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Showing contexts for: indian penal code 304 in Kamlesh Singh & Others vs State Of U.P. on 2 February, 2017Matching Fragments
11. Before dealing with the merits of the case, it would be appropriate to discuss the legal aspect of section 304-B IPC and presumption under section 113-B, Indian Evidence Act.
12. The actual words used in Section 304-B IPC are of importance. This section reads as under:-
" 304-B. Dowry death:- (1) Where the 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 relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" , and such husband or relative shall be deemed to have caused her death.
22. In Yashoda v. State of M.P. (2004) 3 SCC 98, the Hon'ble Apex Court held that once the ingredients of Section 304-B IPC are fulfilled, the onus shifts to the defence to produce evidence to rebut the statutory presumption and to whom that the death was in the normal course with which the accused were not connected. This is what was said: (SCC p. 103, para 13).
"13.......Once the prosecution proves the facts which give rise to the presumption under Section 304-B IPC, the onus shifts to the defence and it is for the defence to produce evidence to rebut that presumption. The defence may adduce evidence in support of its defence or may make suggestions to the prosecution witnesses to elicit facts which may support their defence. The evidence produced by the defence may disclose that the death was not caused by them, or that the death took place in normal course on account of any ailment or disease suffered by the deceased or that the death took place in a manner with which they were not at all connected. In the instant case if the defence wanted to prove that the deceased had suffered from diarrhoea and vomiting and that resulted in her death, it was for the defence to adduce evidence and rebut the presumption that arose under Section 304-B IPC. The defence could have examined the doctor concerned or even summoned the record from the hospital to prove that in fact the deceased has suffered such ailment and had also been treated for such ailment."
28. Now it is to be considered as to whether the basic ingredients to attract the provisions of section 304-B IPC have been proved by the prosecution.
29. Now it is to be seen that prosecution has been able to prove the following necessary ingredients of section 304-B IPC:-
(i). "The death of a woman should be caused by burns or fatal injury or otherwise than under a normal circumstance". In order to prove this ingredient, prosecution has produced P.W. 4 Dr. G.C.Verma, who has conducted the postmortem of the body of the deceased. No apparent cause of death of the deceased could have been assessed by the Doctor, hence the viscera was preserved. Report of the Forensic Science Laboratory is Ext. Ka-12. Genuineness of the document has been admitted by the learned counsel for the accused before the trial court. It was reported by the Forensic Science Laboratory that the viscera was containing Mandrex (Diphen Hidramin and Methaquinon) poison. No other chemical poison was found in the viscera. P.W. 4 Dr. Verma has stated that the death could have been caused in the night of 27/28.2.1993. It was not a natural death, rather it was a death which has been caused due to administering the Mandrex which contains poison, hence the prosecution has been successfully able to prove the first ingredient that the death was otherwise than under normal circumstances.
"42. For the offence Under Section 304-B Indian Penal Code, the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304-B Indian Penal Code thus prescribes statutory minimum of seven years. In Kulwant Singh and Ors. v. State of Punjab (2013) 4 SCC 177, while dealing with dowry death Sections 304-B and 498-A Indian Penal Code in which death was caused by poisoning within seven years of marriage conviction was affirmed. In the said case, the father-in-law was about eighty years and his legs had been amputated because of severe diabetes and mother-in-law was seventy eight years of age and the Supreme Court held impermissibility of reduction of sentence on the ground of sympathy below the statutory minimum."