section 32 (1) of the Evidence Act (see box) and given evidentiary weightage and value, even though there has been no cross-examination as the individual concerned is deceased.

A dowry death usually occurs in the husband’s or in-laws’ house, and there is little likelihood of finding anyone who will come forward as a witness against the accused. In cases of dowry death therefore, dying declarations become vital evidence in establishing the case. In the event that the woman, after the attempt to murder, is rushed to hospital, statements made by her before her death clearly fall within the ambit of a ‘dying declaration’. However, even in instances where the woman has succumbed to the injuries inflicted, and dies before being able to say anything, she may have earlier made statements to her mother, sister, friends or other persons with regard to harassment and apprehensions of being done to death. Whether these statements can be considered ‘dying declarations’, and how close they should be to the time of death in order to fall within this category is an important aspect to be dealt with.

Sunita Kumari was married on July 9, 1985, and was staying at her in-laws’ house in Batala, Punjab. Her brother Ram Kishan went to meet her on October 23, 1988, to deliver the customary presents to his sister on the occasion of Karva Chauth -- a fast observed by some married women for the safety and long life of their husbands -- and found her dead body lying in the front room with preparations on for her cremation. Noticing ligature marks on his dead sister’s neck, Ram Kishan phoned his parents and then went to the police station.

On the basis of his statement, a case of abetment to suicide, under Section 306 of the Indian Penal Code (IPC), was registered. The post-mortem showed that death was a result of asphyxia. It also revealed ligature marks on the front, right and left side of the neck. After investigation, the police charge-sheeted Sunita’s husband Rakesh Kumar, Ram Piari her mother-in-law, brother-in-law Ramesh Kumar and Bharti the sister-in-law.

Meanwhile, Sunita’s father filed a separate complaint of murder under Section 302 of the IPC, and dowry death under Section 304-B of the IPC. The police case and the criminal case filed by Sunita’s father were heard and decided together by the additional sessions judge, Gurdaspur. The accused were convicted for dowry death under Section 304-B of the IPC and sentenced to 10 years’ imprisonment. Conviction for abetment to suicide, under Section 306 of the IPC, and a sentence of seven years was imposed. Cruelty was also established under Section 498-A of the IPC, with an additional sentence of two years’ imprisonment.

Under appeal, however, the high court acquitted the accused of all charges. Sunita’s father then approached the Supreme Court and judgment was delivered in April 2000, reported as Kans Raj versus State of Punjab (2000) 5 SCC 207.

Sunita’s father submitted that since the death had occurred within seven years of marriage and harassment for dowry had been established, a legal presumption under Section 113-B of the Evidence Act that the accused had caused the dowry death had to be drawn and they had been correctly convicted by the trial court. On behalf of the accused, it was contended that earlier statements made by Sunita were inadmissible as a dying declaration under Section 32 (1) of the Evidence Act. That, in the absence of a demand for dowry before the occurrence, no presumption about dowry death could be drawn against the accused. It was submitted that the accused could not be held guilty as there was no direct evidence regarding cause of death or the circumstances leading up to the woman’s death.

The court examined the provisions of the law as well as the statements of witnesses in the case. Ram Kishore, Sunita’s brother, had deposed that after the marriage the husband Rakesh Kumar had demanded Rs 15,000 to buy a scooter and a refrigerator. This demand had been met and Rs 20,000 had been given. The brother stated that the husband used to threaten Sunita with death for bringing inadequate dowry. He submitted that, on September 21, 1988, Sunita had gone to her younger brother’s house for a ceremony and, at that time, had expressed concern for her life at her in-laws’ house. She did not want to return. Her father, Kans Raj, deposed that Sunita had told him that her mother-in-law, brother-in-law and his wife used to taunt her for bringing inadequate dowry. That various sums of money and a colour TV had been demanded and given to Rakesh Kumar.

It was contended on behalf of the accused that the intervening period between the date of Sunita’s statements and her death would exclude them from the category of a ‘dying declaration’ and would render them inadmissible as evidence. That the statements had to be near or close enough to the time of death in order to be admissible as evidence. Further, that the so-called harassment or cruelty to the wife should be “soon before her death” in order to be included within the category of a ‘dowry death’ under Section 304-B of the IPC. It was argued that even if the statements were considered admissible, they were too far removed in time from the event to be considered close enough to draw an inference that the accused persons had caused the death.

