- (1.) N. L. Ganguly, J. The applicant Sunil Chand Shukla s/o Pandit Luxami Narayan Shukla, resident of 57/7 H, Ramganj, P. S. Collectorganj, Kanpur (Nagar) is detained at Kanpur Jail as an accused, involved in case Crime No. 158 of 1993, under Section 304- B of the Indian Penal Code, P. S. Collec tor ganj, District Kanpur (Nagar ).
(2.) IN this bail application the learned counsel for the applicant filed a large num ber of documents relating to the case along with affidavit. The cornplainant informant is represented through Sri Tapan Ghosh be sides the learned addl. Government Advocate, Sri Shivaji Misra. Counter affidavits have been filed by the complainant inform ant as well as by Sri Anant Ram Singh, Senior Sub-INspector of P. S. Collectorganj, Kanpur (Nagar ). Rejoinder affidavit has also been filed on behalf of the applicant. The case-diary has also been produced by the learned AGA. This bail application was argued at length by learned counsel for the parties. Ordinarily the practice of this Court is to decide bail applications without deal ing with facts and law involved in the case and generally the operative part about grant of bail or rejection of bail is stated in the order. Since this bail application arises out of an offence under Section 304-B IPC, and since after the addition of Section 498-A and 304-B IPC and Section 113-Aand 113-B of the Evidence Act by the Criminal Law Second Amendment Act, 1983 (No. 46 of 1983) and Dowry Prohibition (Amend ment) Act, 1986, very often the presump tion of law as provided in the amended Sec tion now (sic) a question before the Court as to the extent of the burden on the accused applicant to rebut the provision of the presumption in Section 113-B of the Evidence Act at the stage of consideration of bail applications. The growing menace of dowry deaths and harassment and torture of the newly wedded wives by the husbands and family members of the husbands neces sitated the Legislature to legislate and amend the provisions of Penal Code and Evidence Act to the cruelties, torture and harassment of the wives which many a times culminated in the wives being driven to commit suicide or being done to death by burning or any other manner. No doubt, the amendment in the Law by the Legislature was to catch hold and cover up the guilty persons committing such offences. The courts often find that in such cases the whole family members including even dis tant relations living at a distant places and sister-in-laws and brother- in-laws of tender ages, in firm and very old parent-in-laws are also named as accused in the FIR along with the alleged accused persons who has com mitted the offence, we cannot forget that our moral standard and respect for the truth has gone to a very low ebb. False implication of innocent persons out of revenge along with the real accused has become a common practice. For these reasons it becomes necessary for the court find out the extent of the burden of proof about innocence of the accused in such cases at the time of con sideration of the bail applications. It would be necessary to reproduce the provision of Section 498-A, IPC and Section 113-A of the Evidence Act and also the provision of Sec tion 304-B IPC and Section 113-B of the Evidence Act. Section 498-A. Husband or relative of hus band of a woman subjecting her to cruelty.- "whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine 304-B, IPC "where the act by which the death is caused is with the intention of causing such bodily injury as is likely to cause death (second limb) of Section 299 the same does not fall under the second or the third limb of Section 300. Culpable homicide does not amount to murder irrespective of the application of the exceptions in 300 and this type of section culpable homicide is also punishable under first part of Section 304. " 113-A, Evidence Act.-"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 com mitted 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. " 113-B Evidence Act.-"when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connec tion with, any demand for dowry, the Court shall presume that such person had caused the dowry death. " For Section 498-A IPC the word 'cruelty' is defined as (1) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health, or (2) causing harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security.
(3.) THIS provision shows that if a wife is shown to have committed suicide within a period of seven years from the date of mar riage and there is evidence that she was subjected to cruelty by her husband or his relative it would be permissible for the Court to presume that such suicide was abetted by her husband or by such relative of her husband. In case of dowry death of a woman where death is caused by burn or bodily injury or occurs otherwise than under nor mal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruel ty or harassment by her husband or any of his relative for or in connection with any demand of dowry. Such a death is described as a dowry death and the presumption of Section 113-B of Evidence Act is available if the death has taken place within seven years of the marriage and there is evidence of woman having been subjected to cruelty or harassment.;