Orissa High Court
Prasanna Kumar Rout & vs State Of Odisha & Others on 11 March, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.302 of 1993
This is an appeal under Sections-2 of Section 374, read
with Section-382 of Cr. P.C, 1973.
..................
Prasanna Kumar Rout & .... Appellants
Others
-versus-
State of Odisha & Others .... Respondents
For Appellant : M/s. Mr.D.P. Dhal, Sr. Adv.
For Respondents : M/s. C.K. Pradhan,
Addl. Govt. Advocate
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 03.12.2024 and Date of Judgment:11.03.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Mode.
2. The present appeal has been filed by the Appellants
challenging the order of conviction and sentence dtd.
18.08.1991 passed in Sessions Trial No.401/1992 by the
// 2 //
learned 1st Addl. Sessions Judge, Cuttack. Vide the said
judgment, learned Trial Court held the appellants guilty of
the offence under Sections-304-B/34, 498-A, 201 of the
I.P.C and under Section-4 of the D.P. Act.
3. The appellants were convicted to undergo RI for 7
years each for the offence under Section 304-B, read with
Section-34 of the I.P.C, RI for 1 year for the offence under
Section-498-A and RI for 1 year each for the offence under
Section- 201/34 of the I.P.C. The appellants were also
convicted to undergo for RI for six months and to pay fine of
Rs.1500/- each and in default for R.I two months for the
offence under Section-4 of the D.P. Act.
3.1. Learned Senior Counsel appearing for the appellants
contended that the prosecution case was set into motion
basing on the F.I.R lodged by P.W.3 on 11.06.1992.
3.2. The Prosecution story as revealed in the F.I.R reads as
follows:-
"Prosecution case as per written report Ext-2
submitted by p.w.3 Kamalakant Rout in Banki Police
Station on 11-6-92 at 0.30 A.M. is that marriage of his
sister Kantilata with Prasanna Kumar Rout was performed
in the premises of Brahmei Thakurani about one and half
months back. During marriage from the side of the
bridegroom there was demand of one THA SAJA and cash
of Rs.3,000/- p.w.3 promised to give the same within seven
days. He gave the THA SAJA but he could not arrange
// 3 //
money, Kantilata was abused, assaulted and tortured by
her husband, husband's elder brothers, parents-in-law and
sisters-in-law (wife of the elder brothers of her husband).
On 6-6-92 Jatadhari Swain (husband of elder sister of
Kantilata) had gone to the house of Kantilata. After
returning from her house he informed p.w.3 that Kantilata
had sent information to him (p.w.3) to give the money very
soon or else her, husband and other members of / her
family had threatened to kill her.
On 9-6-92 p.w.3 came to the house of Kantilata with
Rs.3,000/-. He could not find Kantilata in her husband's
place. She was informed by Dhoba Rout that his sister had
gone to her house (p.w.3), P.w.3 wanted to meet his
brother-in-law, Prasanna Kumar Rout and but Dhoba Rout
told that Prasanna had gone somewhere. When p.w.3 was
sitting in the outhouse and brooding over, information
received from Jatadhari and absence of Kantilata, Dhoba
Rout told him to go back to his house. P.w.3 came back to
his house and / searched for Kantilata at different places.
He found a portion of a body of Kantilata inside a well of
Kulamani Sahu. He informed this fact to the Gramarakhi-
Sudhakar Mallik and Radhu Rout and requested them to
keep watch near the well. He came to the Police Station and
submitted the written report".
3.3. It is contended that the prosecution in order to prove
its case examined as many as 14 no.s. of P.Ws. Out of the
P.Ws who were so examined, P.W.3 happens to be the
// 4 //
informant and brother of the deceased Kantilata. P.W.11 is
the Medical Officer, who conducted the post-mortem of the
deceased and P.Ws.12 to 14 as the I.Os, who conducted the
investigation at different point of time.
3.4. Learned Senior Counsel further contended that in
order to prove the prosecution allegation since no
independent witnesses were examined, relying on the
statement of P.Ws.3, 8 and 9, who are all interested
witnesses, order of conviction and sentence could not have
been passed.
3.5. It is also contended that statement of P.Ws-3, 8 and 9
are contradictory to each other. Therefore, in view of such
contradictory statement of P.Ws.3, 8 and 9, placing reliance
on their evidence, appellants could not have been held
guilty of the charges for the offence under Sections-304-
B/34, 498-A, 201 of the I.P.C and under Section-4 of the
D.P. Act.
3.6. It is also vehemently contended that ingredients of
making out a case under Section-304-B since was not made
out, order of conviction and sentence passed under Section-
304-B is not at all sustainable.
3.7. In support of the aforesaid submissions, learned
Senior Counsel relied on the decision of this Court in the
case of Arjuna Sahu & two Ors. Vs. State of Orissa,
reported in (2011) 49 OCR-634. This Court in Para-10, 11,
15 and 20 of the said judgment has held as follows:-
// 5 //
"10. For making out an offence of dowry death under
Section 304(B) of the LP.C. it is incumbent upon the
prosecution to prove the following ingredients.
(i) The death of a woman is caused by any burns or
bodily injury of her death must have occurred
otherwise than under normal circumstances.
(ii) Such death must have occurred within seven years
of her marriage.
(iii) Soon before her death she must have been
subjected to cruelty or harassment by Ther husband
or any relative of her husband, and
(v) Such cruelty or harassment must be in connection
with the demand of dowry.
11. While dealing with Section 304(B) of the I.P.C., the
Apex Court in the case of Kamesh Panjiyar @
Kamlesh Panjiyar v. State of Bihar (2005) 2 SCC 388
held as under :-
"14. The word "dowry" in Section 304-B IPC has to be
understood as it is defined in Section 2 of the Dowry
Act. Thus, there are three occasions related to dowry.
