Orissa High Court
Section 374 vs State Of Orissa on 16 December, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.107 of 1992
In the matter of an application under Sub-Section (2) of
Section 374, read with Section 382 of Criminal Procedure Code,
1973.
..................
Sanatan Das & Another .... Appellants
-versus-
State of Orissa .... Respondent
For Appellant : M/s. B.S. Dasparida, Adv.
appearing on behalf of Mr.D.P.
Dhal, Sr. Advocate.
For Opp. Parties : Addl. Government Advocate
Mr. C.K. Pradhan.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 16.12.2024 and Date of Judgment:16.12.2024
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
// 2 //
3. The present Appeal has been filed challenging the
order of conviction and sentence passed by learned Addl.
Sessions Judge, Kendrapara in S.T. Case
No.147/91/32/91 vide judgment dtd.16.03.1992. Vide
the said judgment, all the four appellants were convicted
and sentenced to undergo R.I for two years and R.I for five
years respectively for the offences under Sections 498-A
and 306/34 of the I.P.C. However during pendency of the
appeal since Appellant Nos.2 and 3 died, the appeal
stands abated against appellant Nos.2 and 3 vide order
dtd.16.02.2023.
4. Learned counsel for the Appellants contended that
the victim married Appellant No.1 on 08.03.1988 and
committed suicide by hanging herself on 24.09.1990. But
basing on the information lodged before the local police
by the father of the victim, the prosecution was set into
motion. After filing of the charge sheet all the appellants
were charged for the offence under Sections-306,
498(A)/34 of I.P.C.
Page 2 of 17
// 3 //
4.1. It is contended that the prosecution in order to
prove the allegation though examined as many as 10 (ten)
no’s. of witnesses, but no independent witness was
examined in order to prove the allegation of demand of
dowry and consequential abatement of committing the
suicide by the deceased.
4.2. It is contended that since no independent witness
was examined on behalf of the prosecution, conviction
and sentence of the appellants for the offence under
Section 306 read with Section 498(A)/34 of IPC could not
have been made as against the appellants. On the other
hand, it is contended that the defence examined as many
as many as three no’s. of witnesses which includes
D.W.1, who examined the victim on 19.09.1990.
4.3. It is contended that D.W.1 in his deposition clearly
indicated that the victim was examined by her on
19.09.1990 and on such examination, it was found that
the victim is having a patch in her cheek which may be
hansem disease (leprosy). Statement of D.W.1 reads as
follows:-
Page 3 of 17
// 4 //
“I have brought the outdoor register of Pattamundai .H.C.
1990 as directed by the court. I treated one Sankukta Das
She was suffering from dispecia and hypotermic patch
over left knee. Ext. C is the relevant entry bearing serial
Number No.4918 of the pediatric out door register. of
Pattamundai P.H.C. This register is being maintained by
me as Doctor in charge of Pediatric C.P.D. where patients
of all age group are being treated. Ext. B is the prescription
granted by me to Sanjukta Das. I advised her to attend
S.C.B. Medical college Hospital, skin O.P.D. for detail
examination of her skin smear and detail examination of
patch and needful. This satch is due to various reason and
one of the reason is hansem disease (leprosy). I have also
advised her for examination of her stool and blood D.C.
There is no provision for examination of skin smear in
Pattamundai P.H.C. which is essential for determining the
cause of patch.”
4.4. It is further contended that D.W.2 who accompanied
the victim for such examination on 19.09.1990, also in
his deposition clearly indicated that the deceased had
been to the doctor-D.W.1 on 19.09.1990 and after such
examination of the victim by the Doctor when it
transpired that the deceased is suffering from Leprosy,
the deceased cried for around five days and thereafter
committed the suicide on 24.09.1990.
4.5. It is also found from the examination of the D.W.2
that the father and other relatives of the deceased
persuaded the appellants’ family not to disclose about the
suffering of the deceased from such a disease. Similar
evidence was also lead by D.W.3.
