Doctrine of Res-Gestae

On December 16, 2014 By admin

By Jibin Mathew George, Amity Law School, Delhi.

“Editor’s Note: The author explained the various facet of the Doctrine of Res-Gestae
with the help of various case laws and its interpretation from Indian Evidence Act,
1872.”

INTRODUCTION

1. 5 of Indian Evidence Act lays down that evidence may be given of fact in issue
and relevant fact described under S. 6 states;

“Facts which, though not in issue, are so connected with a fact in issue as to form
part of the same transaction, are relevant, whether they occurred at the same time
and place of at different times and places”

The principal of law embodied in S.6 is usually known as the doctrine of res gestae.
Facts which may be proved, as part of res gestae, must be facts other than those in
issue but must be connected with it. Though hearsay evidence is not admissible, but
when it is res gestae it can be admissible in a court of law and may be reliable
evidence. This section is used by lawyers as a last resort so; there is not much case
law on this section. The rationale behind this is the spontaneity and immediacy of
such statement that there is hardly anytime for concoction. So, such statement must be
contemporaneous with the acts which constitute the offence or at least immediately
thereafter.

Res gestae includes facts which form part of same transaction. So, it is pertinent to
examine what is a transaction, when does it start and when does it ends. If any fact
fails to link itself with the main transaction, it fails to be a res gestae and hence
inadmissible. Res gestae include elements that fall outside the modern hearsay
definition altogether, such as circumstantial evidence of state of mind, so-called
“verbal acts,” verbal parts of acts, and certain non-verbal conduct. Because excited
utterances are connected closely in time to the event and the excitement flows from
the event, excited utterances were deemed part of the action (the “things done”) and
hence, admissible despite the hearsay rule. Res gestae also hired the hearsay
exceptions for present-sense impressions, excited utterances, direct evidence of state
of mind, and statements made to physicians.

MEANING OF RES GESTAE

Res gestae has no exact English translation. A literal translation means “something
deliberatelyundertaken or done”.[i]Few areas of the common law of hearsay are in
greater dispute than the doctrine of res gestae.[ii]Dean Wigmore comments, “The
phrase res gestae is, in the present state of the law, not only entirely useless, but even
positively harmful… It ought therefore wholly to be repudiated, as a vicious element
in our legal phraseology. It should never be mentioned.”

Res gestae has been defined as “Things done, or liberally speaking, the facts of the
transaction explanatory of an act or showing a motive for acting; a matters incidental
to a main fact and explanatory of it; including acts and words which are so closely
connected with a main fact as will constitute a part of it, and without a knowledge of
which the main fact might not be properly understood, even speaking for themselves
though the instinctive words and acts of participants not the words and acts of
participants when narrating the events, the circumstances, facts and declaration
which grow out of the main fact, and contemporaneous with it and serve to illustrate
its character or these circumstance which are the atomic and undersigned incidents of
a particular litigated act and are admissible when illustrative of such act.”[iii]

In Babulal v. W.I.T Ltd.,[iv] it was observed that the statement of law in section 6 of
the evidence

act is usually known as Res Gestae. The literal meaning of the word ‘res’ is
“everything that may form an object of rights and includes an object, subject matter or
status”. Res Gestae has been described as a term of protean significance and that there
have been many definitions of the term. No evidential problem is as shrouded in doubt
and confusion[v] as is Res Gestae. The rule as to admissibility of evidence known as
the Res Gestae rule has been declared to be incapable of any precise definition and it
has been applied to so many different and unrelated situations that it has been said that
the difficulty of formulating a description of Res Gestae which will serve all
circumstances seems insurmountable.[vi] It would be little short of miraculous if one
single doctrine of Res Gestae would suffice for every situation.
There must be a main or principal fact or transaction; and only such declarations are
admissible whichgrow out of the principal transaction and serve to illustrate its
character, and are contemporary with, and derive some degree of credit from it. The
main transaction is not necessarily confined to a particular point of time, but may
extend over a long or shorter period, according to the nature and character of the
transaction.

