THE HIGH COURT OF ORISSA AT CUTTACK

CRA No. 59 of 1999

(In the matter of an application under Section 374 (2) of the Criminal

Procedure Code, 1973)

Manmatha Kumar Nayak …… Appellant

-Versus-

State of Orissa .….. Respondent

For the Appellant : Ms. Aurolina Pal,

Amicus Curiae

For the Respondent : Mr. Sobhan Panigrahi, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 09.04.2026 : Date of Judgment: 16.04.2026

S.S. Mishra, J. The sole appellant although stood charged for the

alleged commission of offence under Section 304-B of IPC, but the

court of the learned Additional Sessions Judge, Balasore vide

impugned judgment dated 20.02.1999 found the appellant not guilty

of the offence charged, however, held him liable for the offence under

Section 498-A of IPC. Accordingly, vide impugned judgment dated

Page 2 of 16

20.02.1999 passed in S.T. Case No. 27/149 of 1997, the learned

Additional Sessions Judge, Balasore, rejected the prayer of the

appellant to treat him under the provisions of Probation of Offenders

Act and sentenced him to undergo R.I. for two years and to pay a fine

of Rs.10,000/- (rupees ten thousand), in default to undergo R.I. for a

period of six months.

The appellant is aggrieved by the aforementioned

impugned judgment of conviction and order of sentence and has filed

the present appeal.

2. The appeal has been pending since 1999. When the

matter was called for hearing, none had appeared for appellant

continuously. Therefore on 03.07.2025, this Court while adjourning

the matter indicated in the order that henceforth if none appeared for

the appellant Amicus Curiae will be appointed to assist the Court.

Again when the matter was taken up on 22.07.2025, none had

appeared for the appellant. Therefore, Ms. Aurolina Pal, learned

counsel, who was present in Court, was requested to assist the Court

as Amicus Curiae, who has readily accepted the same and obtained

Page 3 of 16

the record of the case and assisted the Court very effectively in the

capacity of Amicus Curiae.

3. Heard Ms. Aurolina Pal, learned Amicus Curiae for the

appellant and Mr. Sobhan Panigrahi, learned Additional Standing

Counsel for the State.

4. The prosecution case, in short, is that the appellant

married to Priyambada Das (deceased) on 29.05.1987. It is alleged

that as per the demand, dowry articles were given but a colour T.V.

was promised to be given later on. For non-fulfilment of said demand,

the appellant was tortured and on some occasion attempt was made to

kill her. Lastly, on 19.07.1995, information was given to the parents

of the deceased that she is ill. Getting such information, when the

informant (P.W.7) came to the house of the appellant and she found

that her daughter was dead.

5. On the basis of the written report of the informant

(P.W.7), police registered the case and investigation was conducted

and charge sheet was filed in the present case against the accused for

the alleged commission of offence u/s.304-B of I.P.C. The accused

Page 4 of 16

took a stance of complete denial and claimed trial. Accordingly, he

was put to trial on the charge, as mentioned above.

6. The prosecution in order to bring home the charges

examined as many as fourteen witnesses and exhibited sixteen

documents.

7. The learned trial court after analyzing the evidence on

record and by taking into consideration the relevant provisions of law

came to conclusion that the essential ingredients to attract the offence

under Section 304-B of IPC in the present case is lacking, hence

recorded an acquittal in favour of the appellant. The reasoning

recorded by the learned trial court is reflecting in paragraph-10 of the

impugned judgment, which reads thus:-

“10. The Investigating Officer in Para 9 of his

evidence admitted that the marriage was held on

29.5.87. By the date of incident more than 7 years

from the date of marriage was completed still he

submitted Charge Sheet U/s.304-B I.P.C.

According to the ingredients of Offence U/s. 304-

B I.P.C. death under abnormal circumstances

within 7 years of marriage would be deemed to be

dowry death if before death deceased was

subjected to cruel treatment for dowry by her

husband or relative of her husband. It appears

that the Investigating Officer for official eye-wash

Page 5 of 16

halfheartedly and half hazardly investigated into

the incident to oblige the accused to escape the

punishment. In this case, the evidence is absent to

prove that soon before death of the deceased on

19.7.95 she was ill-treated or harassed willfully

to coerce the parents or well-wishers of the

deceased to concedes the demand for dowry.

