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2017 DIGILAW 1286 (ORI)

Simanchala Samal v. State of Orissa

2017-11-10

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. Criminals and politics which should have been poles apart from each other are now on the two sides of the same coin. Politics have become criminals’ paradise. Criminals have built up their nest in politics by virtue of money and muscle power. The trend of criminalization of politics is growing at a fast pace with active connivance of white devils. When the political atmosphere is infected by virulent criminals’ bacteria, no antibiotics can decontaminate it. It requires complete sanitization, identification of such unwanted elements, their dislodgement and complete seal of their entry path. Here is a case of politician against whom accusation has been leveled for playing dirty political game for eliminating his political opponent for the sake of power. There is no dearth of such politicians in this Country which is the largest democracy in the world and a home to 1.324 billion people. They can go to any extent and commit any crime leaving political ideology far behind. Such politicians should be changed like diapers which would be a healthy state of affairs for all concerned. 2. This is an application under section 439 of Cr.P.C. for grant of bail to the petitioner Simanchala Samal in connection with G.R. Case No.102 of 2017 arising out of Kodala P.S. Case No.50 of 2017 pending in the Court of learned J.M.F.C., Khallikote for offences punishable under sections 147, 148, 452, 294, 302, 506, 120-B read with section 149 of the Indian Penal Code and sections 25 and 27 of the Arms Act. 3. The prosecution case, as per the first information report lodged by Sadasiba Swain of village Mardakote before the Inspector in charge, Kodala police station is that on 20.02.2017 at about 9.30 p.m. while his younger brother Pitambar Swain (hereafter ‘the deceased’) was taking dinner in his house, the petitioner along with other co-accused persons being armed with deadly weapons came to the house of the deceased, kicked and pelted stones at his door and abused him in filthy language. When the deceased came out of his house and found the accused persons in a very aggressive mood, he tried to enter into the house but the petitioner dragged him from the house, abused him in filthy language and assaulted him by means of sword. When the deceased came out of his house and found the accused persons in a very aggressive mood, he tried to enter into the house but the petitioner dragged him from the house, abused him in filthy language and assaulted him by means of sword. The other accused persons also assaulted the deceased by means of different weapons as well as by kick and fist blows. When the son of the deceased, Rama Chandra Barada, Prafulla Sahoo so also the informant tried to rescue the deceased, they were also assaulted. 3. The petitioner moved an application for bail before the Court of learned Addl. Sessions Judge, Chatrapur which was rejected on 12.07.2017. 4. Mr. Asok Mohanty, learned Senior Advocate appearing for the petitioner contended that there are three independent eye witnesses to the occurrence namely, Trinath Swain, Jogi Mohapatra and Rabi Pallai and they have not stated about the presence of the petitioner at the scene of occurrence. Though as per F.I.R., apart from the deceased, four persons including the informant were assaulted but two of them namely, Rama Chandra Barad and Prafulla Sahoo sustained injuries and out of those two injured, Prafulla Sahoo has not stated about the presence of the petitioner at the spot and the other injured Rama Chandra Barad though stated about the presence of the petitioner at the spot in his 161 Cr.P.C. statement but during supervision by Addl S.P., he has not stated about such presence. He further contended that only the close relatives of the deceased like his wife, son, daughter, brother and nephew have stated about the involvement of the petitioner in the assault of the deceased and they are highly interested witnesses and therefore, the possibility of false implication of the petitioner on account of political rivalry cannot be ruled out. It is further contended that even though two witnesses namely, Dipti Prakash Nayak and Dibakar Swain have stated about a meeting which was organized in the house of the petitioner prior to the occurrence where other co-accused persons were also present but there is no material as to what was discussed in that meeting and what decision was taken therein and therefore, it cannot be said that the petitioner was a party to the conspiracy. It is further contended that the petitioner is in custody since 29.05.2017 and therefore, his bail application may be favourably considered. 5. Mr. It is further contended that the petitioner is in custody since 29.05.2017 and therefore, his bail application may be favourably considered. 5. Mr. Arupananda Das, learned Addl. Government Advocate appearing for the State on the other hand contended that the investigation has been kept open and some accused persons are yet to be arrested. It is further contended that it is a political murder and there are prima facie material against the petitioner and number of eye witnesses have stated about the specific overt act played by the petitioner and the post mortem report indicates the ghastly manner in which the offence has been committed and therefore, since the petitioner is an influential person being the Ex-Sarpanch, in the event he is released on bail, there is likelihood of tampering with the evidence and also investigation and therefore, the bail application should be rejected. 6. Mr. Suryakanta Dash, learned counsel appearing for the informant also opposed the prayer for bail and contended that the occurrence has taken place in an extremely brutal, barbaric and inhuman manner and the petitioner belonged to the ruling party and the supervising authority was hand in gloves with the petitioner due to political pressure for which he has prepared a false supervision report which has got no evidentiary value in the eye of law. It is further contended that the statements of related witnesses cannot be disbelieved particularly when their presence at the spot which is in front of the house of the deceased cannot be doubted and it is not expected on their part to falsely implicate the petitioner leaving the real culprits. 