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2017 DIGILAW 1432 (ORI)

Kulamani Behera v. State of Orissa

2017-12-11

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. The petitioner Kulamani Behera has filed this application under section 439 of Cr.P.C. for bail in connection with 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 which was pending in the Court of learned S.D.J.M., Dhenkanal and after commitment, the case is now pending in the Court of learned Sessions Judge, Dhenkanal for trial in which charge has been framed under sections 302/307/323/294/506/34 of the Indian Penal Code and sections 25 and 27 of the Arms Act. 2. One Bikram Keshari Mallick lodged the first information report before Inspector in Charge, Sadar police station, Dhenkanal stating therein that on 04.02.2017 at about 8.30 p.m. while he along with others were gossiping near the shop of one Gopi of village Godisahi, co-accused Chikun Biswal brought a poster of B.J.D. political party and tried to paste it on the wall deliberately trampling over the legs of the informant to which the later protested. At this, co-accused Chikun Biswal and Byomakesh Biswal tried to kill the informant by hitting a stone on his head. Salman Rout (hereafter ‘the deceased’) who was present at the spot tried to save the informant from the clutches of the accused persons but the accused persons along with the petitioner who was a candidate for the post of Sarpanch in Tarva Gram Panchayat election and belonged to B.J.D. political party conjointly assaulted the informant and the deceased by means of fists and kick blows. Due to assault, the informant fell down on the ground. The deceased was caught hold off by some of the co-accused persons namely, Hrudananda Biswal, Mrutunjaya Biswal, Traimbaka Biswal, Manmohan Biswal, Debendra Swain and Samarendra Biswal and they 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 on the chest of the deceased for which he fell down on the ground receiving injuries. After committing the crime, the accused persons decamped from the spot. As the informant as well as the deceased sustained grievous injuries, they were shifted to District Headquarters Hospital, Dhenkanal in an auto rickshaw where the deceased was declared dead. After committing the crime, the accused persons decamped from the spot. As the informant as well as the deceased sustained grievous injuries, they were shifted to District Headquarters Hospital, Dhenkanal in an auto rickshaw where the deceased was declared dead. It is further stated in the first information report that all the accused persons were the supporters of B.J.D. political party and since the informant and the deceased were the supporters of B.J.P., the occurrence in question took place at the instance of co-accused Chittaranjan Biswal. It is further stated that number of persons of the village including Pramila Kumar Mallick, Bharatshree Mallick, Ajit Nayak and Biswajit Swain were present at the scene of the occurrence and they had seen the occurrence. 3. The bail application of the petitioner was rejected by the learned Sessions Judge in Bail Application No.182 of 2017 vide order dated 28.06.2017. 4. Mr. Sidhartha Mishra, learned counsel appearing for the petitioner strenuously argued that co-accused Biju Mallik has been released on bail in BLAPL No.6101 of 2017 and the petitioner is similarly situated and there is no specific overt act alleged against the petitioner in the final stage of the assault of the deceased like the co-accused Biju Mallik and therefore, on the ground of parity and equity, the bail application may be favourably considered otherwise it would be very difficult on the part of the petitioner to defend his case properly. Mr. Dillip Kumar Mishra, learned Addl. Govt. Advocate on the other hand vehemently opposed the prayer for bail and contended that there is strong political rivalry persisting between the two groups in the village Tarva after the murder of deceased Salman Rout and not only in the first information report but also in the statements of the eye witnesses, the active participation of the petitioner in the assault of the deceased is borne out and he was the contesting candidate for the post of Sarpanch of Tarva Gram Panchyat and it appears that the entire occurrence took place at the instance of the petitioner as the deceased was a strong supporter of the rival candidate. Learned counsel for the State placed the statements of Gagan Biswal, Chabila Swain, Bharatshree Nayak, Pramila Kumar Mallick and Biswajit Swain recorded under section 164 of Cr.P.C. and contended that the statements clearly prove the complicity of the petitioner in the criminal conspiracy as well as in the commission of murder of the deceased on account of political rivalry. It is further contended that the petitioner is an influential person of the locality and the case is now pending before the learned trial Court and the trial date is fixed to 18.12.2017 and 19.12.2017 for examination of the eye witnesses and in the event, the petitioner who is an influential person is released on bail, he is likely to tamper with the evidence and a fair trial could not be conducted. It is further contended that the petitioner was absconding soon after the occurrence and after a long gap, he surrendered in the Court below and in the event he is enlarged on bail, he may abscond to evade trial. It is further contended that the call detail records and subscriber details of the mobile phone of the petitioner and other co-accused persons indicate that on the date of occurrence as well as after the occurrence, there was frequent conversation between them. It is further contended that the bail application of co-accused Samarendra Biswal @ Akhi has been rejected by this Court in BLAPL No.7066 of 2017 vide order dated 20.11.2017 and therefore, it is not a fit case for grant of bail. Mr. S.K. Nayak-3, learned counsel appearing on behalf of the informant contended that number of eye witnesses have implicated the petitioner in the ghastly crime and specific overt act has been attributed to the petitioner to have participated in the assault of the deceased and therefore, he should not be released on bail. 5. Adverting to the contentions raised by the learned counsels for the respective parties and on going through the statements of the eye witnesses, it appears that the petitioner was the contesting candidate for the post of Sarapanch in Tarva Gram Panchayat election and there was political rivalry between two groups in the village and the occurrence took place during the Gram Panchyat election. It further appears that on the date of occurrence, the petitioner along with other co-accused persons came to the spot in motorcycles and they assaulted the deceased by kicks and fist blows after some of the co-accused persons assaulted the informant. Even though in the second phase of the occurrence, when some of the co-accused persons caught hold of the deceased and at their instance, co-accused Byomakesh Biswal fired gun shot at the deceased, there is no specific role attributed to the petitioner at that point of time but since prima facie materials on record are available to show that the petitioner is the kingpin, mastermind behind the occurrence and he has taken the initiative and played a leading role in the occurrence and was present in the scene of occurrence right from the beginning till end with the co-accused persons, participated in the assault of the deceased by causing contusions and lacerated wound apart from the gunshot injury which has been attributed to co-accused Byomakesh Biswal and conduct of the petitioner in absconding after the occurrence, I am of the humble view that the petitioner cannot claim parity with co-accused Biju Mallik who has been enlarged on bail. Taking into account the fact that the examination of the witnesses in the trial Court has been fixed from 18.12.2017 onwards, in view of the reasonable apprehension of the prosecution that the petitioner being an influential person is likely to tamper with the evidence, at this stage, I am not inclined to release him on bail. The petitioner may renew his prayer for bail in the trial Court after examination of all the eye witnesses to the occurrence. Accordingly, the BLAPL application stands dismissed.