Page |1

ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

MID- TERM ASSIGNMENT

LAW OF EVIDENCE- II

TOPIC- “SECTION 113A AND 113B OF INDIAN EVIDENCE ACT”

Submitted To Submitted By

Mr. Galib Nashter Vaibhav Teotia

Asst. Prof. 18Ballb03

 Page |2

Dept. Of Law GJ3957

TABLE OF CONTENTS

S.No. PARTICULARS P.No.

1 Introduction 3
4
2 Cruelty by Husband and his Relatives
5
3 Meaning of cruelty
6
4 Dowry Death – proximity test 6
5 113-B , presumption as to dowry death 7
6 Explanation 304-B of IPC 8

7 Dowry death- Evidence in need of Close scrutiny 8

9
8 Ill treatment for dowry not soon before death
10
9 Proof of Dowry Death
10
10 Conclusion. 11
11 Bibliography 12
 Page |3

INTRODUCTION
The problem of Dowry has always been persistent in India and is also rising at a rapid rate
and so is the offences related to dowry demand. Dowry demands can go on for years
together. The birth of children and a number of customary and religious ceremonies often
tend to become the occasions for dowry demands. The inability of the bride’s family to
comply with these demands often leads to the daughter-in-law being treated as a pariah and
subject to abuse. In the worst cases, wives are simply killed to make way for a new financial
transaction—that is, another marriage. The Section 304-B, IPC has been inserted by the
Dowry Prohibition Amendment Act, 1986 with a view of combating increased menace of
dowry deaths. The Supreme Court in the case of State of Himachal Pradesh v. Nikku Ram 1
interestingly started off the judgment with the words ‘Dowry, dowry and dowry’. The
Supreme Court went on to explain why it has mentioned the words ‘dowry’ thrice. This is
because demand for dowry is made on three occasions:
(i) before marriage;
(ii) at the time of marriage; and
(iii) After the marriage.
The term dowry is defined in the Dowry Prohibition Act, “dowry” means any property or
valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the
marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of the said parties,
but does not include dower or Mahr in the case of persons to whom the Muslim Personal
Law (Shariat) applies.
Greed being limitless, the demands become insatiable in many cases, followed by torture of
the girl leading to either suicide in some cases or murder in some. The Supreme Court has
explained in this case that though the definition of ‘dowry’ is stated as ‘property or valuable
security given or agreed to be given…’ demands made after marriage could also be a part of
the consideration because an implied agreement has to be read to give property or valuable
securities, even if asked after the marriage as a part of consideration for the marriage when
the Dowry Prohibition Act 1961 was enacted, the legislature was well aware of the fact that
demands for dowry are made and indeed very often even after the marriage has been
solemnized and this demand is founded on the factum of marriage alone. Such demands,
therefore, would also be in consideration for marriage.
Under S. 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 she had been subjected by that person to

1
(1995)Cri LJ 4184 (SC)
 Page |4

cruelty or harassment in connection with any demand for dowry, the Court shall presume that
such a person had caused the dowry death.
S. 113-B raises a presumption of guilt against any person who has been proved to have
subjected the deceased woman, soon before her death, to cruelty or harassment, in
connection with dowry. Needless to state, it is a presumption intended to be raised against the
husband and his relatives in the case of dowry deaths, which have become increasingly
common in India.

PRESUMPTION AS TO ABETMENT OF SUICIDE OF

MARRIED WOMEN
Section 113A: This section deals with ‘Presumption as to abetment of suicide by a
married woman’. It reads as follows:
“When the question is whether the commission of suicide by a woman had been abetted by
her husband or any relative or 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 498-A of the Indian Penal Code (45 of 1860.” This section was introduced by the
Criminal Law (Second Amendment) Act 46 of 1983. The Indian Penal Code, the Code of
Criminal Procedure, 1973 and the Evidence Act were amended keeping in view the dowry
death problems in India.