7. Law is well settled that while granting bail, the Court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the time of trial, reasonable apprehension of the witnesses being tampered with so also the larger interests of the public or State. Laxity in granting bail in serious offences creates an adverse impact on the society and makes the society a paradise for the criminals. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. 8. Laxity in granting bail in serious offences creates an adverse impact on the society and makes the society a paradise for the criminals. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. 8. The occurrence in question took place on 20.02.2017 in the night and the first information report was presented on the very next day and specific overt act has been attributed to the petitioner that he dragged the deceased out of the house to the village danda and he was armed with a sword and assaulted on the head of the deceased with such sword. It is also mentioned that the wife of the deceased was contesting the election of the Sarpanch against the wife of the petitioner and the occurrence took place on the previous day of the election. The informant in his 161 Cr.P.C. statement as well as the family members of the deceased have also attributed specific overt act against the petitioner relating to the assault on the deceased. The post mortem examination report indicates that the deceased has sustained as many as fourteen external injuries on different parts of the body and some of the injuries were caused by sharp cutting weapons and all the injuries were opined in combination to be sufficient to cause death in ordinary course of nature. Therefore, prima facie there are materials to show that the ocular version of the witnesses relating to the overt act gets corroboration from the medical evidence. Whether the non-implication of the petitioner by the independent witnesses in the assault of the deceased would affect the credibility or otherwise of the related witnesses are to be adjudicated by the learned trial Court at the appropriate stage. Law is well settled that the relationship of the witnesses to the deceased cannot be a ground to throw out their evidence, if it is found to be consistent and trustworthy or in other words, relationship is not a factor to affect the credibility of witnesses and the courts have to scrutinize the evidence of the related witnesses meticulously with a little care and caution. 9. The materials available on record indicate that not only there is prima facie accusation against the petitioner to have committed the ghastly crime along with the co-accused persons but there appears to be motive behind such crime. 9. The materials available on record indicate that not only there is prima facie accusation against the petitioner to have committed the ghastly crime along with the co-accused persons but there appears to be motive behind such crime. Learned counsel for the petitioner contended that in the supervision report, it is mentioned that some of the witnesses have stated in a different manner so far as the involvement of the petitioner is concerned. Law is well settled as held in case of Sunita Devi -Vrs.- State of Bihar reported in (2005) 30 Orissa Criminal Reports (SC) 215 that the supervision notes can in no count be called. They are not a part of the papers which are supplied to the accused. The supervision notes are recorded by the supervising officer. The supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. At the same time, the accused cannot make any reference to them for any purpose. If any reference is made before any Court to the supervision notes, they are not to be taken note of by the concerned Court. The supervision notes should not have unauthorized access to the official reports. Due care and caution should be taken to see that while supplying police papers, supervision notes are not given. In the said case, the Chief Secretary of each State and Union Territory and the concerned Director General of Police were directed to ensure that the supervision notes are not made available to any person and to ensure that confidentiality of the supervision notes is protected. In spite of such observation by the Hon’ble Supreme Court, the learned counsel for the petitioner during course of argument produced the xerox copy of the supervision note of Shri P.K. Mohapatra (OPS-1), Additional S.P., Ganjam. Learned counsel for the State on perusal of the charge sheet submitted that supervision note had been prepared in the case and on instruction, he submitted that the supervision note which was produced by the learned counsel for the petitioner was genuine. Thus it appears that in spite of the direction of the Hon’ble Supreme Court in the case of Sunita Devi (supra), the confidentiality of the supervision report has not been maintained and the petitioner got access to such report. This is a sorry state of affairs which indicates that all is not well with the investigating agency. Thus it appears that in spite of the direction of the Hon’ble Supreme Court in the case of Sunita Devi (supra), the confidentiality of the supervision report has not been maintained and the petitioner got access to such report. This is a sorry state of affairs which indicates that all is not well with the investigating agency. They should be more careful while dealing with such sensitive cases. 10. In view of the availability of prima facie materials against the petitioner regarding his involvement in the commission of ghastly crime, the nature and gravity of accusation, the nature of supporting evidence, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence and taking into account the fact that further investigation of the case is under progress, it would not be proper at this stage to release the petitioner on bail. Accordingly, the BLAPL application stands dismissed.