Law Commission Report

202Nd Report On Proposal To Amend Section 304Bof The Indian Penal Code

GOVERNMENT OF INDIA

LAW COMMISSION OF INDIA

TWO HUNDRED AND SECOND REPORT

ON

PROPOSAL TO AMEND SECTION 304-B OF

INDIAN PENAL CODE

October, 2007
Dr. Justice AR. Lakshmanan
(Former Judge, Supreme Court of India)
Chairman, Law Commission of India

ILI Building (IInd Floor),
Bhagwandas Road,
New Delhi-110 001
Tel. : 91-11-23384475
Fax.: 91-11-23383564

October 9, 2007.

Dear Dr. Bhardwaj,

I have great pleasure in presenting the 202nd Report of the
Law Commission on the proposal to amend
Section 304-B
, Indian
Penal Code, 1860 dealing with the offences of dowry death.

The question that has been examined by the Law
Commission in this Report is whether
Section 304-B
of Indian
Penal Code, 1960 should be amended to provide for more stringent
punishment of death sentence to curb the menace of dowry deaths.

The circumstances in which the subject was taken up for
consideration by the Commission are stated in Chapter I on
Introduction of the Report. Briefly speaking, the Commission
considered this subject pursuant to the Allahabad High Court's
Order dated 31st January, 2003 in the matter of Nathu v. State of
U.P. (Criminal Bail Application No.12466 of 2002) wherein Katju
J. (as he then was) observed "In my opinion dowry death is worse
than murder but surprisingly there is no death penalty for it
whereas death penalty can be given for murder. In my opinion the
time has come when law be amended and death sentence should be
permitted in cases of dowry deaths". The Hon'ble Judge directed
that a copy of the order be sent by the Registrar General of the
Court to Hon'ble Law Minister and Hon'ble Home Minister with a
request that they might consider introducing a Bill in the
Parliament for such amendment or a Ordinance by the Central
Government to the same effect.
While dealing with the subject, the Commission had to
choose between two options available to it. The first was to
comprehensively examine the subject of dowry death in all its
related aspects such as definition of dowry administration and
enforcement of the legal regulation, and accountability of the
concerned agencies etc. and thereby endeavour to codify afresh the
law on dowry death in its entirety. The second was to confine its
consideration only to the point referred to it i.e. whether
Section
304-B
be amended to provide for death sentence? The
st
Commission chose the second option. In its 91 report, the
Commission has already examined the subject of 'Dowry Death
and Law Reforms'. The existing law on the subject could be
largely attributed to the recommendations made therein. Besides,
the Commission was of the view that pointed focus would be
necessary to clear certain doubts and misgivings associated with
the cases of dowry death.

The Commission examined
Section 304-B
IPC in the light
of various judicial pronouncements and critically dealt with the
substantive as well as procedural aspects of the subject. The
Commission finds that the offence of murder is not the same thing
as the offence of dowry death. Though death of bride may be a
common element in both the offences, the absence of direct
connection between the husband and the death of wife
distinguished the offence of dowry death from the offence of
murder and is a strong mitigating factor. Besides, the presumptive
character of the offence of dowry death and cardinal principle of
proportionality as well as the underlying scheme of the Penal Code
go against the proposed prescription of death sentence in case of
dowry death. It may be pertinent to point out that where a case of
dowry death also falls within the ambit of the offence of murder,
awarding death sentence is legally permissible. Of course, the
guidelines laid down by the Supreme Court for award of death
sentence, especially, the dictum of 'rarest of rare case, may have to
be adhered to in such cases as well.

Thus having given its careful consideration to the subject,
the Commission reached the conclusion that there is no warrant for
amending
Section 304-B
IPC to provide for death sentence. That
being so, one may wander as to what then has been the necessity
for submitting such a report where only status quo is recommended
to be maintained and no further change in the law is suggested. In
other words, what is the utility of making a negative
recommendation instead of a positive one. The Commission was
seized of this aspect especially, having regard to the fact that the
present reference has been a fall out of a Court's Order. However,
the Commission found a lot of misgivings and misapprehension
associated with the subject of dowry death. Dowry death is quite
often confused with the offence of murder. There may be
instances where the two may overlap with each other. This gives
rise to demand for parity in the matter of sentence in both these
cases. Nevertheless, the two offences are distinct and independent
offences. The Commission felt the finer nuances need to be spelt
out clearly for their better understanding and appreciation. This
will help in dispelling the ambiguity and confusion shrouded the
notion of dowry death vis-à-vis murder. The utility of this Report
lies in providing clarity on the subject for its correct understanding
and appreciation and will help in effectively dealing with the cases
of dowry deaths by the concerned authorities.

Yours sincerely,

(Dr. Justice AR. Lakshmanan)

Dr. H.R. Bhardwaj,
Hon'ble Minister for Law & Justice,
Government of India,
Ministry of Law & Justice,
Shastri Bhawan,
New Delhi-110 001
CONTETS

Chapter - I Introduction 1
1.1 Scope of Inquiry
Earlier report of the Commission
1.2
on the subject 1

1.3 Inadequacy of existing law 2

1.4 Reference to the Commission 3

1.5 Culpable homicide and varied
Punishments 4
1.6 Question in issue
Dowry death and the law 7
Chapter - II
2.1 Dowry - a social evil

2.2 Law to regulate dowry 9
2.3 Offence of dowry death
2.4 Present scenario

2.5 Sections in
IPC
which prescribe
capital punishment 16

2.6 Death sentence - Code makers'
View 17

2.7 Death sentence only in rarest of
rare cases - guidelines 18

2.8 Some of the cases where the
Hon'ble Supreme Court has
commuted capital punishment to
life imprisonment 27
2.9 Life imprisonment means

Imprisonment for whole life 30
2.10 302 and 304B of the
IPC
2.11 Framing of charge -whether
under
section 302
or 304B 37

2.12 Summation 46

Chapter - III Conclusion and recommendations 48

3.1 Theoretical perspective 48
Kinds of punishments
3.2 50

3.3 Suggestions by the National
Commission for Women 51

3.4 Capital punishment 52

3.5 The Indian scenario 53
Dowry death vis-a-vis murder
3.6 57

3.7 Role of courts in dowry death cases 62

3.8 Different offences arising from the
same facts 67

3.9 Principle of Proportionality in
Prescription of Punishment 72
3.10 Recommendation 79

3.11 Valedictory remark 79
CHAPTER-1

INTRODUCTION

1.1 Scope of Inquiry

The question that the Law Commission is going to
examine in this Report is whether
Section 304B
of Indian Penal
Code, 1860, on dowry death, should be amended to provide for
more stringent punishment of death sentence in order to curb
the menace of dowry deaths.

1.2 Earlier Report of the Commission on the subject.

The question of "Dowry Deaths and Law
Reforms" was suo motu taken up earlier by the Law
Commission in its 91st Report. The existing laws on the subject
may be viewed as the culmination of the Commission's earlier
efforts in this arena. Generally, where the facts in any incident
of dowry related death, or for that matter any offence, are such
which unambiguously satisfy and prove the legal ingredients of
an offence already known to the law, say, murder in case of
dowry death, the law can be resorted to for bringing the
offender to book in such a case. In this regard the Law
Commission noted in its earlier report referred to above, two
impediments in connection with dowry death cases, namely,
firstly the facts might not fully fit into any known offence; and
secondly,
difficulties in having proof of directly incriminating facts in the
peculiarities of the situation in cases of dowry related deaths.
These difficulties have been sought to be redressed by
amending the substantive as well as procedural laws. Thus, a
new offence of dowry death has been created in
Section 304B

that has been inserted in the
Indian Penal Code
, 1860 with
effect from November 19, 1986. The section provides for
punishment of imprisonment for a term which shall not be less
than seven years but which may extend to imprisonment for
life. The section embodies a legal fiction whereby the husband
or the concerned relative is deemed to have caused the dowry
death in a case where the conditions prescribed in the section
are present and then the onus shifts on the husband, or as the
case may be, on the relative concerned to rebut the presumption
enshrined in the section by cogent evidence to show that he has
not caused such dowry death. Besides, Section 113A was
inserted in the
Indian Evidence Act
in 1983 providing for
presumption as to abetment of suicide by a married woman if
the conditions specified in that section are satisfied.

1.3 Inadequacy of the existing law.

Notwithstanding the aforesaid legal amendments
the incidents of dowry deaths have not shown any sign of
significant decline. This gave rise to demands for capital
punishment/death sentence for the offence of dowry death in
order to imbibe necessary deterrence in the law. On the other

hand, there are others who complain about misuse of dowry
related provisions and plead for their abrogation. Before
dealing with these conflicting views, it may be expedient to
state as to how this matter has come up before the Commission.

1.4 Reference to the Commission.

This matter has come up for consideration of the
Commission pursuant to the Order dated 31st January, 2003 of
Allahabad High Court in Criminal Bail Application No.12466
of 2002 in the case of Natthu Vs State of U.P. In this case, it
was alleged that Pritipal, son of Natthu was married to Urmila
Devi about a year and half before her death. Pritipal and his
father Natthu were not satisfied with the dowry given in
marriage and were demanding a motorcycle in dowry which
Urmila's father Sompal was unable to give. They did not allow
Urmila to visit her parental house until motorcycle was given
and when Ramveer, brother of Urmila, went to fetch her, they
threatened to beat him and told him that Urmila would be sent
on giving of a motorcycle. Next day information was received
that they along with others have killed Urmila Devi. The
postmortem report showed a continuous ligature mark on the
neck below the thyroid cartilage as well as five continuous
marks. One of them being on the neck, just below the chin, and
others, on the other parts of the body. These were ante mortem
injuries and prima facie indicated that Urmila Devi was beaten
before strangulation. It was also mentioned by the Doctor in
the

postmortem report that the death of Urmila Devi was due to
asphyxia as a result of ante mortem strangulation. Prime facie
it seemed to be a case of brutal murder of Urmila Devi. While
dealing with the bail application referred to above, Hon'ble Mr.
M. Katju J., as he then was, inter-alia observed. "In my opinion
dowry death is worse than murder but surprisingly there is no
death penalty for it whereas death penalty can be given for
murder. In my opinion the time has come when law be
amended and death sentences should also be permitted in cases
of dowry deaths". The Hon'ble Judge directed :

"Let a copy of this order be sent by the Registrar General
of this Court to Hon'ble Law Minister of India and Hon'ble
the Home Minister of India with the request that they
may consider introducing a Bill in Parliament for such
amendment as suggested above or an Ordinance by the
Central Government to the same effect".

1.5 Culpable homicides and varied punishments.

All homicides are not murders, warranting capital
punishment. There may be culpable homicide not amounting to
murder, causing death by rash and negligence and death as a
result of causing grievous hurt. Different punishments/
sentences have been provided for different types of homicide,
depending upon the nature and gravity of an offence in a given
case. The tenets of penology demands that punishment must be
proportionate to the gravity of the offence, pragmatic and
adequately deterrent, having due regard to its overall

implications from all relevant angles, social, political and
economic etc. The question relating to the adequacy or
otherwise of the punishment for dowry death may, therefore,
have to be considered in this backdrop. The punishment for the
offence of dowry death is imprisonment for not less than seven
years that may extend to life imprisonment. Now the question
is whether capital sentence be added to it as dowry deaths are
certainly most abhorrent. If we carefully examine the provision
of Section 304B, we will note that the offence there under is in
a way fiction of law, whereby the offence of dowry death is
deemed to have been committed if certain set of conditions are
satisfied in a given case. These conditions are four in number,
namely;

(i) There is a death of a women caused by any burns
or bodily injury or occurs otherwise than under
normal circumstances,
(ii) The death of the woman has taken place within
seven years of her marriage,
(iii) Soon before her death, the woman was subjected to
cruelty or harassment by her husband or any relative
of her husband,
(iv) Such cruelty or harassment has been for, or in
connection with, any demand for dowry.
1.6 Question in issue.

If all the four conditions stated above are present
in a given case, then the husband or the relative concerned shall
be deemed to have caused her death and such death will be
called dowry death. The traditional criminal law dictum that an
accused is presumed to be innocent unless proved guilty of the
offence he is charged with, is not applicable on account of the
legal fiction embodied in the provisions of Section 304B
whereby he is deemed to have caused the death and the onus
shifts on him to prove otherwise. Where there is evidence that
the accused committed the murder of woman in terms of
Section 300 defining the offence of murder, he will be charged
with the commission of the offence of murder and liable to be
proceeded against accordingly. If the conditions of Section
304B or, for that matter, any other section of the Penal Code are
present in such a case, the accused will be charged with the
commission of that offence also. The presence of such
conditions pertaining to any other offence will not take out the
case from the ambit of Section 300 dealing with the offence of
murder. In view of the aforesaid, the Commission will consider
in the succeeding chapters as to whether there is any warrant
for appending capital punishment to Section 304B, for the
reason that the offence of dowry deaths are highly despicable
and shocks the conscience of the society.
*****

CHAPTER-2

DOWRY DEATH AND THE LAW

2. 1 Dowry - A social evil

2.1.1 Over the years, Dowry has grown as a deep-rooted social
evil. It has become bane for our society. It is the cause of atrocity
on woman and many unfortunate deaths of young ladies. It is an
offence heinous, brutal and barbaric. The Hon'ble Supreme court
in
Kamlesh Panjiyar Vs State of Bihar
, (2005)2 SCC 388 has
made the observation :

"Marriages are made in heaven, is an adage. A bride leaves
the parental home for matrimonial home leaving behind
sweet memories therewith a hope that she will see a new
world full of love in her groom's house. She leaves behind
not only her memories, but also her surname, gotra and
maidenhood. She expects not only to be daughter in law, but
a daughter in fact. Alas! The alarming rise in the number of
cases involving harassment to the newly wed girl for dowry
shatters the dreams. In-laws are characterized to be outlaws
for perpetrating terrorism which destroys the matrimonial
home. The terrorist is dowry, and it is spreading tentacles in
every possible direction".

