Orissa High Court
Sankarlal Agrawala And Another vs State Of Orissa on 18 November, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.57 of 1994
(In the matter of an application under Section 374(2) read with
Section 382 of the Criminal Procedure Code, 1973)
Sankarlal Agrawala and another ....... Appellants
-Versus-
State of Orissa ....... Respondent
For the Appellants : Mr. D.P. Dhal, Senior Advocate
For the Respondent : Mr. Raj Bhusan Dash, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 04.09.2025 and 11.09.2025 :: Date of Judgment: 18.11.2025
S.S. Mishra, J. The present Criminal Appeal filed by the appellants
under Section 374(2) read with Section 382 of the Code of Criminal
Procedure, is directed against the judgment and order dated
11.02.1994 passed by the learned Sessions Judge, Bolangir, in
Sessions Case No.73 of 1993. By the impugned judgment, the learned
Trial Court convicted the accused-appellants for the offences
punishable under Section 304-B and 498-A of the Indian Penal Code
(herein after IPC for brevity) and sentenced them to undergo rigorous
imprisonment for seven years for the offence U/s.304-B of IPC,
however, no separate sentence was awarded for offence U/s.498-A of
IPC.
During pendency of the present appeal, the appellant no.2
Saraswati Devi expired. Therefore, vide order dated 31.07.2025, the
appeal qua the appellant No.2 stood abated in absence of any
application under Section 394 Cr.P.C. moved by his LRs or next
friend of the deceased-appellant. Accordingly, the present appeal is
confined to the appellant no.1 only.
2. Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the
appellants and Mr. Raj Bhusan Dash, the learned Additional Standing
Counsel appearing for the State.
3. The prosecution case, in brief, is that the deceased, Late Manjubai
Agrawala, was married to accused Sankar Lal Agrawal in July 1989.
It is alleged that soon after her marriage, she was subjected to
persistent cruelty and harassment by her husband and other in-laws,
namely Smt. Saraswati Devi (mother-in-law), Ananda Kumar
Agrawala and Manoj Kumar Agrawala (brothers-in-law), in
Page 2 of 31
connection with demand for dowry. The ill-treatment continued till
the time of her death.
On January 1992, within three years of her marriage, Manjubai
Agrawala succumbed to burn injuries under suspicious circumstances
in her matrimonial home. The prosecution alleged that the death was
not accidental but was the result of cruelty and harassment meted out
to her by the accused persons on account of their continuous demand
for dowry.
Accordingly, all the accused persons were charge-sheeted and
on denial of the charges were put on trial for the offences punishable
under Sections 304-B and 498-A of the Indian Penal Code after
charges being framed.
4. The prosecution, in order to substantiate its case, examined
seven witnesses in total. The defence, however, did not adduce any
oral evidence. P.W.1 was a handwriting expert. P.W.2, the deceased's
brother, is the informant in this case. P.W.3 is another brother of the
deceased. P.W.4 is her Bhinoi (sister's husband), while P.W.5 is her
father. P.Ws.6 and 7 were the Investigating Officers, who conducted
the investigation of the case.
Page 3 of 31
5. The learned trial Court by relying upon the testimony of
P.Ws.2, 3 and 4 and by emphasizing on the Ext.4, the letter purported
to have been given by the deceased to P.W.4-Dwaraka Prasad Bhut,
who is the brother-in-law of the deceased convicted the present two
appellants for the offence under Section 498-A of I.P.C. and acquitted
the other two co-accused persons. The learned trial Court, inter alia,
returned the following findings:-
"15. She has complained in the letter that for a T.V.
she was being harassed. It is consistent with the
evidence of P.W.2 that the deceased was
complaining before him whenever she came down to
her parents‟ place that she was being harassed for
non-providing dowry. P.W.2 arranged an old Black
& White T.V. P.W.3 carried the said old T.V. and
gave it to the accused persons. He later on carried
the antenna also. In his cross-examination he says
he was not examined by Police and he has not
stated all these facts to the police. His statement
recorded u/s. 161 Cr.P.C. is there in the case diary.
Undoubtedly he had forgotten to have been
examined by the police and so he is obliged to say
that he did not state these facts at that time. I am
afraid, disbelieving the witness on the grounds that
he admitted not to have stated the facts to the police
shall result in miscarriage of justice. The omissions
notwithstanding, the corroborating evidence of
P.Ws.2 and 3 rings truth. I have nothing to
disbelieve that in fact on receipt of the letter Ext.4
and the last approach of the deceased to P.W.2 for a
T.V. an old Black & White T.V. was given to the
accused persons. Even an antenna was also given.
