Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 706 (ORI)

Sankar Swain v. State of Odisha

2018-07-31

S.K.SAHOO

body2018
JUDGMENT S.K. SAHOO, J. - The petitioners have filed the above mentioned applications under Section 439 of Cr.P.C. seeking for bail in connection with Aska P.S. Case No. 84 of 2016 in which they have been charge sheeted under Sections 302, 307, 120-B read with Section 34 of the Indian Penal Code. The said case corresponds to G.R. Case No.180 of 2016 pending in the Court of learned J.M.F.C., Aska. 2. One Ashok Kumar Gouda of village Karnoli lodged the first information report before the Inspector in charge of Aska police station on 07.04.2016 stating therein that on 06.04.2016 at about 9.15 p.m. while his brother Jitendra Gouda (hereafter ‘the deceased’) was returning from Aska in a motor cycle with co-villager Jitendra Bisoi near Pataliguda village square, covillager Ranjit Swain came in a truck driving it rashly and negligently and dashed against the motor cycle from the backside in order to kill the motorcyclists as a result of which the deceased died at the spot and Jitendra Bisoi sustained grievous injuries and he was hospitalized at Vishakhapatnam and fighting for life. It is stated that due to previous enmity, accused Ranjit Swain along with others attempted to kill the deceased and Jitendra Bisoi in a pre-planned manner after entering into criminal conspiracy. It is further stated that on 06.04.2016 at about 2.00 p.m. accused Ranjit Swain had threatened the informant to kill the deceased as well as Jitendra Bisoi. On the basis of such first information report, Aska P.S. Case No.84 of 2016 was registered on 07.04.2016 under Sections 302/307 of the Indian Penal Code against accused Ranjit Swain. 3. Another case was instituted in connection with the incident on the first information report submitted by Sri Moheswar Behera, A.S.I. of Police, Aska police station vide Aska P.S. Case No. 82 of 2016 on 07.04.2016 for offences under Sections 279, 337, 338, 304-A of the Indian Penal Code against the driver of a truck bearing registration no. OR-15 J-1047 and the said case after investigation was returned as ‘mistake of fact’. 4. OR-15 J-1047 and the said case after investigation was returned as ‘mistake of fact’. 4. During course of investigation of Aska P.S. Case no.84 of 2016, it was found that on 06.04.2016 Jitendra Bisoi had been to his pesticide shop located at Bani Bihar, Aska and after closing the shop, he along with his co-villagers and the deceased were returning in four motor cycles to their village in the night and the deceased was the pillion rider in the motor cycle driven by Jitendra Bisoi. On the way under a overbridge at Palli Chhak, Jitendra Bisoi stayed for a while and after meeting a person, all of them again proceeded towards village Karnoli and at that time co-accused Ranjit Pradhan was found present under the overbridge. It revealed during course of investigation that the said accused Ranjit Pradhan immediately intimated the departure of the Jitu Bisoi and the deceased in a motor cycle to co-accused Kalia Swain @ Bonda over phone who along with petitioner Sankar Swain waited at Kalasandhapur Chhak in front of a rice mill with a ten wheeler truck bearing registration no.AP 16-TW-6021 of co-accused Ranjit Pradhan to kill Jitu Bisoi and the deceased Jitendra Gouda. When the injured with the deceased crossed the rice mill in their motor cycle bearing registration no. OR-07 Y-9887, co-accused driver Kalia Swain @ Bonda Kalia and the petitioner helper Sankar Swain followed them in the truck and dashed the truck against the motor cycle from its back in a high speed intending to kill the motorcyclists. The deceased died at the spot and Jitendra Bisoi received grievous injuries. The injured Jitendra Bisoi was treated at Seven Hill Hospital, Vishakhapatnam and after his discharge, his statement was recorded. Seven eye witnesses namely Bichitra Bisoi, Bijaya @ Bulu Bhuyan, Sibaram Bhuyan, Dibakar Bisoi, Dasarathi Swain, Hambala @ Sibaram Bhuyan and Achuta Swain gave their statements narrating the manner in which the occurrence had taken place. The petitioner Sankar Swain was arrested on 25.05.2018 and the other petitioners were taken on remand on 12.04.2018 and confessional statements of accused persons were also recorded and charge sheet was submitted. 5. Mr. The petitioner Sankar Swain was arrested on 25.05.2018 and the other petitioners were taken on remand on 12.04.2018 and confessional statements of accused persons were also recorded and charge sheet was submitted. 