TRANSACTION, DEFINED

A transaction, as the term used in this sec. is defined by a single name, as a crime, a
contract, a wrong or any other subject of enquiry which may be in issue. It include
both immediate cause and effect of an act or event, and also its collection of relevant
circumstances, the other necessary antecedents of it occurrence, connected with it, at a
reasonable distance of the time, pace and cause and effect.[vii]A good working test of
deciding what transaction is; is proximity of time, unity or proximity of place,
continuity of actions, and community of purpose. But the main test must be continuity
of action and community of purpose. The condition for admissibility of a statement
made by a person who was at the scene of occurrence is the proximity of time, the
proximity of the police station and the continuity of action. The expression suggests
not necessarily proximity of time so much as continuity of action and purpose.[viii]

A transaction may constitute a single incident occupying a few moments or it may be

spread over a variety of acts, declaration etc. All these constitute incidents, which
though not strictly constituting a fact in issue, accompany and tend to explain or
qualify the fact in issue. All these fact are relevant only when they are connected by
proximity of time, unity or proximity of place, continuity of action and community of
purpose or design.[ix]

Evidence which is connected with the principal subject matters of the charges as parts
of one and the same transaction is relevant.[x] Two distinct offences may be so
inseparable connected that the proof of one necessarily involves proving the other,
and in such a case on a prosecution for one, evidence proving it cannot be excluded
because it also proves the other.[xi]Evidence as to other offences by the accused
would be relevant and admissible if there is a nexus between the offence charged and
the other offences or the two acts form part of the same transaction so as to fall within
S.6. An entirely separate and disconnected offence is not admissible merely because it
occurred at or about the same time as the res gestae of the offence on Trial.[xii]

Facts which are the occasion, cause or effect, immediate or otherwise, of relevant
facts, or facts in issue, or which constitute the state of things under which they
happened, or which afforded an opportunity for their occurrence or transaction, are
relevant.[xiii]
This section admits a very large class of facts connected with facts in issue or relevant
facts, though not forming part of the transaction. Facts forming part of the same
transaction are admissible under the preceding section. Evidence relating to collateral
facts is admissible when such facts will, if established reasonable presumption as to
the matter in dispute and when such evidence is reasonably conclusive. The section
provides for the admission of several classes of facts which are connected with the
transaction under inquiry in particular modes,

(1) As being the occasion or cause of a fact;

(2) As being its effect;

(3) As giving opportunity for its occurrence; and

(4) As constituting the state of things under which it happened.

A fact in issue cannot be proved by showing that facts similar to it, but not part of the
same transaction, have occurred at the other times. Thus, when the question is,
whether a person has committed a crime, the fact that he had committed a similar
crime before, is irrelevant.

ALLEGED FACT: property recovered form accused by the deceased, murder of the
deceased. The court said that unless it could be conclusively established that the
property was with the deceased at the time of the offence, the question of property
would not be good enough nexus with the murder.[xiv]

TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE

The primary question which the judge must ask oneself is-can the possibility of
concoction or distortion is disregarded?[xv]

To answer that question the judge must first consider the circumstances in which the
particular statement was made, in order to satisfy him that the event was as unusual or
starting or fanatic as to dominate the thoughts of the victim, so that his utterance was
an instinctive reaction to that event, thus giving no real opportunity for reasoned
reflection.
In order for the statement to be sufficiently ‘spontaneous’ it must be so closely
associated with the event which has excited the statement, that it can be fairly stated
that the mind of the declaring was still dominated by the event. Thus the judge must
be satisfied that the event, which provided the trigger mechanism for the statement,
was still operative.

Quite apart for the time factor, there may be special feature in case, which relate to the
possibility of concoction or distortion.

As to the possibility of report on the facts narrated in the statement if only the
ordinary fallibility of human recollection is relied on, this goes to weight to be
attached to and not the admissibility of the statement and is therefore a matter of jury.

