A.S. Naidu, J.
1. Both the aforesaid applications have been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of bail.
2. The petitioner in BLAPL No. 4575 of 2006, namely, Bimal Kumar Khetan, was the husband of deceased Manisha while the petitioner in BLAPL No. 4185 of 2006 was the brother-in-law (husband's brother) of the said deceased. The aforesaid Bail Applications had earlier been disposed of by order of this Court dated 11.6.2006. Thereafter the informant moved the Supreme Court in Criminal Appeal No. 972 of 2006 arising out of SLP (Cri) No. 3745 of 2006. By judgment dated 18th September, 2006 the Supreme Court allowed the said appeal and directed this Court to reconsider the Bail Applications afresh in consonance with law and keeping in view the principles enumerated in the said judgment and has observed as follows:
There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the Courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence:
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
Consequent upon the said judgment of the Supreme Court this Court by order dated 16.10.2006 directed the Court below to cancel the bail-bonds of the petitioners and take steps for bringing them to custody and at the same time granted liberty to the petitioners to surrender before the Court below. The matters were directed to be listed for hearing thereafter. The learned Addl. Sessions Judge, Jharsuguda submitted the certificate as to surrender of the petitioners before him on 23rd October, 2006 and that they were remanded to custody that day. Thereafter the matters were heard on 26th October, 2006.
3. It is pertinent to mention here that in the meanwhile Mr. D. Nayak and his associates who were appearing for the informant having retired from the case, Mr. R. K. Rath and his associates have appeared for the said informant by filing their Vakalatnama.
4. In the case at hand, the FIR was registered for alleged commission of offences under Sections 498-A/304-B/34 IPC read with Section 4 of the Dowry Prohibition Act.
According to Mr. Dhal, learned Counsel for the petitioners, there is absolutely no material, much less any prima facie material, connecting the petitioners with the commission of the alleged crime. He further submitted that it would be evident from the inquest report, post-mortem report, etc. that the death in question was neither homicidal nor suicidal, or can it be said that it occurred otherwise than under normal circumstances. According to him, there is no material worth the name collected by the prosecution except the statements of the informant and his family members to the effect that the deceased was subjected to cruelty or harassment by her husband or member of her husband's family on demand of dowry. Only because a lady died within a period of seven years from the date of her marriage, it cannot be conclusively said that the same was a dowry death. Relying on the statements recorded under Section 161 CrPC he submitted that there is nothing on record to show that death of Manisha had occurred otherwise than under normal circumstances and in the absence of prima facie materials against the petitioners they should be directed by this Court to be released on bail.
To fortify his submissions, Mr. Dhal added that the petitioners and their family members acted in a most normal, reasonable and prudent manner. They called in a doctor at 3 O' clock in the night, intimated the police soon after the doctor declared Manisha dead, informed the parents of the deceased and cooperated in the investigation as would be evident from the video recording. They did not try to destroy or tamper with any evidence or conceal them. The investigating agency also thoroughly searched the entire house but found absolutely no incriminating material pointing at the circumstances as to homicidal or suicidal nature of death. The parrot-like statements made by some relatives of the deceased with regard to torture on the deceased on demand of dowry is negatived by the inquest report and post-mortem report which reveal absolutely no injury, old or fresh, on the dead body. The chemical report also indicates no foul play. Mere presence of vomitus material, per se. is not incriminating against the petitioners, more so when it was found on chemical examination that no poison was present. According to Mr. Dhal, a person may vomit under several circumstances like indigestion, gastro-enteritis, etc. and even blood may ooze for reasons like sudden increase of blood pressure, haemorrhage, etc. He reiterated that perusal of the entire Case Diary would reveal that there was no sign of death otherwise than under normal circumstances.
Relying on the decision of the Supreme Court in the case of Hussainara Khatoon and Ors. v. State of Bihar, reported in : 1979CriLJ1036 , Mr Dhal submitted that the petitioners being permanent residents of Jharsuguda having deep root in the community and as the investigation is over long since and no prima facie material is available to show that the death was either homicidal or suicidal, this is a fit case where they should be released on bail.
Concluding his arguments Mr Dhal, submitted that now-a-days false and frivolous allegations regarding cruelty and dowry deaths are rampant in the society. Whenever there is death of a married woman, the tendency of the family members of the deceased woman has become to bring allegations against the in-laws of the deceased being influenced by ill-wishers and hue and cry is raised by giving wide publicity through media, thereby throttling free and fair investigation. The investigating agency is also found to be more eager to rope in a person and collect evidence against him, rather than conducting a free and fair investigation to unveil the truth and finding out the real culprit, if any, and proceeding in accordance with law. As a result, innocent persons are falling prey to vexatious and constructive allegations. He submitted that the present case is of such a nature, and the petitioners against whom no prima facie case is made out are languishing in custody.