One is before the marriage, second is at the time of
marriage and the third 'at any time" after the
marriage. The third occasion may appear to be
unending period. But the crucial words are "in
connection with the marriage of the said parties". As
was observed in the said case "suicidal death" of a
married woman within seven years of her marriage is
covered by the expression "death of a woman is
caused or occurs otherwise than under normal
circumstances" as expressed in Section 304-B IPC."
xxx xxx xxx
15. As I have already discussed above, there is no
dispute to the fact that the death of Nini Sahu, the
wife of the appellant Kabiraj Sahu took place within
seven years of her marriage and death of the
deceased took place otherwise than under the normal
circumstances. Since the allegation is that the
deceased was subjected to torture by her in laws and
husband on demand of dowry and since the charge
// 6 //
was under Section 304-B of the Indian Penal Code, it
has to be established by the prosecution that the
deceased was subjected to cruelty or harassment by
her husband or any relative of her husband in
connection with any demand of dowry. In a very
recent decision as reported in (2011) 48 OCR (SC) 182
Satya Narayan Tiwari @ Jolly & Anr. v. State of U.P.,
their Lordships of the Hon'ble the Apex Court have
held that "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
stale enough not to disturb the mental equilibrium of
the woman concerned, it would be of no
consequence."
xxx xxx xxx
20. From the evidence of P.W.9 it is seen that the
doctor who held autopsy over the dead body of the
deceased could not opine as to the probable cause of
death of the deceased. Thus when the doctor could
not opine the cause of the death and entertained
doubt it cannot be conclusively held that the death of
the deceased was a homicidal or suicidal one. It is
true that the death of the deceased took place other
than under normal circumstances but there is no
evidence worth the name to show that accused-
Kabiraj Sahu or his family members after assaulting
the deceased threw her dead body in river
Rushikulya. There is also no evidence to show that
the deceased was subjected to torture by her in-laws
which drove her to commit suicide. Therefore, the
evidence of P.Ws. 1, 2 and 3 cannot be looked into for
any purpose as it has no connection with any
circumstance or transaction which resulted in the
death of the deceased as the death was neither
homicidal nor suicidal but was accidental and P.W.9,
the Doctor himself deposed that from the post mortem
examination it is not possible 10 opine if the death
was suicidal or accidental and he has also deposed
that when a person is accidentally swept away and
he tries to escape and if he dashes accidentally
against any log the injuries which they found on the
person of the deceased could have been caused.
Thus, provisions of Section 32(1) of the Evidence Act
// 7 //
cannot be attracted to this case and in that context
reliance can be placed on a decision of the Apex Court
as reported in (2009) 43 OCR (BC) 954 in the case of
Bhairon Singh v. State of Madhya Pradesh.
I have carefully gone through the judgment rendered
by the learned Asst. Sessions Judge, but I found that
the learned Court below was swayed away with
surmises and conjectures as the learned Trial Court
in page 12 of the Judgment has mentioned that "the
movement of the deceased in that odd hour 10 be
unnatural and when she did not give any reply to the
query of P.W.6 that shows her state of mind at the
relevant time and she must have been engrossed with
anguish and grief and wanted to end her life." I have
no hesitation to hold that those are purely surmises
and conjectures on the part of the Court. While
appreciating evidence, it is to be borne in mind that
the Court must not be swayed away by the horror of
the crime or the character of the accused. Foul crime
imposes a greater caution on the Court which must
resist the tendency to look beyond the file. The Apex
Court in a decision reported in (2011) 48 OCR (SC)
263 in the case of Rathinam @ Rathinan v. State of
Tamilnadu & Anr. and also in another decision as
reported in (2002) 7 SCC 317 in the case of Ashish
Batham v. State of Madhya Pradesh, have observed
as follows :-
Realities or truth apart, the fundamental and basic
presumption in the administration of criminal law and
justice delivery system is the innocence of the alleged
accused and till the charges are proved beyond
reasonable doubt on the basis of clear, cogent,
credible or unimpeachable evidence, the question of
indicting or punishing an accused does not arise,
merely, carried away by the heinous nature of the
crime or the gruesorio manner in which it was found
to have been committed. Mere suspicion, however,
strong or probable it may be is no effective substitute
for the legal proof required to substantiate the charge
of commission of a crime and graver the charge is
greater should be the standard of proof required.
Courts dealing with criminal cases at least should
constantly remember that there is a long mental
distance between "may be true" and "must be true"
// 8 //
and this basic and golden rule only helps to maintain
the vital distinction between "conjectures" and "sure
conclusions" to be arrived at on the touchstone of a
dispassionate Judicial scrutiny based upon a
complete and comprehensive appreciation of all
features of the case as well as quality and credibility
of the evidence brought on record."
3.8. Reliance was also placed to a decision of the Hon'ble
Apex Court in the case of Sham Lal vs. State of Haryana,
reported in AIR 1997 SC-1873. Hon'ble Apex Court in
Para-12 & 13 of the said judgment has held as follows:-
"12. In the absence of any such evidence it is not
permissible to take recourse to the legal presumption
envisaged in Section 113-B of the Evidence Act. That
rule of evidence is 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.
13. The corollary of the aforesaid finding is that the
appellant cannot be convicted of the offence under
Section 304-B IPC. But this would not save him from
the offence under Section 498-A of the IPC for which
there is overwhelming evidence, particularly of PW 3,
Bhagwan Dass, who heard from his daughter, which
evidence is admissible under Section 32 of the
Evidence Act, besides his own direct dialogue with
the appellant and his father. As the trial court and the
High Court found his evidence reliable, we hold that
the prosecution has succeeded in proving the offence
under Section 498-A of IPC".
3.9. Reliance was also placed to a decision of the Hon'ble
Apex Court in the case of Sher Singh @ Partapa vs. State
of Haryana, reported in (2015) 3 SCC-724. Hon'ble Apex
Court in Para- 8 and 16 of the said judgment has held as
follows:-
// 9 //
"8. Within the short span of three years, Parliament
realised the necessity to make the law more stringent
and effective by introducing amendments to the
Dowry Act, as well as IPC by enacting Act 43 of 1986.