Page 4 of 31
P.W.3 who carried the articles says that accused-
husband Sankarlar asked him as to why a Black &
White T.V. instead of a colour T.V. was given. The
antenna is given on 13th January, 92 and the lady
dies on 15th January, 92. It proves, the deceased
was subjected to cruelty soon before her death in
connection with dowry demand."
The learned trial Court has also came to the conclusion that the
present appellants are not only guilty of offence under Section 498-A
of I.P.C. but also they are liable for the offence under Section 304-B
of I.P.C. because the deceased succumbed to the burn injury. The
unnatural death has caused within the seven years of the marriage.
The presumption under Section 113-B of the Evidence Act operates
against the appellants. The learned trial Court inter alia has recorded
the following findings in that regard:-
"17. The dowry death as defined u/s. 304-B I.P.C.
reads:-
"Whether 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 should be
deemed to have caused her death."
Page 5 of 31
When a young wife dies within the prescribed
period and it is shown that soon before her death
she was tortured for dowry and the death is caused
by burns, the offence is complete. It is almost
immaterial whether it is accidental burns or
deliberate one. In fact if it is a deliberate burn by
another, it becomes a case of murder u/s. 302 I.P.C.
Court is not required to dive deep to find out the
nature of burns. Of course if the lady died of
accidental burns, no offence is committed. However,
in the back ground of the facts that the lady is
subjected to cruelty in connection with dowry
demand soon before her death and she dies of burns
whatever may be the circumstances the offence of
dowry death is established. In this view of the
matter the arguments of the learned defence
advocate that the lady died of accidental burns is of
no consequence when I have already shown that
soon before her death she was subjected to cruelty
for dowry demand. „Cruelty‟ is not confined to
physical violence only. Even spoken words causes
mental torture. Asking the wife to fetch dowry
amounts to cruelty. The contents of letter Ext.4
wherein the deceased lady sought the help of her
sister‟s husband as a last resort to meet the dowry
demand of a colour T.V. manifests the cruelty she
was subjected to."
6. The present appellants being aggrieved by the aforementioned
findings recorded by the learned trial Court, which led to their
conviction for the offence under Section 498-A/304-B of I.P.C. and
sentence, have filed the present appeal.
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7. Mr. Dhal, learned Senior Counsel for the appellants took me to
the evidence of all the witnesses and submitted that P.Ws.1, 3, 4 and 5
are the witnesses directly related to the deceased. Therefore, their
evidence needs to be weighed carefully being interested witnesses. He
further submitted that the entire thrust of the prosecution case rest on
one letter that is Ext.4 which is purported to have been given by the
deceased to P.W.4. The learned trial Court has given much emphasis
to the letter to arrive at a conclusion that the accused persons have
demanded dowry by asking the deceased to bring a colour T.V. He
further submitted that the prosecution has relied mainly on the
testimony of P.W.4, the brother-in-law of the deceased, who produced
Ext.4, the letter allegedly written by the deceased. However, none of
the other witnesses mentioned this letter or the notebook (Ext.5),
which was used to compare the handwriting said to be that of the
deceased herself. The existence of such letter creates a serious doubt
because on 15.01.1992, the letter alleged to have been written
whereas the F.I.R. was registered on 19.01.1992 by the brother of the
deceased but there is not a single whisper in the said F.I.R. regarding
the said letter and the letter was only produced before the
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Investigating Officer on 30.01.1992 whereas surprisingly the
notebook (Ext.5) purported to have been written by the deceased was
seized from the house of P.W.5 (father of the deceased) on
16.03.1992. Mr. Dhal, further pointed out that when the U.D. Case
No.1 of 1992 was registered pertaining to unnatural death of the
deceased, father of the deceased (P.W.5) has stated in the said case
that, his daughter and son-in-law had a good and cordial relationship
and there is no suspicion in the death of his daughter. He further
submitted that the doctor has not been examined. Only a report is
exhibited as Ext.3 through the Investigating Officer. There is no
opinion coming forth on record to ascertain as to whether the death is
a homicidal or accidental or suicidal in nature.