P.W.7 and P.W.8 being the mother and father and

P.W.13 being the brother of the deceased did not

depose any such evidence. The time of torture is

essential element of offence U/s.304-B I.P.C. The

torture relating to demand for dowry was

immediate or proximate cause of death of the

deceased within 7 years of her marriage in

abnormal circumstances to bring home charge

U/s.304-B I.P.C. is not proved. Hence, it is held

that the charge U/s.304-B I.P.C. is not brought

home to the accused.”

8. Ms. Pal, learned Amicus Curiae appearing for the

appellant, at the outset, submitted that after the learned trial court

acquitted the appellant for the charge he was put to trial, the learned

trial court ought not to have convicted the appellant for offence under

Section 498-A of IPC in the absence of specific charge being framed

against the appellant. The appellant is clearly prejudiced by not

specifically framing the charge by the learned trial court for the

offence he was convicted. This aspect of the matter has been clearly

dealt with by the learned trial court and given reasonable findings as

Page 6 of 16

to why the prosecution could be said to have satisfactorily proved its

case beyond all reasonable doubt in so far as the offence under

Section 498-A of IPC is concerned. The following findings recorded

by the learned trial court is worth mentioning:-

“11. Of course, there is no specific charge

U/s.498-A I.P.C. But the charge U/s.304-B I.P.C.

being framed against the accused which includes

all the essential ingredients of the offence

U/s.498-A I.P.C. Now it is to be found out from

the evidence whether the victim Pyiyambada, the

deceased daughter of P.W.7 (who is the

informant) was subjected to cruel treatment or

harassment to coerce her well-wishers to meet

any un-lawful demand for any property, value

security or for their failure to meet such demand

by the accused.”

9. In the light of the aforementioned findings recorded by

the learned trial court, learned counsels appearing for the parties have

taken me to the oral as well as documentary evidence on record.

Mr. Panigrahi, learned counsel for the State has relied

upon the evidence of P.W.7, who is the mother of the deceased and

informant of the case. She has deposed in her evidence that her

daughter Priyambada had married to the appellant in the month of

May, 1987. At the time of marriage, she had given some articles to

Page 7 of 16

the appellant, however could not give the cash of Rs.10,000/- and a

colour T.V. as promised, therefore, her daughter had been ill-treated

by the appellant. She has further deposed that she received letters

from her daughter asking for T.V. and cash and informing her

regarding the ill-treatment meted out to her and also informed her that

electric shock was given to her since the demand has not been

fulfilled. In para-5 of her evidence she has deposed that “my daughter

and my son-in-law Manmath wrote letters to me. I can identify those

letters. Ext.6 is the letter written in the hand of my daughter Mena.

Ext.7 is the letter written by Manmatha, my son-in-law. I am

acquainted with his hand writing. Ext.8 is the letter written in the

hand of Manmath. Ext.9 is the letter written in the hand of Manmath.

I prepared two list of articles, one list was prepared by me and

another list was prepared by my husband showing the articles given

to my son-in-law. Ext.10 was written in my hand and Ext.11 was

written by the hand of my husband.”

Mr. Panigrahi, learned counsel for the State has taken me to the

letters, which have been exhibited as mentioned above. Reading of

the letters written by the appellant to P.W.7 reveals that the appellant

Page 8 of 16

has been requesting his mother-in-law to help him paying some cash

so that he can start business. In the letters, the appellant has pleaded

for help stating that his parents are not helping to start any business.

Therefore, P.W.7 being the mother-in-law to whom the appellant

respect as like his own mother requesting for help. However, in the

letters the appellant has also written that in lieu of the promised

dowry amount and articles, the mother-in-law should help him by

paying cash so that he can start his business. The ocular testimony of

P.W.7, the mother-in-law of the appellant and P.W.8, the father-in-

law of the appellant as well as P.W.13, the brother-in-law of the

appellant stood directly corroborated with the contents of exhibited

letters. The father-in-law of the appellant P.W.8 in his testimony has

categorically deposed in paragraph-2 as under:-

“After marriage my daughter was writing letters

complaining that she was being beaten and being

given electric shock for not giving dowry and

money. A sum of Rs.10,000/- and colour T.V.

were promised to be given, but could not be given

for that reason she was being ill-treated.”

