IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLA No.14 of 2002

CNR-ODHC010003972002

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

Procedure Code, 1973)

Smt. Indumati Das & others ……. Appellants

-Versus-

State of Orissa ……. Respondent

For the Appellants : Mr. D.P. Dhal, Senior Advocate

For the Respondent : Mr. Jateswar Nayak, AGA

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 07.07.2026 : Date of Judgment: 30.07.2026

S.S. Mishra, J. The present Criminal Appeal is arising out of the

judgment dated 22.07.2002 passed by the learned Sessions Judge,

Puri in S.T. Case No.162 of 2001 arising out of G.R. Case No.879 of

1999, whereby although the appellants were tried for the offences

punishable under Sections 498-A, 304-B, 302/34 of the Indian Penal

Code and Section 4 of the Dowry Prohibition Act, but upon

appreciation of the evidence, the learned Sessions Judge acquitted all

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the accused persons of the charges under Sections 498-A, 304-B,

302/34 IPC and Section 4 of the Dowry Prohibition Act. However, by

invoking the presumption under Section 113-A of the Indian

Evidence Act, convicted them under Section 306 IPC and sentenced

each of them to undergo R.I. for four years and to pay a fine of

Rs.1000/- in default to undergo R.I. for one month.

2. Heard Mr. D.P. Dhal, learned Senior Advocate appearing for

the appellants and Mr. Jateswar Nayak, learned Additional

Government Advocate appearing for the Respondent-State.

3. Pursuant to the order dated 08.07.2025, the IIC, Delang Police

Station submitted a report dated 23.08.2025 before this Court. As per

the said report, the appellant no.2-Jogi Das has expired since

09.02.2019. The said report and the death certificate are already on

record. In absence of any motion on behalf of the legal heirs or the

next friend of the deceased-appellant no.2-Jogi Das, the Criminal

Appeal stands abated.

4. The prosecution case, in brief, is that deceased Manorama

Satapathy @ Tikina, aged about twenty-three years, on 30th October,

1998, eloped with appellant No.1 and both of them solemnized their

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marriage in the Jagannath Temple at Puri. Thereafter, they started

residing together as husband and wife in the house of Kalucharan.

The prosecution further alleged that after the marriage, appellant No.1

along with his parents, brother and sister demanded dowry together

with "Puani Saja" from the parental family of the deceased. Since the

demand could not be fulfilled, the deceased was allegedly subjected

to physical torture, mental cruelty and harassment. It was further

alleged that on the morning of 11.07.1999 the accused persons

assaulted the deceased and ultimately caused her death.

5. On the basis of a written report lodged by the mother of the

deceased, Delang P.S. Case No.60 dated 16.07.1999 was registered

initially for offences under Sections 498-A, 304-B, 302/34 IPC and

Section 4 of the Dowry Prohibition Act. Investigation was

undertaken. It is significant to notice that even before registration of

the police case on the basis of the above FIR, one Bauribandhu Das

had lodged a written report before Harirajpur Police Out Post on

11.07.1999 at about 7.45 P.M. stating that the deceased had

committed suicide by consuming poison. On the basis of the said

report, Harirajpur Out Post U.D. Case No.1 of 1999 was registered.

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6. During investigation, the Investigating Officer examined

witnesses, prepared the spot map, collected the post-mortem report

and forwarded the viscera of the deceased for chemical examination.

On completion of investigation, charge-sheet was submitted against

all the accused persons for offences punishable under Sections 498-A,

304-B, 302/34 IPC and Section 4 of the Dowry Prohibition Act.

7. In order to establish its case, the prosecution examined six

witnesses out of the seventeen charge-sheet witnesses. P.W.1 is the

mother of the deceased and informant. P.Ws.4 and 5 are the younger

sisters of the deceased. P.W.2 and P.W.3 were the doctors connected

with the post-mortem examination. P.W.6 was the Investigating

Officer. The defence was one of complete denial.