8. In regard to the offence under Section 498-A/304-B of I.P.C.,
Mr. Dhal, learned Senior Counsel for the appellant submitted that
invocation of the presumptive clause under Section 113-B of the
Evidence Act is misplaced in the facts of the present case and he has
also cited many judgments to that effect.
9. Per contra, Mr. Dash, learned Additional Standing Counsel for
the State has stated that this is an open and shut case for the
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prosecution. The learned trial Court has very meticulously dealt with
the evidence of all the witnesses to arrive at a just and right
conclusion, which cannot be questioned. He has also elaborately read
out the evidence to counter the argument of Mr. Dhal, learned Senior
Counsel for the appellants.
10. First of all, the evidence of the witnesses and documents placed
on record are being analysed to see as to whether the findings
recorded by the learned trial Court on recording the guilt of the
appellants under Section 498-A of I.P.C. is justified or not.
P.W.1 is the handwriting expert, who had compared the
handwriting on the letter in Ext.4, and notebook (Ext.5). He has
deposed that the signature appearing in both the documents were
compared by him and found that one and the same person has written
both the documents. He was subjected to extensive cross-examination
and many questions were put to him to create the doubt. However, he
stood to his testimony and the defence remained unsuccessful.
P.W.2 happens to be the brother of the deceased and the
informant in the present case. He has stated in his examination-in-
chief that in April, 1991, his Bhinoi (brother-in-law) Dwarika Prasad
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Bhut of Sonepur came to his place and told him that he had received a
letter from his sister. In the letter, it is written that unless the T.V. was
given as dowry to the accused persons, her life was in danger. He had
shown him the letter, which has been exhibited as Ext.4. Vividly, the
said witness was cross-examined by the defence. In the cross-
examination, the said witness has stated that he has not mentioned
anything regarding the letter in the F.I.R. lodged by him or he has not
written the facts regarding the demand of T.V. in the F.I.R. He has
also stated that at the time of marriage, there was no demand of
dowry. He further admitted that at no point of time, his sister had
written any letter to him because his sister was told by the family
members not to write letters to the family as his father is a heart
patient.
From the evidence of the said witness (P.W.2), it is clear that
the letter was shown to him but he has not mentioned the same in the
F.I.R. It is also apparent that the deceased was dissuaded to write
letter to his family directly because her father was a heart patient.
That perhaps the reason, the deceased had not written any letters to
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the family directly rather she had chosen to write the letter to the
brother-in-law (P.W.4).
P.W.3 is another brother of the deceased. He has made direct
allegation of demand of dowry particularly demand of colour T.V. by
the in-laws of the deceased. He has stated that in December, 1991, he
carried their own old Black and White T.V. and gave it to the accused
persons. They were completely displeased on that and demanded a
colour T.V. The present appellants also questioned him as to why the
colour T.V. has not been given though he came with an antenna. In
the cross-examination, he had admitted that the demand of colour
T.V. made by the present appellants was not told by the said witness
to the police when he was examined.
P.W.4 is a crucial witness to the prosecution. He is the husband
of the sister of the deceased. He deposed before the Court that in
April, 1991, he had received the letter (Ext.4) by post from the
deceased-Manjulata. Three to four days after the receipt of the letter,
he went to Kuchipali and told P.W.2 about the letter and showed it to
him. In the letter, the deceased had written regarding the demand of
T.V. by the accused persons. Ext.4 is a handwritten letter. He
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sustained extensive cross-examination but stuck to his version except
stating that postal seal of Sonepur fixed in the letter is legible and
other seals are not legible.
Similarly, P.W.5, the father of the deceased has deposed that he
gave his daughter in marriage with the appellant No.1 in 1989. He
was a heart patient. Therefore, his daughter was avoiding him to tell
her troubles. Hence, he has not deposed much regarding the demand
of dowry.
P.W.6, the Investigating Officer corroborated the testimony of
all the witnesses regarding the seizure of Exts.4 and 5. However, in
the cross-examination, the said witness has stated that he has not
taken any step to get verified the postal seals affixed in the letter
(Ext.4) nor even seized the seals of any Post Office for specimen seals
and comparison. But that part of the version of P.W.6 elucidated by
the defence in the cross-examination will not dilute the fact that
Exts.4 and 5 were seized by him.
11. Conjoint reading of all the evidences lead to an imperative
conclusion that the family members of the accused including the
appellants have demanded colour T.V., which was communicated by
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the deceased to P.W.4 (the brother-in-law of the deceased),
particularly because she knew that her father is a heart patient.