Object and Reasons-

The increasing numbers of dowry death is a matter of serious concern. The extent of the evil
has been committed upon by the joint committee of the house.The committee examined the
working of the dowry prohibition act 1961. Cases of cruelty by the husband and the relatives
of the husband which culminated in suicide by, or muder of, helpless woman concerned ,
constitute only a small fraction of the cases involving such cruelty. It is therefore proposed to
amend the Indian penal code and The criminal procedure code as well as the Indian Evidence
Act suitably to deal actively not only with the cases of dowry death but also the cases of
cruelty to married women by their in-laws.
The section requires proof that
(1) that her husband or relatives subjected her to cruelty and
(2) that the married woman committed suicide within a period of seven years from the
date of her marriage.
(3) there must be some evidence to show that her husband or his relatives had subjected
her to cruelty.
If these facts are proved, the court ‘may’ presume. The words are not ‘shall’ presume. Such
a presumption can be drawn only after the court has taken into account all the circumstances
of the case. The inference would then be that the ‘husband or relatives’ abetted her suicide.
 Page |5

If there is no evidence of cruelty, the section does not apply, State of Punjab vs. Iqbal
Singh2. In State of Himachal Pradesh vs. Nikku Ram3, it was held that in the absence of any
evidence to show that the diseased was being harassed within the meaning of Explanation
I(b) of section 498A IPC, the presumption under sec. 113A cannot be raised. The Supreme
Court, in State of West Bengal v. Orilal Jaiswal4 considered the question as to ‘standard of
proof’. It observed that in a criminal trial, the degree of proof is stricter than what is required
in a civil proceeding. In a criminal trial, however intriguing may be the facts and
circumstances of the case, the charges made against may be in the realm of surmises and
conjectures. The requirement of proof beyond reasonable doubt does not stand altered even
after the introduction of sec. 498-A in the Indian Penal Code and section 113-A in the
Evidence Act.
Although, the Court’s conscience must be satisfied that the accused is not held guilty when
there are reasonable doubts about the complicity of the accused in respect of the offences
alleged, it should be borne in mind that there is no absolute standard for proof in a criminal
trial and the question whether the charges made against the accused have been proved
beyond all reasonable doubt must depend upon the facts and circumstances of the cases and
the quality of evidence adduced in the case and the materials placed on record. The doubt
must be of a reasonable man and the standard adopted must be a standard adopted of a
reasonable and just man for coming to the conclusion considering the particular subject
matter.
Reasonableness of the doubt must be commensurate with the nature of the offences to be
investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful
doubts or lingering suspicions and thereby destroy social defence. The court should be
extremely careful in assessing evidence under sec. 113A for finding out if cruelty was meted
out. If it transpires that a victim committing suicide was hyper sensitive to ordinary
petulance, discord and differences in domestic life quite common to the society to which the
victim belonged and such petulance, discord and differences were not expected to induce a
similarly circumstanced individual in a given society to commit suicide, the conscience of
the Court would not be satisfied for holding that the accused charged of abetting the offence
of suicide was guilty.

MEANING OF CRUELTY
The explanation to section 113A provides that ‘cruelty’ shall have the same meaning as
under section 498A of the Indian Penal Code. With the situation existing and having regard
to statutory presumptions the Supreme Court held that the circumstances pointedly point out
the accused as guilty persons, as abettors and in the wake of the order of conviction which
cannot be interfered with as held in Pawan Kumar v. State of Haryana. Section 113B
provides when the question is whether a person has committed the dowry death of a woman,
and it is shown that, soon after her death, she had been subjected by that person to cruelty or
harassment in connection with any demand for dowry, the court shall presume that such a
person had caused the dowry death.The basic burden is on the prosecution to establish the
requirement for application of the presumption, e.g., the incident took place within seven
years of marriage.