Page 4 of 17
// 5 //
4.6. Placing reliance on the evidence lead by the defence,
learned counsel for the appellants contended that since
the victim after being detected with such a disease
committed suicide, the order of conviction and sentence
passed against the appellants by the learned Addl.
Sessions Judge, placing reliance on the provisions
contained under Section-113-A of the Evidence Act is not
sustainable in the eye of law.
4.7. It is contended that unless and until allegation of
cruelty is proved, no presumption can be drawn, placing
reliance on the provisions contained under Section-113-A
of the Evidence Act that the appellants have abated the
offence of suicide by the victim.
In support of his aforesaid submission, learned
counsel for the Appellants relied on the following
decisions:-
1. Gumansinh v. State of Gujarat, reported in (2022)
15 SCC 767.
2. Naresh Kumar vs. State of Haryana, reported
in (2024) 3 SCC-573.
Page 5 of 17
// 6 //
4.8. Gumansinh vs. State of Gujarat, reported in
(2022) 15 SCC-767. Hon’ble Apex Court in Para-30 to 34
of the said judgment has held as follows:-
30. This question came up for consideration before a three-
Judge Bench in Ramesh Kumar v. State of
Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh,
(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] . In para 12 of the
said judgment, it has been observed as under : (SCC pp. 626-
27)
“12. This provision was introduced by the Criminal Law
(Second) Amendment Act, 1983 with effect from 26-12-1983
to meet a social demand to resolve difficulty of proof where
helpless married women were eliminated by being forced to
commit suicide by the husband or in-laws and incriminating
evidence was usually available within the four corners of the
matrimonial home and hence was not available to anyone
outside the occupants of the house. However still it cannot be
lost sight of that the presumption is intended to operate
against the accused in the field of criminal law. Before the
presumption may be raised, the foundation thereof must
exist. A bare reading of Section 113-A shows that to attract
applicability of Section 113-A, it must be shown that (i)
woman has committed suicide, (ii) such suicide has been
committed within a period of seven years from the date of her
marriage, (iii) the husband or his relatives, who are charged
had subjected her to cruelty. On existence and availability of
the abovesaid circumstances, the court may presume that
such suicide had been abetted by her husband or by such
relatives of her husband. Parliament has chosen to sound a
note of caution. Firstly, the presumption is not mandatory; it
is only permissive as the employment of expression “may
presume” suggests. Secondly, the existence and availability
of the abovesaid three circumstances shall not, like a
formula, enable the presumption being drawn; before the
presumption may be drawn the court shall have to have
regard to ‘all the other circumstances of the case’. A
consideration of all the other circumstances of the case may
strengthen the presumption or may dictate the conscience of
the court to abstain from drawing the presumption. The
expression — “the other circumstances of the case” used in
Section 113-A suggests the need to reach a cause-and-effect
relationship between the cruelty and the suicide for the
Page 6 of 17
// 7 //
purpose of raising a presumption. Last but not the least, the
presumption is not an irrebuttable one. In spite of a
presumption having been raised the evidence adduced in
defence or the facts and circumstances otherwise available
on record may destroy the presumption. The phrase “may
presume” used in Section 113-A is defined in Section 4 of the
Evidence Act, which says — ‘whenever it is provided by this
Act that the court may presume a fact, it may either regard
such fact as proved, unless and until it is disproved, or may
call for proof of it.’ ”
(emphasis in original)
31. From the above observations, it becomes clear that to attract
the applicability of Section 113-A of the Evidence Act, three
conditions are required to be fulfilled:
(i) The woman has committed suicide,
(ii) Such suicide has been committed within a period of seven
years from the date of her marriage,
(iii) The charged-accused had subjected her to cruelty.
32. From the facts of the case at hand, all the three conditions
stand fulfilled. There is no dispute about the facts that the
deceased committed suicide within a period of seven years
from the date of her marriage and charged-accused had
subjected her to cruelty, as we have confirmed the findings of
the trial court as well as the High Court that prosecution has
been successful in proving the charge of cruelty under
Explanation (b) of Section 498-AIPC.