These amendments, inter alia, made the offences
dealt with in the Dowry Act cognizable for certain
purposes and also made them non-bailable as well as
non-compoundable. By the introduction of Section 8-A
of the Dowry Act the burden of proof was reversed in
respect of prosecutions for taking or abetting the
taking or demanding of any dowry by making the
person concerned responsible for proving that he had
not committed any such offence. Contemporaneously,
Section 304-B was inserted into IPC. The newly
added section stipulates that:
"304-B. Dowry death.--(1) Where the death of a
woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown
that soon before her death she was subjected to
cruelty or harassment by her husband or any relative
of her husband for, or in connection with, any
demand for dowry, such death shall be called „dowry
death‟, and such husband or relative shall be deemed
to have caused her death."
(emphasis supplied)
Sub-section (2) makes this offence punishable with
imprisonment for a term which shall not be less than
seven years and which may extend to imprisonment
for life. Section 113-B was further incorporated into
the Evidence Act; (yet again ignoring the futility, if not
ignominy, of retaining the withered appendage in the
form of the existing Section 113, and further
perpetuating an anachronism). Be that as may be, the
newly introduced Section 113-B states that when the
question is whether a person has committed the
death of a married woman and it is shown that soon
before her death such woman had been subjected by
such person to cruelty or harassment or in connection
with any demand for dowry, the court shall presume
that such person has caused dowry death. The
Explanation harks back to the simultaneously added
Section 304-B IPC for the definition of dowry death,
clarifying thereby that the person alluded to in this
section is her husband or any relative of her
// 10 //
husband. It is noteworthy that whilst Section 113-A of
the Evidence Act reposes discretion in the court to
draw a presumption so far as the husband's
abetment in his wife's suicide, Parliament has
mandated the court to draw at least an adverse
inference under Section 113-B in the event of a dowry
death. It seems to us that where a wife is driven to
the extreme step of suicide it would be reasonable to
assume an active role of her husband, rather than
leaving it to the discretion of the court.
xxx xxx xxx
16. As is already noted above, Section 113-B of the
Evidence Act and Section 304-B IPC were introduced
into their respective statutes simultaneously and,
therefore, it must ordinarily be assumed that
Parliament intentionally used the word "deemed" in
Section 304-B to distinguish this provision from the
others. In actuality, however, it is well-nigh
impossible to give a sensible and legally acceptable
meaning to these provisions, unless the word
"shown" is used as synonymous to "prove" and the
word "presume" as freely interchangeable with the
word "deemed". In the realm of civil and fiscal law, it
is not difficult to import the ordinary meaning of the
word "deem" to denote a set of circumstances which
call to be construed contrary to what they actually
are. In criminal legislation, however, it is unpalatable
to adopt this approach by rote. We have the high
authority of the Constitution Bench of this Court both
in State of Travancore-Cochin v. Shanmugha Vilas
Cashewnut Factory [(1953) 1 SCC 826 : AIR 1953 SC
333] and State of T.N. v. Arooran Sugars Ltd. [(1997)
1 SCC 326] , requiring the Court to ascertain the
purpose behind the statutory fiction brought about by
the use of the word "deemed" so as to give full effect
to the legislation and carry it to its logical conclusion.
We may add that it is generally posited that there are
rebuttable as well as irrebuttable presumptions, the
latter oftentimes assuming an artificiality as actuality
by means of a deeming provision. It is abhorrent to
criminal jurisprudence to adjudicate a person guilty of
an offence even though he had neither intention to
commit it nor active participation in its commission. It
is after deep cogitation that we consider it imperative
to construe the word "shown" in Section 304-B IPC as
// 11 //
to, in fact, connote "prove". In other words, it is for the
prosecution to prove that a "dowry death" has
occurred, namely,
(i) that the death of a woman has been caused in
abnormal circumstances by her having been burned
or having been bodily injured,
(ii) within seven years of her marriage,
(iii) and that she was subjected to cruelty or
harassment by her husband or any relative of her
husband,
(iv) in connection with any demand for dowry, and
(v) that the cruelty or harassment meted out to her
continued to have a causal connection or a live link
with the demand of dowry.
We are aware that the word "soon" finds place in
Section 304-B; but we would prefer to interpret its use
not in terms of days or months or years, but as
necessarily indicating that the demand for dowry
should not be stale or an aberration of the past, but
should be the continuing cause for the death under
Section 304-B or the suicide under Section 306 IPC.
Once the presence of these concomitants is
established or shown or proved by the prosecution,
even by preponderance of possibility, the initial
presumption of innocence is replaced by an
assumption of guilt of the accused, thereupon
transferring the heavy burden of proof upon him and
requiring him to produce evidence dislodging his guilt,
beyond reasonable doubt. It seems to us that what
Parliament intended by using the word "deemed" was
that only preponderance of evidence would be
insufficient to discharge the husband or his family
members of their guilt. This interpretation provides
the accused a chance of proving their innocence. This
is also the postulation of Section 101 of the Evidence
Act. The purpose of Section 113-B of the Evidence Act
and Section 304-B IPC, in our opinion, is to counter
what is commonly encountered--the lack or the
absence of evidence in the case of suicide or death of
a woman within seven years of marriage. If the word
// 12 //
"shown" has to be given its ordinary meaning then it
would only require the prosecution to merely present
its evidence in court, not necessarily through oral
deposition, and thereupon make the accused lead
detailed evidence to be followed by that of the
prosecution. This procedure is unknown to common
law systems, and beyond the contemplation of
Cr.PC".
