SECTION 113A INDIAN EVIDENCE ACT: ASYMMETRICAL REASONING BY COURTS By - Akriti Sonwani

SECTION 113A INDIAN EVIDENCE ACT: ASYMMETRICAL REASONING BY COURTS

Authored By - Akriti Sonwani

INTRODUCTION

In India, Dowry death is one of the major issues and concerns for the death of women, during lockdown where the country dealt with several serious issues such as covid, unemployment, and migrant worker, according to the National Commission of Women, domestic violence and cruelty towards women was one of  the subjects outraging in the country,  such cases of cruelty against the women are not new to us as, the National Crime Bureau Report 2020 in its report has stated “The proportion of female victims were more in ‘Marriage Related Issues’ (specifically in ‘Dowry Related Issues’), and ‘Impotency/Infertility’. The age group (18 - below 30 years) and persons of 30 years - below 45 years of age were the most vulnerable groups resorting to suicides.”[1], the report also mentioned that the ratio of housewives committing suicide was more than any other because of the dowry demand and leaving no other choice to them but to commit suicide because of the codependency of the women for their survival and justice next to impossible in their situation. Several provisions and statutes have been made to control the issues such as the Prohibition of Dowry Act, section 498A, 304B under the Indian Penal Code and section 113A, 113B of the Indian Evidence Act, with the high number of the dowry death in the country and to control it, one such provision was brought with the amendment 1983 which inserted section 113A to the evidence act, to cure the issue where no proper pieces of evidence are present in relations to the dowry death because the nature and place of such crime is so inert that it was difficult to prove the reason of the suicide to be cruelty against the women happening in the matrimonial houses, behind the doors. However, with time, the application and the reasoning of the applications to section 113A happened to be divergent in the apex court with a different understanding of the provision. The paper deals with the two divergent concepts in the same provisions held in different cases and the reasoning behind them, focusing on the case laws in relation to the subject.

SECTION 113 A:  INDIAN EVIDENCE ACT

• UNDERSTANDING THE PROVISION

 SECTION 113 A:

“Presumption as to abetment of suicide by a married women -- 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.

Explanation -- For the purposes of this section, "cruelty” shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860”[2]. The section was brought to the evidence act with the Criminal Law Amendment Act, 1983, the major reason for the amendment was to control the situation of dowry death prevailing in India, the objective of the amendment states that “The increasing ratio of dowry fatalities is causing grave concern. The Joint Committee of the Houses that examined the workings of the Dowry Prohibition Act, of 1961, has reported on the scope of the evil where the cases of abuse by the husband and his relatives that result in the unhappy woman's suicide or murder make up a percentage of the total number of cases involving such cruelty. As a result, it is advocated that the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act be amended appropriately to deal effectively not just with dowry killings but also with cases of cruelty to married women by their in-laws.”[3], in the case of Ramesh Vithal Patil vs. State Of Karnataka[4]  the apex court, while dealing with the dowry suicide case, interpreting the section and its scope in its application, observed that ‘The section 113A was added by the Criminal Law Second Amendment Act of 1983 to address the problem of proof in cases where married women are forced to commit suicide but damning evidence is difficult to get because it is usually found within the matrimonial home's four walls, therefore the presumption envisioned therein must be put into action.’[5] Further, the 1983 amendment states “The Indian Evidence Act, 1872 is being amended to provide that where a woman has committed suicide within a period of seven years from the date of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, the Court may presume that such suicide had been abetted by her husband or by such relative of her husband (vide clause 7 of the Bill)”[6] with the view that direct evidence to such is not mandated in such cases.

• INGREDIENTS TO SECTION 113 A

To attract the application of section 113A and its application to such cruelty it is important that the essentials to the section shall be fulfilled and proved in the court with no rebuttal to these essentials,

1.  That the married woman has committed suicide
2.  That such suicide was committed within 7 years of marriage
3.  That woman committed suicide was subject to cruelty by her husband or in-laws