33. It is no doubt correct that the existence and availability of the
abovesaid three circumstances are not to be invoked, like a
formula, to enable the presumption being drawn and the
presumption is not an irrebuttable one, as held by a three-
Judge Bench of this Court in Ramesh Kumar v. State of
Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh,
(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] .
34. At this stage, we may also make a reference to Section 4 of
the Evidence Act, which defines the phrase “may presume”
used in Section 113-A, which reads as under:
” “Shall Presume”.–Whenever it is directed by this Act that the
Court shall presume a fact, it shall regard such fact as
proved, unless and until it is disproved.”
Page 7 of 17
// 8 //
4.9. Naresh Kumar vs. State of Haryana, reported in
(2024) 3 SCC-573. Hon’ble Apex Court in Para-15 to 22,
25 to 29, 31 to 36 & 40 of the said judgment has held as
follows:-
“15. Section 306IPC reads as under:
“306. Abetment of suicide.–If any person commits
suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine.”
16. Thus, the basic ingredients to constitute an
offence under Section 306IPC are suicidal death and
abetment thereof. Abetment of a thing is defined
under Section 107IPC as under:
“107. Abetment of a thing.–A person abets the
doing of a thing, who–
First.–Instigates any person to do that thing; or
Secondly.–Engages with one or more other person or
persons in any conspiracy for the doing of that thing,
if an act or illegal omission takes place in pursuance
of that conspiracy, and in order to the doing of that
thing; or
Thirdly.–Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1.–A person who by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to cause or
procure, a thing to be done, is said to instigate the
doing of that thing.
Explanation 2.– Whoever, either prior to or at the
time of the commission of an act, does anything in
order to facilitate the commission of that act, and
thereby facilitate the commission thereof, is said to
aid the doing of that act.”
Page 8 of 17
// 9 //
17. This Court in Geo Varghese v. State of
Rajasthan [Geo Varghese v. State of Rajasthan,
(2021) 19 SCC 144] , considering the provisions of
Section 306IPC along with the definition of abetment
under Section 107IPC observed as under : (SCC pp.
149-50, paras 14-16)
“14. Section 306IPC makes abetment of suicide a
criminal offence and prescribes punishment for the
same. …
15. The ordinary dictionary meaning of the word
“instigate” is to bring about or initiate, incite someone
to do something. This Court in Ramesh
Kumar v. State of Chhattisgarh [Ramesh
Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 :
2002 SCC (Cri) 1088] , has defined the word
“instigate” as under : (SCC p. 629, para 20)
’20. Instigation is to goad, urge forward, provoke,
incite or encourage to do “an act”.’
16. The scope and ambit of Section 107IPC and its co-
relation with Section 306IPC has been discussed
repeatedly by this Court. In S.S. Chheena v. Vijay
Kumar Mahajan [S.S. Chheena v. Vijay Kumar
Mahajan, (2010) 12 SCC 190 : (2011) 2 SCC (Cri) 465]
, it was observed as under : (SCC p. 197, para 25)
’25. Abetment involves a mental process of instigating
a person or intentionally aiding a person in doing of a
thing. Without a positive act on the part of the
accused to instigate or aid in committing suicide,
conviction cannot be sustained. The intention of the
legislature and the ratio of the cases decided by the
Supreme Court is clear that in order to convict a
person under Section 306IPC there has to be a clear
mens rea to commit the offence. It also requires an
active act or direct act which led the deceased to
commit suicide seeing no option and that act must
have been intended to push the deceased into such a
position that he committed suicide.’ “
18. This Court in M. Arjunan v. State [M.
Arjunan v. State, (2019) 3 SCC 315 : (2019) 2 SCC
(Cri) 219] , while explaining the necessary ingredients
of Section 306IPC in detail, observed as under : (SCC
p. 317, para 7)
“7. The essential ingredients of the offence under
Section 306IPC are : (i) the abetment; (ii) the intention
of the accused to aid or instigate or abet the deceased
to commit suicide. The act of the accused, however,
Page 9 of 17
// 10 //insulting the deceased by using abusive language will
not, by itself, constitute the abetment of suicide. There
should be evidence capable of suggesting that the
accused intended by such act to instigate the
deceased to commit suicide. Unless the ingredients of
instigation/abetment to commit suicide are satisfied,
the accused cannot be convicted under Section
306IPC.”