3.10. Similarly, reliance was also placed to a decision of
the Hon'ble Apex Court in the case of Trimukh Maroti
Kirkan vs. State of Maharashtra, reported in (2006) 10
SCC-681. Hon'ble Apex Court in Para-13 and 14 of the
said judgment has held as follows:-
"13. The demand for dowry or money from the
parents of the bride has shown a phenomenal
increase in the last few years. Cases are frequently
coming before the courts, where the husband or in-
laws have gone to the extent of killing the bride if the
demand is not met. These crimes are generally
committed in complete secrecy inside the house and it
becomes very difficult for the prosecution to lead
evidence. No member of the family, even if he is a
witness of the crime, would come forward to depose
against another family member. The neighbours,
whose evidence may be of some assistance, are
generally reluctant to depose in court as they want to
keep aloof and do not want to antagonise a
neighbourhood family. The parents or other family
members of the bride being away from the scene of
commission of crime are not in a position to give direct
evidence which may inculpate the real accused except
regarding the demand of money or dowry and
harassment caused to the bride. But, it does not
mean that a crime committed in secrecy or inside the
house should go unpunished.
14. If an offence takes place inside the privacy of a
house and in such circumstances where the
assailants have all the opportunity to plan and
commit the offence at the time and in circumstances of
// 13 //
their choice, it will be extremely difficult for the
prosecution to lead evidence to establish the guilt of
the accused if the strict principle of circumstantial
evidence, as noticed above, is insisted upon by the
courts. A judge does not preside over a criminal trial
merely to see that no innocent man is punished. A
judge also presides to see that a guilty man does not
escape. Both are public duties. (See Stirland v.
Director of Public Prosecutions quoted with approval
by Arijit Pasayat, J. in State of Punjab v. Karnail
Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The
law does not enjoin a duty on the prosecution to lead
evidence of such character which is almost impossible
to be led or at any rate extremely difficult to be led.
The duty on the prosecution is to lead such evidence
which it is capable of leading, having regard to the
facts and circumstances of the case. Here it is
necessary to keep in mind Section 106 of the
Evidence Act which says that when any fact is
especially within the knowledge of any person, the
burden of proving that fact is upon him. Illustration (b)
appended to this section throws some light on the
content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without
ticket. The burden of proving that he had a ticket is on
him."
3.11. Similarly, reliance was also placed to a decision of
the Hon'ble Apex Court in the case of Joshinder Yadav vs.
State of Bihar, reported in (2014) 4 SCC-42. Hon'ble Apex
Court in Para-2 to 6 of the said judgment has held as
follows:-
"2. Bindula Devi was married to Accused 1,
Jaiprakash Yadav. The appellant and Accused 3,
Shakun Devo Yadav are the brothers of Accused 1
Jaiprakash Yadav. Accused 4, Dani Dutta Yadav is
their father and Accused 5, Satya Bhama Devi is their
mother. Accused 6, Fudai Yadav is the brother-in-law
of Accused 1 Jaiprakash Yadav.
// 14 //
3. The prosecution story is reflected in the evidence of
complainant PW 9, Debu Yadav, the father of Bindula
Devi. He stated that his daughter Bindula Devi was
married to Accused 1 Jaiprakash Yadav. He further
stated that in the marriage one buffalo, one cow and
one bullock were given as dowry to the accused as
per their demand. However, the accused were not
satisfied with that. They demanded a wristwatch and
a cycle which were given to them. Even then they
continued to harass and assault Bindula Devi. She
gave birth to a male child. The accused kept Bindula
Devi in their house and sent the child to his house so
that he would rear the child. PW 9 Debu Yadav
further stated that when in Ashwin month he brought
Bindula Devi to his house she told him about the ill-
treatment meted out to her at her matrimonial home.
She did not want to go back. He tried to pacify her.
He transferred two kathas of land in her name. She
then went to her matrimonial home. The accused
insisted that she should sell the land. As she did not
agree to selling of the land, they subjected her to
further torture.
4. PW 9 Debu Yadav further stated that on a Monday
at about 4.00 p.m. Accused 6 Fudai Yadav came to
his house and enquired whether Bindula Devi had
come there and told him that she had run away from
the house. He told Accused 6 Fudai Yadav that
Bindula Devi would not run away from her house. He
then proceeded to the house of the accused situated
in Village Kolhua along with his son, Sachindra
Yadav and his brother-in-law. Accused 6 Fudai
Yadav accompanied them for some distance and then
left for some other place. They reached Kolhua Village
and found the house of the accused to be empty. All
the accused had left the house with their belongings.
Bindula Devi was also not present. On enquiry the
neighbours told him that because Bindula Devi had
refused to transfer the land in the accused's name
they had administered poison to her and murdered
her. He met the Sub-Inspector of Police by the
riverside who recorded his statement. A search was
conducted. The dead body of Bindula Devi was
recovered from the riverbed. The formal FIR of PW 9
Debu Yadav was registered on 31-1-1989 and the
// 15 //
investigation was started. The appellant, Accused 1
Jaiprakash Yadav and Accused 3 Shakun Devo
Yadav surrendered before the court on 6-3-1989.
Accused 4 Dani Dutta Yadav surrendered before the
court on 26-8-1989.
5. At the trial, though the prosecution examined 13
witnesses, its case rested on the evidence of PW 9
Debu Yadav, father of the deceased and PW 10,
Sachindra Yadav, brother of the deceased. PWs 2 to 7
turned hostile. The accused pleaded not guilty to the
charge. They contended that when Bindula Devi went
to take bath, she slipped in the water, got drowned
and died.
6. The trial court convicted the accused under Section
302 read with Section 149 IPC and sentenced each of
them to suffer life imprisonment. They were also
convicted under Section 498-A IPC and sentenced to
undergo rigorous imprisonment for three years each.
They were further convicted and sentenced to
undergo rigorous imprisonment for seven years each
under Section 201 IPC. All the substantive sentences
were ordered to run concurrently. The High Court
dismissed their appeal. Hence, this appeal, by special
leave, by Accused 2".