Therefore, she chose not to tell him about her troubled marriage,
fearing it would worsen his health. That's precisely the reason instead
of writing or communicating regarding demand of dowry by her in-
laws to her brother (P.W.2) and father (P.W.5), she has chosen to
write a letter to her brother-in-law (P.W.4). But none of the witnesses
have deposed regarding any physical torture being meted out to the
deceased, except certain hints regarding the same. But the fact of
demand of a colour T.V. made by the in-laws including the present
appellants is established on record which is the cause of mental
harassment meted out to the deceased. Therefore, the analysis made
by the learned trial Court on appreciation of the evidence regarding
recording of guilt of the offence under Section 498-A of I.P.C. against
the appellants cannot be faulted. I, therefore, agree with such findings
and accordingly affirm the conviction recorded against the appellant
for the offence under Section 498-A of I.P.C.
12. Coming to the offence under Section 304-B of I.P.C., the
evidence of P.Ws.4, 5 and 6 and 7 are relevant apart from drawing
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relevancy from certain documents placed on record by the
prosecution. P.W.2 is the informant in the present case has deposed
that the marriage between his sister and the appellant No.1 was
performed on 12.07.1989. After two to three months of the marriage,
his sister (deceased) came to her matrimonial house. At that point in
time, she complained that her mother-in-law, husband and brother-in-
law ill-treated her for not taking sufficient dowry. He has also stated
that his sister used to make the same complain whenever she used to
come to their place at Kuchipali. The said witness further stated that
they could not satisfy the dowry demand made by the in-laws of her
sister due to financial incapability. He deposed that on the demand of
colour T.V., his sister was harassed. Therefore, on 13.01.1992, his
brother (P.W.3) carried an antenna and gave it to the accused persons
along with a Black and White T.V. On 17.01.1992, he learnt from his
father that his sister died of burns and he lodged the F.I.R.
P.W.5 deposed that he is the father of the deceased and he gave
his daughter married to the appellant No.1-Sankarlar in 1989. Only
after the death of his daughter, he came to know that in-laws of his
daughter have been demanding dowry. He was not informed
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regarding demand of dowry by the family members or his daughter
because he was a heart patient. On 15.01.1992, he came to know that
his daughter was hospitalised because of burn injury. He went to
Khariar hospital and on the next day, his daughter succumbed to the
injury. In the cross-examination, the said witness (P.W.5) has
admitted the fact that the police examined him after about two months
of the death of his daughter. He has also admitted that after the
marriage of his daughter, he had gone to her in-laws family and found
the in-laws for cordial relationship. He further stated in the cross-
examination that they did not make any dowry demand at the time of
marriage.
P.W.7 is the O.I.C. of Khaprakhol P.S. has proved the medical
documents. He stated that he made query to Evangelical Hospital,
Khariar and obtained a report, which is Ext.3.
Neither the doctor who conducted the post-mortem nor the
doctor who treated the deceased before her death have been examined
by the prosecution. Therefore, so as to prove the deceased has
received burn injury, the only document which is placed on record is
Page 15 of 31
Ext.3. The learned trial Court analysed these evidence to record the
guilt of the appellants for the offence under Section 304-B of I.P.C.
13. In the present case, although the F.I.R. was registered alleging
the offence under Section 498-A/304-B/34 of I.P.C. read with Section
4 of the D.P. Act but after the investigation, the I.O. (P.W.6) filed the
charge-sheet only under Section 498-A of I.P.C. and deleted the
offence under Section 304-B of I.P.C. because no material could be
collected by the prosecution to establish the offence under Section
304-B of I.P.C. However, the learned trial Court took cognizance of
all the offences and vide order dated 12.08.1993 framed the charge
under Section 304-B of I.P.C. as well as Section 498-A of I.P.C.
against the appellants. Accordingly, the prosecution led evidence in
that regard. Immediately after the death of the deceased-Manjulata
caused i.e. on 15.01.1992, an U.D. case was registered on 16.01.1992
on the basis of the statement of P.W.5 which was exhibited as Ext.A.
