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.