8. The learned trial Court, on analysis of the evidence, held that

the prosecution failed to prove beyond reasonable doubt that the

accused persons had committed murder of the deceased or that the

ingredients constituting offences under Sections 302, 304-B, 498-A

IPC and Section 4 of the Dowry Prohibition Act stood established.

Consequently, all the accused persons were acquitted of those

charges. However, notwithstanding the above findings, the learned

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Sessions Judge proceeded to hold that since the death had occurred

within seven years of marriage and the evidence disclosed some

allegation of ill-treatment, a presumption under Section 113-A of the

Evidence Act could be drawn against the accused persons. On that

reasoning, all the accused persons were convicted under Section 306

IPC for abetment of suicide. The relevant part of the aforesaid

judgment is reproduced herein for ready reference:-

“14. In the premises, it is concluded that

prosecution has failed beyond all reasonable

doubts to bring home the charges u/s 498-A, 304-

B, 302/34 I.P.C and 4 of the. D.P. Act against any

of the accused persons but has been successful in

establishing a case u/s 306 I.P.C against the

accused persons Prafulla @ Narayan @ Kalu

Charan Das, Jogi Das and Indumati Das.

Accordingly when accused persons Ganesh @

Binayak Das and Kamal Kumari Das enjoying

benefit of doubt are acquitted of the offence u/s

235(1) Cr.P.C. accused persons Prafulla, Jogi

and Indumati are found guilty u/s 306 I.P.C and

are convicted thereunder.”

9. Mr. Dhal, Senior Advocate appearing for the appellants, argued

that the learned trial Court found the prosecution failed to prove

charges under Sections 498-A, 304-B, and 302/34 of the IPC, as well

as Section 4 of the Dowry Prohibition Act. Nevertheless, the learned

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trial court convicted the appellants under Section 306 IPC using the

presumption in Section 113-A of the Indian Evidence Act. He

contended that the prosecution case itself was riddled with

inconsistencies. The evidence of P.Ws.1, 4 and 5, who are closely

related to the deceased, has been disbelieved by the trial court on

account of material contradictions and exaggerations, and the trial

court itself concluded that the prosecution had failed to prove the

allegations of dowry demand and cruelty.

10. Learned Senior Counsel further contended that the conviction

under Section 306 IPC is wholly unsustainable in law as the essential

ingredients of the offence were never established. Referring to the

evidence of P.W.2 and P.W.3, it was contended that the evidence of

doctors revealed that in the absence of the Chemical Examiner's

report, no definite opinion could be given regarding the exact cause of

death and whether the death was homicidal, suicidal or accidental.

The learned trial court itself observed that the failure of the

prosecution to produce the Chemical Examiner's report reflected the

slackness of the investigating agency. In such circumstances, it was

argued, the prosecution failed to prove even the foundational fact that

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the deceased had committed suicide. It was further submitted that the

presumption under Section 113-A of the Evidence Act is

discretionary and can’t be automatically drawn. He placed reliance

on the decisions of the Supreme Court in Mangat Ram v. State of

Haryana, (2014) 12 SCC 595, Hansraj v. State of Haryana, AIR

2004 SC 2790, and Pinakin Mahipatray Rawal v. State of Gujarat,

(2013) 10 SCC 48, to contend that before the presumption under

Section 113-A can be invoked, the prosecution must first establish

that the deceased had committed suicide within seven years of

marriage and that she had been subjected to cruelty within the

meaning of Section 498-A IPC. Since the learned trial court acquitted

the appellants of the charge under Section 498-A IPC, the very

foundation for invoking presumption under Section 113-A stood

demolished.