Page 9 of 16

Similarly, P.W.13 in his evidence has stated that the

appellant was demanding money. For non-payment of the demanded

money, he has been ill-treating and attempting to kill his sister.

10. Ms. Pal, learned Amicus Curiae has pointed out that in

the cross examination P.W.13 has admitted that for the first time he

was deposing regarding the demand of dowry made by the appellant

in the court. She has highlighted para-2 of the cross examination of

P.W.13 which reads as under:-

“I was not examined nor anybody enquired from

regarding the incident of this case. For the first

time I made statement about it in the court. Before

that I disclosed the incident in my own house.”

11. Merely because P.W.13 for the first time has deposed

regarding the demand of dowry made by the appellant in the court, his

testimony cannot be discredited. The other witnesses examined by the

prosecution also lend corroboration to the evidence of the family

members of the deceased. Therefore, it can be safely concluded that

the evidence adduced and brought on record by the prosecution to

bring home the offence under Section 498-A of IPC is overwhelming

and unimpeachable. Hence, the learned trial court has rightly relied

Page 10 of 16

upon the evidence of P.Ws.7, 8 and 13 as well as the letters written by

the appellant himself to his mother-in-law (P.W.7) and the letters

written by the wife (deceased) of the appellant to her mother.

12. In view of the aforementioned, this Court has no

hesitation to hold that the conviction recorded by the learned trial

court against the appellant for the offence under Section 498-A of IPC

is justified and accordingly affirmed.

13. At this stage, learned Amicus Curiae appearing for the

appellant has submitted that the incident relates back to the year 1995.

At that point of time the appellant was 37 years of age and at present

he must be near about 67 years of age. The appellant has been

convicted vide judgment dated 20.02.1999 and the appeal is pending

since 1999. She further submitted that over the years, the appellant

has led a dignified life, integrated well into society, and is presently

leading a settled family life. Incarcerating him after such a long delay,

it is argued, would serve little penological purpose and may in fact be

counter-productive, casting a needless stigma not only upon him but

also upon his family members, especially when there is no suggestion

of any repeat violation or ongoing non-compliance with regulatory

Page 11 of 16

norms. She further submitted that the appellant has made a prayer

before the learned trial court at the time of hearing on the question of

sentence for treating him under the Probation of Offenders Act, which

has been declined by the learned trial court. Therefore, considering

the fact scenario of the case, the appellant may be treated under the

Probation of Offenders Act.

14. The record reveals that the incident relates back to the

year 1995 and at that point of time the appellant was 37 years of age.

He has been convicted by the impugned judgment and order dated

20.02.1999. The present appeal is pending since 1999 and at present

the appellant is about 67 years of age. Much water has been flown

under the bridge by now. Therefore, this is a fit case where the

learned trial court ought to have been given the treatment under the

Probation of Offenders Act. The Hon’ble Supreme Court in

Chellammal and Another v. State represented by the Inspector of

Police

1

has held that it is the statutory obligation of the sentencing

1

2025 INSC 540

Page 12 of 16

court to apply the provisions of Probation of Offenders Act and non-

granting of the benefit should be supported by reasoning.

In the facts scenario of the present case, the prayer made by

Ms. Pal, learned Amicus Curiae for the appellant for extending the

benefit of the P.O. Act deserves merit to be considered.

15. The Hon’ble Supreme Court in Chellammal (supra) has

elaborately explained the scope, object and significance of the

Probation of Offenders Act, 1958 while considering the question of

extending the benefit of probation to a convict. The Hon’ble Supreme

Court has underscored that the legislative intent behind the enactment

of the Probation of Offenders Act is essentially reformative in nature,

aiming to provide an opportunity to first-time or less serious offenders

to reform themselves rather than subjecting them to incarceration. It

has been emphasized that the provisions of the Act are intended to

prevent the deleterious effects of imprisonment on individuals who

can otherwise be rehabilitated as responsible members of society. The

Court has further highlighted that Section 4 of the Probation of

Offenders Act confers a wide discretion upon the courts to release an

offender on probation in appropriate cases and that the said provision

Page 13 of 16

has a broader and more expansive ambit than Section 360 of the Code

of Criminal Procedure, 1973.