2.1.2 The offenders of death relating to demand of dowry always
tries to give an impression that to be a suicidal or accidental death,
but it is always the bride who meets with the accident while
cooking or doing household work.

2.1.3 In
Soni Devrabhai Babubhai Vs State of Gujarat and
Others
, (1991) 4 SCC 298, the Supreme Court observed:

"Section 304B of the India Penal Code and the cognate
provisions are meant for eradication of the social evil of
dowry, which has been the bane of Indian society and
continues unabated in spite of emancipation of women and
the women's liberalization movement. This all-pervading
malady in our society has only a few exceptions in spite of
equal treatment and opportunity to boys and girls for
education and career. Society continues to perpetuate the
difference between them for the purpose of marriage and it
is this distinction, which makes the dowry system thrive.
Even though for eradication of this social evil, effective
steps can be taken by the society itself and the social
sanctions of the community can be more deterrent, yet legal
sanctions in the form of its prohibition and punishment are
some steps in that direction.
The Dowry Prohibition Act,
was enacted for this purpose. The report of the Joint
Committee of Parliament quoted the observations of
Jawaharlal Nehru to indicate the role of legislation in
dealing with the social evil as under:

"Legislation cannot be itself normally solve deep rooted
social problems. One has to approach them in other ways
too, but legislation is necessary and essential, so that it may
give that push and have those educative factors as well as
the legal sanctions behind it which help opinion to be given
a certain shape."

The enactment of
Dowry Prohibition Act, 1961
, in its
original form was found inadequate. Experience shows that
the demand of dowry and the mode of its recovery take
different forms to achieve the same result and various
indirect and sophisticated methods are used to avoid leaving
any evidence of the offence. Similarly, the consequence of
non-fulfillment of demand of dowry meted out to the
unfortunate bride take different forms to avoid any casual
connection between the demand of dowry and its
prejudicial effects on the bride. This experience has led to
several other legislative measures in the continuing battle to
combat this evil" (Paras 5 and 6 at pp.300-301).

2.2 Law to regulate dowry

2.2.1 The Government, from time to time, has come up with
legislations to protect the women and to punish those committing
atrocities on them. In 1961, the
Dowry Prohibition Act
(Act 28 of
1961) was passed prohibiting taking or giving dowry.
By the
Criminal Law (Second Amendment) Act
1983 (Act 46 of 1983)
Chapter XXA was introduced in the Penal Code with Section
498A, creating a new offence of cruelty, which provides for
punishment to the husband or relatives if they harass the women
with a view to coerce her to meet any unlawful demand for
property.
Section 174
Cr.PC was also amended to secure Post
Mortem in case of suicide or death of a woman within seven years
of her marriage. Section 113A has been introduced in the

Evidence Act, 1872
raising a presumption of cruelty as defined
under
Section

498A
, I.P.C. against the husband or his relative if the wife
commits suicide within a period of seven years from the date of
her marriage.

2.2.2. These provisions reflect the anxiety of the Government to
deal firmly with the menace of dowry and to curb the offences for
which the root-cause is dowry. The Government again made
sweeping changes in the Dowry Prohibition (Amendment) Act,
1984. A new offence called "Dowry Death" has been inserted by
introducing Section 304B in the Penal Code. Section 304, has
been brought into force with effect from November 19, 1986. The
relevant G.S.R. reads as follows:-

"G.S.R. 1185(E)-(New Delhi, the 5th Nov, 1986) - In
exercise of the powers conferred by
Section 1
of Dowry
Prohibition (Amendment) Act, 1986 (43 of 1986) the Central
Government hereby appoints the 19th day of November, 1986
as the date on which the Act shall come into force".

2.3. Offence of dowry death

2.3.1
Section 304B
, IPC, says:

(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.

Explanation: For the purpose of this sub-section
"dowry" shall have the same meaning as in
S.2
of the
Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment
for life.

2.3.2.
In
Shanti Vs State of Haryana
, 1991 (1) SCC 371
the Hon'ble Supreme Court has stated that the term dowry is not
defined in
Indian Penal Code
. However, it has been defined in the

Dowry Prohibition Act, 1961
as "any property or valuable security
given or agreed to be given either directly or indirectly -

(a) by one party to the marriage to the other party to the
marriage; or

(a) by the parents of either party to a marriage 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."
2.3.3. In view of the aforesaid definition of the word "dowry" any
property or valuable security should be given or agreed to
be given either directly or indirectly at or before or any time
after the marriage and in connection with the marriage of
the said parties. Therefore, the giving or taking of property
or valuable security

must have some connection with the marriage of the parties
and a correlation between the giving or taking of property or
valuable security with the marriage of the parties is
essential. Being a penal provision it has to be strictly
construed. Dowry is a fairly well known social custom or
practice in India. It is well settled principle of interpretation
of Statute that if the Act is passed with reference to a
particular trade, business or transaction and words are used
which everybody conversant with that trade, business or
transaction knows or understands to have a particular
meaning in it, then the words are to be construed as having
that particular meaning. (See
Union of India Vs Garware
Nylons Ltd.

AIR 1996 SC 3509 and Chemicals and Fibres
of India Vs Union of India
AIR 1997 SC 558). A demand
for money on account of some financial stringency or for
meeting some urgent domestic expenses or for purchasing
manure cannot be termed as a demand for dowry as the said
word is normally understood.

(See
Appasaheb & Anr. Vs
State of Maharashtra
, AIR 2007, SC 763 at p. 767).
2.3.4. There are three occasions related to dowry. One is before
the marriage, second is at the time of marriage and the third
is "at any time" after the marriage. The third occasion may
appear to be an unending period. But the crucial words are
"in connection with the marriage of the said parties". This
means that giving or agreeing to give any property or
valuable security on any of the above three stages should
have been in connection with the marriage of the parties.
There can be many other instances for

payment of money or giving property as between the spouses.
For
example, some customary payments in connection with birth of a
child or other ceremonies are prevalent in different societies. Such
payments are not enveloped within the ambit of "dowry". Hence
the dowry mentioned in Section 304-B should be any property or
valuable security given or agreed to be given in connection with
the marriage. (See
Satvir Singh and others Vs State of Punjab
and another
, AIR 2001, SC 2828 at p. 2834).

2.3.5. It is not enough that harassment or cruelty was caused to
the woman with a demand for dowry at some time, if
Section 304-B is to be invoked. But it should have
happened "soon before her death". The said phrase, no
doubt, is an elastic expression and can refer to a period
either immediately before her death within a few days or
even a few weeks before it. But the proximity to her death
is the pivot indicated by that expression. The legislative
object in providing such a radius of time by employing the
words "soon before her death" is to emphasise the idea that
her death should, in all probabilities, have been the
aftermath of such cruelty or harassment. In other words,
there should be a perceptible nexus between her death and
the dowry related harassment or cruelty inflicted on her.
(See
Satvir Singh Vs State of Punjab
, supra).

2.3.6.
In
Pawan Kumar Vs State of Haryana
, 1998 (3) SCC
309, the Hon'ble Supreme Court has laid down the
ingredients necessary to attract
section 304B
, IPC which are
as follows:

1) death of a woman is either by burns or by bodily
injury or other wise than under normal circumstances;

2) it should be within seven years of marriage;

3) it should also be shown that soon before her death

she was subjected to cruelty or harassment by

husband or any relative of husband.

4) Such harassment or cruelty should pertain to demand

for dowry.

2.3.7. The offence of dowry death punishable under
Section 304B

of the Indian Penal Code is a new offence inserted in the
Indian
Penal Code
with effect from November 19, 1986 when Act 43 of
1986 came into force. The offence under Section 304B is
punishable with a minimum sentence of seven years which may
extend to life imprisonment and is triable by a Court of Sessions.
The corresponding amendments made in the Code of Criminal
Procedure and the Indian Evidence Act relate to the trial and proof
of offence. Section 304B is a substantive provision creating a new
offence. (See
Soni Devrajbhai Babubhai Vs State of Gujarat
and Others
(1991) 4SCC 298 at p. 303).

2.4. Present Scenario:

2.4.1 Now 21 years have been passed since the enactment of

Dowry Prohibition (Amendment) Act, 1986
. The question before
us is:

(1) whether the Government has succeeded in curbing the
menace of 'dowry death'? if not, then

(2) Should death penalty be provided for the offence of
dowry death?

2.4.2. The answer to the first question is in the negative. The sad
affair of dowry deaths is still continuing. Large number of cases
relating to dowry death is reported each year, which really is a
matter of shame and cause for deep concern.

2.4.3. National Crime Records Bureau, Ministry of Home Affairs,
GOI, East Block-7, R.K. Puram, New Delhi, published in report
"Crime in India - 2005" (dated 31st July, 2006 - page 9). "Crime
Clock of 2005" reported wherein one dowry death case is
committed in every 77 minute in India. Further at page 242, table-
5 (A), shows "Crime Head-wise Incidents of Crime Against
Women during 2001-2005 and percentage variation in 2005 over
2004"; Sl.No. 3 reads.

_____________________________________________
Sl. Crime Head 2001 2002 2003 2004 2005 Percentage
No. variation
in 2005
_______________________________________over 2004

3 Dowry Death 6851 6822 6208 7026 6787 -3.4
(
Sec.302
/
304B
IPC)
_________________________________________________

2.4.4. There are various implications of dowry in the society.

Dowry has also a bearing for the female foeticide in our
country. People do not want a baby girl considering the
social situation that one-day they have to pay dowry. On the
other hand, if there is birth
of a baby boy, they will fetch some dowry. Unfortunately, in the
Indian scenario, a girl is looked upon as a liability to her family.
The need of the hour is to fight this menace of dowry in the best

possible way. But one thing goes without saying that merely by
amending the Act and making it more stringent, it will not help
unless the law enforcing agencies do their duty diligently and
honestly. There is an argument within the law making agency that
whether introduction of capital sentence for the offenders for
causing dowry death would meet the ends of justice and would
prove to be a deterrent. Before going further, it would be
appropriate to mention that India is not only the land of Rama and
Buddha, it is also the land of Balmiki and Angulimal, where
dreaded criminals have reformed after relinquishing their dark
past. There is another adage that every saint has a past and every
criminal has a future. It is stated herein that in most of the
countries capital punishment has been abolished. India has adopted
a very balanced approach in this regard. It has capital punishment
in its statute book but uses it rarely. In India there is a subtle shift
from the capital punishment to imprisonment for life and death
sentence has been awarded only for the rarest of the rare cases.
Thus, even if death penalty is provided, it cannot be awarded as a
matter of routine. But the dictum of rarest of rare cases will still be
applicable.

2.5. Sections in
I.P.C
which prescribe Capital
Punishment:

Following are the Sections in the
Indian Penal Code
which
prescribes for the capital punishment:-

(1) Section 121 - waging or attempting to wage war, or
abetting the waging of war, against Government of India;
(2) Section 132 - Abetment of Mutiny, if Mutiny is committed
in consequence thereof.

(3) Section 194 - Giving or fabricating false evidence with
intent to cause any person to be convicted of a capital
offence provided if innocent person be thereby convicted
and executed.

(4) Section 302 - Murder.

(5) Section 303 - Murder by a person under sentence for
imprisonment for life (this section has been struck down by
the Hon'ble Supreme Court as it has been held to be
violative of
article 21
of the Constitution of India)
(6) Section 305 - Abetment of suicide committed by child or
insane or delirious person or an idiot or a person
intoxicated.
(7) Section 307 - Attempt by life convict to murder, if hurt is
caused.

(8) Section 364A - Kidnapping for ransom, etc.
(9) Section 396 - Murder in dacoity.