4. Placing reliance on the above noted decisions of the
Hon'ble Apex Court as well as of this Court so cited (supra),
learned Senior Counsel appearing for the appellants
contended that since ingredients in making out a case
under Section-304-B of the I.P.C was never made out, and
no such allegation is there by the prosecution that the
deceased was subjected to cruelty and torture on the
ground of demand of dowry prior to her death, conviction of
the appellants for the offences under Section-304-B cannot
sustain legal scrutiny.
// 16 //
4.1. It is also contended that since the prosecution
miserably failed to prove that the deceased was subjected to
cruelty because of demand of dowry just prior to her death,
the order of conviction and sentence passed under Section-
304-B read with Section-498-A and Section-4 of the D.P.
Act are not sustainable in the eye of law.
5. Mr. C.K. Pradhan, learned Addl. Government
Advocate for the State on the other while supporting the
impugned order of conviction and sentence contended that
in view of the evidence laid by P.Ws.3, 8 and 9, since the
death of the deceased happened under unnatural
circumstances and there was demand of dowry by the
appellants prior to such death of the deceased, no illegality
or irregularity can be found with regard to the order of
conviction and sentence passed against the appellants.
5.1. It is also contended that since the deceased died
under unnatural circumstances and that too within one &
half months of her marriage with appellant No.2, taking
into account the allegation made in the F.I.R and the
evidence of P.Ws.3, 8 and 9, learned Trial Court has rightly
held the appellants guilty of the offence under Section-304-
B/34, and 498-A, 201 of the IPC and Section-4 of the D.P.
Act.
5.2. Learned Addl. Government Advocate for the State
placed reliance on the evidence of P.W.3. P.W.3 in Para-1 of
the Examination-in-Chief has stated as follows:-
// 17 //
"1. I know the accused persons. Deceased Kantilata is my
younger sister. We are three brothers and four sisters.
Kantilata married to accused Prasanna Rout of village
Ostapur about 10 months back. The marriage function was
held at Brahmei Thakurani temple at Banki. Usually
marriages 'are held in that temple. There is one register
which is called marriage register where the marriages are
written down in that temple. Before marriage, accused
Prasannä wás in love and Kantilata was pregnant by
Prasanna we came to know and asked Prasanna Rout and
he told that he made Kantilata pregnant. Thereafter a
meeting was called in the village in which' Prasanna and
his father attended the meeting. In the meeting the father
of Prasanna accused Dhoba Rout told that if the marriage
between Prasanna and Kantilata will be held he
demanded Rs.3000/- and other articles. In the meeting I
VID present and agreed to pay .3000/- and other articles
and the marriage was settles. My father is working at
Calcutta and he never comes to my house. I am the karta
of the family. Thereafter marriage we function was
performed in Brahmbei Thakureni. The witness Rathu
Raut, Rushi Raut, Kukishyam Naharana, Bhajaman bahu
were PERsent. The persons from their site was Nimai Rout,
Suresh Swain and some others were also present. We
gave THA SAJA at the place of marriage. I could not pay
the cash of R.3000/- and took time for 7 days. After
marriage, Kanti went with the accused prasanna and
never come to our house thereafter. After some Jays (8 to
10 days) after the marriage, my Vinoi Jatathari Swain in
had been to the house of Kantilata. Jatadhari told me that
Kanti told him that all the accused persons including his
husband and father-in-law were demanding P.3000/- from
Kanti and were threatening that if I would not pay that
R.3000/- they will kill Kanti. 1. Then I arranged R.3000/-
within 2 to 3 days and went to the house of accused
persons with the money. I met Dhoba Raut and told him
that I have brought with me Re.3000/- which was their
demand and told that I shall give that money, but he told
that my sister is not in their house and has gone
somewhere in the early morning of that day. I told Dhoba
Raut that I went to talk to Prasanna but the then be Dhoba
Raut told that he was not at home and had gone some
where before two days. Then I went back and searched in
the houses of my relations at Bade Mantri sahi, Indumati
Petne and other villages, in search of my sister Kanti. But I
could not find her in my relative's house. Again on the next
// 18 //
day I went to the house of the accused, and called Nimai
Rout and took him to the house of the accused persons.
Then I we entered inside the house of Dhoba Raut and
searched for my sister. Dhoba kout allowed to show us all
the rooms but 319 not show us the room where Kanti was
residing. Then I came back to my house Naresh and sent
my younger brother Rout to search for my sister. He went
for search and 1 remained at home. At about evening time
while I was standing in the village found rood, there was a
halla that something was taning in the well of Kulamani
Sahu of Ostapur. Then I went to me well of Kulamani Sahu
and saw a dead body was floating in the well. As the
saree which was given by us was worn by that dead body
I could ascertain that the dead body is of my sister
Kantilata. Then I came back and told the fact to our gram
Rakhi Sushakar Mallik. Then I, Suihakar Mellik and some
persons of our village went to the well in the night. The
Gram Rakhi remained near the well and I went to the
house of Advocate Braja babu of Banki and there I toli
Bijaya Mohanty to write a written report for me. Then the
Advocate told the Moharir Bijaya Mohanty to write the
F.I.R. I dictated and the Moharir Bijaya Mohanty wrote the
report. Thereafter, he read over that to me and knowing
the contents to be correct as per my dictation I signed on it.
Ext.2 is the F.I.R. and Ext 2/2 is my signature. I went
alone to the P.S. and lodged the F.I.R. Bijaya Mohanty
never went with me to the PS".
5.3. P.W.3 in his Cross-Examination at Para-5 has stated
as follows:-
"5. I had been to Ostapur village before marriage of Kanti
and after the marriage of Kanti. I was going to village
ostapur before marriage of Kanti in connection with labour
work. After marriage I had not gone for labour work. After
marriage I went to Ostapur for the first time by taking
money to give it to Dhoba Raut. Before marriage of
Kantilata I had never gone inside the house of Dhoba
Raut. My mother is dead 10 to 12 years back. My father is
at Calcutta for about 30 years and never comes to our
village. We were also staying at Calcutta. I was born at
Calcutta".