RETROSPECTIVE EFFECT
2
AIR 1991 SC 1532
3
AIR 1996 SC 67
4
AIR 1994 SC 1418
 Page |6

The section 113A of the Indian Evidence Act has a retrospective effect. It applies to all
pending action irrespective of the fact that when the offence was committed. This can apply
to the offfence relating to the abetment of suicide even if the incident took place before the
act coming into force i.e. before 1983 by a married woman.

DOWRY DEATH- PROXIMITY TEST

Proximity test serves as a legitimate test in determining whether it would be legitimate in the
particular facts and circumstances of case to draw a presumption of abetment of suicide
under section 113-A of the Indian Evidence Act by reason cruelty. The importance of
proximity test in the matters of presumption can also be appreciated by referring to the
provision of 113-B of the Evidence Act.
In Niharbala v. State,5, there was history of ill-treatment and cruelty towards the wife. She
was driven from the matrimonial home and was even not allowed to take her sucking baby
with herself. She could recover her child by taking recourse to law. Later there was
settlement between the husband and the wife, till she committed suicide after one month and
ten days. The question arose whether certain statement made by the deceased wife to some of
the witness concerned the acts of torture and ill treatment meted out to her were relevant and
admissible? The High Court observed that such statements have no proximate relation to her
death. Though the legislature has used the expression “shall presume’ in section 113-B of the
Indian Evidence Act instead of “may presume’ having regard to all other circumstances of
the case as in section 113-A of the act, yet even in section 113-B the proximity test has been
assigned a definite role for determining whether it is a fit case for invoking the compelling or
that it was called the presumption of law as envisaged in that section 6. The expression ‘and 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 for dowry,” asused in section 113-B is
pregnant with the idea of proximity test. The cruelty or harassment must have been
committed soon before her death. This reflects the insignia of proximity test.
In Chanchal Kumari v Union of India 7, there were no evidence of abetment and hence the
accused was entitled of the charge under 306 I.P.C.
On the other hand, in the case of Paumarthy prabhakar Rao v State8, there was ample
evidence of harassment, ill treatment and Cruelty and presumption under Section 113-A has
been raised.
(a) Either of suicide to which the woman was driven by such persistent of dowry, and (b) Of
homicide.
The sixth factor deals with the nature of the act (accident, suicide, homicide). This is the
most difficult to detect.
The seventh factual component of dowry deaths relates to the locale of death. A dowry death
always takes place within the closed doors. Proof of the cause of death is an arduous task

5
AIR 1992 SC 1817
6
Case refer- Sarad Birdhichand sarda v. state of Maharashtra, AIR 1984 SC 1622. “where death is a logical
culmination of a continuous drama, long in process and as it were final of story, the statements regarding each
step directly connected with the end of drama would be admissible because the entire statement would have to
be read as an organic role and not torn from the context.
7
AIR 1986 SC 752
8
1995 (1) Crimes 434
 Page |7

because of the scanty available evidence. Hence legal presumption are of a great help in this
respect.
The eighth factor is concerned with the ‘reporting’ of the death. There is a scope for an
improvement. It is suggested that an obligation to report the death of the woman to the police
should be imposed in every case. The provision should be that where a married woman dies
within 5 years of her marriage as a result of burn or injuries sustained by her husband
immediately before her death, or from other cause of similar nature and her husband, on
becoming aware that his wife has so died, does not, within a reasonable time, inform the
nearest police officer or magistrate about her death, the husband shall, in the absence of
reasonable excuse, be guilty of an offence punishable with imprisonment not exceeding three
years or with fine or with both. This provision can be appropriately inserted in the Indian
Penal Code9.

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 This should be noted that, the provision is
procedural, therefore, section 113A has retrospective application.10.
A conjoint reading of Section 113-B of the Act and 304-B I.P.C shows that there must be
material to show that soon before her death the victim was subjected to cruelty or
harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to
bring it within the purview of the ‘death occurring otherwise than in normal circumstances’.
‘Soon before’ is a relative term and it would depend upon circumstances of each case and no
straitjacket formula can be laid down as to what would constitute a period soon before the
occurrence. There must be existence of a proximate and live link between the effect of
cruelty based on dowry demand and the concerned death.
In the case of Kaliyaperumal v. State of T.N.,11 four essentials were given based on
which this section can be applied:
 The question before the Court must be whether the accused has committed the dowry
death of a woman. (This means that the presumption can be raised only if the accused
is being tried for the offence under Section 304B, IPC).
 The woman was subjected to cruelty or harassment by her husband or his relatives.
 Such cruelty or harassment was for or in connection with, any demand for dowry.
 Such cruelty or harassment was soon before her death.