2.6 Death sentence : Code makers' view:

The authors of the
Code stated:

"We are convinced that it ought to be very sparingly
inflicted, and we propose to employ it only in cases where
either murder or the highest offence against the State has
been committed....To the great majority of mankind nothing
is so dear as life. And we are of opinion that to put robbers,

ravishers and mutilators on the same footing with murderers
is an arrangement which diminishes the security of life....
Those offences are almost always committed under such
circumstances that the offender has it in his power to add
murder to his guilt...As he has almost always the power to
murder, he will often have a strong motive to murder,
inasmuch as by murder he may often hope to remove the
only witness of the crime which he has already committed.
If the punishment of the crime which he has already
committed be exactly the same with the punishment for
murder, he will have no restraining motive. A law which
imprisons for rape and robbery and hangs for murder, holds
out to ravishers and robbers a strong inducement to spare the
lives of those whom they have injured. A law which hangs
for rape and robbery, and which also hangs for murder,
holds out, indeed, if it be rigorously carried into effect, a
strong motive to deter men from rape and robbery, but as
soon as a man has ravished or robbed, it holds out to him a
strong
motive to follow up his crime with a murder." (see Draft
Penal Code, Note A, Page 93)

2.7 Death Sentence only in rarest of rare cases
guidelines:

2.7.1 In
Lehna Vs State of Haryana
, 2002 (3) SCC 76, the
Hon'ble Supreme Court has dealt with the case law whereby
guidelines were laid down for awarding capital sentence. The

Hon'ble Court has further held that in
Criminal Procedure Code
,
there is a definite swing towards life imprisonment.

2.7.2 The apex Court observed:

"
Section 302
IPC prescribes death or life imprisonment as a
penalty for murder. While doing so, the Code instructs to
the Court as to its application. The changes which the Code
had undergone in the last three decades clearly indicate that
Parliament has taken note of contemporary criminological
thought and government. It is not difficult to discern that in
the Code, there is definite swing towards life imprisonment.
"Death sentence is ordinarily ruled out and can only be
imposed for "special reasons", as provided in Section 354
(3). There is another provision in the Code which also uses
the significant expression "special reason". It is Section

361. Section 360 of the 1973 Code re-enacts, in substance,

Section 562
of the Criminal Procedure Code, 1898 (in short
"the old Code"). Section 361 which is a new provision in
the Code makes it mandatory for the court to record "special
reasons" for not applying the provisions of Section 360.

Section 361 thus casts a duty upon the court to apply the
provisions of Section 360 wherever it is possible to do so
and to state "special reasons" if it does not do so. In the
context of Section 360, the "special reasons" contemplated
by Section 361 must be such as to compel the court to hold
that it is impossible to reform and rehabilitate the offender
after examining the matter with due regard to the age,
character and antecedents of the offender and the
circumstances in which the offence was committed. This is
some indication by the legislature that reformation and
rehabilitation of offenders and not mere deterrence, are now
among the foremost objects of the administration of criminal
justice in our country. Section 361 and Section 354(3) have
both entered the statute-book at the same time and they are
part of the emerging picture of acceptance by the legislature
of the new trends in criminology. It would not, therefore, be
wrong to assume that the personality of the offender as
revealed by his age, character, antecedents and other
circumstances and the tractability of the offender to reform

must necessarily play the most prominent role in
determining the sentence to be awarded. Special reasons
must have some relation to these factors. Criminal justice
deals with complex human problems and diverse human
beings. A Judge has to balance the personality of the
offender with the circumstances, situations and the reactions
and choose the appropriate sentence to be imposed." (para

14).

2.7.3. The Hon'ble Supreme Court further observed:

"It should be borne in mind that before the amendment of
Section 367(5) of the old Code, by the Criminal Procedure
Code (Amendment) Act, 1955 (26 of 1955) which came into
force on 1.1.1956, on a conviction for an offence punishable
with death, if the court sentenced the accused to any
punishment other than death, the reason why sentence of
death was not passed had to be stated in the judgment. After
the amendment of Section 367(5) of the old Code by Act 26
of 1955, it is not correct to hold that the normal penalty of
imprisonment for life cannot be awarded in the absence of
extenuating circumstances which reduce the gravity of the
offence. The matter is left, after the amendment, to the
discretion of the court. The court must, however, take into
account all the circumstances, and state its reasons for
whichever of the two sentences it imposes in its discretion.
Therefore, the former rule that the normal punishment for
murder is death is no longer operative and it is now within
the discretion of the court to pass either of the two sentences
prescribed in this section; but whichever of the two
sentences he passes, the Judge must give his reasons for
imposing a particular sentence. The amendment of Section
367(5) of the old Code does not affect the law regulating
punishment under
IPC
. This amendment relates to
procedure and now courts are no longer required to
elaborate the reasons for not awarding the death penalty; but
they cannot depart from sound judicial considerations
preferring the lesser punishment.

Section 354(3) of the Code marks a significant shift in the
legislative policy underlying the old Code as in force

immediately before 1.4.1974, according to which both the
alternative sentences of death or imprisonment for life
provided for murder were normal sentences. Now, under
Section 354(3) of the Code the normal punishment for
murder is imprisonment for life and death penalty is an
exception. The court is required to state the reasons for the
sentence awarded and in the case of death sentence "special
reasons" are required to be stated; that is to say, only special
facts and circumstances will warrant the passing of the death
sentence."

2.7.4 In
Allauddin Mian and others Vs State of Bihar
(1989) 3
SCC 5, the Supreme Court laid down certain broad guidelines for
determining choice of sentence by Courts. It will be useful to refer
to them as under:
"In our justice delivery system several difficult decisions are
left to the presiding officers, sometimes without providing
the scales or the weights for the same. In cases of murder,
however, since the choice is between capital punishment and
life imprisonment the legislature has provided a guideline in
the form of sub-section (3) of
Section 354
of the Code of
Criminal Procedure, 1973 ("the Code") which reads as
under:

When the conviction is for an offence punishable with death
or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of
sentence of death, the special reason for such sentence.

This provision makes it obligatory in cases of conviction for
an offence punishable with death or with imprisonment for
life or for a term of years to assign reasons in support of the
sentence awarded to the convict and further ordains that in
case the judge awards the death penalty, "special reasons"

for such sentence shall be stated in the judgment. When the

law casts a duty on the judge to state reasons it follows that
he is under a legal obligation to explain his choice of the
sentence. It may seem trite to say so, but the existence of the
'special reasons clause' in the above provision implies that
the court can in fit cases impose the extreme penalty of
death. Where a sentence of severity is imposed, it is
imperative thatthe judge should indicate the basis upon
which he considers a sentence of that magnitude justified.
Unless there are special reasons, special to the facts of the
particular case, which can be catalogued as justifying a
severe punishment the judge would not award the death
sentence. It may be stated that if a judge finds that he is
unable to explain with reasonable accuracy the basis for
selecting the higher of the two sentences his choice should
fall on the lower sentence. In all such cases the law casts an
obligation on the judge to make his choice after carefully
examining the pros and cons of each case. It must at once be
conceded that offenders of some particularly grossly brutal
crimes which send tremors in the community have to be
firmly dealt with to protect the community from the
perpetrators of such crimes. Where the incidence of a
certain crime is rapidly growing and is assuming menacing
proportions, for example, acid pouring or bride burning, it
may be necessary for the courts to award exemplary
punishments to protect the community and to deter others
from committing such crimes (emphasis supplied). Since
the legislature in its wisdom though that in some rare cases
it may still be necessary to impose the extreme punishment
of death to deter others and to protect the society and in a
given case the country, it left the choice of sentence to the
judiciary with the rider that the judge may visit the convict
with the extreme punishment provided there exist special
reasons for so doing.

Even a casual glance at the provisions of the Penal Code
will show that the punishments have been carefully graded
corresponding with the gravity of offences; in grave wrongs
the punishments prescribed are strict whereas for minor
offences leniency is shown. Here again there is considerable
room for manoeuvre because the choice of the punishment is
left to the discretion of the judge with only the outer limits

stated. There are only a few cases where a minimum
punishment is prescribed. The question then is what
procedure does the judge follow for determining the
punishment to be imposed in each case to fit the crime? The
choice has to be made after following the procedure set out
in sub-section (2) of Section 235 of the Code. The sub-
section reads as under:

If the accused is convicted, the judge shall, unless he
proceeds in accordance with the provisions of Section 360,
hear the accused on the question of sentence, and then pass
sentence on him according to law.

The requirement of hearing the accused is intended to satisfy
the rule of natural justice. It is a fundamental requirement of
fair play that the accused who was hitherto concentrating on
the prosecution evidence on the question of guilt should, on
being found guilty, be asked if he has anything to say or any
evidence to tender on the question of sentence. This is all
the more necessary since the courts are generally required to
make the choice from a wide range of discretion in the
matter of sentencing. To assist the court in determining the
correct sentence to be imposed the legislature introduced
sub-section (2) to Section 235.The said provision therefore
satisfies a dual purpose; it satisfies the rule o natural justice
by according to the accused an opportunity of being heard
on the question of sentence and at the same time helps the
court to choose the sentence to be awarded. Since the
provision is intended to give the accused an opportunity to
place before the court all the relevant material having a
bearing on the question of sentence there can be no doubt
that the provision is salutary and must be strictly followed.
It is clearly mandatory and should not be treated as a mere
formality.

2.7.5 Sentences of severity are imposed to reflect the seriousness
of the crime, to promote respect for the law, to provide just
punishment for the offence, to afford adequate deterrent to
criminal conduct and to protect the community from further
similar conduct.

It serves a threefold purposes (i) punitive; (ii) deterrent; and (iii)
protective. That is why the Court in
Bachan Singh
case (1980) 2
SCC 684 observed that when the question of choice of sentence is
under consideration the court must not only look to the crime and
the victim but also the circumstances of the criminal and the
impact of the crime on the community. Unless the nature of the
crime and the circumstances of the offender reveal that the
criminal is a menace to the society and the sentence of life
imprisonment would be altogether inadequate, the court should
ordinarily impose the lesser punishment and not the extreme
punishment of death which should be reserved for exceptional
cases only.

In the subsequent decision of
Machhi Singh Vs State
of Punjab
(1983) 3 SCC 470, the Court, after culling out the
guidelines
laid down in

Bachan Singh
case (supra), observed that
only in those exceptional cases in which the crime is so brutal,
diabolical and revolting as to shock the collective conscience of
the community, would it be permissible to award the death
sentence.

2.7.6 The following guidelines which emerge from
Bachan Singh

case [(1980) 2SCC 684] will have to be applied to the facts of each
individual case where the question of imposition of death sentence
arises, as given in
Machhi Singh
case (1983) 3SCC 470 at p. 489.

(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances
of the 'offender' also require to be taken into
consideration along with the circumstances of the
'crime'.

(iii) Life imprisonment is the rule and death sentence is
an exception. Death sentence must be imposed only
when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only
provided, the option to impose sentence of
imprisonment for life cannot be conscientiously
exercised having regard to the nature and
circumstances of the crime and all the relevant
circumstances.

(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances
before the option is exercised.

2.7.7 In rarest of rare cases when the collective conscience of the
community is so shocked, that it will expect the holders of the
judicial power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of retaining
death penalty, death sentence can be awarded. The community

may entertain such sentiment in the following circumstances as
observed by the Supreme Court in
Lehna Singh
case (supra, at p.
86, paras 23-24):

(1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting, or dastardly manner
so as to arouse intense and extreme indignation of the
community.

(2) When the murder is committed for a motive which
evinces total depravity and meanness; e.g. murder by
hired assassin for money or reward; or cold-blooded
murder for gains of a person vis-à-vis whom the
murderer is in a dominating position or in a position of
trust; or murder is committed in the course for betrayal
of the motherland.

(3) When murder of a member of a Scheduled Caste or
minority community etc., is committed not for
personal reasons but in circumstances which arouse
social wrath, or in cases of 'bride burning' or 'dowry
deaths' or when murder is committed in order to remarry
for the sake of extracting dowry once again or to marry
another woman on account of infatuation. (emphasis
supplied)

(4) When the crime is enormous in proportion; For
instance when multiple murders, say of all or almost all
the members of a family or a large number of persons
of a particular caste, community, or locality, are
committed.

(5) When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a person
vis-à-vis whom the murderer is in a dominating
position, or a public figure generally loved and respected
by the community.

2.7.8 If upon taking an overall global view of all the
circumstances in the light of the aforesaid propositions and taking
into account the answers to the questions posed by way of the test
for the rarest of rare cases, the circumstances of the case are such
that death sentence is warranted, the court would proceed to do so.

2.8 Some of the cases where the Hon'ble Supreme Court
has commuted capital punishment to life
imprisonment:

2.8.1 In
Machhi Singh Vs State of Punjab
(1983) 3 SCC 470,
the three-Judge Bench of the Supreme Court considered the
Constitution Bench decision
Bachan Singh Vs State of Punjab

and came to hold that where there is no proof of extreme
culpability, the extreme penalty need not be given. The Supreme
Court also further observed that the extreme penalty of death may
be given only in the rarest of rare cases where aggravating

circumstances are such that the extreme penalty meets the ends of
justice.

2.8.2 In
Suresh Vs State of U.P.
, 2001 Cr. L.J. 1462 (SC), the
conviction was based upon the evidence of a child witness
and Chandrachud, C.J. speaking for the Court held that it will not
be safe to impose extreme penalty of death in a conviction based
on the deposition of a child. It was further observed that the
extreme sentence cannot seek its main support from the
evidence of a child
witness and it is not safe enough to act upon such deposition, even
if true, for putting out a life.