To sum up, it can be laid that the test to be applied in deciding whether a hearsay
statement made by a bystander or victim indicating the identity of the attacker is
admissible can be put succinctly;

1. Was the identification relevant?

2. Was it spontaneous?
3. Was there an opportunity for concoction?
4. Was there any real possibility of error?

If the exited utterance is relevant, the statement will be admissible if the answer to the
second question is also yes, and the answer to the other question is no,38 otherwise
the statement is inadmissible. A statement may be spontaneous even though made in
response to questioning.[xvi]

WHERE DOES THE JUDICIARY STAND?

The test of admissibility on one hand relies on the exact contemporarily approach laid
down inBedingfield’s case[xvii] in contrast to the flexible and accommodating
approach laid down in Foster’s case[xviii]. It was precisely with a view to settle this
ambiguity that the Privy Council in Ratten’s case[xix]entirely dispensed with the test
of contemporaneity and adopted the test of “spontaneity and involvement”. Lord
Wilberforce in Ratten’scase contended that the test should not be the uncertain one
whether the making of the statement was in some sense part of the transaction. This
may often be difficult to establish and therefore he emphasised on spontaneity as the
basis of the test. He asserted that “hearsay evidence may be admitted if the statement
providing it is made in such conditions (always being those of approximate but not
exact contemporaneity) of involvement or pressure as to exclude the possibility of
concoction or distortion to the advantage of the maker or the disadvantage of the
accused.”

Courts began focusing on how long the excited condition lasted rather than focusing
on when the statement was made and thus liberalized the strict timing requirement.
Apparently reluctant to explicitly follow Wigmore, judges first expanded the
exception by categorizing statements as “contemporaneous enough.” [xx]

Like India present day rulings in England and America tend to indicate that the
utterance must be spontaneous or natural, and though not precisely contemporaneous
must be substantially so.[xxi] There can be no fixed limit of time an each case must
depend upon its own circumstances. How slight a separation of time and place is
sufficient to render evidence of a statement inadmissible?[xxii]

Where a witness in describing the offence asserted that B said: those ruffians who a
year ago took away Subhashini have again come. It was held that the time of the
occurrence in respect of the occurrence it is res gestae under S.6. But statement
however made at the time of an occurrence relating to a previous occurrencewhich
took a year is not res gestae.[xxiii]

Thus the principal of admissibility of declarations accompanying acts can be

summarized as;[xxiv]

1. The declaration (oral and written) must relate to the act which is in issue or
relevant thereto; they are not admissible merely because they accompany an
act. Moreover the declaration must relate to and explain the fact they
accompany, and not independent facts previous or subsequent thereto unless
such facts are part of a transaction which is continuous.
2. The declaration must be substantially contemporaneous with the fact and not
merely the narrative of a past.
3. The declaration and the act may be by the same person, or they may be by
different person, e.g. the declarations of the victim, assailant and bystanders. In
conspiracy, riot the declarations of all concerned in the common object are
admissible.
4. Though admissible to explain or corroborate, or to understand the significance
of the act, declaration are not evidence of the truth of the matters stated.

A spontaneous exclamation is admissible because “under certain external

circumstances of physical shock a state of nervous excitement may be produced which
stills the reflective faculties and removes their control, so that the utterance which
occurs is a spontaneous and sincere response to the actual sensations and perceptions
already produced by the external shock.”[xxv] The traditionally cited principle behind
this exception is that an individual who makes a statement immediately after a
stressful event lacks sufficient time or capacity to fabricate a lie about what happened.
Thus, this class of statements contains sufficient indicia of reliability so as to be
admitted despite its hearsay character.[xxvi]

In a case the accused had killed his wife and daughter. The deposition by the father of
the deceased that the father of the accused made a telephone call to him and said that
his son had killed the deceased was found to be not admissible. The question before
the court was that was that can the deposition of the accused father beadmitted under
S. 6 as a hearsay exception being part of Res Gestae? In the absence of finding as to
whether theinformation given by accused father to father of the deceased that accused
had killed his wife and daughter, was either at the time of the commission of the crime
or immediately thereafter so as to form part of the same transaction declined to accept
the evidence as relevant under section 6.[xxvii]

In State of Andhra Pradesh vsGentelaVijayavardhanRao[xxviii] the appreciable

interval between the act of carnage and magistrate’s recording the statement recorded
by the magistrate was found inadmissible under res gestae.