11. Mr. Dhal lastly contended that the conviction under Section

306 IPC is liable to be set aside on the additional ground that no

charge under the said provision had ever been framed against the

appellants. Drawing the attention of the Court to Sections 221 and

222 of the Code of Criminal Procedure, learned Senior Counsel

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submitted that Section 306 IPC is not a minor offence in relation to

Sections 302 or 304-B IPC, as the ingredients of the two offences are

entirely distinct. He argued that throughout the trial the appellants

defended themselves against allegations of murder and dowry death

and were never called upon to meet an accusation of abetment of

suicide. Moreover, no question relating to abetment of suicide was put

to the appellants during their examination under Section 313 Cr.P.C.,

thereby causing serious prejudice to their defence. On these premises,

learned Senior Counsel prayed that the impugned judgment of

conviction and sentence be set aside and the appeal be allowed.

12. This Court has independently re-appreciated the evidence on

record. The evidence of P.W.1, P.W.4 and P.W.5. P.W.1, the mother

of the deceased, alleged that after the marriage the appellants

demanded dowry and subjected the deceased to cruelty, ultimately

resulting in her death. P.Ws.4 and 5, the sisters of the deceased, also

supported the prosecution case by alleging demand of dowry, cruelty

and assault on the deceased. However, on a careful scrutiny, their

evidence is found to suffer from material omissions, contradictions

and improvements on vital aspects relating to dowry demand, cruelty

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and the alleged assault. Besides, P.W.1 had no direct knowledge of

the occurrence and her evidence was largely hearsay, while the

testimony of P.Ws.4 and 5 regarding witnessing the occurrence does

not inspire confidence. Thus, although the evidence establishes the

marital relationship between the deceased and appellant No.1, it does

not satisfactorily prove the allegations of cruelty or the circumstances

leading to the death beyond reasonable doubt.

13. The medical evidence adduced through P.W.2 and P.W.3 also

does not advance the prosecution case. The evidence of P.W.2,

particularly in paragraphs 9 to 12, and that of P.W.3 in paragraphs 6

to 8, deposed that although poisoning was suspected during the post-

mortem examination, both the doctors unequivocally stated that, in

the absence of the Chemical Examiner's report, no definite opinion

regarding the exact cause of death could be expressed. Extract of

P.W.2’s deposition is relevant to reproduce herein for ready

reference:-

“9. To Court :- The findings of my P.M.

Examination were not sufficient medically to opine

cause of death.

10. Cross-Examination by the prosecution :-

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From The findings suffocation could have

been inferred as cause of death but to rule out

poisoing examination of Viscera was necessary.

11. Cross-Examination by the defence :-

I have not mentioned about suffocation in my

report. The findings were more in favour of

suffocation but not conclusive pending chemical

examination of the visceras.”

Relevant part of the deposition of P.W.3 is reproduced herein for

ready reference:-

“6. To Court :- The findings we got did not lead to

any conclusion on the cause of death.

On viscera examination the cause of death would

have been ascertained. By chemical examination

and histo-pathological examination cause of death

could have ascertained if due to injection of

poisonous material or death due to asphyxia or any

dieses process.

7. Cross-Examination by prosecution :-

Any opinion on cause of death basing on the

finding would have been provisional.

8. Cross-Examination by the defence :-

Death due to suffocation could be assessed from

viscera examination. In the absence of a ligature

mark death due to suffocation cannot be assessed.”

Neither of the doctors opined that the death was homicidal or

conclusively suicidal. Their evidence clearly establishes that scientific

examination of the viscera was essential to determine the cause of

death, but the Chemical Examiner's report was never produced before

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the Court. Consequently, the medical evidence remains inconclusive

and fails to establish whether the death was homicidal, suicidal or

accidental. In the absence of such crucial scientific evidence, and in

view of the inconsistencies in the ocular testimony, the prosecution

has failed to establish the foundational facts necessary to sustain the

conviction under Section 306 IPC.

14. More importantly, after considering the entire evidence, the

learned trial Court recorded a categorical finding that the prosecution

failed to establish the charges under Sections 498-A, 304-B, 302/34

IPC and Section 4 of the Dowry Prohibition Act. That finding

necessarily implies that the prosecution failed to prove cruelty

connected with dowry demand beyond reasonable doubt.

