A two Judge Bench of the Supreme Court while interpreting S.304B of IPC and S.113B of Indian Evidence Act has held that the Accused being charged of the commission of a dowry death ought to have entered the witness box themselves to prove his defence beyond reasonable doubt. Justice Vikramjit Sen who wrote the Judgment heavily relied on Sher Singh v. State of Haryana, [reported in (2015) 1 SCR 29] written by him few weeks back.
In Sher Singh @ Partapa Vs. State of Haryana [Vikramjit Sen and Kurian Joseph.JJ] while dealing with S.304B IPC and S.113B Evidence Act interalia held as follows;
Explaining the Sher Singh Judgment Justice Sen has held as follows;
“Very recently, this Court had the opportunity of interpreting Section 304B of the IPC in Criminal Appeal No.1592 of 2011, titled Sher Singh v. State of Haryana, [reported in (2015) 1 SCR 29] which was authored by one of us (Vikramajit Sen,J.). Succinctly stated, it had been held therein that the use of word 'shown' instead of 'proved' in Section 304B indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, 'shown' will have to be read up to mean 'proved' but only to the extent of preponderance of probability. Thereafter, the word 'deemed' used in that Section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The 'deemed' culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong 'presumption' of his culpability. However, the accused is required to dislodge this presumption by proving his innocence beyond reasonable doubt as distinct from preponderance of possibility.”
In Para-9 of the Judgment it is held as follows;
“Since the burden of proving innocence beyond reasonable doubt shifts to the Accused in the case of a dowry death, as it has in the present case, it was imperative for the defence to prove the sequence of events which lead to the recording of the alleged Dying Declaration by the Tehsildar DW1. This burden has not even been faintly addressed. It appears that at the time of seeking bail the accused had requested the Sessions Court to call for the alleged Dying Declaration. Keeping in perspective that none of the Accused was present when the deceased was receiving medical treatment in the hospital, or when the Dying Declaration was allegedly recorded, or at the time of death, or even at the time of cremation, the manner in which the Accused learnt of the existence of the Dying Declaration has not been disclosed.”
In Para -12 it is held as follows;
“The defence has failed to comply with Section 113B of the Evidence Act. The Accused being charged of the commission of a dowry death ought to have entered the witness box themselves. The Accused were present on the scene at the time of the occurrence, which turned out to be fatal, and that added to their responsibility to give a credible version of their innocence in the dowry death”.
The ratio propounded by the two Judge Bench in Sher Singh @ Partapa Vs. State of Haryana is criticised as it not only contrary to the well established jurisprudential standards in criminal cases, but also amounts to negation of the fundamental right to fair trial guaranteed under Article 21 of Constitution of India.
Read the critical analysis of the Judgment here.
But in this Judgment Justice Sen went one step further and held that the accused ought to have entered the witness box themselves. Unfortunately the Court's attention was not invited to the second proviso to S.315 of Code of Criminal Procedure.
S.315 reads as follows';
"(1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:
So the Comment that "Accused being charged of the commission of a dowry death ought to have entered the witness box themselves" is in clear violation of the Second Proviso to S.315.
Another question is whether it breaks the protective umbrella against testimonial compulsion in respect of persons accused of an offence to be witness against themselves guaranteed under Article 20(3) of Constitution of India.
Read the Judgment here.