// 19 //
5.4. Similarly, P.W.3 in Para-8, 9 and 10 of his cross-
examination has stated as follows:-
"8. Jatadhar i told me what he heard from Kanti on the
day he heard that from Kanti and that was at 5 P.M. I.
was at home then. It is not a fact that Jatädhari 315 not
tell me anything and I am de posing falsely the fact that
Kanti told Jatahari and he told me about that. After
hearing from Jatadhari I intimate the fact to Choukidar
and ward member and no other person of our locality. I did
not tell that fact to Police, Sarpanch, Panchayat Samiti
Chairman. I have not told the Choukidar to intimate the
police about the fact.
9. After Kantilata was made pregnant by the accused
Prasanna and it was known, I asked him and he admitted
and I gave him the proposal of marriage and he also
agreed. The marriage proposal was given by me in the
CHOUPADHI in between the village Bilipada-and Ostapur
and he agreed. The Bhadralogs gave the proposal that the
marriage should be held in the Brahmai Thakuran i
premises. The Bhairalogs sat in a meeting in & and asking
Prasanna, for marriage in the Ostapur Danda. Bhadralogs
sat in the meeting in the day of marriage. That was the
only meeting.
10. The talk of demand of dowry was held in that meeting
and that was the only day on which demand of Jowry
was made for the first time. The meeting was held at
about 3 to 3.30 PM. The marriage was held at about 9 P.M
in the night after the Bhadralogs finaliaws the matter.
Prasanna agreed for marriage one day prior to the
marriage. Dhoba Raut first demanded the amount of
Rs.3000/-as dowry in the marriage, in the meeting. About
10 to 20 persons were present in the meeting. Those
persons were bhadralogs of our village and Ostapur. In the
meeting I and my brother Naresh were present on behalf of
our family and nobody else from our site. when Dhoba
Raut demanded cash of 8.3000/- and the bhadralogs
asked me as to what was my opinion I told that had there
been regular marriage I would have given some dowry but
as the marriage is to be held after an unhappy incident of
pregnancy if the bridegroom so wants he can go for Court
marriage and I shall give whatever required in the Court.
Though I was not willing to pay Rs.3000/- and Tha saja,
// 20 //
as the persons in the meeting told that I should give, I
ultimately agreed to pay Rs.3000/- and Tha Saja. It is not
a fact that Dhoba Raut did not demand anything and only
because the villagers told me that I was in hurry and it
was not possible to purchase ornaments and any others
articles as given ordinarily in the marriage I should give
Rs.5000/- in cash and give some utensils and I agrees for
.3000/-. The utensils for Tha Saja were had in my house
which I have purchased on different occasion for marriage
of Kanti".
5.5. Learned Addl. Government Advocate for the State also
placed reliance on the evidence of P.W.11 who happens to
be the Medical Officer, who conducted the post-mortem.
It is contended that P.W.11 found the injury to be
ante-mortem in nature and the cause of death was held due
to head injury and submersion of body in water. Evidence
of P.W.11 reads as follows:-
"1. On 11.6.92 I was L.T.R.M.O attached to Sub-
divisional hospital, Banki. On that day at 4.10 P.M. I
received the dead body of Smt.Kantilata Rout being
identified by C/1075 G.C.Singh and the brother of the
deceased Kamalakant Rout. Dr Sudhansu Sekhar Mishra
was along with me. As per the direction of the S.D.M.O. I
and Dr Sudhansu Mishra conducted post-mortem
examination at 4.15 PM. The deceased was in advance
decomposition, the body greatly swollen, skin peeled from
all over the body except leg where blebs present, right
eye closed, left eye open and eye ball protruded, tongue
protruded out of teeth, hairs easily peeled, nails
detached, breasts are greatly swollen. I found a bruise 8
cm x 3 cm on the right frontal eminence which is anti-
mortem in nature, and blood under the galea
aponeurosis. A linear fracture of 5 cm on the frontal bone
towards right side. Collection of blood between skull and
dura.
2. The cause of death was due to head injury,
submersion of body in water is after death. The time
since death 2 to 5 days from the time of post-mortem
// 21 //
examination. When I received the dead body her neck
was tied with slip knot by a thick rope. Ext.13 is my post-
mortem report and Ext.13/1 is my signature. Ext.13/2 is
the signature of Dr Sudhansu Sekhar Mishra/ with
whose signature I am acquainted.
3. On 29.8.92 the Circle Inspector of Police, Banki sent
one lathi and cross-bar for my opinion. I gave my opinion
as per Ext.14 and Ext.14/1 is my signature. I gave my
opinion in my report that the head injury is possible by
the lathi and the cross-bar produced before me."
5.6. Reliance was also placed to the evidence of P.W.13. In
Para-3 of the evidence, P.W.13 has stated as follows:-
"3. On the same day at about 11.30 AM. I seized three
pieces of stones which were tied with the dead body. M-Os
I, II and Ill are the said stones. Ext.12 is the seizure list.
Ext. 12/2 is my signature. Then I sent the dead body of
the deceased to the Banki hospital for Post-mortem
examination through the Constable No.1075 G.C. Singh
vide Command certificate Ext.15. Ext.15/2 is my
endorsement with my signature. I examined the witnesses
Srikant Sahu, (P.W.1) Radhu Rout (P.W.10), Rushi Rout,
Lokanath Parida, Panchu Rout, Trilochan Rout (P.W.4) and
panche i Rout and others. On the same day at 6 P.M. I
seized the wearing apparels of the deceased and the rope,
command certificate, bangles, earrings (imitation) and
prepared seizure list Ext.5 on production by C/1075 G.C.
Singh at the PS. Ext.5/2 is my signature".