2.8.3 In
Raja Ram Yadav Vs State of Bihar
, 1996 Cr. L.J. 2307:

AIR 1996 SC 1631, the Hon'ble Supreme Court came to
hold that a gruesome and cruel incident did take place and yet did
not think it appropriate to affirm a sentence of death and
commuted to life imprisonment. The Hon'ble Apex Court held
that:

"We feel that although the murders had been committed in a
premeditated and calculated manner with extreme cruelty
and brutality, for which normally sentence of death will be
wholly justified, in the special facts of the case, it will not be
proper to award extreme sentence of death."

2.8.4 In "
Sheikh Abdul Hamid & Anr. Vs State of M.P.
(1998)
3 SCC 188" the Hon'ble Supreme Court has held that:

"Special reasons given by the trial court in awarding death
sentence to the appellants and confirmed by the High Court,
were that it was such a cruel act where the appellants have
not even spared the innocent child and the motive being to
grab the property. We have given our earnest consideration
to the question of sentence and the reasons given by the
High
Court for awarding death sentence to the appellants. Having
regard to the guidelines stated above, it may be noticed that
in the present case it was not pointed out by the prosecution
that it was a cold-blooded murder. There is nothing on
record to show how the murder has taken place. In the
absence of such evidence, we do not find that the case
before us falls within the category of the rarest of rare cases,
deserving extreme penalty of death."

2.8.5 In "
Ronny Alias Ronald James Alwaris & Ors. Vs State of
Maharashtra
(1998) 3 SCC 625" where there were more
than one offender, it has been held by the Hon'ble Supreme
Court that:

"The possibility of reform and rehabilitation, however,
cannot be ruled out. From the facts and circumstances, it is
not possible to predict as to whom among the three played
which part. It may be that the role of one has been more
culpable in degree than that of the others and vice versa.
Where in a case like this it is not possible to say as to whose
case falls within the "rarest of the rare" cases, it would serve
the ends of justice if the capital punishment is commuted
into life imprisonment."

2.8.6 In "
Gurnam Singh & Anr. Vs State of Punjab
(1998) 7
SCC 722". The Hon'ble Supreme Court while commuting the
death sentence to imprisonment for life has said that:

"We are also of the view that in the absence of any evidence
as regard the motive for abduction and as regards the
accused who actually caused their deaths and the manner
and circumstances in which they were caused, the
Designated Court should not have imposed death sentence
upon appellant Gurnam Singh."

2.8.7 In "
Allauddin Mian & Ors. Vs State of Bihar
(1989) 3
SCC 5" The Hon'ble Supreme Court has said that:

"Having come to the conclusion that Allauddin Mian and
Keyamuddin Mian are guilty of murder, the next question is
what punishment should be awarded to them, namely,
whether extinction of life or incarceration for life.
Section
, IPC casts a heavy duty on the court to choose between
death and imprisonment for life. When the Court is called
upon to choose between the convicts cry 'I want to live' and
the prosecutor's demand 'he deserves to die' it goes without
saying that the court must show a high degree of concern
and sensitiveness in the choice of sentence."

2.9 Life Imprisonment means imprisonment for whole
life:

2.9.1 In Section 304B, the maximum sentence that can be awarded
is imprisonment for life.

2.9.2 In
Gopal Vinayak Godse Vs State of Maharashtra
, (AIR
1961 SC 600: 1961 Cr. L.J. 736: 1961 (3) SCR 440), the
Constitution Bench of the Hon'ble Supreme Court held that the
sentence of imprisonment for life is not for any definite period and
the imprisonment for life must, prima facie, be treated as
imprisonment for the whole of the remaining period of the
convicted person's natural life.

2.9.3 In
Zahid Hussein Vs State of W.B.
, (2001) 3 SCC 750, the
Hon'ble Supreme Court has observed that:

"4. The Supreme Court after examining the provisions of

Article 161
of the Constitution,
Cr.PC
and
IPC
has
consistently held that a sentence of imprisonment for life
does not automatically expire at the end of 20 years of
imprisonment including remission, as a sentence of
imprisonment for life means a sentence for the entire life of
the prisoner unless the appropriate Government chooses to
exercise its discretion to remit either the whole or part of the
sentence. (See
Gopal Vinayak Godse Vs State of
Maharashtra
, AIR 1961 SC 600: 1961 Cr. L.J. 736: (1961)
3SCR 440;
State of M.P. Vs Ratan Singh
, AIR 1976 SC
1552: 1976 Cr. L.J. 1192: (1976) 3SCC 470: 1926 SCC
(Cr.)

428;
Sohan Lal Vs Asha Ram
, (1981) SCC 106; and

Bhagirath Vs Delhi Admn.
, 1965 Cr. L.J. 1179 (1986) 2
SCC580: 1985 SCC (Cr.) 280.

5. We extract below sub-rules (4) and (29) of Rule 591 of
the West Bengal Rules for the Superintendence and
Management of Jails (for short 'the Rules').

"(4) In considering the cases of prisoners submitted to it
under sub-rules (1) and (2), the State Government shall take
into consideration - (i) the circumstances in each case, (ii)
the character of the convict's crime, (iii) his conduct in
prison, and (iv) the probability of his reverting to criminal

habits or instigating others to commit crime. If the State
Government is satisfied that the prisoner can be released
without any danger to the society or to the public it may take
steps for issue of orders for his release under
Section 401
of
the Code of Criminal Procedure, 1898.

(29) Every case in which a convict, who has not received the
benefit of any of the foregoing Rules, is about to complete a
period of 20 years of continued detention including
remission earned, if any, shall be submitted three months
before such completion by the Superintendent of the Jail in
which the convict is for the time being detained, through the
Inspector General, for orders of the State Government. If
the convict's jail records during the last three years of his
detention are found to be satisfactory the State Government
may remit the remainder of his sentence."

6. These sub-rules do not provide for automatic release of a life
convict after he has completed 20 years of the detention including
remission. Under these sub-rules the only right which a life
convict can be said to have acquired is a right to have his case put
up by the prison authorities in time to the State Government for
consideration for premature release and in doing so that the
Government would follow the guidelines mentioned in sub-rule
(4).

7. The Explanation to
Section 61
of the Act is as
follows:"Explanation .- For the purpose of calculation of

the total period of imprisonment under this section, the period of
imprisonment for life shall be taken to be equivalent to the period
of imprisonment for 20 years."

8. The Explanation came for consideration by the Supreme Court
in
Laxman Naskar (Life Convict) Vs State of W.B.
(2000) 7 SCC
626: 2000 SCC (Cr.) 280, and this Court held that the said
Explanation is only for the purpose of calculation of the total
period of imprisonment of a life convict under Section 61, which
shall be taken to be equivalent to the period of imprisonment for
20 years and a `life convict would not be entitled to automatic
release under this provision of law. We, therefore, find no
substance in the submission made by Mr.Malik, the learned Senior
Counsel. [Mr. Malik had submitted that in view of sub-rules (4)
and (29) of Rule 591, all the petitioners were entitled to be
released as of right as their total period of imprisonment was `more
than 20 years].

11. Following guidelines were framed by the Government or the
premature release of life convicts, namely:

(i) Whether the offence is an individual act of crime
without affecting the society at large.

(ii) Whether there is any chance of future recurrence of
committing crime.

(iii) Whether there is any fruitful purpose of confining of
these convicts any more.

(iv) Whether the convicts have lost potentiality in
committing crime.

(v) Socio-economic condition of the convicts'
families.

12. The Review Board refused to grant premature release of the
petitioners on the following grounds: (1) police report is adverse;
(2) the convicts are not overaged persons and as such have not lost
the potentiality in committing crime; (3) since other co-convicts
were trying to come out from jail, there was a possibility of
regrouping for antisocial activities; (4) the offence was not an
individual act of crime but was affecting society at large; (5)
convicts were antisocial; and (6) the witnesses who had deposed at
the trial as well as local people were apprehensive of retaliation in
the event of premature release.

14... The conduct of the petitioners while in jail is an important
factor to be considered as to whether they have lost their
potentiality in committing crime due to long period of detention.
The views of the witnesses who were examined during trial and
the people of the locality cannot determine whether the petitioners
would be a danger to the locality, if released prematurely. This has
to be considered keeping in view the conduct of the petitioners
during the period they were undergoing sentence. Age alone
cannot be a factor while considering whether the petitioners still
have potentiality of committing crime or not as it will depend on
changes in mental attitude during incarceration."

2.9.4 In
Ravindra Trimbak Chouthmal Vs State of
Maharashtra
, (1996) 4 SCC 148, Hon'ble Supreme
Court commuted the sentence of death to imprisonment
for life and further ordered that sentence passed under
Section 201 to run not

concurrently but consecutively: While doing so, the Court
observed:

"We have given considered thought to the question and we
have not been able to place the case in that category which
could be regarded as the "rarest of the rare" type. This is so
because dowry death has ceased to belong to that species of
killing. The increasing number of dowry deaths would bear
this. To halt the rising graph, we, at one point, thought to
maintain the sentence; but we entertain doubt about the
deterrent effect of death penalty. We, therefore, resist
ourselves from upholding the death sentence, much though
we would have desired annihilation of a despicable
character like the appellant before us. We, therefore,
commute the sentence of death to one of RI for life
imprisonment.

But then, it is a fit case, according to us, where, for the
offence under Sections 201/34, the sentence awarded, which
is RI for seven years being the maximum for a case of the
present type, should be sustained, in view of what had been
done to cause disappearance of the evidence relating to the
commission of murder - the atrocious way in which the
head was severed and the body was cut in nine pieces.
These cry for maximum sentence. Not only this, the
sentence has to run consecutively, and not concurrently,
to show our strong disapproval of the loathsome, revolting
and dreaded device adopted to cause disappearance of the
dead body."

2.10 302 and 304 B of the
I.P.C
.:

2.10.1 Section 304B and Section 302 are clearly distinguishable.

The court before framing of the charges should see and analyze
that whether charge can be framed against the accused under

Section 302 or not. Charge under 304B is made out in those cases
where what is not clear is the cause of the death. The Section says
where death is caused due to burns or bodily injuries or caused
otherwise than under normal circumstances. This shows that it
may be clear that the death was due to burns or bodily injuries or is
otherwise than under normal circumstances (courts say this covers
suicide also) so what is not clear is whether those persons who
subject to cruelty or harassment are responsible for the cause of the
burns or bodily injuries.

2.10.2 In Hemchand Vs State of Haryana, 1994 (6) SCC 727,
the Hon'ble Supreme Court has held that
Section 113B
of the
Evidence Act says that when the question is whether a person has
committed a 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. The Hon'ble Supreme Court has further held that
proof of direct connection of the accused with her death is not
essential. The absence of direct connection of the accused with
death has to be taken into consideration in balancing the sentence
to be awarded to the accused.

2.10.3 In
Ashok Kumar Vs State of Rajasthan
, 1991 (1) SCC
166, the Hon'ble Supreme Court has laid down that motive for a
murder may or may not be. But in dowry deaths, it is inherent.
And hence, what is required of the court is to examine is as to who

translated it into action as motive for it is not individual, but of
family.

2.11 Framing of charge - whether u/s 302 or 304 B:

2.11.1 In
Shamnsaheb M. Multtani Vs State of Karnataka
,
(2001) 2 SCC 577 the Hon'ble Supreme Court has observed:
"The question raised before us is whether in a case where
prosecution failed to prove the charge under
Section 302

IPC, but on the facts the ingredients of Section 304-B have
winched to the fore, can the court convict him of that
offence in the absence of the said offence being included in
the charge.

14. Sections 221 and 222 of the Code are the two
provisions dealing with the power of a criminal court to
convict the accused of an offence which is not included in
the charge. The primary condition for application of
Section 221 of the Code is that the court should have felt
doubt, at the time of framing the charge, as to which of the
several acts (which may be proved) will constitute the
offence on account of the nature of the acts or series of acts
alleged against the accused. In such a case the Section
permits to convict the accused of the offence which he is
shown to have committed though he was not charged with it.

15. Section 222(1) of the Code deals with a case "when a
person is charged with an offence consisting of several
particulars". The Section permits the court to convict the
accused "of the minor offence, though he was not charged
with it". Sub-section (2) deals with a similar, but slightly
different situation.
"222. (2) When a person is charged with an offence and
facts are proved which reduce it to a minor offence, he may
be convicted of the minor offence, although he is not
charged with it."

16. What is meant by "a minor offence" for the purpose of
Section 222 of the Code? Although the said expression is
not defined in the Code it can be discerned from the context
that the test of minor offence is not merely that the
prescribed punishment is less than the major offence. The
two illustrations provided in the Section would bring the
above point home well. Only if the two offences are
cognate offences, wherein the main ingredients are common,
the one punishable among them with a lesser sentence can
be regarded as minor offence vis-à-vis the other offence.

17. The composition of the offence under
Section 304-B

IPC is vastly different from the formation of the offence of
murder under
Section 302
IPC and hence the former cannot
be regarded as minor offence vis-à-vis the latter. However,
the position would be different when the charge also

contains the offence under
Section 498-A
IPC (husband or
relative of husband of a woman subjecting her to cruelty).

