Sudhakar Behera vs State of Odisha

S.K. Sahoo, J.—This is an application under Section 438 Cr.P.C. in connection with Dharmsala P.S. Case No. 177 of 2014 registered under Sections 498-A/304-B read with Section 34 Indian Penal Code & Section 4 of Dowry Prohibition Act. The said case corresponds to G.R. Case No. 594 of 2014 pending in the Court of Learned J.M.F.C., Chandikhol. The Petitioner Sudhakar Behera is the husband of deceased Sarmila Pradhan (hereinafter the "deceased"). Their marriage was solemnized on 11.7.2012. Sarmila died on 23.7.2014 while undergoing treatment at S.C.B. Medical College & Hospital Cuttack after giving birth to a stillborn female child on 22.7.2014. After death of the deceased, on 24.7.2014 the father of the deceased namely Dhusasan Pradhan lodged an F.I.R. before IIC, Dharmasala Police Station alleging demand of dowry not only at the time of marriage by the bridegroom side but also after marriage & it is the prosecution case that the deceased was subjected to physical & mental torture on account of non-fulfillment of additional demand of Rs. 50,000 by her elder brother-in-law (husband''s elder bother) Dibakar Behera & elder sister-in-law (husband''s elder brother''s wife) Tuni @ Janaki Behera so also by the Petitioner. While she was pregnant, she was not provided with proper medication & subjected to physical cruelty on many occasions for which there was miscarriage & she died at S.C.B Medical College & Hospital, Cuttack.

After registration of the case, the witnesses were examined. The I.O. visited village Harideipur which is the village of the Petitioner & conducted inquest over the dead body in presence of the witnesses including the informant & younger sister of the deceased. In the inquest report, the younger sister of the deceased wrote in column No. 9 that after giving birth to a stillborn child at SCB Medical College & Hospital, Cuttack, the deceased died but the death is very suspicious. The I.O. sent the dead body to the District Headquarters Hospital, Jajpur Town for post mortem examination & the doctor who conducted post mortem examination did not find any external injury & opined the cause of death due to pulmonary embolism resulting in dyspnea/asphyxia. The I.O. also seized some treatment papers of the deceased which relates to her pregnancy period.

The Learned Counsel for the Petitioner Mr. Umesh Chandra Behura submitted that the materials available on record would indicate that neither the Petitioner ever demanded anything from his father-in-law at the time of marriage or afterwards rather the relationship between the Petitioner & deceased was very cordial. The Learned Counsel submits that the allegations that the deceased was not properly taken care of during the period of her pregnancy is not correct. Basing on the medical documents seized during course of investigation, he submits that the Petitioner was taking the deceased to different doctors & hospitals for her treatment during her pregnancy period & taking all her care but unfortunately after the birth of a stillborn female child, sudden complications developed & in spite of the best treatment provided to her in the premier hospital of the State, she died & after her death, in order to harass & humiliate the Petitioner & her family members, a false case has been foisted. The Learned Counsel further submits that since the cause of death was due to complications of labour pain which resulted in pulmonary embolism, the death cannot be said to be an unnatural death & as such the ingredients of offence under Section 304-B I.P.C. is not attracted. The Learned Counsel places the statements of some neighbors to substantiate his arguments regarding cordial relationship between the parties & the care taken by the Petitioner not only during pregnancy of the deceased but also shifting her to SCB Medical College & Hospital, Cuttack for delivery.

The Learned Counsel for the State on the other hand submitted that there is allegation of demand of dowry not only at the time of marriage but also further demand of Rs. 50,000 after marriage & there is also material to show that the deceased was not properly taken care of during period of pregnancy & as such it would not be proper in a case of this nature to grant anticipatory bail to the Petitioner & his custodial interrogation would be necessary to unearth many vital issues of the case.

After hearing the Learned Counsel for the Petitioner as well as the Learned Counsel for the State, I find that the statement of the informant Dhusasan Pradhan indicates that at the time of marriage there was demand of dowry from the bridegroom side but there is no specific allegation of demand against the Petitioner. So far as after marriage period is concerned, it is specifically stated by Dhusasan Pradhan that it is the elder brother-in-law of the deceased namely Dibakar Behera & his wife Janaki @ Tuni Behera who expressed their displeasure on the articles taken by the barber on the 4th day of marriage & the barber was also insulted & 7/8 months after marriage, the said elder brother-in-law & his wife raised further demand of Rs. 50,000 & since the informant was not able to fulfill such additional demand'' because of his poverty, both the elder brother-in-law & his. wife were subjecting her to torture which the deceased used to express before the informant. Thus from the statement of the informant, it appears that it is the elder brother-in-law Dibakar Behera & his wife Janaki @ Tuni Behera who raised additional demand of Rs. 50,000 & were subjecting the deceased to harassment & torture due to non- fulfillment of such demand. It is of course mentioned that the Petitioner used to remain silent over this issue.