15. The principal question that arises for consideration is whether

the learned trial Court was justified in invoking the presumption

under Section 113-A of the Indian Evidence Act to convict the

appellants under Section 306 IPC. Section 113-A provides that where

a married woman commits suicide within seven years of her marriage

and it is shown that she was subjected to cruelty by her husband or his

relatives, the Court may presume that such suicide had been abetted

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by the husband or such relatives. The use of the expression "may

presume" makes it abundantly clear that the presumption is

discretionary and not mandatory. The scope of this provision has been

authoritatively explained by the Hon'ble Supreme Court in Mangat

Ram v. State of Haryana, reported in (2014) 12 SCC 595, wherein it

was held that the mere fact that a married woman commits suicide

within seven years of marriage does not automatically attract the

presumption under Section 113-A. The prosecution must first

establish that the deceased was subjected to cruelty within the

meaning of Section 498-A IPC, and even thereafter, the Court is

required to consider all the surrounding circumstances before

deciding whether such presumption should be drawn. It was held

thus:-

“30. We are of the view that the mere fact that if a

married woman commits suicide within a period of

seven years of her marriage, the presumption

under Section 113-A of the Evidence Act would not

automatically apply. The legislative mandate is

that where a woman commits suicide within seven

years of her marriage and it is shown that her

husband or any relative of her husband has

subjected her to cruelty, the presumption as

defined under Section 498-A IPC, may attract,

having regard to all other circumstances of the

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case, that such suicide has been abetted by her

husband or by such relative of her husband. The

term “the Court may presume, having regard to all

the other circumstances of the case, that such

suicide had been abetted by her husband” would

indicate that the presumption is discretionary. So

far as the present case is concerned, we have

already indicated that the prosecution has not

succeeded in showing that there was a dowry

demand, nor would the reasoning adopted by the

courts below would be sufficient enough to draw a

presumption so as to fall under Section 113-A of

the Evidence Act.

31. In this connection, we may refer to the

judgment of this Court in Hans Raj v. State of

Haryana [(2004) 12 SCC 257 : 2004 SCC (Cri)

217] , wherein this Court has examined the scope

of Section 113-A of the Evidence Act and Sections

306, 107, 498-A, etc. and held that, unlike Section

113-B of the Evidence Act, a statutory presumption

does not arise by operation of law merely on the

proof of circumstances enumerated in Section 113-

A of the Evidence Act. This Court held that, under

Section 113-A of the Evidence Act, the prosecution

has to first establish that the woman concerned

committed suicide within a period of seven years

from the date of her marriage and that her

husband has subject her to cruelty. Even though

those facts are established, the court is not bound

to presume that suicide has been abetted by her

husband. Section 113-A, therefore, gives discretion

to the court to raise such a presumption having

regard to all other circumstances of the case,

which means that where the allegation is of

cruelty, it can consider the nature of cruelty to

which the woman was subjected, having regard to

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the meaning of the word “cruelty” in Section 498-

A IPC.

32. We are of the view that the circumstances of

the case pointed out by the prosecution are totally

insufficient to hold that the accused had abetted

his wife to commit suicide and the circumstances

enumerated under Section 113-A of the Evidence

Act have also not been satisfied.

33. In Pinakin Mahipatray Rawal v. State of

Gujarat [(2013) 10 SCC 48 : (2013) 4 SCC (Civ)

616 : (2013) 3 SCC (Cri) 801] , this Court has

examined the scope of Section 113-A of the

Evidence Act, wherein this Court has reiterated the

legal position that the legislative mandate of

Section 113-A of the Evidence Act is that if a

woman commits suicide within seven years of her

marriage and it is shown that her husband or any

relative of her husband had subjected her to

cruelty, as per the presumption defined in Section

498-A IPC, the court may presume, having regard

to all other circumstances of the case, that such

suicide had been abetted by the husband or such

person. The court held that, though a presumption

could be drawn, the burden of proof of showing

that such an offence has been committed by the

accused under Section 498-A IPC is on the

prosecution. The court held that the burden is on

the prosecution to establish the fact that the

deceased committed suicide and the accused

abetted the suicide. In the instant case, there is no

evidence to show whether it was an accidental

death or whether the deceased had committed

suicide.”

