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2017 DIGILAW 1322 (ORI)

Samarendra Biswal @ Akhi v. State of Orissa

2017-11-20

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. Mahatma Gandhi, the father of the nation has once said, “The future of India lies in its villages. Let the villages of the future live in our imagination, so that we might one day come to live with them.” There was a time when village life was so simple, peaceful and calm. With modernisation and passage of time, the villages have turned to be jungle of dirty politics. There are people living in such places who can go to any extent in committing crimes for the sake of their political parties and on the instruction of their devil leaders forgetting all ethics of life. 2. This case presents a pre-planned, cold-blooded and dastardly murder of Salman Rout (hereafter ‘the deceased’) of village Tarava Majhi Sahi under Sadar police station of Dhenkanal district due to political rivalry and village groupism. On the first information report of Bikram Keshari Mallik, the law was set into motion. Though the case was initially investigated by a Sub-Inspector of Dhenkanal Sadar police station and then by S.D.P.O., Sadar, Dhenkanal but subsequently as per the orders of the State Government, investigation of the case was transferred to CID, Crime Branch. 3. The case relates to Dhenkanal Sadar P.S. Case No.47 of 2017 (Cuttack CID P.S. Case No.04 of 2017) corresponding to G.R. Case No.128 of 2017 pending in the Court of learned S.D.J.M., Dhenkanal in which charge sheet has been submitted under sections 302/307/323/294/506/ 120-B/34 of the Indian Penal Code and sections 25 and 27 of the Arms Act. 4. The occurrence in question took place on 04.02.2017, few days prior to Tarava Grampanchayat Election which was scheduled to be held on 19.02.2017. The accused persons were the supporters of B.J.D. political party and the deceased, informant and their supporters belonged to B.J.P. It is the prosecution case that on the occurrence day at about 8.30 p.m., while the informant along with others were talking amongst themselves sitting near the shop of one Gopi of Godisahi, some of the accused persons came and tried to paste posters of B.J.D. on a wall very close to the informant. The informant opposed to the same for which he was assaulted with stone on his head by accused Chikun Biswal and Byomakesh Biswal. The informant opposed to the same for which he was assaulted with stone on his head by accused Chikun Biswal and Byomakesh Biswal. The deceased tried to rescue the informant from the clutches of the accused persons but some of the accused persons including the petitioner who belonged to B.J.D. political party assaulted the deceased as well as the informant by kicks and fist blows. The informant fell down on the ground. The petitioner and some of the accused persons caught hold of the deceased and directed accused Byomakesh Biswal to fire gun shot at the deceased. Due to such instigation, accused Byomakesh Biswal brought out a revolver from his pocket and fired gun shots on the chest of the deceased. The informant and the deceased sustained bleeding injuries on their person and both of them were shifted to District Headquarters Hospital, Dhenkanal where the doctor declared the deceased to be dead. It is stated that the entire thing has happened on the instigation of accused Chita Ranjan Biswal. 5. The post mortem report of the deceased indicates that there were external and internal injuries on the person of the deceased which were consistent with the firing from fire arm and opined to be fatal in ordinary course of nature to cause death which was on account of shock and haemorrhage arising out of injury to the heart and lungs. Finding overwhelming evidence against the petitioner and other co-accused persons, charge sheet was submitted on 03.06.2017. 6. The petitioner moved an application for bail before the learned Sessions Judge, Dhenkanal which was rejected on 04.09.2017. 7. Heard Mr. Saktidhar Das, learned Senior Advocate for the petitioner, Mr. Dillip Kumar Mishra, learned Addl. Government Advocate for the State and Mr. S.K. Nayak-3 for the informant. 8. Mr. Saktidhar Das, learned Senior Advocate appearing for the petitioner contended that the petitioner has been falsely entangled in the case due to political rivalry and coming to know about his implication in the case, he voluntarily surrendered in the Court below on 29.03.2017 and since then he is in judicial custody. S.K. Nayak-3 for the informant. 