19. This Court in Ude Singh v. State of Haryana [Ude
Singh v. State of Haryana, (2019) 17 SCC 301 :
(2020) 3 SCC (Cri) 306] , held that in order to convict
an accused under Section 306 IPC, the state of mind
to commit a particular crime must be visible with
regard to determining the culpability. It was observed
as under : (SCC pp. 321-22, para 16)
“16. In cases of alleged abetment of suicide, there
must be a proof of direct or indirect act(s) of incitement
to the commission of suicide. It could hardly be
disputed that the question of cause of a suicide,
particularly in the context of an offence of abetment of
suicide, remains a vexed one, involving multifaceted
and complex attributes of human behaviour and
responses/reactions. In the case of accusation for
abetment of suicide, the court would be looking for
cogent and convincing proof of the act(s) of incitement
to the commission of suicide. In the case of suicide,
mere allegation of harassment of the deceased by
another person would not suffice unless there be such
action on the part of the accused which compels the
person to commit suicide; and such an offending
action ought to be proximate to the time of occurrence.
Whether a person has abetted in the commission of
suicide by another or not, could only be gathered from
the facts and circumstances of each case.
16.1. For the purpose of finding out if a person has
abetted commission of suicide by another, the
consideration would be if the accused is guilty of the
act of instigation of the act of suicide. As explained
and reiterated by this Court in the decisions above
referred, instigation means to goad, urge forward,
provoke, incite or encourage to do an act. If the
persons who committed suicide had been
hypersensitive and the action of accused is otherwise
not ordinarily expected to induce a similarly
circumstanced person to commit suicide, it may not be
safe to hold the accused guilty of abetment of suicide.
Page 10 of 17
// 11 //
But, on the other hand, if the accused by his acts and
by his continuous course of conduct creates a
situation which leads the deceased perceiving no
other option except to commit suicide, the case may
fall within the four corners of Section 306IPC. If the
accused plays an active role in tarnishing the self-
esteem and self-respect of the victim, which
eventually draws the victim to commit suicide, the
accused may be held guilty of abetment of suicide.
The question of mens rea on the part of the accused in
such cases would be examined with reference to the
actual acts and deeds of the accused and if the acts
and deeds are only of such nature where the accused
intended nothing more than harassment or snap
show of anger, a particular case may fall short of the
offence of abetment of suicide. However, if the
accused kept on irritating or annoying the deceased
by words or deeds until the deceased reacted or was
provoked, a particular case may be that of abetment
of suicide. Such being the matter of delicate analysis
of human behaviour, each case is required to be
examined on its own facts, while taking note of all the
surrounding factors having bearing on the actions
and psyche of the accused and the deceased.”
20. This Court in Mariano Anto
Bruno v. State [Mariano Anto Bruno v. State, (2023)
15 SCC 560 : 2022 SCC On Line SC 1387] , after
referring to the above referred decisions rendered in
context of culpability under Section 306IPC observed
as under : (SCC para 45)
“45. … It is also to be borne in mind that in cases of
alleged abetment of suicide, there must be proof of
direct or indirect acts of incitement to the commission
of suicide. Merely on the allegation of harassment
without there being any positive action proximate to
the time of occurrence on the part of the accused
which led or compelled the person to commit suicide,
conviction in terms of Section 306IPC is not
sustainable.”