18. So when a person is charged with an offence under

Sections 302
and
498-A
IPC on the allegation that he caused
the death of a bride after subjecting her to harassment with a
demand for dowry, within a period of 7 years of marriage, a
situation may arise, as in this case, that the offence of
murder is not established as against the accused.
Nonetheless, all other ingredients necessary for the offence
under
Section 304-B
IPC would stand established. Can the
accused be convicted in such a case for the offence under

Section 304-B
IPC without the said offence forming part of
the charge?

19. A two-Judge Bench of the Supreme Court (K.
Jayachandra Reddy and G.N. Ray, JJ.) 1994 SCC (Cr.) 235
has held in
Lakhjit Singh Vs State of Punjab
, 1994 supp. 1
SCC 173, that if a prosecution failed to establish the offence
under
Section 302
IPC, which alone was included in the
charge, but if the offence under
Section 306
IPC was made
out in the evidence it is permissible for the court to convict
the accused of the latter offence.

........

21. The crux of the matter is this: Would there be occasion
for a failure of justice by adopting such a course as to
convict an accused of the offence under
Section 304-B
IPC

when all the ingredients necessary for the said offence have
come out in evidence, although he was not charged with the
said offence? In this context a reference to Section 464(1)
of the Code is apposite:
"464. (1) No finding, sentence or order by a court of
competent jurisdiction shall be deemed invalid merely on
the ground that no charge was framed or on the ground of
any error, omission or irregularity in the charge including
any misjoinder of charges, unless, in the opinion of the court
of appeal, confirmation or revision, a failure of justice has in
fact been occasioned thereby". (emphasis supplied)

22. In other words, a conviction would be valid even if
there is any omission or irregularity in the charge, provided
it did not occasion a failure of justice.

23. We often hear about "failure of justice" and quite
often the submission in a criminal court is accentuated with
the said expression. Perhaps it is too pliable or facile an
expression which could be fitted in any situation of a case.
The expression "failure of justice" would appear,
sometimes, as an etymological chameleon (the simile is
borrowed from Lord Diplock in
Town Investments Ltd. Vs
Deptt
. Of the

Environment, (1977) 1 All E.R 813: 1978 AC 359: (1977) 2
WLR 450 (HL). The criminal court, particularly the
superior court should make a close examination to ascertain
whether

there was really a failure of justice or whether it is only a
camouflage.
....

25. We have now to examine whether, on the evidence now
on record the appellant can be convicted under
Section 304-
B
IPC without the same being included as a count in the
charge framed. Section 304-B has been brought on the
statute-book on 9-11-1986 as a package along with
Section
113-B
of the Evidence Act.

....

28. Under
Section 4
of the Evidence Act "whenever it is
directed by this Act that the court shall presume a fact, it
shall regard such fact as proved, unless and until it is
disproved". So the court has no option but to presume that
the accused had caused dowry death unless the accused
disproves it. It is a statutory compulsion on the court.
However it is open to the accused to adduce such evidence
for disproving the said compulsory presumption, as the
burden is unmistakably on him to do so. He can discharge
such burden either by eliciting answers through cross-
examination of the witnesses of the prosecution or by
adducing evidence on the defence side or by both.
29. At this stage, we may note the difference in the legal
position between the said offence and
Section 306
IPC
which was merely an offence of abetment of suicide earlier.
The Section remained in the statute-book without any
practical use till 1983. But by the introduction of Section
113-A in the
Evidence Act
the said offence under
Section
IPC has acquired wider dimensions and has become a
serious marriage-related offence.
Section 113-A
of the
Evidence Act says that under certain conditions, almost
similar to the conditions for dowry death the court may
presume having regard to the circumstances of the case, that
such suicide has been abetted by her husband etc. When the
law says that the court may presume the fact, it is
discretionary on the part of the court either to regard such
fact as proved or not to do so, which depends upon all the
other circumstances of the case. As there is no compulsion
on the court to act on the presumption the accused can
persuade the court against drawing a presumption adverse to
him.

30. But the peculiar situation in respect of an offence
under
Section 304-B
IPC, as discernible from the
distinction pointed out above in respect of the offence
under
Section 306
IPC is this: Under the former the
court has a statutory compulsion, merely on the
establishment of two factual
positions enumerated above, to presume that the accused has
committed dowry death. If any accused wants to escape
from the said catch the burden is on him to disprove it. If he
fails to rebut the presumption the court is bound to act on it.

31. Now take the case of an accused who was called upon
to defend only a charge under
Section 302
IPC. The burden
of proof never shifts onto him. It ever remains on the
prosecution which has to prove the charge beyond all
reasonable doubt. The said traditional legal concept remains
unchanged even now. In such a case the accused can wait
till the prosecution evidence is over and then to show that
the prosecution has failed to make out the said offence
against him. No compulsory presumption would go to the
assistance of the prosecution in such a situation. If that be
so, when an accused has no notice of the offence under

Section 304-B
IPC, as he was defending a charge under

Section 302
IPC alone, would it not lead to a grave
miscarriage of justice when he is alternatively convicted
under
Section 304-B
IPC and sentenced to the serious
punishment prescribed there under, which mandates a
minimum sentence of imprisonment for seven years.

31. The serious consequence which may ensue to the
accused in such a situation can be limned through an
illustration: If a bride was murdered within seven
years of her marriage and there was evidence to show
that either on
the previous day or a couple of days earlier she was
subjected to harassment by her husband with demand for
dowry, such husband would be guilty of the offence on the
language of
Section 304-B
IPC read with
Section 113-B
of
the Evidence Act. But if the murder of his wife was actually
committed either by a dacoit or by a militant in a terrorist act
the husband can lead evidence to show that he had no hand
in her death at all. If he succeeds in discharging the burden
of proof he is not liable to be convicted under
Section 304-B

IPC. But if the husband is charged only under
Section 302

IPC he has no burden to prove that his wife was murdered
like that as he can have his traditional defence that the
prosecution has failed to prove the charge of murder against
him and claim an order of acquittal.

33. The above illustration would amplify the gravity of
the consequence befalling an accused if he was only asked
to defend a charge under
Section 302
IPC and was
alternatively convicted under
Section 304-B
IPC without
any notice to him, because he is deprived of the opportunity
to disprove the burden cast on him by law.

34. In such a situation, if the trial court finds that the
prosecution has failed to make out the case under

Section 302
IPC, but the offence under
Section 304-B
IPC has been made out, the court has to call upon the
accused to enter on his defence in respect of the said
offence. Without affording such an opportunity to the
accused, a conviction under
Section 304-B
IPC would lead
to real and serious miscarriage of justice. Even if no such
count was included in the charge, when the court affords
him an opportunity to discharge his burden by putting him
to notice regarding the prima facie view of the court that he
is liable to be convicted under
Section 304-B
IPC, unless he
succeeds in disproving the presumption, it is possible for the
court to enter upon a conviction of the said offence in the
event of his failure to disprove the presumption.

35. As the appellant was convicted by the High Court
under
Section 304-B
IPC, without such an opportunity being
granted to him, we deem it necessary in the interest of
justice to afford him that opportunity. The case in the trial
court should proceed against the appellant (not against the
other two accused whose acquittal remains unchallenged
now) from the stage of defence evidence. He is put to notice
that unless he disproves the presumption, he is liable to be
convicted under
Section 304-B
IPC".

2.11.2 In
Shanti Vs State of Haryana
1991(1) SCC 371, the
Hon'ble Apex Court has held that Section 304B and
498A are not mutually exclusive. They deal with two
distinct offences. A person charged and acquitted under
Section 304B can be convicted

under Section 498A without charge being framed, if such case is
made. But from the point of view of practice and procedure and to
avoid technical defects, it is advisable in such cases to frame
charges under both the Sections. If the case is established against
the accused he can be convicted under both the Sections but no
separate sentence need be awarded under Section 498A in view of
substantive sentence being awarded for major offence under
Section 304B.

2.12 Summation

From the aforesaid, it may thus be seen that traditionally
marriage has been a sacramental institution. It continues to be so
even at present. However, over a period of time, dowry emerged as
a social evil, leading to increasing number of deaths of innocent
brides. This trend assumed alarming proportions and dimensions,
which led the legislature to ponder over the issue and devise
means to curb the menace of dowry deaths. Where the cases of
bride deaths squarely meet the requirements of the offence of
murder or any other offence under the Penal Code, the guilty
persons can be proceeded against accordingly. The law provides
for death penalty in case of murder. Here also the judicial trend has
been to award death penalty in rarest of rare cases and not as a
matter of routine.
The case law on the subject vividly brings out
the judicial guidelines for determining as to whether a given case
falls in the category of rarest of rare case. These are aptly reflected
in the cases

where death sentence has been converted into life imprisonment.
Generally, life sentence may extend to the whole life. The law,
however, provides for release of life convicts upon completion of
20 years detention subject to certain conditions
laid down in
this
regard. Inadequacies in the then existing laws were noted where
cases of bride deaths for reason of dowry could not be clearly
brought in Section 302. Nonetheless circumstances were found to
be such which indicate the suspicious nature of death that
warranted appropriate punishment in order to effectively curb the
menace of dowry death. Accordingly, a new substantive offence of
dowry death was created on presumptive basis, casting the onus to
rebut the presumption on the accused.
The Evidence Act
too was
amended to provide for certain presumptions in this regard. The
offence of dowry death as provided in Section 304-B is not the
same offence as murder in terms of Section 302. A case may or
may not fall under both the sections. Where an accused is charged
for one offence, he can be convicted for another offence if the
charged offence is failed to be made out but the ingredients of
another offence are satisfied on available evidence, provided it
does not lead to miscarriage of justice. In spite of such provisions
in the law, the incidents of dowry deaths are not showing any
significant decline or abatement. Hence the demand for more
stringent punishment of death for the offence of dowry deaths.
Whether such demand has any substance or not, will be discussed
in the succeeding chapter.

***
CHAPTER-3

CONCLUSIONS AND RECOMMENDATIONS

3.1 Theoretical Perspective:

Different societies react differently to crimes and their
perpetrators depending upon their respective value system and
prevailing philosophy at a given time. Reasons for commission of
crimes and the personality traits of criminals are so varied,
complex and innumerable that these are not amenable to any
exhaustive description and comprehension. Criminals are
sometimes viewed as born criminal and psychopath and sometimes
as victims of circumstances. This has been very aptly described by
Elmer Hubart Johonson when he observed in Crime, Correction
and Society at page 3 that a criminal may be described as a
monster or be pictured as a hunted animal or as the helpless victim
of brutality. Likewise, socio-economic reasons, among others, are
quite often ascribed as explanation for commission of crimes. Over
a period of time, social approaches and responses to crimes and
their perpetrators have been generalized and classified into
different theoretical profiles. Theories of criminality have a two-
fold purpose: they help to organize existing information about
criminal behaviour into a coherent, systematic framework, and
they serve to point out directions for further research by indicating
potentially fruitful leads to be explored. In addition, theories of
criminality may help establish some rational basis for Programmes
aimed at controlling, reducing, eliminating or preventing crime
and delinquency. (See Criminology and Crime An Introduction by
Harold J. Vetter and Ira J. Silverman (1986) p. 235). Accordingly,
we see the emergence of certain theories of penology which are
imbibed in varied degrees and proportion in almost all the legal
orders the world over. Thus, we have the punitive approach which
is traditional in nature and universal in its import and application
whereby the criminal is viewed as a bad guy and punishment is
inflicted on the offender as retribution and also to protect the
society by deterring members of the society from commission of
crimes. Then, there is another approach called therapeutic
approach. According to this, a criminal is a victim of
circumstances. In this approach, a criminal is viewed as a sick
person, requiring treatment. Thus, it may be seen that in the two
approaches
referred to above
, criminal is the center of attraction
and is viewed in two diametrically opposed perspectives and
therefore, is meted out different treatment in each of these two
approaches. There is yet another theory wherein the focus is not on
the criminal but on the factors that lead one to become criminal
and thrust is on removal of such factors with a view to prevent
commission of crimes. This approach is thus called the preventive
approach. Besides, certain other theories too have developed over
the years dealing with different aspects of criminology. There are
some who deals with the manner in which criminal should be dealt
with. To mention some of these are classical and positivist
theories, retribution theory, utilitarian theory, deterrent theory,
corrective and reformative theory and rehabilitatory theory,
humanitarian theory, etc. Then there are some others which focus
on the factors

that lead one to commit a crime. To mention, some of these
theories are socio-economic theories, sociological theories, socio-
psychological and psychiatric and biological and anthropological
theories. A blend of all these approaches will be found in all the
legal systems the world over though in different proportions and
degrees. These approaches are, however, not mutually exclusive.
Rather they supplement each others. All these approaches deal
with different facets of criminology and are, as such, necessary for
understanding and appreciating criminal jurisprudence, especially,
penology in an integrated manner and helps in the formulation of
public policy on crimes and punishment by way of prevention and
correction.