In the said U.D., case, P.W.5, the father of the deceased made a
statement that he has no suspicion over the deceased's death. This has
caused due to an accidental fire. The learned trial Court has blissfully
ignored this material piece of evidence by simply brushing aside the
Page 16 of 31
importance of Ext.A. For ready reference, the translated copy of
Ext.A is reproduced hereunder:-
"My name is Chatrubhuja Chaudhury, s/o Laljamal
Chaudhury, Vill-Kuchipali, PS-Melchhamunda,
Dist-Sambalpur. Today, on 16.1.1992, I hereby give
my statement to the ASI, PS Khariar, that around 8
years back I had given my daughter in marriage to
Shankar Lal Agrawala. She has a daughter of 2
years and was pregnant. There was no fight or
dispute between my son-in-law and daughter. On
15.01.1992 around 8:30 PM their driver Paikamala
informed over the phone that my daughter Manju‟s
saree was caught on fire, while boiling water in the
morning and she got burnt as a result. When I
enquired about her condition, I was informed that
Manju was admitted to Khariar Hospital. When I
reached around I am to visit my daughter, she was
no more. There was no fight and dispute between
my son-in-law and daughter. Hence, I don‟t suspect
any foul play in relation to her death. I believe that
my daughter‟s saree was caught on fire and she got
burnt as a result. That is my statement."
It is also important that the said witness (P.W.5) was examined
by the police on 15.03.1992 after two months of the incident, who has
taken u-turn and stated that the in-laws of her daughter have burnt his
daughter. Incidentally, in the present case, the prosecution has not
examined any doctors to establish as to whether the death is
homicidal or suicidal or accidental. The case of prosecution hinges
upon only the Ext.3. No doubt, in the said exhibit, it is found
Page 17 of 31
mentioned that the deceased had 95% burnt and the burn was
superficial and deep burn but at the same time, it has also found
mentioned in the Ext.3 that at the time of admission of the patient
(deceased), there was no smell of kerosene or petrol coming from her
body. A specific query was put in that regard, which is relevant to
reproduce for ready reference:-
"Question-4:- Whether there was any smell of
Petrol/Kerosene from the body of the patient.
Answer:- At the time of admission there was no
smell of Kerosene or petrol coming from her body."
There was no opinion expressed in the said document regarding
the nature of death rather to question No.7, the doctor said that no
answer could be given. By question No.7, it is asked "if the burn can
be possible by accidental burning, if not; whether it may be suicidal
or homicidal. The answer was "the question cannot be answered in a
simple manner". The prosecution could bring the aforementioned
incriminating material against the appellants to establish the offence
under Section 304-B of I.P.C. but surprisingly this part of the
incriminating material was not even put to the accused persons while
recording their statement under Section 313 Cr.P.C. The next question
raised to be answered is whether in the absence of putting the
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incriminating material, which pointed a particular offence against the
accused, can such incriminating material be read against the accused
or not? Further on the basis of the evidence as discussed above,
whether the learned trial Court is correct in employing the
presumptive clause under Section 113-B of the Evidence Act to
record the conviction. In this regard relevant is the judgment of the
Hon'ble Supreme Court in the case of Manohar Lal vrs. State of
Haryana1, it is held that five ingredients are required to be established
by the prosecution to establish the offence under Section 304-B.
Those are:-
"18. For the purpose of the said section, a
presumption can be raised only on proof of the
following essentials:
(a) Death of the woman was caused by burns or
bodily injury or occurs otherwise than under normal
circumstances;
(b) Such death took place within seven years of her
marriage;
(c) The woman was subjected to cruelty or
harassment by her husband or his relatives;
(d) Such cruelty or harassment was for, or in
connection with, any demand for dowry; and
(e) Such cruelty or harassment was soon before her
death.
1
(2014) 9 SCC 645
Page 19 of 31
In this connection, we may refer the decision of this
Court in Kaliyaperumal v. State of T.N. [(2004) 9
SCC 157 : 2004 SCC (Cri) 1417 : AIR 2003 SC
3828]"
The Hon'ble Supreme Court has also in the judgment of
Balwant Singh v. State of Punjab2 has held as under:-
"10. These decisions and other decisions of this
Court do lay down the proximity test. It has been
reiterated in several decisions of this Court that
"soon before" is an expression which permits of
elasticity, and therefore the proximity test has to be
applied keeping in view the facts and circumstances
of each case. The facts must show the existence of a
proximate live link between the effect of cruelty based
on dowry demand and the death of the victim."