EXPLANATION SECTION 304-B OF IPC

9
91st Law Commission Report on Dowry Deaths and Law reforms, 1983, pp.3-4.
10
Gurbachan Singh v. Satpal Singh,  AIR 1990 SC 209

11
AIR 2003 SC 3828
 Page |8

Dowry death where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than wise than under normal circumstances within 7 years of marriage and it
shown that soon before her death she was subjected to cruelty or harassment by 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.
Explanation- For the purpose of this section ‘dowry’ shall have the same meaning as in
section 2 of Dowry Prohibition Act.
Section 113-B creates a presumption for dowry death according to this section when the
question before the court is whether the person has caused dowry death of a woman and it is
proved by evidence that soon before her death such women had been subjected by such
person to cruelty or harassment for “in connection with the demand for dowry” it shall be
presumed by the court that such persons have caused the dowry death.
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.
To invoke Section 304B of the Indian Penal Code the following ingredients are
essential:
1. The death of a woman should be caused by burns or bodily injury or otherwise than
under normal circumstances.
2. Such a death should have occurred within seven years of her marriage.
3. She must have been subjected to cruelty or harassment by her husband or any relative of
her husband.
4. Such cruelty or harassment should be for or in connection with the demand of dowry.
5. Such cruelty or harassment is shown to have been meted out to the woman soon before her
death.
One of the important ingredients to attract the provision of dowry death is that the death of
the bride must relate to the cruelty or harassment on account of demand for dowry. It is true
that Section 304-B does not define cruelty. However, under explanation of Section 113-B of
the Evidence Act, by which presumption of dowry can be drawn, it has been provided that
‘cruelty’ shall have the same meaning as in section 498-A of the Indian Penal Code. As per
requirement of clause (b) appended to section 498-A I.P.C. there should be a nexus between
harassment and any unlawful demand for dowry.
If these conditions are fulfilled then a presumption acts under the Indian Evidence Act and
the burden of proof shifts on the accused to prove that he is innocent.

DOWRY DEATH- EVIDENCE IN NEED OF CLOSE

SCRUTINY
In cases of Dowry death, generally the evidence will not be that of the deceased or the close
relation or friends of the deceased. Not only the events that are known to the persons
 Page |9

acquainted with the deceased, but the statements alleged to have been made by the deceased
about harassment or ill treatment or cruelty will also assume importance. Letters, if any, that
have been written by the deceased to her relations or friends touching the harassment or
cruelty also have got a material bearing. In each and every case, Court is to consider the
status of the parties, the conduct of the parties and the strained relations and the events that
took place from the date of the marriage till the date of the death to arrive at a conclusion
whether the demand as such as put forward by the prosecution is correct or not. There is no
presumption in law that the relatives are bound to make false statements. But such persons
although they would not protect the real culprit, still would naturally have a tendency to
exaggerate or add facts even unconsciously making it absolutely necessary for the Court to
examine their evidence with very great care and caution. - P. Bikshapati v.State of A.P.12
In absence of any evidence that wife was treated with cruelty or harassed with demand for
dowry during 15 days period between she came back to matrimonial home and her tragic
end, no presumption of dowry death can be raised.- Sukhdev v. State of Maharashtra13

