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2021 DIGILAW 142 (ORI)

Srinibasha Biswal v. State Of Odisha

2021-03-23

S.K.PANIGRAHI

body2021
JUDGMENT S K Panigrahi, J. - The present application under Section 439 Cr.P.C. has been preferred by the petitioners herein seeking enlargement on bail in connection with Samal P.S. Case No.137 of 2020 corresponding to G.R. Case No.1050 of 2020 pending in the Court of the learned S.D.J.M, Talcher, for the offences under Section 302/34 of the Indian Penal Code. 2. The facts of the case, in nutshell, are that on the basis of an FIR lodged by one Sulochana Sahu on 16.07.2020, a case under Section 302 read with Section 34 of the Indian Penal Code, 1860 has been registered against the petitioners and some others. The allegation in the FIR, in brief, is that the informant who is the sister of the deceased on getting information of the death of her brother went to her brother's house. Having reached there, she learnt that her brother had been murdered by his wife, daughters and some 4 to 5 outsiders. She further alleged that her sister-in-law and nieces along with some unnamed outsiders had murdered her brother Sunanda Pradhan, who had been suspicious about the character of his wife. Due to such suspicion in the mind of the deceased, the deceased had forbidden his wife and daughters to associate with outsiders. The informant also stated that several FIRs had been lodged in the past, due to such fact, the wife and daughters of the deceased had brought some outsiders who severely assaulted the deceased on his head causing death so that they could freely get associated with those outsiders. 3. Learned Counsel for the petitioners, Mr. Devashis Panda, submits that none of the witnesses who have been examined have implicated either the petitioners or the others named in the FIR, who are stated to have allegedly participated in the incident of assault on the deceased. It is submitted that it is only on the basis of the statements of the co-accused that the presence of the petitioners is being sought to be established. It is submitted that one of the co-accused, namely, Jhulan @ Jhulu @ Jitendra Sahoo while going to the spot saw that the deceased had locked up his wife and daughters inside the bedroom. On being requested to unlock the door, the deceased did not open the door of the room which triggered the quarrel. It is submitted that one of the co-accused, namely, Jhulan @ Jhulu @ Jitendra Sahoo while going to the spot saw that the deceased had locked up his wife and daughters inside the bedroom. On being requested to unlock the door, the deceased did not open the door of the room which triggered the quarrel. The said co-accused stated that they broke open the lock of the door and rescued the wife and daughters of the deceased which infuriated the deceased and a fight ensued between them. He further stated that the deceased attacked them upon which the wife of the deceased, who was holding a baton and his daughters Guni and Basanta were holding sticks, assaulted the deceased all over his body and the petitioners herein and he himself along with other co-accused persons slapped the deceased. He categorically stated that when the deceased was attempting to run away, he was dragged inside the house and his wife being violent, repeatedly dashed her husband's head against the wall causing fatal injury on the head of the deceased which caused profuse bleeding, eventually it led to his death. The learned Counsel for the petitioners states that, at best, the allegation against the petitioners herein is that they had dealt some fist blows and slaps on the deceased but did not have the intention to cause the death of the deceased. It was the wife of the deceased, who had in a violent bout of anger, dashed the head of the deceased against the wall which caused fatal head injury resulting in death. It has been submitted by the petitioners that the deceased was a truck driver prone to drunken bouts and was in the habit of assaulting his wife and children which often triggered such fights in the past also. Such fights were very regularly held at commonplace and also in the household of the deceased. It is submitted that the petitioners were only trying to calm down the situation. They happened to be there per chance. In fact, they had no inkling that such a trivial fight would result in death on that fateful day. Such fights were very regularly held at commonplace and also in the household of the deceased. It is submitted that the petitioners were only trying to calm down the situation. They happened to be there per chance. In fact, they had no inkling that such a trivial fight would result in death on that fateful day. Even the evidence taken prima facie shows that the entire allegation attributable to the petitioners herein is that they had dealt fist blows and slaps to the deceased which in no manner could have been caused the death of any person in the normal course. On the contrary, the evidence on record unerringly points towards the wife who dealt the fatal injury to the deceased by smashing her head against the wall leading to his death. It is also submitted that the petitioners had no common intention or object to commit any crime as they were only acting as good samaritans by trying to pacify the situation when they saw that the helpless wife and daughters were being harassed by the deceased. 