Similar view was taken by the Hon'ble Supreme Court in the
case of Mahesh Kumar vrs. State of Haryana3, wherein it has been
held as under:-
"10. This Court in Satvir Singh v. State of
Punjab [Satvir Singh v. State of Punjab, (2001) 8
SCC 633 : 2002 SCC (Cri) 48] examining the
significance and implication of the use of the words
"soon before her death" in Section 304-B, has held
as under: (SCC pp. 642-43, paras 20 & 22)
"20. Prosecution, in a case of offence under
Section 304-B IPC cannot escape from the burden
of proof that the harassment or cruelty was related
2
(2004) 7 SCC 724
3
(2019) 8 SCC 128
Page 20 of 31
to the demand for dowry and also that such cruelty
or harassment was caused "soon before her
death". The word "dowry" in Section 304-B has to
be understood as it is defined in Section 2 of the
Dowry Prohibition Act, 1961. That definition reads
thus:
„2. Definition of "dowry".-- In this Act,
"dowry"‟ means any property or valuable
security given or agreed to be given either
directly or indirectly--
(a) by one party to a marriage to the other party
to the marriage; or
(b) by the parents of either party to a marriage
or by any other person, to either party to the
marriage or to any other person;
at or before or any time after the marriage in
connection with the marriage of the said parties,
but does not include dower or mahr in the case
of persons to whom the Muslim Personal Law
(Shariat) applies.‟
***
22. It is not enough that harassment or cruelty
was caused to the woman with a demand for
dowry at some time, if Section 304-B is to be
invoked. But it should have happened "soon
before her death". The said phrase, no doubt, is
an elastic expression and can refer to a period
either immediately before her death or within a
few days or even a few weeks before it. But the
proximity to her death is the pivot indicated by
that expression. The legislative object in providing
such a radius of time by employing the words
"soon before her death" is to emphasise the idea
that her death should, in all probabilities, have
been the aftermath of such cruelty or harassment.
In other words, there should be a perceptible
nexus between her death and the dowry-related
harassment or cruelty inflicted on her. If the
interval which elapsed between the infliction of
such harassment or cruelty and her death is wide
the court would be in a position to gauge that in
all probabilities the harassment or cruelty would
not have been the immediate cause of her death. It
is hence for the court to decide, on the facts and
circumstances of each case, whether the said
interval in that particular case was sufficient to
snuff its cord from the concept "soon before her
death"."
11. In Hira Lal v. State (NCT of Delhi) [Hira
Lal v. State (NCT of Delhi), (2003) 8 SCC 80 : 2003
SCC (Cri) 2016] , this Court held that there must be
material to show that soon before her death the
victim was subjected to cruelty or harassment. The
prosecution has to rule out the possibility of a natural
or accidental death so as to bring it within the
purview of death occurring otherwise than in normal
circumstances. It was held as under: (SCC pp. 86-87,
para 9)
"9. A conjoint reading of Section 113-B of the
Evidence Act and Section 304-B IPC shows that
there must be material to show that soon before
her death the victim was subjected to cruelty or
harassment. The prosecution has to rule out the
possibility of a natural or accidental death so as to
bring it within the purview of „death occurring
otherwise than in normal circumstances‟. The
expression "soon before" is very relevant where
Section 113-B of the Evidence Act and Section
304-B IPC are pressed into service. The
prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and
only in that case presumption operates. Evidence
in that regard has to be led by the prosecution.
"Soon before" is a relative term and it would
depend upon the circumstances of each case and
no straitjacket formula can be laid down as to
what would constitute a period of soon before the
occurrence. It would be hazardous to indicate any
fixed period, and that brings in the importance of a
proximity test both for the proof of an offence of
dowry death as well as for raising a presumption
under Section 113-B of the Evidence Act. The
expression "soon before her death" used in the
substantive Section 304-B IPC and Section 113-B
of the Evidence Act is present with the idea of
proximity test. No definite period has been
indicated and the expression "soon before" is not
defined. A reference to the expression "soon
before" used in Section 114 Illustration (a) of the
Evidence Act is relevant. It lays down that a court
may presume that a man who is in the possession
of goods „soon after the theft, is either the thief or
has received the goods knowing them to be stolen,
unless he can account for their possession‟. The
determination of the period which can come within
the term "soon before" is left to be determined by
the courts, depending upon facts and
circumstances of each case. Suffice, however, to
indicate that the expression "soon before" would
normally imply that the interval should not be
much between the cruelty or harassment concerned
and the death in question. There must be existence
of a proximate and live link between the effect of
cruelty based on dowry demand and the death
concerned. 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."