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The Honorable Supreme Court, relying upon Hans Raj v. State

of Haryana, reported in (2004) 12 SCC 257, further held that unlike

Section 113-B of the Evidence Act, no statutory presumption arises

merely on proof of the foundational facts and that the Court is not

bound to presume abetment even where cruelty is established. In

Pinakin Mahipatray Rawal v. State of Gujarat, reported in (2013) 10

SCC 48, it was reiterated that the burden always remains upon the

prosecution to prove not only that the deceased committed suicide but

also that the accused had abetted such suicide.

16. Tested on the anvil of the aforesaid principles, if the evidence

of the present case is analyzed, the findings of the learned trial Court

recording that the prosecution had failed to establish the charges

under Sections 498-A, 304-B and 302/34 IPC as well as Section 4 of

the Dowry Prohibition Act can’t be found fault with. The prosecution

failed to prove cruelty and demand of dowry beyond reasonable

doubt, one of the essential conditions for invoking Section 113-A

stood unfulfilled. Further, the medical evidence of P.W.2 and P.W.3

clearly indicates that, in the absence of the Chemical Examiner's

report, no definite opinion could be expressed regarding the cause of

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death, leaving even the question whether the deceased had committed

suicide inconclusive. In such circumstances, the foundational facts

necessary for raising the presumption under Section 113-A are absent.

There is also no cogent evidence of any instigation, conspiracy or

intentional aid, as contemplated under Section 107 IPC, so as to

constitute abetment of suicide.

17. In view of the settled legal position and the evidence on record,

this Court is of the considered opinion that the learned trial Court

erred in invoking the discretionary presumption under Section 113-A

of the Evidence Act merely because the death occurred within seven

years of marriage in the absence of established cruelty on demand of

dowry. Such an approach is contrary to the law laid down by the

Hon'ble Supreme Court. When the prosecution has failed to establish

cruelty, has not conclusively proved that the deceased committed

suicide, and has failed to prove any act amounting to abetment, the

conviction of the appellants under Section 306 IPC cannot be

sustained in law, particularly when specific charge was not framed for

the said offence.

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18. The conviction under Section 306 IPC without framing a

specific charge and without putting the necessary incriminating

circumstances to the appellants during their examination under

Section 313 Cr.P.C. has occasioned serious prejudice to the defence.

Criminal jurisprudence requires proof beyond reasonable doubt.

Suspicion, however grave, can never substitute legal proof. The

prosecution is expected to prove each essential ingredient of the

offence by cogent, reliable and legally admissible evidence. In the

present case, the evidence on record falls considerably short of the

standard required for sustaining a conviction under Section 306 IPC.

The deficiencies in the prosecution case are not minor irregularities

but go to the very root of the matter.

19. The learned trial Court, having acquitted the appellants of the

offences under Sections 498-A, 304-B, 302/34 IPC and Section 4 of

the Dowry Prohibition Act, could not have, in the absence of proof of

cruelty and in the absence of conclusive evidence of suicide, invoked

the discretionary presumption under Section 113-A of the Evidence

Act to record a conviction under Section 306 IPC. The impugned

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judgment, therefore, suffers from patent legal infirmity and cannot be

sustained.

20. The appellants are acquitted of the charge under Section 306

IPC. The judgment of conviction and the order of sentence dated

22.07.2002 passed by the learned Sessions Judge, Puri in S.T. Case

No.162 of 2001, convicting the appellants for the offence punishable

under Section 306 of the Indian Penal Code, are hereby set aside.

21. For the reasons aforesaid, the Criminal Appeal is accordingly

allowed.

(S.S. Mishra)

Judge

The High Court of Orissa, Cuttack.

Dated the 30

th

Day of July, 2026/ Subhasis Mohanty