ILL- TREATMENT FOR DOWRY NOT SOON BEFORE DEATH-

ACCUSED COULD NOT BE CONVICTED
There must be a material to show that soon before her death victim was subjected to cruelty
and harassment. There must not be the possibility of natural or accidental death. If the
alleged incident of cruelty is remote in time and has become state enough to not to disturb the
mental equilibrium of the woman concerned, it would of no consequences14.
Once it is established by the prosecution that soon before her death, the deceased was
subjected to harassment and cruelty in non-connection with demand for dowry; it will be
presumed by the court that the suicide was committed by the deceased.15
In Kans Raj v state of Punjab,16 the Supreme Court explained ‘soon before’ which occurs in
section 113-B. The Supreme Court held that the term ‘soon before’ is a relative term which is
required to be considered under specific circumstances of each case, and no straight jacket
formula can be laid down by fixing any time. This expression is pregnant with idea of
proximity bar. In relation to Dowry deaths, the circumstances showing the existence of
cruelty and harassment to be deceased are not restricted to particular instances, but normally
refer to cause of conduct. Such conduct may be spread over a period of time. If cruelty or
harassment of demand or dowry is shown to have persisted, it should be deemed to be soon
before the death, if any other intervening circumstances showing the non-existence of such
treatment are not brought on record before alleged transaction date of death. It does not
however mean that such time can be stretched to any period. The proximity and the link
between the effect of cruelty based on Dowry demand and consequential death is required to
be proved by the prosecution.
Moreover no presumption under section 113-B of Evidence Act would be drawn against
accused if it is shown that after alleged demand of dowry, cruelty and harassment the dispute

12
1989 Cri LJ 1186 (AP): (1988) 2 Andh LT 946; 1989 APLJ (Cri) 9.
13
1997 Cri LJ 1927 (SC): AIR 1997 SC 1849: 1997 AIR SCW 1587: 1997 (34) All Cri C 548.
14
Bakshi Ram v. State of Haryana, AIR 2011 SC 691 at p.696
15
Amar Singh v state of Rajasthan, AIR 2010 SC 3391 at p. 3395.
16
AIR 2000 SC 2324
 P a g e | 10

stood resolved and there was no evidence of cruelty and harassment thereafter. Mere lapse of
time would not provide itself to an accused a defence.
If it has been held by the Supreme Court that the term ‘soon before’ used in the section does
not imply ‘immediately before’ as there are not synonyms. The wife died within 7 years of
marriage, evidence of harassment and demand of dowry coupled with torture was there.
Hence, it was a case of dowry death under section 113-B.17
The expression ‘soon before her death’ used in section 304-B, IPC and Section 113-B of
Evidence Act connotes the idea of Proximity test. No definite period has been indicated. It
has been left to be determined by the Courts depending upon the facts and circumstances of
each case. Normally, it would imply that the interval should not be much between the cruelty
or harassment and death in question.

Suicide note
In the case of Naresh Kumar v. State of Haryana, it was written in the suicide note that no
one was responsible for her that and also, she wrote that all doors were closed on her and she
had no other way. The court held that when all the available evidence categorically shows
that there was a demand for dowry and ill-treatment by the husband
and his relatives than just because it is written in the suicide note that no one was responsible
cannot be taken as a conclusive proof that there was, in fact, no one responsible.

PROOF OF DOWRY DEATH

Where death of wife has caused due to strangulation within 7 years and dead body was found
in black mark on neck. The evidence showed that deceased was subjected to cruelty and
torture regularly due to non-fulfilment of dowry demand and also prior to her death. Essential
ingredients of dowry had been proved and presumption against accused for causing death
was available, as such, conviction of accused was proper. – Jageshwar Mahto v state of
Bihar.18
Under the traditional English legal system, in a criminal case, the jury is directed that “the
prosecution should satisfy you beyond any reasonable doubt”. It states on whom the burden
lies: on the prosecution; that the burden is a heavy one: beyond reasonable doubt; and that
‘beyond any reasonable doubt’ conveys a meaning “to ordinary jurors without any lawyers’
elaboration or without any qualification that might dilute the degree of probability of guilt
called for.”19
According to S. 113-A, Evidence Act, 1872, if the question is whether a suicide by a woman
had been abetted by her husband or his relatives and it is shown that it was committed within
a period of seven years from her marriage and that her husband or the relative had subjected
her to cruelty, the Court may presume, that such suicide had been abetted by her husband or
by the relative.20 The three essentials in such a case are-
1) The suicide had been committed within a period of 7 years and