14. Conjoint reading of both the provisions under Section 113-B of
the Indian Evidence Act and Section 304-B of I.P.C. leads to the only
conclusion that there must be material borne on record to show that
soon before the death, the victim was subjected to cruelty and
harassment. The prosecution has to rule out the possibility of natural,
accidental death so as to bring it within the purview of the death
occurring otherwise than in normal circumstances. The expression
"soon before" is very relevant whereas Section 113-B of the Evidence
Act and Section 304-B of I.P.C. are pressed into service by the
prosecutiion. On the facts scenario of the present case whether the last
condition/ingredient required to attract the offence under Section 304-
B of I.P.C. satisfied or not needs to be examined.
15. From the evidence of the prosecution soon before the death of
Manjulata, nothing has happened. The prosecution only relied upon
Ext.4, the letter purported to have been written by the deceased in
April, 1991 try to establish that there was demand of dowry. Although
Ext.4 has been proved on record that could only suffice to establish
that there was demand of dowry leading to mental harassment. But
the incident of death has taken place on 16.01.1992. There is no close
proximity between the unfortunate incident and the demand of dowry.
In the absence of proximate incident of harassment and subsequent
incident of death by burn, the offence under Section 304-B of I.P.C.
cannot be said to be established on record.
16. It is also no more res integra regarding the non-examination or
inaccurate examination of the accused under Section 313 Cr.P.C. It is
imperative on the part of the learned trial Court to put all the
incriminating material to the accused while recording the statement
under Section 313 Cr.P.C. If the incriminating materials are not put to
the accused or inadequately put to the accused, which seriously
prejudiced to the accused led to the miscarriage of justice. At this
point, reliance can be placed upon the Judgement of the Hon'ble
Apex Court in Samsul Haque v. State of Assam4, wherein the
Hon'ble Court held thus
"22. It is trite to say that, in view of the
judgments referred to by the learned Senior
Counsel, aforesaid, the incriminating material
is to be put to the accused so that the accused
gets a fair chance to defend himself. This is in
recognition of the principles of audi alteram
partem. Apart from the judgments referred to
aforesaid by the learned Senior Counsel, we
may usefully refer to the judgment of this Court
(2019) 18 SCC 161
in Asraf Ali v. State of Assam [Asraf Ali v. State
of Assam, (2008) 16 SCC 328 : (2010) 4 SCC
(Cri) 278] . The relevant observations are in the
following paragraphs: (SCC p. 334, paras 21-
22)
"21. Section 313 of the Code casts a duty
on the court to put in an enquiry or trial
questions to the accused for the purpose
of enabling him to explain any of the
circumstances appearing in the evidence
against him. It follows as necessary
corollary therefrom that each material
circumstance appearing in the evidence
against the accused is required to be put
to him specifically, distinctly and
separately and failure to do so amounts
to a serious irregularity vitiating trial, if
it is shown that the accused was
prejudiced.
22. The object of Section 313 of the Code
is to establish a direct dialogue between
the Court and the accused. If a point in
the evidence is important against the
accused, and the conviction is intended to
be based upon it, it is right and proper
that the accused should be questioned
about the matter and be given an
opportunity of explaining it. Where no
specific question has been put by the trial
court on an inculpatory material in the
prosecution evidence, it would vitiate the
trial. Of course, all these are subject to
rider whether they have caused
miscarriage of justice or prejudice. This
Court also expressed a similar view in S.
Harnam Singh v. State (Delhi Admn.) [S.
Harnam Singh v. State (Delhi Admn.),
(1976) 2 SCC 819 : 1976 SCC (Cri) 324]
while dealing with Section 342 of the
Criminal Procedure Code, 1898
(corresponding to Section 313 of the
Code). Non-indication of inculpatory
material in its relevant facets by the trial
court to the accused adds to the
vulnerability of the prosecution case.
Recording of a statement of the accused
under Section 313 is not a purposeless
exercise."
