Report No. 185
This section deals with 'Presumption as to dowry death'. It reads as follows:
"113-B. 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand to dowry, the court shall presume that such person had caused the dowry death.
Explanation: For the purpose of this section, 'dowry death' shall have the same meaning as in section 304-B of Indian Penal Code".
Under the section, it is first necessary to prove that such woman has been subjected by such person to cruelty or harassment and secondly, such cruelty should have been or in connection with any demand for dowry and thirdly that this must have been soon before her death. If these are proved, the court 'shall presume' the person caused the dowry death. Of course, the words 'shall presume' mean that the court is, in such circumstances, bound to presume that such person had caused the dowry death but still the presumption is rebuttable.
The need for insertion of section 113-B as also section 304B in the Penal Code has been stated in the 91st Report of the Law Commission (1983) on 'Dowry Deaths and Law Reform'.
In Shamlal v. State of Haryana: AIR 1997 SC 1830, the Supreme Court had occasion to deal with section 113-B. It stated that it is imperative, for invoking the presumption under section 113-B, to prove that 'soon before her death' she was subjected to such cruelty or harassment.
Where the prosecution could only prove that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash, and on account of the failure to meet the demand for dowry, the wife was taken by the parents to their house about one and a half years before her death and further that an attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she 230 would go back to the nuptial home pursuant to which she was taken back by the husband in his house about 10-15 days prior to the occurrence, but there was nothing on record to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her death, it is not permissible to take recourse to the legal presumption under section 113B.
Irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed dowry death provided the ingredients of the section have been proved. Where the death of the wife was concurrently found to be unnatural viz. by strangulation, and there was demand for dowry and also there was cruelty on the part of the husband, the presumption under section 113B must be held to be rightly drawn (Hemchand v. State of Haryana AIR 1995 SC 120).
In Gurbachan Singh v. Satpal Singh: 1990 Crl LJ 562 (SC), the circumstantial evidence showed that the wife was compelled to take the extreme step of committing suicide as the accused person had subjected her to cruelty by constant taunts, maltreatment and also by alleging that she had been carrying an illegitimate child. The suicide was committed within seven years after the marriage. The Supreme Court held that presumption under section 113-B could be drawn.
In a case where the parents and the brother of the victim girl were not informed of the death and the accused hurriedly cremated the dead body, the presumption was held attracted: (Shanti v. State of Haryana) (1991 Crl LJ 5 1713 (SC).
In this connection, it may be noted that there are a few differences between section 113-A and section 113-B. Whereas in section 113-A, the legislature used the words 'may presume' and the words 'having regard to all the circumstances of the case', section 113B uses the words 'shall presume' and does not use the words 'having regard to all the circumstances of the case'. On the other hand, section 113B uses the words 'soon before the death' and these words are absent in section 113A. section 113B deals with dowry death under section 304-B, while section 113A deals with 'abetment of suicide'.
We do not think that section 113-B should use the words 'may presume' or 'having regard to all the circumstances of the case'. Having regard to the fact that in spite of all the new provisions introduced in 1986, dowry deaths are still a regular feature, the existing provision of 'shall presume' must, in our view, be retained. As stated earlier, even so, the presumption is rebuttable.
We, therefore, do not suggest any amendment to section 113-B.