Some other statements which were pointed out during course of argument indicate that while the deceased was pregnant, her family members brought customary presentations & food items out of love & affection & the Petitioner has given due respect to them & presented new clothes to them. This according to the Learned Counsel for the Petitioner indicates that there was cordial relationship between the parties & it further signifies that the Petitioner was showing due respect to his in-laws. Some allegations made that during pregnancy of the deceased, she was not properly taken care of appears to be not prima facie correct in as much as there are statements on record to show that the Petitioner used to take the deceased every month for medical checkup at the time of her pregnancy. The documents seized by the Investigating Officer also indicate that the deceased was treated not only before private doctors but also in the Government hospitals & time to time different tests were conducted as per the advice of the doctors. No mark of injury was noticed either during inquest or during post mortem examination. It is also the case of the prosecution that the deceased was taken to SCB Medical College & Hospital, Cuttack by the Petitioner on 22.7.2014 where she gave birth to a stillborn child & she died on account of pulmonary embolism resulting in dyspnea/ asphyxia. The Learned State Counsel produced the clarification regarding death of the deceased as per post mortem report & ADMO., District Headquarters Hospital, Jajpur gave his opinion that the cause of death is due to asphyxia caused by pulmonary embolism which is a complication of labour during delivery & it has got nothing contributory from the obstetrician negligence or staff conducting delivery.

As per medical science "pulmonary embolism" is the sudden blockage of a major blood vessel (artery) in the lung, usually by a blood clot. In most cases, the clots are small & are not deadly, but they can damage the lung. But if the clot is large & stops blood flow to the lung, it can be deadly. "Dyspnea" means "shortness of breath" or "breathlessness." Symptoms of Pulmonary embolism include difficulty in breathing, chest pain on inspiration & palpitations. Severe cases of pulmonary embolism can lead to collapse, abnormally low blood pressure & sudden death.

So far as the contention of the Learned Counsel for the Petitioner that the essential ingredients to attract the offence under Section 304-B I.P.C. is absent in the case, it is found from a bare reading of the Section that the essential ingredients are as follows:

"(i) The depth of woman should be caused by burns or bodily injury or otherwise than under a normal circumstances;

(ii) Such a death should have occurred within seven years of her marriage;

(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;

(iv) Such cruelty or harassment should be for, or in connection with, any demand of dowry; &

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death."

On such proof of essential ingredients of offence under Section 304-B I.P.C., it becomes obligatory on the part of the Court under Section 113B of Evidence Act to raise a presumption against such husband or any relative of the husband of the woman that he/she caused dowry death. The words "such husband or relative" as appears in Section 304-B I.P.C. & "such person" as appears under Section 113-B of Evidence Act should be given its due meaning & it is the duty of the Court to scan the evidence on record to find out as to who is that person who subjected the woman to cruelty & harassment.

In case Kans Raj Vs. State of Punjab and Others, , it is held as follows:

"18. the expression "otherwise than under normal circumstances" would mean the death not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury."

In case of Hira Lal and Others Vs. State (Govt. of NCT) Delhi, , it is held as follows:

"9. A conjoint reading of Section 113-B of Evidence Act & Section 304-B I.P.C. shows that there must be materials to show that soon before, her death, the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise that in normal circumstances...."

In case Suresh Kumar Vs. State of Haryana, ,. it is held as follows:

"33. Importantly, Section 304-B of the Indian Penal Code does not categorize death as homicidal or suicidal or accidental. This is because death caused by burns can, in a given case, be homicidal or suicidal or accidental. ''Similarly, death caused by bodily injury can, in a given case, be homicidal or suicidal or accidental. Finally; any death occurring "otherwise than under normal circumstances" can, in a given case, be homicidal or suicidal or accidental. Therefore, if all the other ingredients of Section 304-B of the Indian Penal Code are fulfilled, any death (whether homicidal or suicidal or accidental) & whether caused by burns or by bodily injury or occurring otherwise, than under normal circumstances shall, as per the legislative mandate, be called a "dowry death" & the woman''s husband or his relative "shall be deemed to have caused her death". The Section clearly specifies'' what constitutes the offence of a dowry death & also identifies the single offender or multiple offenders who has or have caused the dowry death."

In view of the available materials on record & the absence of specific allegation of demand of dowry & torture on the deceased against the Petitioner, the conduct of the Petitioner in taking proper care of the deceased at the time of her pregnancy & taking her to the doctors for monthly checkup, the seizure of corresponding documents relating to treatment of the deceased during period of her pregnancy, coupled with the fact of sudden death of the deceased due to labour complication during her treatment at SCB Medical College & Hospital, Cuttack & in view of the post mortem report as well as clarification report of the A.D.M.O., District Headquarters Hospital, Jajpur, even though it is not a proper stage to give final opinion as to whether prima facie case under Section 304-B I.P.C. is specifically made out or not against the Petitioner but when the investigation has made substantial progress & there is no criminal antecedent against the Petitioner or any possibility of absconding, denial of anticipatory bail to the Petitioner would cause harassment, humiliation & unjustified detention. Even though the case has been registered under a serious offence like Section 304-B I.P.C. but keeping in view the nature of accusation against the Petitioner & without entering into a detailed examination of evidence at this stage, I am inclined to release the Petitioner on anticipatory bail. Accordingly, it is directed that in the event of arrest of the Petitioner in connection with the aforesaid case, he shall be released on bail on furnishing bail bond of Rs. 20,000 (rupees twenty thousand) with two sureties each for the like amount to the satisfaction of the arresting officer with further conditions that he shall appear before the Investigating Officer on 24.11.2014 for the purpose of interrogation & shall also make himself available for interrogation by the I.O. as & when required & the date of such interrogation will be communicated by the I.O. to the Petitioner in writing in advance giving at least a week''s time & the Petitioner shall fully cooperate with the investigation & he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing any facts to the Courts or to the Investigating Officer.

Violation of any of the above conditions shall entail cancellation of bail.

A free copy of the order be handed over to the Learned Counsel for the State for compliance.

With the aforesaid observation, the BLAPL is accordingly disposed of.

Anticipatory bail granted.