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2017 DIGILAW 829 (ORI)

Babu @ Ganesh Chandra Sahoo v. State of Orissa

2017-08-04

S.K.SAHOO

body2017
JUDGMENT : S S.K. SAHOO, J. 1. Heard Mr. Soura Chandra Mohapatra, learned Advocate for the petitioner and Mr. Janmejaya Katikia, learned Addl. Government Advocate for the State. 2. This is an application under Section 439 of Cr.P.C. for grant of bail to the petitioner Babu @ Ganesh Chandra Sahoo in connection with G.R. Case No.1533 of 2013, arising out of Madhupatna P.S. Case No.107 of 2013 pending in the Court of learned S.D.J.M.(Sadar), Cuttack for commission of offences punishable under sections 307, 120-B read with section 34 of the Indian Penal Code and section 9-B of the Explosives Act, 1884. 3. The petitioner moved an application for bail before the learned Sessions Judge, Cuttack which was rejected on 20.02.2017. 4. The prosecution case as per the first information report submitted by one Abhaya Kumar Bhatta before the Inspector in Charge of Madhupatna Police Station is that on 20.09.2013 the informant after finishing his Court works was returning home in his Maruti Car bearing registration no.OR-05-AE-6247 with his brother-in-law Hadu @ Susant Pal. At about 7.30 p.m. to 8.00 p.m. near Khannagar School, some persons came in two motorcycles speedily and crossed the car of the informant and threw bombs at the informant and fired gun shots, as a result of which he and his brother-in-law sustained grievous injuries. The informant could not control the car and lost his balance due to excessive bleeding for which the car dashed somewhere and some of the persons shifted them to the hospital. It is further stated in the F.I.R. that the informant was admitted in the surgery ward of S.C.B. Medical College and Hospital, Cuttack and he dictated the F.I.R. to Ashok Kumar Bhatta after little recovery. It is further mentioned in the F.I.R. that the informant had no enemity with anybody but relating to transfer of some landed properties, there was dispute in his village with one Punananda Padihari. It is further mentioned that seven years prior to the occurrence on 26.10.2007, the elder brother of the informant was murdered in a similar manner. The informant apprehended danger to his life and asked for protection. 5. On the basis of such F.I.R., Madhupatna P.S. Case No.107 of 2013 was registered on 21.09.2013 and the Inspector in Charge himself took up investigation of the case. The informant apprehended danger to his life and asked for protection. 5. On the basis of such F.I.R., Madhupatna P.S. Case No.107 of 2013 was registered on 21.09.2013 and the Inspector in Charge himself took up investigation of the case. During course of investigation, the informant was examined by the Investigating Officer and he implicated four unknown persons to have come in two motorcycles and threw bombs and also fired gun shots. The other injured Hadu @ Susant Kumar Pal was also examined by the Investigating Officer and he also implicated four unknown persons in the commission of crime. Both the statements were recorded on 25.09.2013. 6. During course of investigation, from the statements of the witnesses, it was established that the injured Abhaya Kumar Bhatta had long standing dispute with the owner of OSL Mahimananda Mishra regarding purchase and possession of different lands near village Bhanapur. On 20.09.2013 evening at about 7.30 p.m. when Abhaya Kumar Bhatta and his brother-in-law Hadu @ Susant Kumar Pal after finishing their day to day work in Court were going to their house in a Maruti Swift Dzire Car bearing registration no.OR-05-AE-6247 through Ring Road, near Khannagar High School, all on a sudden in conspiracy with Mahimananda Mishra, the petitioner hurled bombs towards them causing injuries to Abhaya Kumar Bhatta and Hadu @ Susant Kumar Pal. In order to save their lives, while Abhaya Kumar Bhatta was plying the Car towards Madhupatna Police Station, due to injuries he lost his control and dashed the car to a vehicle and thereafter they were shifted to S.C.B. Medical College and Hospital, Cuttack for treatment. Co-accused Mahimananda Mishra was arrested on 26.12.2016 in connection with another case of Paradeep Police Station and taken on remand in this case on 07.01.2017. The petitioner was arrested and forwarded to Court on 04.01.2017. After conclusion of investigation, charge sheet was submitted against the petitioner and co-accused Mahimananda Mishra under sections 307, 120-B read with 34 of the Indian penal Code and section 9-B of the Explosives Act, 1884. 7. Mr. Soura Chandra Mohapatra, learned counsel appearing for the petitioner contended that neither the informant nor the other injured implicated the petitioner in any manner and it is their specific case that four unknown persons came in two motorcycles and committed the offence by throwing bombs and firing gun shots. 