In support of such submission, Mr. Dhal, relied upon the decision of the Supreme Court in the case of Niranjan Singh and Anr. v. Pravakar Rajaram Kharot and Ors. reported in : 1980CriLJ426 , wherein the Supreme Court held as follows:
Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed, but it not the same as an exhaustive exploration of the merits in the order itself.
In the case of Susil Kumar Sharma v. Union of India and Ors. reported in (2005) 6 SCC 287 the Supreme Couri has observed:
The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery.
(emphasis supplied.)
In the case of Anwari Begum v. Sher Mohammad and Anr. reported in : 2005CriLJ4132 , the Supreme Court held as follows:.The Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. The factors which the Court must consider among other circumstances before granting bail are (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the Court in support of the charge.
5. Mr. R. K. Rath, learned Counsel appearing for the informant, on the other hand, submitted that at the time of consideration of a bail application the Court is required only to appreciate as to whether a prima facie case is made out against the accused. According to him, Bimal was having pre-marital relationship with a neighbouring girl, Dabli Sa by name, and Manisha knew that. The post-mortem was conducted by a family doctor and, as such, the report in that regard cannot be believed. Even then, as the report shows, dried blood mixed with fluid was present in both the nostrils and mouth of the deceased which raises a suspicion. The deceased was twenty two years' old, hale and hearty. There is no statement as to her suffering from any kind of illness. The post-mortem report does not state that the death was due to any ailment. The death occurred in the bedroom of Bimal and the cause of death is shrouded with suspicion. He further submitted that by the time the family members of Manisha arrived, the room had been cleaned, bed-sheets etc. replaced and in course of investigation blood-stained pillow cover and bed-sheets were seized and this was another suspicious circumstance. The very fact that the cause of death was not known and no incriminating material such as poison etc. was found, creates grave suspicion against the accused persons. The nail-clippings of Bimal were found in the room where Manisha died. There was allegation as to demand of dowry in the FIR and some of the persons examined by police under Section 161 CrPC have stated about that. Death occurred within five months of the marriage in the house of the accused persons and, as such, the last seen theory would apply in this case.
Relying on the decisions of the Supreme Court reported in AIR 1991 SC 1226 and AIR 2000 SC 2324, Mr. Rath submitted that the very fact that the cause of death was not known and no incriminating material was found, creates a presumption against the husband of the deceased. To add to the above submission, he stated that the petitioners are influential persons, they had misused their liberty inasmuch as an FIR has been lodged by the informant that he was threatened on 23rd December, 2005 over telephone and that two persons had come to him in a motor-cycle to coerce him to compromise the case.
Mr. Rath concluded by submitting that there are prima facie materials to connect the petitioners in the commission of the alleged offences, and if they are directed to be released on bail there would be a dent in their fair trial.
6. Mr. S.B. Pradhan, learned Addl. Stg. Counsel appearing for the State, strenuously took this Court through the statements recorded under Section 161 CrPC available in the Case Diary. According to him the parents of the petitioners had absconded from their house and they could be apprehended only after orders of attachment of their properties were passed which shows their conduct. The death had occurred in the bedroom of the deceased. Though neither the post-mortem report nor the chemical examination report reveals that death was either homicidal or suicidal, the same being not under normal circumstances, the ingredients of offence under Section 304-B IPC are made out. The younger brother of deceased Manisha in his statement recorded under Section 161 CrPC has narrated with regard to the torture/ill-treatment meted out to Manisha and about Manisha telling him that sometimes her husband Bimal used to assault her. Though the investigating agency issued requisition specifically indicating the post-mortem to be conducted by a team of doctors, only two doctors conducted the same, one of whom was the family physician of the petitioners, which again raises a cloud of suspicion about the post-mortem report.
According to Mr. Pradhan, one of the essential ingredients to establish an offence under Section 304-B IPC is that death must have occurred otherwise than under normal circumstances within seven years of marriage of the deceased coupled with dowry torture. In the case at hand, no doubt death had occurred within seven years of marriage of the deceased and there are statements that before her death Manisha was being harassed by her husband and in-laws on demand of dowry. Her death was not under normal circumstances, inasmuch as she was quite healthy, not suffering from any ailment and as young as twenty-two years. All these facts prima facie make out an offence under Section 304-B IPC.
He further submitted that detection of vomitus materials and blood-stains on pillow cover and bed sheets prima facie speak against the petitioners and in absence of any explanation by the petitioners as to the cause of death, there is strong presumption against the petitioners and the burden lies on them to disprove.