17
Kailash v state of M.P., AIR 2007 SC.
18
2001 Cri LJ 4589 (Jhar.)
19
The Quantum of Burden of Proof in a Criminal Trial, LJ Blom-Cooper, Modern Law Review, March 1969,
pp. 217-220
20
Section 113-A of the Evidence Act, 1872
 P a g e | 11

2) Her husband or such relative of husband had subjected her to cruelty.

Both the conditions need to be satisfied. The defence will have to prove that seven years of
the marriage have elapsed and that the wife had not been subjected to any cruelty. The
explanation to the section states that the definition of ‘cruelty’ should be derived from
section 498-A of the Indian Penal Code.21
In the case of State of West Bengal v. Orilal Jaiswal & another, 22 the Supreme Court stated
that though it is the duty of the prosecution to prove the guilt of the accused beyond
reasonable doubt, as soon as it is successfully shown that the suicide was committed within
one year and due to cruelty by the husband or any of his relative, the burden of proof shifts
on the accused to show that no such cruelty had taken place. In the recent case of Atmaram
v. State of Maharasthra, the Supreme Court stated that to draw up presumption in cases of
suicide committed by a woman within a period of seven years from the date of her marriage,
there must first be evidence to establish that such husband or the relative of her husband
committed cruelty of the nature described in clauses (a) or (b) of the Explanation to Section
498A, IPC.
Section 113-B of the Evidence Act states that presumption would be that any person who had
cruelly treated a woman in connection to any demands of dowry immediately before the
death of the woman would be presumed to have committed dowry death. The explanation to
the section states that dowry death under this section would be same as the definition of
dowry death under Section 304 B of the Indian Penal Code. The definition of ‘Dowry’ under
the Dowry Prohibition Act, 1961 must be referred to.23

CONCLUSION
Dowry death are difficult to establish and hence in majority of dowry death cases, the
evidence is made available which is based upon presumption such as dying declaration,
circumstantial evidence, motive etc. At times, secondary evidences are also used by
prosecution in establishing dowry death. Presumption plays a major role in establishing the
caes against the accused. Presumptions are scattered under different sections of the Indian
Evidences Act. They are defined, to be an inference, affirmative or disaffirmative of the truth
or falsehood of doubtful fact or proposition, drawn by the process of probable reasoning from
something proved or taken for granted.
Section 113-A and 113-B has also been especially incorporated by the legislative to establish
dowry death and suicide in relation to dowry. Dying declaration stands upon the same
footing as another piece of evidence and has to be judged in the light of surrounding
circumstances dying declaration should be of such a nature as to inspire full confidence of
the court in its correctness. Through the legislature has used the expression ‘shall presume’ in
section 113-B of the Indian Evidence Act, yet even in section 113-B the proximity test has
been assigned a definite role.
The ‘Burden of proof’ plays an important role. The initial burden, in case of dowry death lies
on the prosecution. One dowry death is established burden shifts on the accused to discharge
that he has not committed the offence. But till the burden of proof is not shifted as a whole
on the accused person, presumptions will not be able to play major role.

21
S. 498-A. Cruelty
22
AIR 1994 SC 1418
23
Section 2, Dowry Prohibition Act, 1961
 P a g e | 12

BIBLIOGRAPHY
Books referred: -
1. Dr. Avtar Singh, Principles of law of Evidence, ( Central Law Publication, 22nd
edition, 2019)
2. Batuk Lal, The Law of Evidence, (Central Law Agency, Allahabad, 1999)

Websites referred: -
1. http://modelgovernance.com/burden-of-proof-dowry-death/