7. Mr. Soura Chandra Mohapatra, learned counsel appearing for the petitioner contended that neither the informant nor the other injured implicated the petitioner in any manner and it is their specific case that four unknown persons came in two motorcycles and committed the offence by throwing bombs and firing gun shots. It is contended that two statements of Sana @ Deepak Kumar Mohanty and Bapina @ Suryakanta Satpathy were concocted on 03.01.2017 by the Investigating Officer who posed themselves as eye witnesses to the occurrence and also stated about the extra-judicial confession of the petitioner before them also implicating co-accused Mahimananda Mishra to have handed over hand bombs to him to kill the informant as he was creating problem regarding the purchase of land by co-accused Mahimananda Mishra in village Bhanapur. It is contended that there is absolutely no explanation as to why these two eye witnesses remained silent for years together and why they suddenly came out to give their statements before police. It is further contended that when the statements of the injured persons indicate the participation of four unknown persons, the eye witnesses Sana @ Deepak Kumar Mohanty and Bapina @ Suryakanta Satpathy who were examined at a belated stage implicated the fifth person i.e. the petitioner to have committed the crime which is completely contradictory to the statements of the injured persons who are the best persons to say about the cause of their injuries. It is further contended that even after the arrest of the petitioner in connection with this case, no test identification parade was conducted asking the injured persons to participate in the same to establish the complicity of the petitioner. Learned counsel further submitted that out of the six cases instituted against the petitioner apart from this case, he has been acquitted in Lalbag P.S. Case No.193 of 2006, Lalbag P.S. Case No.257 of 2004, Purighat P.S. Case No.132 of 2013 and Markatnagar P.S. non-F.I.R. Case No.24 of 2014 has been closed by the learned Executive Magistrate vide order dated 02.12.2014. It is submitted by the learned counsel that no information could be collected in connection with Patkura P.S. Case No.281 of 2007 and Bidanasi P.S. Case No.162 of 2003. The learned counsel contended that the petitioner has been made a scapegoat in this case just to implicate co-accused Mahimananda Mishra and therefore, his bail application may be favourably considered. 8. Mr. The learned counsel contended that the petitioner has been made a scapegoat in this case just to implicate co-accused Mahimananda Mishra and therefore, his bail application may be favourably considered. 8. Mr. Janmejaya Katikia, learned Additional Government Advocate on the other strenuously contended that the bail application of the co-accused Mahimananda Mishra who was the abettor and a conspirator has already been rejected by this Court in BLAPL No.1039 of 2017 vide order dated 20.06.2017 and therefore, the petitioner who is the actual assailant as per the statements of the witnesses should not be enlarged on bail particularly when he is a hardened criminal and there is every chance of tampering with the evidence. 9. Considering the submissions made by the learned counsels for the respective parties and after going through the statements of the eye witnesses Sana @ Deepak Kumar Mohanty and Bapina @ Suryakanta Satpathy, it is apparent that they have categorically implicated the petitioner not only to have thrown bombs to the car of the informant but also threatened the occupants of the car that in future, if the informant tries to go against Mahimananda Mishra, his entire family would be killed. Both these witnesses have also stated as to how the petitioner came to them and made extra-judicial confession to have committed the offence at the instance of co-accused Mahimananda Mishra. No doubt the occurrence in question took place on 20.09.2013 and the two eye witnesses were examined on 03.01.2017. It prima facie appears that after the arrest of co-accused Mahimananda Mishra on 26.12.2016 in connection with another case under Paradeep Police Station, the witnesses decided to give their statements before police. Whether in view of their belated disclosure, their evidence has to be discarded or it is to be accepted after taking into account the explanation which the prosecution may offer during trial, is to be adjudicated by the learned Trial Court at the appropriate stage and giving a finding thereon while adjudicating the bail matter would not be conducive in the interest of justice. Whether four persons participated in the crime or five persons and why the investigating agency did not think it proper to make a prayer for holding test identification parade to establish the complicity or otherwise of the petitioner through the two injured persons is also to be taken into account by the learned Trial Court. Whether four persons participated in the crime or five persons and why the investigating agency did not think it proper to make a prayer for holding test identification parade to establish the complicity or otherwise of the petitioner through the two injured persons is also to be taken into account by the learned Trial Court. A detailed documentation on the merits of the case is not warranted while considering a bail application. 