In Bishnavs State of West Bengal,[xxix] where the two witnesses reached the place of
occurrence immediately after the incident had taken place and found the dead body of
Prankrishna and injured Nepal in an unconscious state. One of them found the mother
of Prannkrishna and Nepal weeping and heard about the entire incident from an eye-
witness and the role played by each of the appellants, their testimony was held to be
admissible under section 6 of the Evidence Act.

In all the cases mentioned above the test applied to make the evidence admissible was
to consider that was the statement was made at the spur of the moment without an
opportunity to concoct and fabricate anything. Where the judges are satisfied that the
reaction was the most immediate result of the circumstances being relevant to the
facts in issue, they have allowed such evidence to be admitted.

EXPANSION OF THIS DOCTRINE

Courts have slowly broadened the scope of this section to cases like domesticviolence,
child witness etc.

Domestic violence and assault cases necessarily involve a startling event; they often
include the issue of excited utterances. In these cases it is only victims who can
identify the alleged culprit. So such testimony of thevictims must be admitted. In
India, women may not react just after the crime of rape or sexual violence
becausethey are under the influence of such gruesome event that they do not respond
immediately. It is possible that they respond after a day or two but such statement
spoken can still be admitted under res gestae. If it can be proved that victim was still
under the stress of shock then such statement can be admitted.

Usually cases of rape take place in isolation. So there is no eye witness to such event.
Rape and domestic violence cases are different than any other crime.

The testimony of children is often the subject of excited utterance

debate.[xxx] Usually whenever there is a time gap, the transaction is said to end and
any statement which do not form part of the transaction is inadmissible. However in
cases of children this rule is relaxed. The rationale for expanding the exception for
children emphasizes how children cope with stress because their statements are often
made well after events occur at the first safe opportunity to speak.[xxxi]

In Uttam Singh vs State of Madhya Pradesh,[xxxii]the child witness was sleeping

with the deceased father at the relevant time of incident and was awakened by the
sound of the fatal blow of the axe on the neck of the deceased. Seeing it, the child
shouted to his mother for help by naming the accused as assailant. On hearing the
sounds the mother and sisters of the child and other witnesses gathered at the spot.
This evidence was held to be admissible as a part of the same transaction as such
shout was the natural and probable as per the facts of the case. In this case if child
witness failed to react on the spot but spoke later, it could still be admissible under sec
6.

CONCLUSION

Usually evidence is brought under res gestae when it cannot be brought under any
other section of Indian evidence act. The intention of law makers was to avoid
injustice, where cases are dismissed due to lack of evidence. If any statement is not
admissible under sec. 6 it can be admissible under sec.157 as corroborative evidence.

Court has always minded that this doctrine should never be expanded to an unlimited
extends. That is why Indian courts have always considered the test of “continuity of
the transaction”. Any statement which was made after a long time gap and which was
not a reaction to the event is not admissible under sec.6 of the Evidence act. But
courts have permitted certain statement which was spoken after a long time gap from
the occurrence of the transaction, because there was sufficient proof that the victim
was still under the stress of excitement and so whatever was said was as a reaction to
the event.

The strength of sec. 6 lies in its vagueness. The word transaction used in this section is
not distinct. It varies from case to case. Each case in criminal law should be judged
according to its own merit. When it is proved that the evidence forms part of the same
transaction it is admissible under sec. 6 but whether it is reliable or not depends on the
discretion of the Judge.
Edited by Palak Pathak

[i] Translation provided by Dr. Philip Pattenden, Dir. Of Studies in Classic,

Peterhouse, Cambridge.

[ii] Edmund M. Morgan, Hearsay – What Is It?, 12 Wash. L. Rev. 1, 4 (1937) , p. 132
(describing phrase res gestae as “inexact and indefinite in its scope”).