8. Mr. Saktidhar Das, learned Senior Advocate appearing for the petitioner contended that the petitioner has been falsely entangled in the case due to political rivalry and coming to know about his implication in the case, he voluntarily surrendered in the Court below on 29.03.2017 and since then he is in judicial custody. He further contended that co-accused Biju Mallik and Chita Ranjan Biswal have been released on bail by this Court in BLAPL No.6101 of 2017 and BLAPL No.2351 of 2017 respectively and the allegations against the petitioner are omnibus in nature and there is no chance of his absconding or tampering with the evidence and therefore, the bail application may be favourably considered. 9. Mr. S.K. Nayak-3, learned counsel appearing on behalf of the informant contended that numbers of eye witnesses have implicated the petitioner in the ghastly crime and there is specific overt act against the petitioner and therefore, he should not be released on bail. 10. Mr. Dillip Kumar Mishra, learned Addl. Govt. Advocate appearing for the State contended that co-accused Biju Mallik and Chita Ranjan Biswal who have been granted bail by this Court stand on a different footing and the allegations against the petitioner is more serious in nature and that he caught hold of the deceased, abetted the co-accused for commission of murder of the deceased and he also participated in the assault of the deceased at the first phase which is corroborated by the post mortem report. Learned counsel further submitted that the bail application of one of the co-accused namely Tulu @ Hrudananda Biswal who approached this Court in BLAPL No.2569 of 2017 has been rejected by this Court. He placed the statements of eye witnesses as well as the injured and contended that the manner in which the crime was committed, the nature and gravity of the accusation, the active participation of the petitioner in such crime is apparent on the face of the record and the petitioner is likely to tamper with the evidence by utilising his political influence and therefore, he should not be released on bail. 11. 11. Adverting to the contentions raised by the learned counsels for the respective parties and on going through the statements of the eye witnesses particularly the statements of the witnesses Bharat Shree Nayak and Pramil Kumar Mallik recorded under section 164 of Cr.P.C., it appears that the petitioner along with others came to the spot in motorcycles, assaulted the informant and when the deceased intervened, the petitioner and some of the co-accused persons first assaulted the deceased by kicks and fist blows and then the petitioner, accused Manmohan Biswal, Mrutyunjaya Biswal, Traimbaka Biswal, Hrudananda Biswal and Debendra Swain caught hold of the hands and legs of the deceased and accused Hrudananda Biswal asked the accused Byomakesh Biswal to fire gun shot at the deceased and accordingly there was firing and the deceased sustained injuries on his chest where after the accused persons fled away and the deceased was taken to D.H.H., Dhenkanal where he was declared dead. 12. On the face of the records, not only there is prima facie material against the petitioner to have participated in the crime but also it appears that since the petitioner and other co-accused persons checked the movement of the deceased by catching hold of his hands and legs, it facilitated the accused Byomakesh Biswal to fire gun shot at the deceased which resulted in his death. The post mortem report clearly indicates the manner in which the ghastly crime was committed. The case of the co-accused Biju Mallik and Chita Ranjan Biswal are not similar like the petitioner rather the petitioner is similarly situated like the co-accused Tulu @ Hrudananda Biswal whose bail application has been rejected by this Court in BLAPL No.2569 of 2017. Law is well settled that if on careful scrutiny in a given case, it transpires that the case of the bail applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. Since the case of the petitioner stands on a different footing than the co-accused persons who have been released on bail, the claim of parity is not acceptable. Since the case of the petitioner stands on a different footing than the co-accused persons who have been released on bail, the claim of parity is not acceptable. Without detailed examination of evidence and elaborate discussions on merits of the case but considering the nature of accusation, the nature of supporting evidence, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence and availability of prima facie materials against the petitioner regarding his involvement in the commission of offences, I am not inclined to grant bail to the petitioner. 13. Accordingly, the BLAPL application stands dismissed.