5.7. Learned Addl. Government Advocate for the State also
relied on the evidence of P.W.9. P.W.9 in Para-1 of his
deposition has held as follows:-
"1. I know the accused persons in the dock. The
deceased Kanti is my sister-in-law. Kanti was married
to accused Prasanna 10 months back. After 20 to 25
days of the marriage of Kanti, I had been to the house of
the accused persons. There Kanti told me that all the
accused persons were demanding the unpaid amount of
Rs.3000/- which was agreed to be paid as dowry and
also told that Prasanna was assaulting her and all the
// 22 //
accused persons were threatening to kill her unless the
amount is paid. After I return from the house of Kanti, I
went to the house of Kamalakant (P.W.3) and I told the
above fact to P.W.3 Kamalakänt. After some days the
accused persons murdered Kanti. That information was
given to me by P.W.3 who told that the accused persons
murdered Kanti and put her in a well. I went to the well
which is situated in village Ostapur. I saw the dead
body of Kanti in the well. Then I saw the Police with the
help of others lifted the dead body from the well. Then I
came back to my house".
5.8. Learned Addl. Government Advocate for the State
placing reliance on the evidence of P.Ws.3, 8 and 9 coupled
with the evidence of P.W.11 and P.W.13 contended that
since the deceased died under unnatural circumstances
just within one and half month of her marriage and demand
of dowry having been well-proved just before the alleged
incident, the appellants have been rightly convicted vide the
impugned judgment dtd. 18.08.1991, which requires no
interference.
5.9. However, it is contended that during pendency of the
appeal since appellant no.1 has died, appeal filed by the
appellant No.1 stands abated as per the order
dtd.24.02.2023. But appellant No.2, being the husband of
the deceased, he has been rightly convicted for the alleged
offence.
In support of his submission learned State Counsel
relied on the following decisions:-
1) 2017(1) SCC 101 (Baijnath & Others) Para 24
to 28 and 32.
// 23 //
2) CRL Appeal No.249 of 2013 (Shoor Singh &
Anr. Vrs. State of Uttarkhand decided on
20.09.2024) Para 12 & 13.
3) CRL Appeal No. 1076 of 2014 (Karan Singh
vs. State of Haryana) decided on 31.01.2025)
Para 6 to 8.
5.10. Hon'ble Apex Court in the case of Baijnath in Para- 24
to 28 and 32 of the said judgment has held as follows:-
"24. The evidence on record and the competing
arguments have received our required attention. As
the prosecution is on the charge of the offences
envisaged in Sections 304-B and 498-A of the Code,
the provisions for reference are extracted hereunder:
"304-B. Dowry death.--(1) Where the death of a
woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown
that soon before her death she was subjected to
cruelty or harassment by her husband or any relative
of her husband for, or in connection with, any
demand for dowry, such death shall be called
"dowry death", and such husband or relative shall be
deemed to have caused her death.
Explanation.--For the purpose of this sub-section,
"dowry" shall have the same meaning as in Section 2
of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be less
than seven years but which may extend to
imprisonment for life.
498-A. Husband or relative of husband 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.
// 24 //
Explanation.--For the purposes of this section,
"cruelty" means--
(a) any wilful 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 life, limb or health
(whether mental or physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful demand
for any property or valuable security or is on account
of failure by her or any person related to her to meet
such demand."
25. Whereas in the offence of dowry death defined
by Section 304-B of the Code, the ingredients thereof
are:
(i) death of the woman concerned is by any burns or
bodily injury or by any cause other than in normal
circumstances, and
(ii) is within seven years of her marriage, and
(iii) that soon before her death, she was subjected to
cruelty or harassment by her husband or any relative
of the husband for, or in connection with, any
demand for dowry.
The offence under Section 498-A of the Code is
attracted qua the husband or his relative if she is
subjected to cruelty. The Explanation to this Section
exposits "cruelty" as:
(i) any wilful 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 life, limb or health
(whether mental or physical), or
(ii) harassment of the woman, where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful demand
for any property or valuable security or is on account
of failure by her or any person related to her to meet
such demand.
// 25 //
26. Patently thus, cruelty or harassment of the lady
by her husband or his relative for or in connection
with any demand for any property or valuable
security as a demand for dowry or in connection
therewith is the common constituent of both the
offences.
27. The expression "dowry" is ordained to have the
same meaning as in Section 2 of the Dowry
Prohibition Act, 1961. The expression "cruelty", as
explained, contains in its expanse, apart from the
conduct of the tormentor, the consequences
precipitated thereby qua the lady subjected thereto.
Be that as it may, cruelty or harassment by the
husband or any relative of his for or in connection
with any demand of dowry, to reiterate, is the
gravamen of the two offences.
28. Section 113-B of the Act enjoins a statutory
presumption as to dowry death in the following
terms:
"113-B. 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 304-B of the Penal Code, 1860."
xxx xxx xxx
32. This Court while often dwelling on the scope and
purport of Section 304-B of the Code and Section 113-
B of the Act have propounded that the presumption is
contingent on the fact that the prosecution first spell
out the ingredients of the offence of Section 304-B as
in Shindo v. State of Punjab [Shindo v. State of
Punjab, (2011) 11 SCC 517 : (2011) 3 SCC (Cri) 394]
and echoed in Rajeev Kumar v. State of Haryana
[Rajeev Kumar v. State of Haryana, (2013) 16 SCC
640 : (2014) 6 SCC (Cri) 346] . In the latter
// 26 //
pronouncement, this Court propounded that one of
the essential ingredients of dowry death under
Section 304-B of the Code is that the accused must
have subjected the woman to cruelty in connection
with demand for dowry soon before her death and
that this ingredient has to be proved by the
prosecution beyond reasonable doubt and only then
the Court will presume that the accused has
committed the offence of dowry death under Section
113-B of the Act. It referred to with approval, the
earlier decision of this Court in K. Prema S. Rao v.
Yadla Srinivasa Rao [K. Prema S. Rao v. Yadla
Srinivasa Rao, (2003) 1 SCC 217 : 2003 SCC (Cri)
271] to the effect that to attract the provision of
Section 304-B of the Code, one of the main
ingredients of the offence which is required to be
established is that "soon before her death" she was
subjected to cruelty and harassment "in connection
with the demand for dowry".