[iii]VinodkumarBaderbhai Patel v. State of Gujarat, 1998 INDLAW GUJ 22

[iv] 1956 INDLAW CAL 105

[v] Julius Stone, Res GestaRaegitata, Vol. 55 The Law Quarterly Review, p. 66

[vi] 31 A CJS 978

[vii] R vs Ring A 1929 B 296

[viii] Ganesh vs R, A 1931 P 52

[ix]Amritalavs R 42 C 957

[x] R vsVajiram, 16 B 414, p. 430-31

[xi] Peoples vs Marble 38 Mich 117

[xii] Peoples vs Lane, 100 California 379

[xiii] Sec. 7 of Evidence Act

[xiv]Annasuyamma vs. State of Karnataka, 2002 INDLAW KAR 99

[xv] R vs Andrews 1987 A.C 281, H.L

[xvi] R vs Smart 2004 EWCA Crim 2072, 26

[xvii] [1879] 14 Cox CC 341

[xviii] [1834] 6 C. & P. 325

[xix]Rattenv. Reginam, 1971 INDLAW PC 6

[xx] Commonwealth vs Burke, 159 N.E.2d 856, 864 (Mass. 1959) (finding victim’s
statement to a witness a short time before victim was found unconscious admissible as
a spontaneous exclamation), overruled on other grounds by Commonwealth
vsBeldotti, 567 N.E.2d 1219 (Mass. 1991); Reardon vs Marston 38 N.E.2d 644, 647
(Mass. 1941) (holding that statement made at an accident scene “was so nearly
contemporaneous with the actual impact itself that it could have been found to have
been intimately connected with the happening of the accident”) (emphasis added).

[xxi]SudiptoSarkar, V.R Manohar, Law of Evidence, 16th Ed. 2007, p.209

[xxii]TepervsReginam 1952 INDLAW PC 1

[xxiii]Khijiruddinvs R, 53 C 373

[xxiv]Sarkar p.211

[xxv] See 6 Wigmore, supra note 55, 1748, at 199

[xxvi] Ohio vs Roberts, 448 U.S. 56, 57 (1980)

[xxvii]Vasa Chandrasekhar Raov.PonnaSatyanarayanavsPonnaSatyanarayana 2000

INDLAW SC 326

[xxviii] 1996 INDLAW SC 2361

[xxix] AIR 2006 SC 302 at p. 309 para 27

[xxx] See generally Lucy S. McGough, Child Witnesses: Fragile Voices in the
American Legal System 126-88 (1994) (discussing the relationship between hearsay
and child witnesses in both civil and criminal contexts); Nancy Walker Perry &
Lawrence S. Wrightsman, The Child Witness: Legal Issues and Dilemmas 169-73
(1991) (discussing the challenges courts face with respect to hearsay rulings when
dealing with child witnesses).
[xxxi] See Commonwealth vs Di Monte, 692 N.E.2d 45, 50 (Mass. 1998) (“Our
affirmance of a judge’s admission of a statement to a physician from a child some five
hours after she had been scalded is an outer limit in our cases thus far.”); see also
Commonwealth vs Hardy, 716 N.E.2d 109, 114 n.7 (Mass. App. Ct. 1999) (noting
children’s statements are given “special consideration” for excited utterances).

[xxxii] 2002 INDLAW MP 79

Section 113 of the Indian

Evidence Act, 1872
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Proof of cession of territory:

A notification in the Official Gazette that any portion of British territory has
before the commencement of Part III of the Government of India Act, 1935 (26
Geo. 5, Ch. 2) been ceded to any Native State, Prince or Ruler, shall be
conclusive proof that a valid cession of such territory took place at the date
mentioned in such notification.
ADVERTISEMENTS:

Comments:
Section 113 provides that if a notification in an official gazette that a portion of
British territory has been ceded to any native state before commencement of
Part III of the Government India Act, 1935 the notification is a conclusive proof
and no court has any power to make any enquiry about cession. This section
now is obsolete. It is hardly of any use in the present form.
113A. Presumption as to abetment of suicide by a married woman:
When the question is whether the commission of suicide by a woman had
been abetted by her husband or any relative of her husband and it is shown
that she had committed suicide within a period of seven years from the date of
her marriage and that her husband or such relative of her husband had
subjected her to cruelty, the Court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her
husband or by such relative of her husband.