While discussing the interplay between the aforesaid

provisions, the Hon’ble Supreme Court has also clarified that courts

are duty-bound to consider the applicability of the Probation of

Offenders Act in cases where the circumstances justify such

consideration, and if the court decides not to extend the benefit of

probation, it must record special reasons for such refusal. The relevant

observations of the Hon’ble Supreme Court are reproduced

hereunder:

“26. On consideration of the precedents and based on

a comparative study of Section 360, Cr. PC and sub-

section (1) of Section 4 of the Probation Act, what is

revealed is that the latter is wider and expansive in its

coverage than the former. Inter alia, while Section

360 permits release of an offender, more twenty-one

years old, on probation when he is sentenced to

imprisonment for less than seven years or fine,

Section 4 of the Probation Act enables a court to

exercise its discretion in any case where the offender

is found to have committed an offence such that he is

punishable with any sentence other than death or life

imprisonment. Additionally, the non-obstante clause

in sub-section gives overriding effect to sub-section

(1) of Section 4 over any other law for the time being

in force. Also, it is noteworthy that Section 361, Cr.

PC itself, being a subsequent legislation, engrafts a

provision that in any case where the court could have

dealt with an accused under the provisions of the

Page 14 of 16

Probation Act but has not done so, it shall record in

its judgment the special reasons therefor.

27. What logically follows from a conjoint reading of

sub-section (1) of Section 4 of the Probation Act and

Section 361, Cr. PC is that if Section 360, Cr. PC

were not applicable in a particular case, there is no

reason why Section 4 of the Probation Act would not

be attracted.

28. Summing up the legal position, it can be said that

while an offender cannot seek an order for grant of

probation as a matter of right but having noticed the

object that the statutory provisions seek to achieve by

grant of probation and the several decisions of this

Court on the point of applicability of Section 4 of the

Probation Act, we hold that, unless applicability is

excluded, in a case where the circumstances stated in

subsection (1) of Section 4 of the Probation Act are

attracted, the court has no discretion to omit from its

consideration release of the offender on probation;

on the contrary, a mandatory duty is cast upon the

court to consider whether the case before it warrants

releasing the offender upon fulfilment of the stated

circumstances. The question of grant of probation

could be decided either way. In the event, the court in

its discretion decides to extend the benefit of

probation, it may upon considering the report of the

probation officer impose such conditions as deemed

just and proper. However, if the answer be in the

negative, it would only be just and proper for the

court to record the reasons therefor. ”

Regard being had to the facts of the present case,

particularly the long lapse of time since the occurrence, the absence of

criminal antecedents of the appellant and the overall circumstances

emerging from the record, this Court is of the considered view that

Page 15 of 16

the case of the appellant deserves consideration under the beneficial

provisions of the Probation of Offenders Act. The said view also finds

support from the decisions of this Court in Pathani Parida & another

vs. Abhaya Kumar Jagdevmohapatra

2

and Dhani @ Dhaneswar

Sahu vs. State of Orissa

3

wherein in somewhat similar circumstances

the benefit of probation was extended to the convicts. In view of the

aforesaid legal position and the peculiar facts and circumstances of

the case, this Court is inclined to extend to the appellant the benefit

contemplated under Section 4 of the Probation of Offenders Act.

16. In such view of the matter, the present Criminal Appeal

in so far as the conviction is concerned is turned down. But instead of

sentencing the appellant to suffer imprisonment, this Court directs the

appellant to be released under Section 4 of the Probation of Offenders

Act for a period of one year 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

2

2012 (Supp-II) OLR 469

3

2007 (Supp.II) OLR 250

Page 16 of 16

peace and good behavior and he shall remain under the supervision of

the concerned Probation Officer during the aforementioned period of

one year.

17. Accordingly, the CRA is partly allowed and disposed of.

18. This Court records the appreciation for the effective and

meaningful assistance rendered by Ms. Aurolina Pal, learned Amicus

Curiae. She is entitled to an honorarium of Rs.7,500/- (Rupees seven

thousand five hundred) to be paid as token of appreciation.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack.

Dated the 16

th

of April, 2026/Ashok