5.11. Hon'ble Apex Court in the case of Shoor Singh in
Para- 12 & 13 of the said judgment has held as follows:-
"12. To constitute a „dowry death‟, punishable under
Section 304-B7 IPC, following ingredients must be
satisfied:
i. death of a woman must have been caused by any
burns or bodily injury or it must have occurred
otherwise than under normal circumstances;
ii. such death must have occurred within seven years
of her marriage;
iii. soon before such death, she must have been
subjected to cruelty or harassment by her husband or
any relative of her husband; and iv. such cruelty or
harassment must be in connection with any demand for
dowry.The phrase „otherwise than under normal
circumstances‟ is wide enough to encompass a suicidal
death.
13. When all the above ingredients of „dowry death‟ are
proved, the presumption under Section 113-B8 of the
Evidence Act is to be raised against the accused that he
has committed the offence of „dowry death‟. What is
important is that the presumption under Section 113-B
// 27 //
is not in respect of commission of an act of cruelty, or
harassment, in connection with any demand for dowry,
which is one of the essential ingredients of the offence
of „dowry death‟. The presumption, of offence of „dowry
death‟ by the accused when all the essential
ingredients of „dowry death‟ are proved beyond
reasonable doubt by ordinary rule of evidence, which
means that to prove the essential ingredients of an
offence of „dowry death‟ the burden is on the
prosecution".
5.12. Hon'ble Apex Court in the case of Karan Singh in
Para- 6 to 8 of the said judgment has held as follows:-
"6. The following are the essential ingredients of
Section 304-B:
a) The death of a woman must have been caused by
any burns or bodily injury, or must have occurred
otherwise than under normal circumstances;
b) The death must have been caused within seven
years of her marriage;
c) Soon before her death, she must have been subjected
to cruelty or harassment by the husband or any relative
of her husband; and
d) Cruelty or harassment must be for, or in connection
with, any demand for dowry.
7. If the aforesaid four ingredients are established, the
death can be called a dowry death, and the husband
and/or husband's relative, as the case may be, shall be
deemed to have caused the dowry death. Section 2 of
the Dowry Prohibition Act, 1961 provides that dowry
means any property or valuable security given or
agreed to be given either directly or indirectly by one
party to a marriage Criminal Appeal No. 1076 of 2014
parents of either party to a marriage or by any other
person, to the other party to the marriage or to any
other person. The dowry must be given or agreed to be
given at or before or any time after the marriage in
connection with the marriage of the said parties. The
term valuable security used in Section 2 of the Dowry
Prohibition Act, 1961 has the same meaning as in
// 28 //
Section 30 of IPC.
8. In this case, there is no dispute that the death of the
appellant's wife occurred within seven years of the
marriage. Section 113-B of the Evidence Act reads thus:
"113-B. 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 had 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 304-B of Indian Penal Code (45 of 1860)." The
presumption under Section 113-B will apply when it is
established that soon before her death, the woman has
been subjected by the accused to cruelty or harassment
for, or in connection with, any demand for dowry.
Therefore, even for attracting Section 113-B, the
prosecution must establish that the deceased was
subjected by the appellant to cruelty or harassment for
or in connection with any demand of dowry soon before
death. Unless these facts are proved, the presumptions
under Section 113-B of the Evidence Act cannot be
invoked".
7. I have heard Mr. D.P. Dhal, learned Senior Counsel
appearing for the appellants and Mr. C.K. Pradhan, learned
Addl. Govt. Advocate for the State.
8. Perused the materials available on record. In the case
in hand, the prosecution case was set into motion taking
into account the FIR lodged by P.W.3 on 11.06.1992. The
appellants were charged for the offence under Sections-
304-B, 498-A, 201/34 of the I.P.C and Section-4 of the D.P.
Act.
// 29 //
8.1. All the four accused persons though faced the trial,
but accused person Sudarsan Rout and Bikram Rout were
not held guilty and they were accordingly acquitted by the
learned Trial Court. But accused No.1 and 4 / appellant
No.1 and 2 herein were held guilty for the offence under
Sections-304-B/34, 498-A, 201 of the I.P.C and Section-4
of the D.P. Act. This Court finds that the deceased got
married to appellant No.2 on 08.05.1992. Prior to such
marriage of the deceased with appellant No.2, in the
meeting held where P.W.3 was also present, appellant No.1
demanded dowry of Rs.3,000/- along with other household
articles. However, since the demand of Rs.3,000/- was not
fulfilled, the deceased was subjected to torture time and
again. On 08.06.1992, P.W.3 when went to the house of the
appellants, appellant No.1 indicated that the deceased is
not in their house and has gone somewhere else.
Subsequently dead body of the deceased was found in the
well of a co-villager.
8.2. It is found that the dead body was tied with three
pieces of stones i.e. M.Os. I, II and III. Taking into account
the evidence of P.W.3, 8 and 9 coupled with the evidence of
P.W.11 and 13 and the fact that the deceased under
unnatural circumstances died within one and half month of
her marriage, because of demand of dowry, this Court is of
the view that demand of dowry just prior to the death of the
deceased is well proved. Accordingly, this Court finds no
illegality or irregularity with the impugned order of
conviction and sentence passed against appellant no.2.
// 30 //
Since the deceased has died under unnatural
circumstances within one and half month of her marriage
and demand of dowry just before the death was well-proved
and the deceased was subjected to torture for non-
fulfillment of such demand, this Court placing reliance on
the decisions cited by the learned State Counsel is also of
the view that ingredients of Section-304-B has been made
out by the prosecution.
8.3. Therefore, this Court is not inclined to interfere with
the impugned order of conviction and sentence and
accordingly dismiss the appeal. Appellant No.2 is directed
to surrender before the Court below to serve the remaining
part of the sentence.
9. Accordingly, the appeal stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 11th of March, 2025/Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