21. This Court in Gurcharan Singh v. State of
Punjab [Gurcharan Singh v. State of Punjab, (2020) 10
SCC 200 : (2021) 1 SCC (Cri) 417] , observed that
whenever a person instigates or intentionally aids by
any act or illegal omission, the doing of a thing, a
person can be said to have abetted in doing that
Page 11 of 17
// 12 //
thing. To prove the offence of abetment, as specified
under Section 107IPC, the state of mind to commit a
particular crime must be visible, to determine the
culpability.
22. This Court in Kashibai v. State of
Karnataka [Kashibai v. State of Karnataka, (2023)
15 SCC 751 : 2023 SCC OnLine SC 575] , observed
that to bring the case within the purview of
“abetment” under Section 107IPC, there has to be an
evidence with regard to the instigation, conspiracy or
intentional aid on the part of the accused and for the
purpose proving the charge under Section 306IPC,
also there has to be an evidence with regard to the
positive act on the part of the accused to instigate or
aid to drive a person to commit suicide.
xxx xxx xxx
25. It is now well settled that in order to convict a
person under Section 306IPC there has to be a clear
mens rea to commit the offence. Mere harassment is
not sufficient to hold an accused guilty of abetting the
commission of suicide. It also requires an active act or
direct act which led the deceased to commit suicide.
The ingredient of mens rea cannot be assumed to be
ostensibly present but has to be visible and
conspicuous.
26. We take notice of the fact that the High Court has
laid much emphasis on Section 113-A of the Evidence
Act.
27. Section 113-A of the Evidence Act reads thus:
“113-A. Presumption as to abetment of suicide
by a married woman.–When the question is
whether the commission of suicide by a woman had
been abetted by her husband or any relative of her
husband and it is shown that she had committed
suicide within a period of seven years from the date
of her marriage and that her husband or such relative
of her husband had subjected her to cruelty, the court
may presume, having regard to all the other
circumstances of the case, that such suicide had been
abetted by her husband or by such relative of her
husband.
Page 12 of 17
// 13 //
Explanation.–For the purposes of this section,
“cruelty” shall have the same meaning as in Section
498-A of the Indian Penal Code (45 of 1860).”
28. This Section was introduced by Criminal Law
(Second Amendment) Act 46 of 1983. The Penal Code,
the Code of Criminal Procedure, 1973 and the
Evidence Act were amended keeping in view the
dowry death problems in India.
29. Section 113-A of the Evidence Act requires proof :
(1) that her husband or relatives subjected her to
cruelty, and (2) that the married woman committed
suicide within a period of seven years from the date
of her marriage.
xxx xxx xxx
31. In this appeal, we are concerned with Section
113-A of the Evidence Act. The mere fact that the
deceased committed 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 had subjected her to cruelty,
the presumption under Section 113-A of the Evidence
Act may be raised, having regard to all other
circumstances of the case, that such suicide had been
abetted by her husband or by such relative of her
husband.
32. What is important to note is that the term “the
court may presume having regard to all other
circumstances of the case that such suicide had been
abetted by her husband” would indicate that the
presumption is discretionary, unlike the presumption
under Section 113-B of the Evidence Act, which is
mandatory. Therefore, before the presumption under
Section 113-A is raised, the prosecution must show
evidence of cruelty or incessant harassment in that
regard.
33. The court should be extremely careful in
assessing evidence under Section 113-A for finding
out if cruelty was meted out. If it transpires that a
victim committing suicide was hypersensitive to
Page 13 of 17
// 14 //ordinary petulance, discord and differences in
domestic life quite common to the society to which the
victim belonged and such petulance, discord and
differences were not expected to induce a similarly
circumstanced individual in a given society to commit
suicide, the conscience of the court would not be
satisfied for holding that the accused charged of
abetting the offence of suicide was guilty.
34. Section 113-A has been interpreted by this Court
in Lakhjit Singh v. State of Punjab [Lakhjit
Singh v. State of Punjab, 1994 Supp (1) SCC 173 :
1994 SCC (Cri) 235] , Pawan Kumar v. State of
Haryana [Pawan Kumar v. State of Haryana, (1998) 3
SCC 309 : 1998 SCC (Cri) 740] and Shanti v. State of
Haryana [Shanti v. State of Haryana, (1991) 1 SCC
371 : 1991 SCC (Cri) 191] .