3.2 Kinds of Punishments:

Various kinds of punishments are permissible under the law
to punish persons found guilty of commission of different
offences/crimes. To mention, some of these are corporal
punishment, fines, forfeiture and confiscation of properties,
banishment, externment, imprisonment, capital punishment or
death sentence, corrective labour, compensation for injury by the
offender, public censure, etc. Choice of appropriate sanction out of
many that can be permissible under law may arise at two stages,
one at the legislative stage and another at the stage of
administration of justice in a given case. The first relates to the
prescription of punishment for a given offence in the legislation.
That may lay down the maximum and the minimum punishment
for an offence. The second stage relates to punishing an individual

criminal within permissible limits so prescribed in the law
depending upon the facts and circumstances of a given case. We
are concerned here with the first stage, that is to say, whether

Section 304B
of Indian Penal Code, 1860 should be amended to
provide for death sentence for the offence of dowry death. The
section presently provides for life imprisonment and a minimum
sentence of seven years imprisonment. The subject of death
sentence or capital punishment has generated endless debates the
world over that failed to reach unanimous universal conclusions.
India has retained death sentence on its statute book. However, in
practice it is sparingly used in the rarest of rare cases. There is a
distinct tendency to restrict its use to gravest offences committed
in a diabolic way that shocks the conscience of the public at large.

3.3 Suggestions by the National Commission for Women

The issue relating to the deep-rooted evil of dowry was also
taken up in the convention organized by the National
Commission for Women on 22nd November, 2005 at Symposia
Hall of NSC, Pusa, New Delhi. The Commission proposed an
amendment to enhance the punishment for dowry deaths under

Section 304-B
, IPC for the following reasons.

(a) To keep this offence at par with murder and by no
stretch of imagination it is less grave an offence than
the murder;
(b) To create deterrence in the minds of the people
indulging in such heinous crimes by now it is more

than clear that neither the
Dowry Prohibition Act
nor
the amended provisions of
IPC
could deter the people
and could not register the success. The Committee
found that because of the above said discrepancies in
the provision the law has failed in its objective. By
incorporating the above changes law can be made
effective.

(c) Also the time limit of presumption may be increased
because seven years is very short a time and often the
offence is executed in a preplaned manner.

(d) The minimum punishment should be increased
from seven to ten years.

3.4 Capital Punishment:

Capital punishment, also known as the Death Penalty, is the
execution of a convicted criminal by the state as punishment for
crimes known as capital crimes or capital offences. It is the
infliction by due legal process of the penalty of death as a
punishment for crime. The idea of capital punishment is of great
antiquity and formed a part of the primal concepts of the human
race. This has been one of the most primitive and commonly used
forms of inflicting punishment for criminals as well as political
enemies. In the world-wide scenario prevalent now-a-days,
countries like most European (all except Belarus), Latin American,
many Pacific States (including Australia, New Zealand and East
Timor) and Canada have done away with capital punishment. Even
among the non-Democratic nations, the practice is rare but not

predominant. The latest countries to abolish the death penalty for
all crimes are Philippines in June 2006 and France in February
2007. Still many civilized nations continue to harbour this punitive
tradition. Chief among them are United States, Guatemala, and
most of the Caribbean as well as some democracies in Asia (e.g.
Japan and India) and Africa (e.g. Botswana and Zambia).

3.5 The Indian Scenario

3.5.1 In India, the deliberated penal penalty can be imposed only
within the ambits of Sections. 121 (Waging war against the State),
132 (abetting mutiny actually committed), 194 (giving or
fabricating false evidence, upon which an innocent person suffers
death), 302 (murder), 305 (abetment of suicide of a minor or
insane, or intoxicated person), 307 (attempt to murder by a life
convict), and 396 (dacoity accompanied with murder) of the
Indian
Penal Code
. Further, cases of constructive liability leading to death
penalty may arise under
Sections 34
and 109-111 also. Besides the
Penal code, there are many other laws like
Explosive Substances
Act, 1908
;
Narcotics Drugs and Psychotropic Substances Act,
;
Prevention of Terrorism Act, 2002
;
Terrorist and Disruptive
Activities (Prevention) Act, 1987
(since repealed); etc. which
provide for imposition of capital punishment.

3.5.2 Hon'ble Supreme Court has ruled that death penalty per se
isn't unconstitutional, although some of the modes of carrying out
the same may be otherwise. The Hon'ble Supreme Court held that
delay in carrying out execution of capital sentence entitles its

commutation to life imprisonment, but later overruled its decision.
Peculiarly, the deterrent value of this penal punishment has been
recognized in several cases by various jurists. (See
Jagmohan
Singh Vs State of Uttar Pradesh
, AIR 1973 SC 947;
Rajendra
Prasad Vs State of Uttar Pradesh
AIR 1979 SC 916;
Bachan
Singh Vs State of Punjab
AIR 1980 SC 898;
Machhi Singh Vs
State of Punjab
AIR 1983 SC 957)

3.5.3 There are two conflicting views which can be broadly
classified into two schools of thoughts, namely, the Retentionists
(Pro-Capital Sentencing) and the Abolitionists (Anti-Capital
Sentencing), Functioning under the Retentionists' perspective,
Utilitarian school of thought advocates that capital punishment
prevents the convict from replicating the offence and acts as a
deterrent for future offenders. Correspondingly, Retributive
theorists lay down that as a foundational matter of justice, crime
deserves to be reprimanded, and that should be equivalent to the
injury caused. More recently, the exponents of capital punishment
are stressing that the death penalty discourages criminal conduct
on the part of those who are aware of the existence and horrors of
this mode of treating criminals.

3.5.4 Some of the famous Abolitionists like Montesquieu,
Voltaire, Beccaria, etc. have argued that since the penalty is
irrevocable, it should not be resorted to.
3.5.5 Most anti-death penalty organizations, most notably
Amnesty International, base their stance on human rights

arguments. The anti-death penalty scholars claim that the society
seeks an escapist attitude by taking away the life of an individual.
However, in India, adequate safeguards shield penalizing powers,
in this regard. Even if a High Court awards death sentence to the
accused, on appeal against the Trial Court's acquittal of the same,
the right of appeal to the Apex court is automatic. Additionally, a
condemned prisoner retains the right to get his sentence
commuted, suspended, remitted, reprieved, respited or pardoned
by the Governor of the State concerned, followed by the President
of India as provided in the Constitution of India.

3.5.6 Perhaps, recent trends of public sentiment against capital
punishment represent a broader realization that correction is more
important to society than punishment.

3.5.7 It may be pertinent to note that this Commission has dealt
in details with diverse facets of capital punishment, in its
35th Report, September, 1967. The answer to the query
under consideration herein may be found in principle in
that report although the question was not specifically dealt
with reference to dowry death. In para 77 of that Report, it
was observed that at first sight, the capital offences (listed
above in para 69) may not show any common element; but
a close analysis reveals that there is a thread linking all
these offences, namely, the principle that the sanctity of
human life must be protected. It is the will or willful
exposure of life to peril that seems to constitute the basis
for a provision for the sentence of death. The Commission
applied this principle while considering the question
whether any other offence under the

Indian Penal Code
or any other law should be made capital
offence. The following offences were considered by the
Commission in this regard, namely, adulteration of food and drugs,
offences against Army, arson, espionage, kidnapping and
abduction, homicide by negligence, rape, sabotage, smuggling and
treason (Paras 462 to 540 at pp.156-179). The Commission did
not recommend that any other offences under the
Indian Penal
Code
or any other law should be punishable with death (Para 3(b)
of Summary of Main Conclusions and Recommendation at p.356).
While reaching these conclusions, the Commission reiterated that
the cardinal principle of willful disregard of human life, which is
the foundation of the sentence of death for the existing capital
offences would have to be borne in mind and the question
examined whether the existing law was not adequate. If it was
found to be inadequate, then before embarking on an amendment,
it would have to be considered whether a precise formula could be
evolved which, while conforming to this principle, could define
clearly the scope of the acts of commission that were proposed to
be made capital (see Para 476 at p.160). Thus, the Commission,
inter alia, observed that where an act of adulteration or arson
causes death and the conditions of Section 300 on murder,
particularly as to mens rea, are satisfied the case could be dealt
with under
Section 300
/
, IPC and death sentence could be
awarded under the law. If not so, then making such an act as a
capital offence would not be in symmetry with the scheme of the

Indian Penal Code
(See paras 463 - 466 at pp.156-157). Applying
the same analogy to cases of dowry related deaths, if the
conditions of murder in Section 300 are satisfied, the offender can
certainly be awarded death sentence

under Section 302 as per the norms
laid down by
the apex court in
various cases for the award of death sentence, the most sacrosanct
norm being the dictum of 'rarest of rare cases'. If not, then making
dowry related death as a capital offence may not be in symmetry
with the schemes of the
Indian Penal Code
.

3.6 Dowry Death vis-à-vis Murder:

3.6.1 Dowry death may or may not be a case of murder. Where it
is a case of murder, death sentence can be awarded in
appropriate cases. But when it is not so, imposition of
death sentence may not be in symmetry with the cardinal
principle underlying the capital offences in the
Indian Penal
Code
. It may be noted that even before insertion of Section
304B on dowry death in 1984, there have been cases of
dowry deaths which were prosecuted for murder under

Section 300
, IPC. Thus, State (Delhi Administration) Vs
Laxman Kumar and others (AIR 1986 SC 250) was a case
of bride burning wherein the trial court accepted the
prosecution case and considering it to be one of the
atrocious dowry deaths, had sentenced each of the
respondents to death, namely, the husband, the mother-in-

law and brother-in-law. The High Court, however,
acquitted the respondents of the charge of murder of one
Sudha by setting fire to her. On appeal, the Supreme Court
partly allowed the appeal. In para 47 of the Judgment, the
Court made the following observations.

"47. The next relevant aspect for consideration is what
should be the proper punishment to be imposed. The

learned trial Judge had thought it proper to impose the
punishment of death. Acquittal intervened and almost two
yeas have elapsed since the respondents were acquitted
and set at liberty by the High Court. In a suitable case of
bride burning, death sentence may not be improper
(emphasis supplied). But in the facts the case and
particularly on account of the situation following the
acquittal at the hands of the High Court and the time lag,
we do not think it would be proper to restore the death
sentence as a necessary corollary to the finding of guilt.
We accordingly allow both the appeals partly and direct
that the two respondents, Smt. Shakuntala and Laxman
kumar shall be sentenced to imprisonment for life. Both
the appeals against Subhash stand dismissed and his
acquittal is upheld. Steps shall be taken by the trial Judge
to give effect to this Judgement as promptly as feasible (at
p.266)."

3.6.2
Smt. Lichhamadevi Vs State of Rajasthan
AIR 1988 SC
1785 was another case of dowry death that arose before the
insertion of Section 304B in the
Indian Penal Code
. In this
case, the trial Court acquitted the accused but High Court,
reversing her acquittal, awarded death sentence. On appeal,
the Supreme Court modified the death sentence to life
imprisonment in view of the two opinions of the Courts
below as to the guilt of the accused. It will be expedient to
refer to the following observations made by the Court in
this regard;

"15. The case before us is not an accidental fire causing
the death. This is certainly a case "being put on fire by
someone". The deceased having been burnt is not in
dispute. It is a case of bride burning. The Court in State
(Delhi Admn.) Vs Lakshman Kumar, 1985 Supp (2) SCR
898 at p.931: (AIR 1986 SC 250 at p.266) has observed that
in the case of bride burning, death sentence may not be
improper. We agree. The persons who perpetrate such
barbaric crime, without any human consideration must be
given the extreme penalty. But in the present case, we do not
think that the High Court was justified in awarding death
sentence on the accused-appellant. In 1977 she was
acquitted by the trial court. In 1985 the High Court reversed
her acquittal and gave the extreme penalty. It was after a
gap of eight yeas. When there are two opinions as to the
guilt of the accused by the two Courts, ordinarily the proper
sentence would be not death but imprisonment for life.
Apart from that, there is no direct evidence that the appellant
had sprinkled kerosene on Pushpa and lighted fire on her.
There must have been other persons also who have
combined and conspired together and committed the murder.
It is unfortunate that they are not before the Court. From the
Judgment of the High Court, it is apparent that the decision
to award death sentence is more out of anger than on
reasons. The Judicial discretion should not be allowed to be
swayed by emotions and indignation."
3.6.3
State of Punjab Vs Amarjit Singh
AIR 1988 SC 2013 is
another pre-Section 304B case of dowry death where the accused
was convicted and sentenced for life imprisonment for his wife
being put in fire for not satisfying his dowry demands.

3.6.4
Subedar Tiwari Vs State of U.P. and others
AIR 1989 SC
737 is another case of bride burning where a highly educated wife
died on unnatural death by burning within a short span of nine
months of her marriage. Although it was not a dowry death, yet
the case is relevant for the reason that the husband could be

prosecuted and sentenced to suffer imprisonment for life for such
an unnatural death under Section 302 if both accident and suicide
could be excluded on facts.

3.6.5
Panakanti Sampath Rao Vs State of A.P.
, (2006) 9 SCC
658 is a case where the accused was charged with commission of
offences under
Sections 498A
,
and
304B
IPC and
Sections 3

and
of the Dowry Prohibition Act. The trial court acquitted him
of the offence of murder under Section 302 but convicted him on
the remaining counts. He was sentenced to life imprisonment
under Section 304B besides the punishment awarded under other
charges. On appeal, the High Court found the accused guilty of the
offence under
Section 302
IPC. This was affirmed by the Supreme
Court also.