Therefore, the abovementioned conditions are the essentials to apply the section in such cases of cruelty resulting to suicide, however the section also defines with all the other circumstances in the case, it is again important to note the fact that the three essential ingredients are important to be proved but the presumption is the total discretion of the court as held in  many decisions of the higher court, there cannot be any straightjacket formula for non-application of the section when the act of cruelty is being conducted and suicide has happened in such case, court in different cases have given the diverging idea as to apply the section in the cases of cruelty some accepting or not accepting the application, but the reasoning of the court behind such application or non-application is the major concern to be looked upon, where the court on finding the three elements have applied on the section and presumed it to be death by suicide because of such torture, demand of dowry death but in some cases the courts have gone beyond the section not applying the presumption even the three elements are being proved to the court, therefore rebutting without any counter evidence from the side of the defence to disprove the arguments of the deceased committing suicide due to some other reason because no other corroborating evidences where shown for the suicide caused because of the cruelty  to deceased woman during the course of marriage despite the fact that no other substance or counter evidence is produced in  the court by the defence that no cruelty happened to her by her husband or in laws but the suicide can be because of  some other issues or reasons, such deviation from the literal language of the provisions can rapture the purpose of the section which was inserted  to cure the similar issue that when it becomes very difficult for the deceased side to prove the suicide happened because of the cruelty because the nature of the offence is such that it always happen in the closed rooms without getting any attention of the general society, having no scope for the dead women to convey any other person that she is victim of cruelty but only her own family or maternal side witness or source of evidence and sometimes being the sole or only witness, dealing with this issue the Supreme Court in the case Maranadu and Anr. Vs. State by Inspector of Police, Tamil Nadu[7] mere fact that the only eyewitnesses of the deceased being dead due to suicide are family members does not mean their testimony is invalid. When there is a claim of a conflict of interest, it must be shown. The mere assertion that they are likely to falsely implicate the accused because they are relatives of the deceased cannot be used to exclude evidence that is otherwise coherent and trustworthy, and therefore the testimony of the relatives of the deceased woman was taken by the court in the said case.

ANALYSIS OF THE DIVERGENT VIEWS OF COURTS IN APPLICATION OF SECTION 113A

The high courts and even the Supreme Court’s  bench in different cases of 498A have applied and interpreted the application of 113A in different ways, giving the asymmetrical reasoning in similar kinds of fact, however the courts cannot use the same Performa in every case as their cannot be a straight formula to application any provision especially in the case of criminal matters, different case brings in different dimensions to thing, also the principle that proving the guilt beyond the reasonable doubt in paramount in any criminal matter therefore prosecution complaining the cruelty in the matter of women suicide cannot be always treated under section 113A and presumption to be made every time, the corroborating documents or evidence or even circumstantial evidence to the prosecution claim of suicide because cruelty makes a case well in point, however were the case cruelty is there but no corroboration is there to sustain the points  and the witnesses who are usually family of the deceased women, it becomes difficult to prove the guilt of the accused,  under section 306 which states “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”[8]  According the section it is important to prove that intention and abetment was made to person to commit suicide is an important aspect in the matter of suicide, the section 113A makes any difference to section 306 of IPC is the question, according to the Ramesh Kumar vs. State Of Chhattisgarh[9], the court clearly put emphasis on the fact that the purpose of the sec 113A is meant to cure the difficulty to prove intention and abetment mentioned in section 306 IPC for proving that the suicide was abetted by the accused, the court in the present case held “This provision was enacted by the Criminal Law (Second) Amendment Act, 1983, with effect from December 26, 1983, in response to a social demand to address the difficulty of proof in cases where helpless married women were eliminated by being forced to commit suicide by their husbands or in-laws, and incriminating evidence was typically available within the four corners of the matrimonial home and thus was not available to anyone outside the occupants. However, it should not be forgotten that the presumption is intended to work against the accused in criminal cases. The foundation for the presumption must exist before it may be raised. A cursory examination of Section 113-A reveals that in order for Section 113-A to apply, it must be demonstrated that the lady committed suicide, (ii) the suicide occurred within seven years of her marriage, and (iii) the husband or his family who are prosecuted subjected her to cruelty.”[10]

• UNDERSTANDING THE REASONING OF COURTS

GUMANSINH @LALO @RAJU BHIKHABHAI CHAUHAN & ANR. V. THE STATE OF GUJARAT[11]

The present case is the recent judgment by the Supreme Court headed by the two-judge bench, related to the suicide due to cruelty in the matrimonial house of the deceased, the prosecution was well able to prove the ingredients that the deceased was harassed by the husband and family for the dowry and instances of such dowry was in a regular basis, mental and physical torture to the deceased for the dowry causing her cruelty, within 8 months the deceased died consuming poison, therefore the key ingredients to section 113A were proved, the deceased father being the witness to the case, the court in the present case relying on the Ramesh Kumar v. State of Chhattisgarh, the court stated, “The testimony of this witness was unshaken during cross-examination and nothing contrary could be elicited from him, and thus we find no fault with the Trial Court and the Appellate Court placing reliance on the evidence in drawing the presumption under Section 113-A particularly when there was no material brought on record by the defence to disprove the facts.”[12] held that application of 113 A is clear as the ingredients have been proved without any rebuttal from the side of other parties in the case.