10. I am of the humble view that no straight jacket formula can be laid down that after how many hours or how many days, if a witness discloses about the occurrence, his evidence is to be discarded. It cannot be lost sight of the fact that the public are generally reluctant to come forward to give their statements to the police or to depose before the Court even if they are aware about the occurrence. The delay in examination of witnesses is a variable factor. It all depends on the facts and circumstances of the particular case. The availability of the witnesses after the occurrence for recording their statements, the availability of the Investigating Officer to record such statements who might be pre-occupied in investigation of some other serious cases which may require his urgent attention, the apprehension of danger to the lives of the witnesses and his family members in case they give their statements before police, lack of assurance from the police to provide them safety and the money power and the influence of the accused or the criminal background of the accused against whom they will give their statements are all important aspects which are to be taken note of by the learned Trial Court during trial before accepting or rejecting the statements of the witnesses on the ground of delayed disclosure of the occurrence. If the explanation offered for delayed examination of a particular witness is plausible and acceptable and if the explanation offered by the Investigating Officer on being questioned on the aspect of delayed examination by the accused is found to be credible then the Court can rely on such evidence of witness, if it is otherwise cogent, clear and trustworthy. 11. In the case of Panchanan Mishra Vs. 11. In the case of Panchanan Mishra Vs. Digambar Mishra (2005) 30 Orissa Criminal Reports (SC) 546, it has been held that the Court must apply its mind and go into the merits and evidence on record and determine whether prima facie case was established against the accused. It was held that the seriousness and gravity of the crime was also a relevant consideration. That a balance has to be drawn by the Court to protect fair trial and to secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in a heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically looses all its purpose and significance to the great prejudice and the interest of the prosecution. The Court summed up the principle that the ground to deny bail will be when by testing the balance of probabilities, it appears that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice. It was noticed by the Court that once a person is released on bail in serious criminal cases where the punishment is stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tempering with the prosecution witnesses, threatening the family members of the victim and also create problems of law and order. 12. In the case of Prahlad Singh Bhati Vs. NCT, Delhi reported in (2001) 20 Orissa Criminal Reports (SC) 551, the Hon’ble Supreme Court reiterated that if a person was suspected of the crime of an offence punishable with death or imprisonment for life then there must exist grounds which specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. The jurisdiction to grant bail must be exercised on the basis of well settled principles having regard to the circumstances of each case. The jurisdiction to grant bail must be exercised on the basis of well settled principles having regard to the circumstances of each case. 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, circumstances which are peculiar to the accused and reasonable apprehension of witnesses being tempered with. 13. In the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan reported in 2004 Criminal Law Journal 1796, the Hon’ble Supreme Court held that while granting bail, discretion must be exercised in a judicious manner and not as a matter of course. It may not be necessary to do detailed examination of evidence and documentation of the merit of the case but there is a need to indicate reasons for prima facie conclusion why bail was being granted particularly where the accused is charged of having committed serious offence. 14. Considering the submissions made by the learned counsels for the respective parties, the nature and gravity of the accusation against the petitioner, the criminal antecedents of the petitioner and prima facie material available on record to show the manner in which the crime was committed and threat was given to the informant and the other injured and the reasonable apprehension of the prosecution relating to the magnitude of influence the petitioner is likely to cause once he is released from jail custody by taking over the task of tampering with the evidence and manipulating/threatening witnesses, I am not inclined to release the petitioner on bail. 15. I am conscious of the fact that evidence in this case has yet not been led in the Court. Wherever I have observed relates to the materials collected during course of investigation and the findings recorded herein are for the purposes of adjudication of this bail application only. This may not be taken as an expression of opinion on the merits of the case. The learned Trial Court would be at liberty to decide the matter in the light of evidence which shall come on record after it is led de hors any finding recorded in this order. 16. Accordingly, the BLAPL application stands rejected. 17. Urgent certified copy of this order be granted on proper application.