5. Mr. Debi Prasad Dhal and Miss Deepali Mohapatra, learned counsels for the petitioners contended that initially F.I.R. was lodged only against co-accused Ranjit Swain and there is no allegation against any of the petitioners in the F.I.R. During course of investigation, at a much belated stage in February 2018, the eye witnesses gave their statements regarding the occurrence which shows that afterthought stories have been created to falsely entangle the accused persons. It is contended that only three accused persons were implicated directly in connection with the dashing of the truck against the motor cycle and they are accused Ranjit Pradhan who stated to have intimated accused Kalia Swain @ Bonda Kalia over phone about the movement of the deceased and the injured Jitendra Bisoi where after the two accused persons Kalia Swain @ Bonda Kalia as driver and petitioner Sankar Swain as helper of a truck stated to have dashed the truck against the motor cycle. It is contended that so far as the other petitioners are concerned, it is stated that they entered into criminal conspiracy with co-accused Ranjit Pradhan but there is no clinching material relating to the criminal conspiracy and the same statements have been created for falsely implicating those petitioners. It is further contended that out of the seven eye witnesses who stated about the commission of murder by dashing of the truck before police on 10.02.2018, witnesses Sibaram Bhuyan and Achuta Swain were earlier examined on 07.04.2016 but they posed themselves as post occurrence witnesses. Learned counsels for the petitioners argued that since there is no chance of absconding of the petitioners and in view of the rivalry between the parties there is also no chance of tampering with the evidence, therefore, their bail applications may be favourably considered. Mr. Arupananda Das, learned Addl. Govt. Advocate for the State on the other hand submitted that there was previous enmity between the parties and cases have been instituted from both the sides and there is also clinching material against petitioner Sankar Swain as well as co-accused persons Ranjit Pradhan and Kalia Swain @ Bonda Kalia to have participated in killing the deceased and causing grievous injuries to the injured Jitendra Bisoi. So far as the criminal conspiracy against other petitioners is concerned, it is mainly based on the confessional statements of the accused persons before police. He further submitted that since the crime has been committed in a calculated, cold-blooded and brutal manner, the bail applications of the petitioners should be rejected. Mr. S.S. Ray-2, learned counsel appearing for the informant also opposed the prayer for bail and produced the medical documents relating to the treatment of injured Jitendra Bisoi at Seven Hills Hospital, Visakhapatnam. He submitted that if the petitioners are enlarged on bail, there is every chance of tampering with the evidence, in the event of which a fair trial would not be possible. 6. Adverting to the contentions raised by the learned counsels for the respective parties, even though it appears that the statements of the eye witnesses were recorded at a belated stage but what would be the effect of such statement in view of the delayed disclosure can be adjudicated by the learned trial Court at the appropriate stage. It is not proper to give any observation relating to the acceptance or otherwise of such statements at this stage. It appears from the materials available on record against the petitioners Uma Charan Barala, Prafulla Kumar Bisoi, Nilachala Swain @ Kankada and Pravakar Swain @ Tunguru that they entered into criminal conspiracy on the basis of which the crime was committed. There is absence of any clinching material relating to criminal conspiracy. The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act by illegal means, and the performance of an act in terms thereof. If pursuant to criminal conspiracy, the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences. A conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution may rely on the evidence of acts of various parties to infer that they were done in reference to their common intention. The conspiracy can be proved either by direct evidence or by circumstantial evidence. The offence of conspiracy requires some kind of physical manifestation of agreement. The prosecution may rely on the evidence of acts of various parties to infer that they were done in reference to their common intention. The conspiracy can be proved either by direct evidence or by circumstantial evidence. The offence of conspiracy requires some kind of physical manifestation of agreement. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Since the evidence relating to the criminal conspiracy is not that clinching and there is no prima facie material relating to active participation of the other petitioners except petitioner Sankar Swain in the dashing of the truck, I am inclined to release them on bail. Accordingly, the bail applications of Uma Charan Barada, Prafulla Kumar Bisoyi, Nilachala Swain @ Kankada and Pravakar Swain @ Tunguru in BLAPL No. 3022 of 2018, BLAPL No.3024 of 2018, BLAPL No.3025 of 2018 and BLAPL No.3141 of 2018 respectively are allowed. Let the petitioners namely Uma Charan Barala, Prafulla Kumar Bisoyi, Nilachala Swain @ Kankada and Pravakar Swain @ Tunguru be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000/- (rupees fifty thousand) each with two solvent local sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further terms and conditions as the learned Court may deem just and proper. 7. So far as the petitioner Sankar Swain in BLAPL No.2254 of 2018 is concerned, in view of the nature and gravity of the accusation, the supporting materials available on record to substantiate such accusation, the manner in which the ghastly crime was committed and the role attributed to the petitioner, I am not inclined to release him on bail. Accordingly, BLAPL No.2254 of 2018 stands dismissed. BLAPL dismissed.