GURJIT SINGH V. STATE OF PUNJAB[13]

Similar to the as abovementioned case, the deceased poisoned herself and died due to continuous harassment in the matrimonial house because of dowry demand, deceased was married 1in 1992 and subsequently due to torture committed suicide in the matrimonial house due the cruelty committed against her, the witness was the deceased father whose evidence was corroborated by the further evidence, all the ingredients to the section 113A was proved in the case which are necessary for the presumption under the section, also no rebuttal was put on the evidence produced that the reason of suicide is not the cruelty but something else, the court in the present case held that section 113A cannot be applied here as intention to abet suicide was not proved by the prosecution beyond the reasonable doubt the court stated “ there was no direct evidence   to   establish   that   the   appellant   either   aided   or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. It has been held that when the allegation is of cruelty, it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word cruelty in Section 498¬A of IPC. It has been held that one of the circumstances which to be taken into consideration by the court is whether the alleged cruelty was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman”[14] Therefore the court, in this case, held that sec 113A Indian Evidence cannot be applied as there is no direct evidence for the abetment or any act of abetment of suicide was there in the case.

INTERPRETATION OF THE PROVISION

Both the case law describe the same facts, the deceased committed suicide as a result of continuous torture for the dowry demand, however the asymmetric reasoning for the application of the section 113A in the same set of cases by the same apex court is the question need to be dealt with, the interpretation to the term ‘may presume’ which makes the court to presume the committal of the suicide because of cruelty to the deceased when the three key ingredients are proved by the party is understood or applied differently. As already held in the case of Ramesh Kumar v. State of Chhattisgarh and clearly stated in the Object and Purpose of the Criminal Law Amendment Act, 1983, the sole purpose of adding the said provision was to put away the difficult aspect of producing the direct evidence of abetment or intention of the accused to suicide is ruled out with the provision, as the women in the societal obligations and living have no capability to disclose the matter of cruelty happening to them, it is the deceased family who is the witness and can produce the evidence before the court, the conduct of the accused and the place, nature of the crime makes it difficult to bring the direct evidence of the crime, the fact that such offence takes place inside the matrimonial house with no chance of the leaving a direct evidence to proclaim for it to show, however it cannot be confused that the such language of the provision has also ruled out the burden of proof which always lies on the prosecution that there was cruelty and committal of suicide by the woman as a matter of no choice or unbearable to her which lead her to take such step, the burden of proving beyond reasonable doubt that there was cruelty for whatsoever reason usually the dowry demand and suicide in the within the 7 years of marriage, the legislator being precautious of the fact that such cannot be applied in every case have already made a bar of 7 years itself and have put ‘may presume’ not taking it as under the subject matter of conclusive proof under section 4 of the Indian Evidence Act, giving a discretion to the court to its application depending upon case to case and situation. Again, in the present case of Gurjit Singh v. State of Punjab, the two-judge bench of, the Supreme Court held that the section cannot be applied as there was no direct evidence of the abetment under section 306 Indian Penal Code, however, the court in the present case failed to take in consideration to the sole purpose behind the provision and the objective of the amendment which brought the section into the evidence act, even when the evidence of the deceased father was corroborated by the PW 13 Iqbal Singh, even though the reliance was put in Ramesh Kumar case by the court during the discussion of the issue yet the court did not focus on the major reason for the provision in the picture. In the prior case of Gumansinh v. state of Gujarat the same apex bench with the application of the section 113A and reasoned that fulfilling the ingredients makes the presumption successful, even when the family members of the deceased are the only witness in the case, that intention of the legislation is to cure the difficult situation of producing direct evidence as to abetment of the suicide.

Similar facts in the different cases, were the prosecution, beyond the reasonable doubt was fully able to produce the evidence of cruelty, dowry demand leading to the committal of suicide in the matrimonial house by the deceased, the fact that no rebuttal to the evidence of the prosecution was made in both the cases, with corroborative evidence fulfilling the condition of ‘all the other circumstances’ mentioned in the provision puts thing to the application of the case, yet the divergent idea and irregular reasoning of the court in cases of suicide in cruelty have been seen, the consequences of such divergence as in case of Gurjit Singh were all the ingredients are been put in corroboration with other evidence still not making court to apply for the presumption is something which can cause injustice in the longer term and many cases.