3.6.6
Wazir Chand and another Vs State of Haryana
, AIR
1989 SC 378 is another case of dowry death wherein the accused
persons, the husband and the father-in-law were proceeded against
under Ss. 306 r/w 107 for abetting commission of suicide but were
acquitted of the charge as suicide could not be proved. Yet they
were convicted under Section 498A in view of the fact the
harassment for dowry was proved.

3.6.7
State of U.P. Vs Ashok Kumar Srivastava
, AIR 1992 SC
840 is another case of bride burning for dowry wherein a young
woman aged about 25 years died of burns within less than a year
of her marriage. The three accused were charged and convicted
under
Section 302
/
IPC by the trial court and were sentenced to

imprisonment for life. However, the High Court acquitted the
accused as the trustworthiness of some of the prosecution
witnesses was suspected. Though ordinarily the Supreme Court is
slow to interfere in an acquittal while exercising power under

article 136
but in this case the apex court found that the approach
of the High Court had resulted in gross miscarriage of justice. The
court, therefore, did not find it possible to refuse to interfere in
such a case where gruesome crime was committed which resulted
in the extinction of young mother to be. Accordingly, the Supreme
Court allowed the appeal restored the order of conviction and
sentence passed by the trial court.

3.6.8 The curse of dowry claimed another victim in
Kundula
Bale Subrahmanyam Vs State of A.P.
(1993) 2 SCC 684
wherein the husband and mother-in-law of the deceased Kundula
Koti Nagbani were convicted under
Sections 302
/
IPC and
sentenced to suffer imprisonment for life. It will be expedient to
refer the following observations made by the Supreme Court in
this case.

"25. Of late there has been an alarming increase in cases
relating to harassment, torture, abetted suicides and dowry
deaths of young innocent brides. This growing cult of
violence and exploitation of the young brides, though keeps
on sending shock waves to the civilized society whenever it
happens, continues unabated. There is a constant erosion of
the basic human values of tolerance and the spirit of "live
and let live". Lack of education and economic dependence
of women have encouraged the greedy perpetrators of the
crime. It is more disturbing and sad that in most of such
reported cases it is the woman who plays pivotal role in this
crime against the younger woman, as in this case with the
husband either acting as a mute spectator or even an active

participant in the crime, in utter disregard of his matrimonial
obligations. In many cases, it has been noticed that
husband, even after marriage continues to be 'Mamma's
baby' and the umbilical cord appears not to have been cut
even at that stage."

3.6.9
Kailash Kaur Vs State of Punjab
(1987) 2 SCC 631 is yet
another case of unfortunate instance of gruesome murder of a
young wife by the barbaric process of pouring kerosene oil all over
the body and setting her on fire as the culmination of a long
process of physical and mental harassment for extraction of more
dowry. The prosecution case was that the sister-in-law caught hold
of the deceased and the mother-in-law poured kerosene oil on her
and set her on fire. The Supreme Court observed that "whenever
such cases come before the court and offence is brought home to
the accused beyond reasonable doubt, it is the duty of the court to
deal with it in most severe and strict manner and award the
maximum penalty prescribed by the law in order that it may
operate as a deterrent to other persons from committing such anti-
social crimes."

3.7 Role of Courts in Dowry Death Cases

3.7.1 Awakening of the collective consciousness is the need of
the day. Change of heart and attitude is what is needed. If
man were to regain his harmony with others and replace
hatred, greed, selfishness and anger by mutual love, trust
and understanding and if woman were to receive education
and become economically independent, the possibility of
this pernicious social evil dying a natural death may not
remain a dream only. The legislature, realising the gravity
of the situation has amended the laws and

provided for stringent punishments in such cases and even
permitted the raising of presumptions against an accused in cases
of unnatural deaths of the brides within the first seven years of
their marriage.
The Dowry Prohibition Act
was enacted in 1961
and has been amended from time to time, but this piece of social
legislation, keeping in view the growing menace of the social evil,
also does not appear to have served much purpose as dowry
seekers are hardly brought to books and convictions recorded are
rather few. Laws are not enough to combat is evil. A wider social
movement of educating women of their rights, to conquer the
menace, is what is needed more particularly in rural areas where
women are still largely uneducated and less aware of their rights
and fall an easy prey to their exploitation. The role of courts,
under the circumstances assumes greater importance and it is
expected that the courts would deal with such cases in a more
realistic manner and not allow the criminals to escape on account
of procedural technicalities or insignificant lacunae in the evidence
as otherwise the criminals would receive encouragement and the
victims of crime would be totally discouraged by the crime going
unpunished. The courts are expected to be sensitive in cases
involving crime against women.
The verdict of acquittal made by
the trial court in this case is an apt illustration of the lack of
sensitivity on the part of the trial court. It recorded the verdict of
acquittal on mere surmises and conjectures and disregarded the
evidence of the witnesses for wholly insufficient and insignificant
reasons. It ignored the vital factors of the case without even
properly discussing the same. (See in
Kundula Bale
Subrahmanyam Vs State of A.P.
(1993) 2 SCC 684).

3.7.2 In
Kailash Kaur Vs State of Punjab
(1987) 2 SCC 631,
Avtar Singh, the husband, Kailash Kaur, the mother-in-law and
Mahinder Kaur, the sister-in-law were put in trial under Section
302 for setting Amandeep Kaur, the deceased, on fire. The trial
court acquitted the husband giving him the benefit of doubt, but
convicted Kailash Kaur and Mahinder Kaur under Section 302 and
sentenced to undergo life imprisonment. On appeal, the High
Court confirmed the conviction of Kailash Kaur but acquitted
Mahinder Kaur giving her the benefit of doubt. When the matter
came up before the Supreme court, it said, "we have very grave
doubts about the legality, propriety and correctness of the decision
of High Court insofar as it has acquitted Mahinder Kaur by giving
her the benefit of doubt. But since the State has not preferred any
appeal, we are not called upon to go into that aspect any further.
As regards, conviction of Kailash Kaur, the Court expressed its
regret "that the Sessions Judge did not treat this case as a fit case
for awarding maximum penalty under the law and that no steps
were taken by the State Government before the High Court for
enhancement of the sentence.

3.7.3 It will be expedient to refer to the editorial comments
prefixed to this case, which read as follow:

[Ed.: This case is not the first time that the Supreme Court in
unequivocal terms has commended death sentence to perpetrators
of "gruesome murder of young wives ... as the culmination of a
long process of physical and mental harassment and torture for
extraction of dowry". A three Judge Bench of the Court speaking

through Thakkar, J. in
Machhi Singh Vs State of Punjab
, (1983)
3 SCC 470; 1983 SCC (Cri.) 681, had clearly enunciated various
circumstances which could be treated as 'rarest of the rare' cases
in which the accused convicted under
Section 302
, IPC must be
punished with death sentence. One of the circumstances mentioned
under the category 'Anti-social and socially abhorrent nature of the
crime' was the "cases of 'bride burning', and what are known as
'dowry deaths' or when murder is committed in order to remarry
for the sake of extracting dowry once again or to marry another
woman on account of infatuation". The Court felt that in such
cases the "collective conscience" of the community "is so shocked
that it will expect the holders of the judicial power centre to inflict
death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty".
(SCC pp.

487-88, paras 32 and 35).
Notwithstanding the consistent concern of the Court to
award deterrent punishment to such bride killers, in the instant
case the Sessions Court as well as the High Court preferred
sentence of life imprisonment for the accused mother-in-law of the
deceased victim. The Supreme Court confirmed the same even
though the facts called for the extreme penalty. It is the socio-legal
obligation of the Sessions Court and High Courts of the country to
award capital punishment in such cases of bride killing so as to
produce deterrent effect in consonance with the mandate of the
Supreme Court.

Another disturbing feature in the present case is the acquittal
of the abettor of the dastardly crime viz. the sister-in-law of the
deceased who according to the dying declaration had caught hold
of the deceased while the appellant-mother-in-law poured kerosene
oil on her and set her on fire. Though the trial court had convicted
her under
Section 302
IPC the High Court acquitted her on ground
of benefit of doubt. The Supreme Court expressed its "grave
doubts about the legality, propriety and correctness of the decision
of the High Court" in this regard but it was helpless since the State
had not preferred any appeal against her acquittal. Thus an abettor
of a serious crime escaped punishment due to sheer laxity on the
part of
the State administration. Again no appeal was taken against the
acquittal of the husband by the trial court.
The prosecution must keep in mind the trend set by the
Legislature with the enactment of
Section 498-A
, IPC and the
recent amendments to the
Dowry Prohibition Act, 1961
.

Pathak, J., as he then was, speaking for the Court in

Bhagwant Singh Vs Commissioner of Police, Delhi
, (1983) 3
SCC 344 had made significant suggestions regarding creation of a
special magisterial machinery for prompt investigation of such
incidents, need for adoption of efficient investigative techniques
and procedures taking into account peculiar features of such cases,
association of a female police officer of sufficient rank and status
with the investigation from its very inception, and extension of
application of
Coroners' Act, 1871
to other cities besides those

where it operates already. It is for the Government to implement
these suggestions.]

3.8 Different offences arising from the same facts:

3.8.1 Offences under different Sections of the
Indian Penal
Code
,1860 are distinct offences. A person can be convicted
under more than one Section if the conditions of the
charged Sections are satisfied in a given case. Thus, in

Ravindra Trimbak Chouthmal Vs Stat of Maharashtra

(1996) 4 SCC 148, a case of dowry death, the accused
husband was charged and convicted by trial court under
Section 302 read with
Section 120B
, IPC for committing
murder of his wife Vijaya. He was also found guilty under
Sections 201/34, Sections 498A/34 and
Sections 304B
/
IPC. He was awarded the sentence of death for the offence
under Section 302 read with Section 304B; to R1 for seven
years for the offence under Sections 201/34; to R1 for three
years and a fine of Rs.500/- in default R1 for three months
for Sections 498A/34; and R1 for seven years for Sections
304B/34 offence, the same being the minimum sentence
prescribed under the law. On appeal to High Court,
conviction under
Sections 304B
/
IPC was set aside. But
conviction under other Sections were confirmed when the
matter came up before the Supreme Court, the following
observations were made which have material bearing on the
issue under consideration. The Supreme Court thus
observed:

"9.The present was thus a undermost foul, as pointed out by us
in the opening paragraph. The motive was to get another girl

for the appellant who could get dowry to satisfy the greed
oft the father. Dowry deaths are blood-boiling, as human
blood is spilled to satisfy raw greed, naked greed; a greed
which has no limit. Nonetheless, the question is whether the
extreme penalty was merited in the present case?

10. We have given considered thought to the question and we
have not been able to place the case in that category which
could be regarded as the "rarest of the rare" type. This is so
because dowry death has ceased to belong to that species of
killing. The increasing number of dowry deaths would bear
this. To halt the rising graph, we, at one point, thought to
maintain the sentence; but we entertain doubt about the
deterrent effect of a death penalty. We, therefore, resist
ourselves from upholding the death sentence, much though
we would have desired annihilation of a despicable
character like the appellant before us. We, therefore,
commute the sentence of death to one of R1 for life
imprisonment."

3.8.2 The conviction under Sections 201/34 was sustained but the
sentence was directed to run consecutively and not concurrently to
show Court's strong disapproval of the loathsome, revolting and
dreaded device adopted to cause disappearance of the dead body.
Convictions under other Sections namely, Sections 316, 498A/34
were set aside.

3.8.3 On the other hand, merely because accused has been
acquitted under
Section 302
, IPC, presumption as to dowry
death does not stand automatically rebutted (See
Alamgir
Sani Vs State of Assam
, AIR 2003 SC 2108). Furthermore,
even if accusation under Section 304 B fails, a person can be
convicted under Section 498A notwithstanding that cruelty
is common essential to both the Sections. A person can also
be convicted under Section 306 though

accusation under Section 304B fails.

(See
Hira Lal and others
Vs State (Govt. of NCT), Delhi
, AIR 2003 SC 2865, see also

Kaliyaperumal Vs State of Tamil Nadu
, AIR 2003 SC 3828.