ADVERTISEMENTS:

Explanation:
For the purposes of this section, “cruelty” shall have the same meaning as in
Section 498A of the Indian Penal Code (45 of 1860).

Comments:
This section has created a presumption as to abetment of suicide against the
husband or his relative. It lays down that when the question of commission of
suicide by a women is alleged to have been abated by the husband or his
relatives the following presumptions can arise:

ADVERTISEMENTS:

1. That the woman had committed suicide within the period of seven years
after the date of her marriage;

2. That her husband or such relative of her husband had subjected her to
cruelty;

3. That the case of such suicide had been abetted by her husband or such
relative of her husband.

Presumption:
The presumption under the section is rebuttable and totally based on facts. If
the married woman does not commit suicide the presumption of abetment will
not arise. When suicide has been committed by a woman within seven years
after marriage and such suicide has been abated by her husband or his
relatives or she was subjected to cruelty the court may presume that the death
in question is suicidal after taking into account all such circumstances.
Presumption of abetment of suicide can be drawn only by the prosecution has
discharged the initial onus of proving crelty. In such type of cases the court
may call upon the prosecution to adduce sufficient evidence and to prove that
it was a case of suicide abated by the husband or his relation. The legal
presumption provided under this provision clearly includes the past inference
of cruelty spread over a period of seven years from the date of the marriage of
the victim. Where the deceased in her dying declaration stated that she
poured kerosene on herself and lighted a match stick on account of ill-
treatment and beating by her husband the court can draw a presumption
under section 113A of the Act. This kind of presumption is totally in the
discretion of the court. The presumption contemplated under section 113A is
clearly attracted in the facts of the present case and the accused has not led
any evidence to rebut the said presumption.

The presumption as to abetment of suicide arises where the woman has been
subjected to cruelty by her husband and relations. Where the wife had
committed suicide by consuming insecticide within seven years of marriage
but evidence was leaving to show that ill-treatment to the deceased was on
account of failure to pay the demanded money, the accused was acquitted of
charge under section 306, IPC. The facts and circumstances should be such
that there is existence of nexus of cause and effect between cruelty and
suicide.

Seven years from the date of marriage:

The prosecution has to prove that the case of suicide took place within seven
years from the date of marriage. Where the death did not occur within a period
of seven years from the date of marriage, the presumption regarding
abetment of suicide cannot be raised invoking the provisions of Section 113A
of the Evidence Act.

Where the marriage was more than seven years there is no presumption.
There was no evidence of any act of cruelty also and therefore abetment of
suicide could not be inferred. The marriage of the deceased had taken place
in 1976, but the incident took place in 1988, that is after twelve years of the
marriage, the presumption under Sections 11 ЗА and 113B was not available.

In case of offences against married woman the presumption of abetment is

not available when charge is under section 302 of I.P.C.

Necessity of cruelty:
In order to apply the Section 113A there must be some evidence to show that
her husband and relatives subjected her to cruelty. According to the
explanation to this section “cruelty” shall have the same meaning as in
Section 498A of the Indian Penal Code.

According to Section 113A if a husband or his relatives is guilty of cruelty

committed to a married woman, both are punishable under section 498A of
the IPC, provided a presumption of abetment of suicide took place within the
period of seven years. In a dowry case the accused husband used
provocative language that led to amount instigation of suicide.

The conviction of the husband was proper. Unless the husband can be held
guilty of subjecting the deceased with cruelty no presumption of abetting the
deceased in committing the suicide is available under this section. But, ill-
treatment for several years created the presumption in favour of the
commission of a forced suicide.

Provisions under this section are retrospective:

The provisions of this section are applicable in pre-amendment cases. This
section does not create any new offence nor does it create any substantial
right but merely a matter of procedure and as such are retrospective and
applicable to the present case.