4. Per contra, Mr. Karunakar Nayak, the learned Additional Standing Counsel appearing for the State who was supported by Mr. D.K. Misra, learned Counsel for the informant, submitted that investigation revealed that the deceased used to suspect the character of his wife and daughters for about last three years leading to frequent quarrel amongst themselves. It is the prosecution's case that the wife and daughters of the deceased along with others had in a pre-meditated manner committed the murder of the deceased. It has been submitted that the wife and daughters of the deceased had hatched a conspiracy along with the petitioners to execute their evil design on 16.07.2020. The petitioners herein and the other accused persons were arrested on 17.07.2020 and were forwarded to judicial custody and the prayer for enlargement of bail was rejected by the court of the learned Additional Sessions Judge, Talcher in BLAPL No.314 of 2020 vide order dated 05.08.2020 on the ground that the investigation was at a nascent stage at that point in time. According to the learned Counsels, in view of the factum of mere presence of the accused petitioners along with the co-accused at the spot and the nature of the offence, they do not deserve to be enlarged on bail. According to the learned Counsels, in view of the factum of mere presence of the accused petitioners along with the co-accused at the spot and the nature of the offence, they do not deserve to be enlarged on bail. It has also been submitted that a prima facie case emerges against the accused persons for the commission of offences under Section 302 of IPC read with Section 34 thereof. 5. Heard learned Counsel for the parties. During the course of arguments, it has been brought to the attention of this Court that a co-ordinate Bench of this Court vide order dated 27.11.2020 in BLAPL No.7995 of 2020 has been pleased to enlarge two other co-accused persons, i.e., Basanta Mahakul and Arjun Hembram on bail. Learned counsel for the petitioners submitted that the role ascribed to the co-accused persons who have been enlarged on bail in BLAPL No.7995 of 2020 is of identical nature in so far as the role ascribed to the present petitioners. That being the case, the learned Counsel for the petitioners has sought to make out a case on the ground of parity as well. A bare perusal of the records of the instant case reveals that the role ascribed to the co-accused who are enlarged on bail, i.e., Basanta Mahakul and Arjun Hembram prima facie is of a similar nature to the present accused persons. Even otherwise, a perusal of the evidence unearthed thus far prima facie shows that the fatal injury which caused the death of the deceased was a head injury which seems to have been inflicted by the wife of the deceased. 6. Records of the case show that the charge sheet has already been filed against the Petitioners herein. The neighbours of the deceased who have been examined and have given their statements, namely, Jambeswar Naik, Hruday Chandra Sahu, Sushant Kumar Sahu and Manas Ranjan Pradhan seem consistent in their version that they have only heard some people shouting and creating a ruckus in the house of the deceased. They have also stated that such commotions were common in the household of the deceased. In fact, there are no independent eyewitnesses for the gruesome episode that occurred. Further, the autopsy report shows that the head of the deceased has been injured by a blunt object causing extensive haemorrhage leading to the death of the deceased. They have also stated that such commotions were common in the household of the deceased. In fact, there are no independent eyewitnesses for the gruesome episode that occurred. Further, the autopsy report shows that the head of the deceased has been injured by a blunt object causing extensive haemorrhage leading to the death of the deceased. The only factor against the petitioners is that they are said to have been present at the site of occurrence. Another telling aspect of the matter is that one of the deceased's daughter namely Tunirani had in fact, previously, lodged an FIR being Samal P.S. Case No.128 dated 06.10.2018 against the deceased who had been charge-sheeted therein for offences under Sections 323 and 506 of IPC. In this context, a few judgments rendered by the Apex Court clarifies certain aspects especially while granting bail. 7. In the case of Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427 the Hon'ble Supreme Court has held inter alia that one of the primary considerations for grant of bail ought to be whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR. While holding so, it has relied upon the earlier consistent views which have evolved over a period of time emanating from the case of State of U.P. vs Amarmani Tripathi, (2005) 8 SCC 21 . 8. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 the Hon'ble Apex Court has held that the court must carefully evaluate the entire material against the accused. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, 1860, the court should consider with even greater care and caution because over implication in such cases is a matter of common knowledge and concern. It has also been held that frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 9. 9. In the case of Kanwar Singh Meena v. State of Rajasthan, (2012) 12 SCC 180 the Hon'ble Supreme Court has succinctly indicated the manner in which bail applications ought to be dealt with by laying down that:- "10. . But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial ." 10. In view of the aforesaid discussions and the facts and circumstances of the present case, it is held that the instant petitioners deserve to be enlarged on bail. Hence, this Court hereby directs that the petitioners be released on bail in connection with Samal P.S. Case No.137 of 2020 corresponding to G.R. Case No.1050 of 2020 by the learned Court in seisin over the matter on such terms and conditions as deemed just and proper. 11. It is, however, clarified that the aforesaid discussions are limited for the purposes of the present application only and the learned Trial Court shall proceed to arrive at its own decision in the trial, uninfluenced by the observations made hereinabove. The Bail Application is accordingly disposed of.