3.8.4 Thus, it may be seen that the offence of murder is not the
same thing as the offence of dowry death under Section
304B though death of bride may be a common element in
both the offences. The absence of direct connection between
the husband and the death of wife distinguished offence of
dowry death from the offence of murder. This is a strong
mitigating factor as has been held by the Supreme Court in
the case of Hem Chand Vs State of Haryana (1994) 6 SCC

727. It may be relevant to note that in this case, the Supreme
Court has gone to the extent that even life imprisonment
under Section 304B should not be awarded as a matter of
routine in all cases of dowry deaths but only in rare cases.
After quoting Section 304B, the Supreme Court observed:

"The point for consideration is whether the extreme
punishment of life imprisonment for life is warranted in the
present case. A reading of
Section 304B
, IPC would show
that when a question arises whether a person has committed
the offence of dowry death of a woman what all that is
necessary is it should be shown that soon before her
unnatural death, which took place within seven years of
marriage, the deceased has been subjected, by such person,
to cruelty or harassment for or in connection with demand
for dowry. If that is shown, the Court shall presume that
such person has caused the dowry death. It can, therefore, be
seen that irrespective of the fact whether such person is
directly responsible for the death of the deceased or not by
virtue of the presumption, he is deemed to have committed
the dowry death if there were such cruelty or harassment and
that if the unnatural death has occurred within seven years
from the

date of marriage. Likewise, there is a presumption under

Section 113B
of the Evidence Act as to the dowry death. It
lays down that the Court shall presume that the person who
has subjected the deceased wife to cruelty before her death
caused the dowry death if it is shown that before her death,
such woman had been subjected, by the accused, to cruelty
or harassment in connection with any demand for dowry.
Practically, this is the presumption that has been
incorporated in
Section 304B
IPC also. It can, therefore, be
seen that irrespective of the fact whether the accused has
any direct connection with the death or not, he shall be
presumed to have committed the dowry death provided the
other requirements mentioned above are satisfied. In the
instant case, no doubt, the prosecution has proved that the
deceased died an unnatural death namely due to
strangulation, but there is no direct evidence connecting the
accused. It is also important to note in this context that there
is no charge under
Section 302
IPC ...... Therefore, at the
most it can be said that the prosecution proved that it was an
unnatural death in which case also Section 304B would be
attracted. But this aspect has certainly to be taken into
consideration in balancing the sentence to be awarded to the
accused ..... As mentioned above,
Section 304B
, IPC only
raises presumption and lays down that minimum sentence
should be seven years but it may extend to imprisonment for
life. Therefore, awarding extreme punishment of
imprisonment for life should be in rare cases and not in
every case."

3.8.5 From the aforesaid analysis, the following proposition
emerges:

1. The offence of dowry death in
Section 304B
, IPC
does not fall into the categories of the offences for
which death penalty has been provided in the Penal
Code.

2. Dowry death is different from the offence of murder.

Death of a bride may fall under both the categories of

offences, namely, murder and dowry death, in which
case, death sentence may be awarded for committing
the offence of murder in appropriate cases depending
upon the facts and circumstances of each case.
3. Dowry death per se does not involve the direct
connection between the accused and the offence
because of its presumptive character. Where the
evidence in a given case clearly shows that the
accused willfully put human life to peril, the case will
attract the provisions of Sections 300 r/w 302 and it
will no longer be a case of dowry death simpliciter.

In view of the aforesaid, there is no justification for
amending Section 304B to provide for death penalty. Such penalty
will also not be in conformity with the principle of proportionality.

3.8.6 During the course of deliberations in the Commission,
suggestions were received that if the Section was not being
amended to provide for death sentence, then at least the minimum
imprisonment of seven years under the section should be raised to
ten years. This has been also one of the recommendations of the
National Commission for Women, and has been referred to earlier
in this chapter. The reason ascribed for this is that a victim of
dowry death is generally forced to undergo long and persistent
torture before being killed. There seems to be much substance in
this recommendation and we concur in it. The recommendations of

the National Commission for Women are already before the
Government. It is for the Government to take an appropriate view
on the above recommendation.

3.9 Principle of Proportionality in Prescription of
Punishment:
3.9.1 The principle of proportionality in prescribing liability
according to the culpability of each kind of criminal conduct has
been very aptly elaborated by the Supreme Court in the case of

Lehna Vs State of Haryana
(2002) 3 SCC 76. It will be expedient
to refer to the observations made by the apex court on this subject
as under:

"The criminal law adheres in general to the principle of
proportionality in prescribing liability according to the
culpability of each kind of criminal conduct. It ordinarily
allows some significant discretion to the Judge in arriving at a
sentence in each case, presumably to permit sentences that
reflect more subtle considerations of culpability that are
raised by the special facts of each case. Punishment ought
always to fit the crime; yet in practice sentences are
determined largely by other considerations. Sometimes it is
the correctional needs of the perpetrator that are offered to
justify a sentence; sometimes the desirability of keeping him
out of circulation, and sometimes even the tragic results of his
crime. Inevitably these considerations cause a departure from
just desert as the basis of punishment and create cases of
apparent injustice that are serious and widespread.

The principle of proportion between crime and punishment
is a principle of just desert that serves as the foundation of
every criminal sentence that is justifiable. As a principle of
criminal justice it is hard less familiar or less important than
the principle that only the guilty ought to be punished
indeed, the requirement that punishment not to be
disproportionately great, which is a corollary of just desert,
is dictated by the same principle that does not allow
punishment of the innocent, for any punishment in excess of
what is deserved for the criminal conduct is punishment
without guilt.

A convict hovers between life and death when the question
of gravity of the offence and award of adequate sentence
comes up for consideration. Mankind has shifted from the
state of nature towards a civilized society and it is no longer
the physical opinion of the majority that takes away the
liberty of a citizen by convicting him and making him suffer
a sentence of imprisonment. Award of punishment following
conviction at a trial in a system wedded to the rule of law is
the outcome of cool deliberation in the court room after
adequate hearing is afforded to the parties, accusations are
brought against the accused, the prosecuted is given an
opportunity of meeting the accusations by establishing his
innocence. It is the outcome of cool deliberations and the
screening of the material by the informed man i.e. the Judge
that leads to determination of the lis.

Proportion between crime and punishment is a goal espected
in principle, and in spite of errant notions it remains a strong
influence in the determination of sentences. The practice of
punishing all serious crimes with equal severity is now
unknown in civilized societies; but such a radical departure
from the principle of proportionality has disappeared from
the law only in recent times. Even now a single grave
infraction is thought to call for uniformly drastic measures.
Anything less than a penalty of greatest severity for any
serious crime is thought than to be a measure of toleration
that is unwarranted and unwise. But, in fact, quite apart
from those considerations that make punishment
unjustifiable when it is out of proportion to the crime
uniformly disproportionate punishment has some very
undesirable practical consequences."

3.9.2 There is another important aspect that needs to be kept in
view while dealing the subject under consideration, that is to say,
the need for keeping emotional and sentimental feelings generated
why incidence of dowry death within permissible bounds both
while prescribing sentence for an offence and also while awarding
a sentence in any case. It will be useful to refer the following
observations made in the case of
State (Delhi Administration) Vs
Laxman Kumar
, AIR 1986 SC 250:

"We appreciate the anxiety displayed by some of the women
organizations in cases of wife burning crime to be
condemned by one and all and if proved deserving the

severest sentence. The evil of dowry is equally a matter of
concern for the society as a whole and should be looked
upon contemptuously both on the giver and the taker.

The Courts cannot allow an emotional and sentimental
feeling to come into the judicial pronouncements. Once
sentimental and emotional feelings are allowed to enter the
judicial mind the Judge is bound to view the evidence with a
bias and
in that case
the conclusion may also be biased
resulting in some cases in great injustice. The cases have to
be decided strictly on evidence howsoever cruel or
horrifying the crime may be. All possible chances of
innocent man being convicted have to be ruled out. There
should be no hostile atmosphere against an accused in court.
A hostile atmosphere is bound to interfere in an unbiased
approach as well as a decision. This has to be avoided at all
costs."

3.9.3 The Court further observed as follows:

We were, however, disturbed by the fact that the High Court
took notice of publicity through the news media and
indicated its apprehension of flutter in the public mind. It is
the obligation of every court to find out the truth and act
according to law once the truth is discovered. In that search
for truth obviously the Court has to function within the
bounds set by law and act on the evidence placed before it.
What happens outside the Court room when the Court is
busy in its process of adjudication is indeed irrelevant and
unless a proper cushion is provided to keep the proceedings
within the court room dissociated from the heat generated
outside the court room either through the news media or
through flutter in the public mind, the cause of justice is

bound to suffer. Mankind has shifted from the state of
nature towards a civilized society and it is no longer the
physical power of litigating individual or the might of the
ruler nor even the opinion of the majority that takes away
the liberty of a citizen by convicting him and making him
suffer a sentence of imprisonment. Award of punishment
following conviction at a trial in a system wedded to rule of
law is the outcome of cool deliberation in the court room
after adequate hearing is afforded to the parties, accusations
are brought against the accused, the prosecutor is given an
opportunity of supporting the charge and the accused is
equally given an opportunity of meeting the accusations by
establishing his innocence. It is the outcome of cool
deliberations and the screening of the material by the
informed mind of the Judge that leads to determination of
the lis. If the cushion is lost and the Court room is allowed
to vibrate with the heat generated outside it, the adjudicatory
process suffers and the search for truth is stifled.

3.9.4 The above approach may be germane to judicial proceedings
before a court determining the guilt of an accused. It is not
so in respect of legislative proceedings concerning
prescription of a sentence in law for any given offence. The
legislature ought not be oblivious to public sentiments and
demands. Laws are made to satiasfy the needs of the society
in which they operate. Admittedly, having regard to the
number and the manner of dowry deaths, there are
widespread public demands for stringent legal measures to
effectively curb this social evil. But, at the same time, the
cardinal principles of penology, especially those relating to
sentencing, have to be duly adhered to. It is important that
legal sanctions must be appropriate, pragmatic and effective.

Sentence must not be too less or too harsh and more than
what is necessary. Both will be counter-

productive. A rational balance has to be made in prescribing
punishment for dowry deaths.
3.9.5 It may be expedient to reiterate the word of caution sounded
by this Commission in its 91st Report, viz;

Given all these circumstances of the usual 'dowry death', it
will be conceded that even where there is in a particular
case, moral certainty that the death is the result of murder,
the circumstances would be hostile to an early or easy
discovery of the truth. Punitive measures - such that can be
pursued with the ambit of the existing law - may be
adequate in their formal content. But their successful
enforcement is a matter of difficulty. That is why there is
need to supplement the punitive measures by appropriate
preventive measures. This Report seeks to make a few
modest suggestions as to what can be done in this regard. It
is possible that the measures recommended here will be
regarded as very mild by some persons or as radicals by
others. But it is hoped that the discussion will at least give a
new stance to the thinking on the subject. Some effective
preventive measures whatever be there content and drift, are
needed urgently. If this is not done soon, there is a grave
risk
that the problem of bride burning will grow out of control
and a stage will come when one of the two possibilities will
become real. Either there will be no enthusiasm left for
trying out concrete solutions or there will come to be
adopted solutions that might be worse than the problem. It

will be the earnest endeavour of this Commission to see that
neither of the two possibilities is materialized.
3.9.6 Keeping this in view, we are of the considered view that
there is no warrant for prescribing death sentence for the offence
of dowry death as defined in
Section 304B
IPC having regard to
presumptive character of the offence, absence of direct connection
in between the death and the offender and gravity of the culpable
conduct as well as the object sought to be achieved thereby.

3.9.7 The reason for this is not for to seek Capital punishment has
already been prescribed in
Section 302
I.P.C (in a case of
murder). There is no necessity to prescribe capital
punishment for offence committed under Section 304B
(dowry death). There is distinction between section 302
(murder), section 304B (dowry death) and Section 306
(abetment to suicide) of the
Indian Penal Code
. If charge is
framed under Section 304B, but after recording and
appreciation of evidence, the case proved to be a case under
Section 302, the charge can be altered and the accused can
very well be punished under Section 302 and if the court
finds that the case under Section 302 to be a rarest of rare
cases, then the offender can very well be awarded with
capital punishment.

3.9.8 In
Panakanti Sampath Rao Vs State of A.P.
,(2006) 9 SCC
658 the Hon'ble Supreme Court affirmed the order passed by the
High Court converting conviction
u/s 304B
and
398A
to
I.P.C.
the Hon'ble Supreme court held that:
"There is ample evidence which shows that the appellant has
harassed and ill-treated the deceased for dowry and the
circumstances point out that he has caused the death of the
deceased. Therefore, we find the appellant (A-1) guilty of
the offence under
Section 302
IPC"

3.10 . Recommendation.

In view of the aforesaid, we do not recommend amendment
of
Section 304-B
of the Indian Penal Code, 1860 to provide for
death sentence as the maximum punishment in the case of a dowry
death.

3.11 Valedictory remark.

Before parting, we would like to reiterate the rider
enunciated by the Supreme Court in its judgment in the case of
K.
Prema S.Rao Vs Yadla Srinivasa Rao
AIR 2003 SC 11 at p.11
(para 27) to the effect that "the Legislature has by amending the
Penal Code and Evidence Act made Penal Law more strident for
dealing with punishing offences against married women. Such
strident laws would have a deterrent effect on the offenders only if
they are so stridently implemented by the law courts to achieve the
legislative intention". We may add that the enforcement agencies
too will have to be more sensitive and responsive to the needs of
the situation arising from the incidents of dowry death. Dowry
deaths are manifestation of socio-economic malady prevailing in
the society. This has to be addressed at different levels so as to
curb the menace of dowry deaths and not at the legal redressal
level
alone. We will, however, refrain ourselves from entering into this
arena as this does not strictly belong to legal realm.

(Dr. Justice AR. Lakshmanan)
Chairman

(Prof. (Dr) Tahir Mahmood) (Dr.D.P.Sharma)
Member Member-Secretary