On the basis of the aforesaid submissions, Mr. Pradhan submits that it is a fit case where the prayer of the petitioners for bail should be rejected.
7. In the touchstone of the principles and guidelines set forth by the Supreme Court in the cases supra as well as the direction of the said Court while remanding the present matter for fresh disposal, this Court once again scanned through the materials available in the Case Diary including the statements recorded under Section 161 CrPC and heard learned Counsel for the parties at length.
8. Before dealing with the contentions raised by the learned Counsel for all the parties inter se, it is necessary to state the factual aspect of the cases bereft of unnecessary details:
Admittedly petitioner Bimal Kumar Khetan, a resident of Jharsuguda Town, District Jharsuguda, Orissa had married Manisha (deceased) who was daughter of informant Gajanananda Agarwal of Titilagarh in the district of Balangir, Orissa as per the caste customs on 9th May, 2005. On 1st of October, 2005 Manisha was found dead in her in-laws' house at Jharsuguda. It appears from the materials available on record that in the night of 30th September, 2005 both Bimal and Manisha retired to bed. At about 3.00 a.m. Bimal noticed some discomfort of his wife. He woke up and gave her a glass of water, but at about 5.00 a.m. he found her senseless. He then informed the other members of his family and sent for Dr. A. K. Das who was posted at Jharsuguda Hospital and was acquainted with the family. The doctor came, examined the patient and found her dead. Thereafter information was sent to the father of Manisha and other relatives. At 9.30 a.m. Bimal informed the OIC of Jharsuguda P.S. about the incident in writing.
On the basis of such information Jharsuguda Police registered a U.D. case. The informant and others arrived at Bimal's house at about 11.30 a.m. of 1st of October, 2005. He lodged an FIR at Jharsuguda P.S. suspecting that Bimal and other members of his house had murdered her daughter Manisha after torturing her on demand of dowry. On the basis of the said FIR, Jharsuguda police registered P.S. Case No. 413 of 2005 for commission of alleged offences punishable under Sections 498-A/304-B/34 IPC and Section 4 of Dowry Prohibition Act.
Investigation commenced and on police requisition an Executive Magistrate was deputed to conduct inquest over the dead body. It appears from the Case Diary produced before this Court that a professional video recorder also recorded the inquest and police investigation. The inquest report which is available in the Case Diary, signed by the Executive Magistrate and other witnesses, reveals that during inquest no injury, either old or fresh, was found on the dead body of Manisha. After inquest, on police requisition, post-mortem was held at the Headquarters Hospital, Jharsuguda. It appears from a Xerox copy of the post-mortem report which is available in the Case Diary that the post-mortem was conducted by a lady doctor, namely, Dr. S. Jojo who had signed the said report, and Dr. A.K. Das, a doctor of the same hospital countersigned the said report. The said report clearly reveals that no external injury was found on the dead body. It is further revealed that some 'dried blood mixed fluid' present in both the nostrils and mouth of the deceased and both her eyes and mouth were half open. However Dr. Jojo who had conducted the post-mortem reserved her opinion about the cause of death and sent the viscera for chemical examination. On chemical examination, the Director of State Forensic Laboratory opined 'Insecticidal Alkaloidal and metallic poison could not be detected in the viscera'.
In course of investigation twenty-one persons were examined whose statements were recorded under Section 161 CrPC out of whom the informant-father, mother and elder sister of the deceased alleged that over telephone Manisha had complained of torture by her in-laws and husband. The younger brother of Manisha also alleged that during his visit to Manisha, she complained of torture like assault on her by her husband.
Besides the aforesaid persons none of the other persons whose statements were recorded by police under Section 161 CrPC alleged about any torture being meted out to deceased Manisha by her husband or in-laws. The statement of one Shankarla;, maternal uncle of Manisha, reveals that he had heard about alleged torture on Manisha in her in-laws' house from her sister.
Be that as it may, in the meanwhile investigation has been completed, charge-sheet has been submitted against the petitioners for alleged commission of offences under Sections 498-A/304-B/302/34 IPC read with Section 4 of D.P. Act. After commitment, the case has been registered as ST. No. 24 of 2006 which is pending before the Addl. Sessions Judge at Jharsuguda.
9. Perusal of the post-mortem report and the chemical examination report of the State Forensic Laboratory prima facie rules out the question of homicidal or suicidal nature of death in the present case. According to the learned Counsel for the informant no reliance can be placed on the post-mortem report as the post-mortem was conducted by a family doctor of the petitioners. But then a perusal of the copy of said report available in the Case Diary reveals that in fact post-mortem was conducted by a lady doctor, namely, Dr. S. Jojo, who prepared the report and signed the same. Dr. A.K. Das who is said to be the family physician of the petitioners but then a Govt. doctor, attached to the hospital, has put his signature on a side of the report. Be that as it may, the post-mortem report is a prima facie piece of material the evidentiary value of which can be considered at the time of trial.