113B. Presumption as to dowry death:

When the question is whether a person has committed the dowry death of a
woman and it is shown that soon before her death such woman has been
subjected by such person to cruelty or harassment for, or in connection with,
any demand for dowry, the Court shall presume that such person had caused
the dowry death.
Explanation:
For the purposes of this section, “dowry death” shall have the same meaning
as in Section 304B, of the Indian Penal Code, (45 of 1860).

Comments:
Scope:
Section 113B creates a presumption of dowry death. In such cases, under this
section, the “Court will take for granted that the accused has committed dowry
death.” The prosecution has to prove that the death of a married woman was
caused by any burns, bodily injury or occurs otherwise than by natural death
within seven years of marriage. There is no straight jacket formula; only live
link between the cruelty because of dowry demand and death must appear to
exist. When the death of a victim was due to burn injuries in matrimonial
home, circumstantial evidence showing drenched in kerosene and mouth
gagged with a piece of cloth ruling out suicide or accidental death,
presumption under this section arose.

The presumption of dowry death arises only in cases when the prosecution
proves that before death the victim was subjected to cruelty or maltreatment
or harassment for dowry demand. Hence, under this section when prosecution
proves the case, it shall be presumed by the court that the death is a dowry
death. Sections 113B which is relatable to dowry death places heavier onus
on the accused than onus places under Section 113A. Husband being the
direct beneficiary can be inferred to have caused life of wife so miserable that
she was compelled to commit suicide.

Essential conditions:
The following essential conditions are to be fulfilled for raising presumption as
to dowry death:

1. “The question before the court must be whether the accused has committed
the dowry death of a woman (This means that the presumption can be raised
only if the accused is being tried for the offence under section 304B, I.P.C.).

2. The woman was subjected to cruelty or harassment by her husband or his

relatives.
3. Such cruelty or harassment was for or in connection with any demand for
dowry.

4. Such cruelty or harassment was soon before her death.”

Presumption as to dowry death:

When Section 113B is read with Section 304B of I.P.C. it proves that the
death of the victim was due to subjection of cruelty and harassment. Where
the prosecution does not allege demand of dowry against the accused Section
113B is not attracted. It shows that there has been persistent demand of
dowry and because of non-fulfillment of said demand the victim was subjected
to harassment, humiliation and continuous beating by the accused-husband
and in-laws. Poison was administered to deceased in Prasad. She died within
seven years of marriage. Presumption under section 113B is attracted. In
case of dowry death “there must be existence of a proximate and live link
between the effect of cruelty based on dowry demand and the concerned
death. If the alleged incident of cruelty is remote in time and has become
stable enough not to disturb mental equilibrium of the woman concerned, it
would be of no consequence.

The presumption as to dowry death may be involved when the prosecution

proves that “soon before death” the victim was subjected to cruelty or
harassment. The rule of evidence is to be prescribed in law to obviate the
prosecution of the difficulty to further prove that the offence was perpetrated
by the husband, as then it would be the burden of the accused to rebut the
presumption. In absence of basic element of dowry demand, presumption
under this section cannot be raised.

The presumption under section 113B cannot be invoked against husband. On

the other hand, where ingredients of section 304B of the Indian Penal Code
are established by the prosecution the onus lies on the accused to rebut
presumption under section 113B of the Evidence Act. Irrespective of fact
whether the accused has any direct connection with the death or not shall be
presumed to have committed dowry death provided the other requirements of
the section are satisfied. Where evidence of witnesses established demand of
dowry and ill treatment of deceased shortly before the date of occurrence, the
offence of dowry death is made out. The statements made by mother and
brother of the deceased that the deceased was taunted by the husband and
in-laws for not bringing dowry is admissible in evidence.

A comparative study of Sections 11 ЗА and 113В highlights that under

Section 113A the court “may presume” having regard to all the other
circumstances of the case, an abetment of suicide as visualized by Section
306,1PC, but Section 113B which is relatable to Section 304B, the word “may”
has been substituted by “shall’’ and there is no reference to the circumstances
of the case.