23. While making the aforesaid observations,
this Court also referred to its earlier judgment
of the three-Judge Bench in Shivaji Sahabrao
Bobade v. State of Maharashtra [Shivaji
Sahabrao Bobade v. State of Maharashtra,
(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] ,
which considered the fallout of the omission to
put to the accused a question on a vital
circumstance appearing against him in the
prosecution evidence, and the requirement that
the accused's attention should be drawn to
every inculpatory material so as to enable him
to explain it. Ordinarily, in such a situation,
such material as not put to the accused must be
eschewed. No doubt, it is recognised, that
where there is a perfunctory examination under
Section 313 CrPC, the matter is capable of
being remitted to the trial court, with the
direction to retry from the stage at which the
prosecution was closed [Shivaji Sahabrao
Bobade v. State of Maharashtra, (1973) 2 SCC
793 : 1973 SCC (Cri) 1033] ."
In light of the judgment of the Hon'ble Apex Court and the
foregoing discussion, the findings of the learned Trial Court with
respect to the offence under Section 304-B IPC fall short. Hence, the
only inevitable conclusion that could be drawn from the evidence on
record is that the prosecution could not prove the case under Section
304-B of I.P.C. beyond all reasonable doubt. Hence, the appellants
are entitled to the advantage of benefit of doubt. Accordingly, they
are acquitted of the charge under Section 304-B of I.P.C.
17. The learned trial Court awarded a sentence of seven years
against the appellants for the offence under Section 304-B of I.P.C.,
however, no sentence was awarded against the appellants for the
offence under Section 498-A of I.P.C. After having acquitted the
appellants for the offence under Section 304-B of I.P.C., the present
appellants are liable to be sentenced under Section 498-A of I.P.C.
18. At this stage, Mr. Dhal, learned Senior Counsel for the
appellants submitted that the incident relates back to the year 1992. At
that point in time, the appellant No.1 was 28 years of age and at
present he is 61 years of age and leading a respectful life along with
his family. He further submitted that the appellant has no criminal
antecedents and no other case of a similar nature or otherwise is stated
to be pending against him. Over the years, he has led a dignified life,
integrated well into society, and is presently leading a settled family
life. Sending him to jail after such a long gap would serve no real
purpose and may instead cause unnecessary hardship to him and his
family. In that view of the matter, Mr. Dhal, learned Senior Counsel
for the appellant prays that a lenient view should be taken.
19. Considering all the aforementioned mitigating circumstances
and the fact that the present appeal is pending since 1994, the
submission made by Mr. Dhal, learned Senior Counsel deserves to be
merit. Accordingly, the appellant is sentenced to undergo R.I. for six
months and to pay a fine of Rs.25,000/- (rupees twenty five
thousand), in default, to pay the fine, the appellant shall undergo R.I.
for fifteen days.
20. Mr. Dhal, learned Senior Counsel for the appellants further
submitted that since this Court is imposing a short sentence for the
offence under Section 498-A of the I.P.C., the appellant No.1 may be
treated under the P.O. Act.
21. Regard being had to the societal position of the appellant No.1,
clean antecedent and the fact that the incident had taken place in the
year 1992, I am of the considered view that the appellant No.1 is
entitled to the benefit of the Probation of Offenders Act and Section
360 of Cr.P.C. Additionally, the case of the appellant is also covered
by ratio of the judgment of this Court in the case of Pathani Parida &
another vs. Abhaya Kumar Jagdevmohapatra5 and Dhani @
Dhaneswar Sahu vs. State of Orissa6.
22. In such view of the matter, the present criminal appeal in so far
as the conviction under Section 498-A of I.P.C. is concerned, is
turned down. But instead of sentencing the appellant No.1 to suffer
imprisonment, this Court directs the accused-appellant No.1-
Sankarlal Agrawala to be released under Section 4 of the Probation of
Offenders Act for a period of six months on his executing bond of
Rs.5,000/- (Rupees Five Thousand) within one month with one surety
for the like amount to appear and receive the sentence when called
upon during such period and in the meantime, the appellant shall keep
peace and good behavior and he shall remain under the supervision of
the concerned Probation Officer during the aforementioned period of
six months. The appellant No.1 is entitled to avail the benefit of the
Probation of Offenders Act given to him subject to depositing the fine
2012 (Supp-II) OLR 469
2007 (Supp.II) OLR 250
amount within one month, failing which, the learned trial Court shall
take necessary steps to send the appellant No.1 to custody for serving
out the imposed sentence. The fine amount to be deposited shall be
disbursed to the informant in accordance with Section 357 Cr.P.C.
23. Accordingly, the CRA is partly allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 18th of November, 2025/ Swarna
Designation: Senior Stenographer
Location: High Court of Orissa