35. This Court has held that from the mere fact of
suicide within seven years of marriage, one should
not jump to the conclusion of abetment unless cruelty
was proved. The court has the discretion to raise or
not to raise the presumption, because of the words
“may presume”. It must take into account all the
circumstances of the case which is an additional
safeguard.
36. In the absence of any cogent evidence of
harassment or cruelty, an accused cannot be held
guilty for the offence under Section 306IPC by raising
presumption under Section 113-A.
xxx xxx
xxx
40. For all the foregoing reasons, we have reached to
the conclusion that the prosecution has not been able
to establish the guilt of the accused beyond
reasonable doubt”.
4.10. Making all the submissions, learned counsel for the
Appellants contended that the order of conviction and
sentence passed against the appellants is liable for
interference of this Court.
Page 14 of 17
// 15 //
5. Mr. C.K. Pradhan, learned Addl. Government
Advocate for the State on the other hand while supporting
the impugned judgment contended that since the
marriage of the victim had taken place with the appellant
No.1 on 08.03.1988 and the victim died on suspicious
circumstances on 24.09.1990, learned Court below
placing reliance on the provisions contained under
Sections -113-A of the Evidence Act has rightly passed
the order of conviction and sentence vide the impugned
judgment.
6. It is also contended that taking into account the
evidence of P.Ws 1 to 7 and the evidence of the I.O as
P.Ws.9 and 10, learned Trial Court has come to a right
conclusion that the victim committed the suicide because
of the act committed by the appellants.
6.1. It is accordingly contended that no interference is
called for with regard to such order of conviction and
sentence passed against the appellants.
7. Having heard learned counsel appearing for the
Parties and considering the submissions made, this Court
Page 15 of 17
// 16 //
finds that the victim got married to Appellant No.1 on
08.03.1988. It is not disputed that the deceased
committed suicide by way of hanging on 24.09.1990. As
found from the record, the prosecution in order to prove
the allegation of demand of dowry and torture has not
examined any independent witnesses in support of the
fact that the victim was subjected to cruelty, which forced
the victim to commit the suicide.
7.1. However, placing reliance on the evidence laid by the
defence, it is found that the victim after being suspected
by the Doctor-D.W.1 to have been suffering from Leprosy
on 19.09.1990, she committed suicide by hanging herself
on 24.09.1990. Since no independent witness has been
examined by the prosecution proving the allegation of
demand of dowry as well as cruelty inflicted on the victim
by the appellants as per the considered view of this Court,
reliance placed on the provisions contained under
Section-113-A of the Evidence Act by the learned Addl.
Sessions Judge, while holding the appellants guilty of the
offence under Sections-498-A, 306/34 I.P.C as per the
Page 16 of 17
// 17 //
considered view of this Court is not sustainable in the eye
of law. Not only that in view of the decision relied on by
the learned counsel appearing for the appellants, such a
presumption cannot be drawn against the appellants in
absence of any cogent evidence laid through independent
witnesses.
7.2. In that view of the matter, this Court is inclined to
interfere with the impugned judgment passed on
16.03.1992. While interfering with the same, this Court
is inclined to set-aside the order of conviction and
sentence passed against the appellant Nos.1 and 4. Vide
the impugned judgment dtd.16.03.1992, so passed in
S.T. Case No.147/91/32/91 and quash the same
accordingly. Appellant Nos.1 and 4 also stands
discharged from the bail bond.
8. The appeal accordingly stands allowed and disposed
of.
(Biraja Prasanna Satapathy)
Judge
Signature Not Verified
Digitally Signed
Signed by: SUBRAT KUMAR BARIK Orissa High Court, Cuttack
Reason: Authentication Dated the 16th of December, 2024/Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 24-Dec-2024 11:47:26
Page 17 of 17