10. It is argued that the death in the present case being not under normal circumstances, the provisions of Section 304-B are attracted. The Supreme Court in the case of Akula Ravinder and Ors. v. State of Andhra Pradesh, reported in 1991 SCC (Cri) 990, has observed that in a case where the prosecution has failed to establish that it was an unnatural death, it cannot be surmised that the death must be due to unnatural circumstances. The facts of the said case are more or less identical to that in the present case.
11. According to Mr. Rath, as Bimal was having pre-marital relationship with one Dabli Sa, a prima facie case is made out. But then said Dabli Sa has not been examined in the case though she is stated to be a neighbour of Bimal. The Case Diary does not reveal that any of the family members of Dabli Sa has been examined. Except the statements of two persons recorded under Section 161 CrPC that they presumed that Bimal had premarital relationship with Dabli Sa, no other material is forthcoming. Apart from all these facts, the conduct of the petitioners reveals that either Bimal or any other accused did not show any abnormal or unusual conduct. At 5 O' clock in the morning noticing Manisha unconscious, they called in a doctor who came and on examination found her dead. According to Mr. Dhal if the said doctor who was a Government employee would have found anything abnormal and/or marked any foul play being there, he would have definitely informed the said fact to police. That having not been done, it has to be presumed that he noticed nothing abnormal. Mr. Dhal further submitted that only because the said doctor was a family doctor of the petitioners, his conduct cannot be suspected when primarily he is a doctor in Government service and was attached to the Hospital of the concerned area. Thus no presumption against his conduct can be raised. He then added, immediate information about the death was given to police, information was given to the parents of the deceased, a U.D. case was registered and the petitioners and other members of his family were always available and they cooperated in the investigation.
12. Though much argument is advanced by the learned Counsel for the informant and the State counsel against petitioner Bimal, practically nothing is submitted against the other petitioner Sunil, who was the brother-in-law of the deceased. The State counsel submitted that as Sunil had submitted some documents while moving for bail before the Court below which were found to be not correct, he having not come to Court with clean hands was not entitled to bail. But this Court feels that the same cannot be a ground to reject his prayer for bail as after going through the materials, for the reasons enumerated hereinafter.
13.The peculiar features of this case are:
(1) The post-mortem report coupled with the chemical examination report prima facie reveals that the death of Manisha was neither homicidal nor suicidal.
(2) The inquest report and the post-mortem report clearly indicate that there was absolutely no injury on the body of the deceased, either old or fresh.
(3) The allegations as to torture on Manisha on demand of dowry was made only by some family members of Manisha and that too it was stated that the said fact was told to them by Manisha over telephone. Besides that, the said family members of deceased Manisha did not lodge any report before any authority, nor did disclose that before any of their relatives prior to the alleged incident, which prima facie throws doubt about the alleged torture.
(4) Dr. Jojo who conducted the post-mortem has not been examined by the investigating agency and her statement has not been recorded under Section 161 CrPC.
(5) Though as many as twenty-one persons, including some persons of the locality, servants of the family and others who had access to the house, were examined by police during investigation, excepting the family members of Manisha no other person breathed a word with regard to torture meted out to her on demand of dowry.
14. As it appears, investigation has been completed long since. Thus there is no chance of interfering with it. Even the case has been committed to the Court of Session. As revealed from the Case Diary, the petitioners are permanent residents of Jharsuguda having deep root in the community. As such, in case of their release on bail there may not be chance of their absconding or that there would be problem in securing their presence, if they will be bound by stringent conditions. In such circumstances this Court feels that it is a fit case where the petitioners may be directed to be released on bail.
15. This Court accordingly directs that the petitioners who are in custody be released on bail on their furnishing cash security of Rs. 50,000.00 (fifty thousand) each with two local sureties each for the like amount to the satisfaction of the learned Addl. Sessions Judge, Jharsuguda in S.T. Case No. 24 of 2006 with conditions as follows:
(1) They shall not threaten or coerce the prosecution witnesses;
(2) Shall not indulge in any criminal activity;
(3) Shall report at the Jharsuguda P.S. every Sunday at 7.30 p.m. till commencement of trial; and
(4) Shall appear in Court on each date the case shall stand posted for trial; and
(5) Shall not leave the State of Orissa without prior permission of the Court below.
Violation of any of the above conditions will entail cancellation of bail.
The Bail Applications are thus disposed of.