The court examined the law in the context that the Dowry Prohibition Act, to prohibit the practice of dowry, had been brought in, in 1961. That the practice of dowry continued to thrive despite the Act. In an attempt to check this practice the Act was amended in 1984. Again, in 1986, the specific offence of ‘dowry death’ was introduced as Section 304-B in the IPC. Presumption of having caused a dowry death was also introduced against anyone cruelly treating or harassing a woman for dowry before her death, as Section 113-B in the Evidence Act.

Regarding Sunita’s statement, the court observed that for a statement to be admissible the prosecution has to prove that it was made by the deceased person. If the statement is verbal it must be proved by examining the person who heard the dead woman make the statement. For a statement to be admissible, it is not necessary that it should have been made in imminent expectation of death.

The requirement is that the statement should be pertaining to the cause of death or the circumstances surrounding the transaction that resulted in death. The circumstances must have some proximate relation to the actual occurrence. However, the time factor is not always a criterion in determining whether the evidence can be included within the term ‘circumstances of the transaction which resulted in death’. The test of proximity cannot be literally construed and reduced to a cut-and-dried formula. Distance of time would depend on the circumstances of the case. Where death is a logical culmination of a long continuous drama, each step connected with the end of the drama would be admissible.

For instance, in the case of prolonged poisoning, statements may be made long before the date of the actual fatal dose; they would be admissible. Similarly, there may be sustained cruelty extending over a period of years, with exhortations to the victim to end her life. Evidence of cruelty, ill-treatment and exhortations to end life would be admissible as circumstances of the transaction that resulted in death, even though they may be spread over a number of years.

Applying the law, the court held that statements made by Sunita to her parents, brother and other acquaintances would be admissible under Section 32 of the Evidence Act as pertaining to ‘circumstances of the transaction which resulted in her death’.

Coming to the submission that even if admissible, Sunita’s statements could not be termed evidence of cruelty or harassment by her husband “soon before her death”, the court observed that “soon before” is not synonymous with “immediately before”. The words imply that the interval should not be too long between the time of making the statement and the time of death. However, a reasonable time contemplated by the law would be determined by the circumstances of each case.

In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment of the deceased person are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. The court held that if the cruelty, harassment or demands for dowry are shown to have persisted until death then it shall be deemed “soon before her death”. It observed that proximate and live links between the effects of cruelty based on dowry demands and the consequential death are necessary. In the event that there is an intervening circumstance showing the non-existence of such treatment preceding death, then the earlier statements may not fall in the category of cruelty or harassment for dowry “soon before death”.

Returning to the present case, the court noted that Sunita’s father had deposed that a television, clothes and jewellery had been given at the time of his daughter’s marriage. That Sunita had told her father that her husband wanted her to bring more cash. He had demanded money for a scooter and a refrigerator. Rs 20,000 had been given to him. Following persistent demands by the husband, an amount of Rs 26,000, deposited by Sunita’s father in his daughter’s name, was withdrawn. On further demands, a new colour television was bought to replace the television given at the time of marriage.

The court concluded that there had been persistent demands for dowry and continuous harassment until September 21, 1988, when Sunita visited her brother’s house and met her parents. There were no intervening circumstances to show settlement of these dowry demands and the cessation of cruel treatment till her death on October 23, 1988. The court held that Sunita’s statements to her parents, brothers and others were evidence of harassment by her husband in connection with dowry, soon before her death.

The judgment held that Sunita’s death by suicide had occurred within seven years of marriage and there was evidence of harassment for dowry by her husband soon before the death. The Supreme Court found Sunita’s husband guilty of dowry death under Section 304-B, abetment to suicide under Section 306, and cruelty under Section 498-A of the IPC.

But, the court observed that over-enthusiasm in seeking the conviction of people and roping in relatives needs to be discouraged as it could end up weakening the prosecution against the real culprits. In-laws and other relatives cannot be held responsible for the deeds of the husband, and cannot be held guilty for dowry death unless specific acts are attributed to them. The court held that there was no evidence against the mother-in-law, brother-in-law and sister-in-law in the present case and upheld their acquittal by the high court.

Indian Evidence Act 1872

Section 113B*: 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, and demand for dowry, the Court shall presume that such person had caused the dowry death.

* Introduced through an amendment in 1986

(Rakesh Shukla is a Supreme Court lawyer)

InfoChange News & Features, April 2006