It is a clear matter of fact already made by the drafter or the legislator that the purpose of the provision is to cure the difficulty that women and their families face as to proving the direct evidence for such abetment, sec 306 is differently operated in such cases of sec 498A and 113A, therefore when the court in cases where there is no vagueness as to the intention of the legislation in the particular statute or provision, the court should have a clear reason supported by the logic reasoning providing justice and balance in the matter put to them, however, the reason of the court that no direct evidence is produced as to prove the intention or the abetment in the matter where the legislator is clear on this point does seem to be a valid reason in the present case scenario, therefore the two above mentioned cases show the asymmetrical reasoning of the court in the application of the provision which is much clear in its language.

The clear essential that within the seven years of marriage is another aspect to be noted as all the cases of suicide by cruelty do not come under the provision,  ‘The Lancet’ 2018 report on suicide in India has claimed that suicide by women is highest due to domestic violence or dowry, report claims, “Married women account for the highest proportion of suicide deaths among women in India.7,8 Marriage is known to be less protective against suicide for women because of arranged and early marriage, young motherhood, low social status, domestic violence, and economic dependence.3,83–25 The trends in SDR in women in this study suggest the need to further assess the complex relationships between gender and suicidal behaviour to facilitate women-specific suicide prevention strategies.”[15] Therefore the presumption is not to be made in each and every case but 7 years of marriage which makes the point clear in the provision.

PROOF BEYOND REASONABLE DOUBT, STILL KEY PRINCIPLE

While understanding the idea of section 113A another dimension to the section is the impact of such provision on the other party that is alleged accused, the provision provides benefit or relaxation to the deceased woman but does such benefit affect the accused or husband or his family is an important question, the word ‘may presume’ used in the provision does limit the right of the accused or not, section 4, “May presume”, “Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”[16] section 4 clearly provides that presumption only be taken when there is no contrary evidence or fact proved by the defence if the court or court may call to prove such presumption, another thing is the general principle of the criminal law is proof beyond a reasonable doubt, that the victim or the aggrieved party has to prove the case beyond the reasonable doubt to get the benefit of section 113A, it is important to prove all the ingredients of section for the application of the presumption, ‘all the other circumstances of the case’ is another fact in the provision under section 113A, where the court has to look upon the other circumstances depends on the case to case.

CONCLUSION

The analysis of the two case laws on the application of section 113A of the Indian Evidence Act has shown that the court in the cases has shown different reasoning as to the interpretation and application of the provision with respect to the presumption mentioned in the section. There have been prior cases where such divergent or irregular reasoning has been provided by the court with respect to adducing the evidence of the witnesses, proof of the abetment and presumption when to be applied, but if the direct evidence becomes non-application of the section 113A such can cause consequences to the future cases, rupturing the purpose of the section, the matter to be looked by the court with respect to such different reasoning is needed in the scenario where the country still faces a high rate of suicide by the women in the country, moreover, NCRB report and other report claims housewives committing more suicide is adding to the ratio of death of the women in India, therefore such interpretation in the case of Gurjit Singh need to be looked further and in adhering to the societal challenges involved in such cases.

[1]  Chapter 2, Suicides in India, Accidental Deaths & Suicides in India NCRB 2020

[2] Indian Evidence Act, 1872

[3] http://www.indianlegislation.in/BA/BaActToc.aspx?actid=15675

[4] CRIMINAL APPEAL NO. 56 OF 2006

[5] https://indiankanoon.org/doc/173343537/

[6] http://www.indianlegislation.in/BA/BaActToc.aspx?actid=15675

[7] (2008) 16 SCC 529

[8]Indian Penal Code, 1860

[9] Appeal (crl.)  617/2000

[10] https://indiankanoon.org/doc/229273

[11] CRIMINAL APPEAL NOS. 940-941/ 2021

[12] https://www.livelaw.in/pdf_upload/gumansinh-lalo-raju-bhikhabhai-chauhan-vs-state-of-gujarat-ll-2021-sc-415-399853.pdf

[13] CRIMINAL APPEAL Nos. 1492­1493/ 2010

[14] https://main.sci.gov.in/supremecourt/2009/10032/10032_2009_2_1502_18579_Judgement_26-Nov-2019.pdf

[15] Gender differentials and state variations in suicide deaths in India: the Global Burden of Disease Study 1990–2016, Lancet Public Health, Sept 2018

[16] Indian Evidence Act,1872