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2021 DIGILAW 334 (ORI)

Basanta Panda v. State of Odisha

2021-08-02

S.K.SAHOO

body2021
JUDGMENT : S.K. SAHOO, J. The petitioner Basanta Panda has filed this application under section 439 of Cr.P.C. in connection with S.T. Case No.21 of 2020 pending in the Court of learned Sessions Judge, Sambalpur which arises out of Sambalpur Town P.S. Case No.289 of 2019 in which charge sheet has been submitted under sections 364, 302, 201 of the Indian Penal Code. The petitioner moved an application for bail in the trial Court which was rejected vide order dated 12.10.2020. The first bail application of the petitioner was rejected by this Court in BLAPL No.365 of 2020 vide order dated 03.08.2020 taking into account the manner in which the occurrence has taken place, the extra judicial confession by the petitioner before the labourer, the surrounding circumstances in which the offence was committed and the nature and gravity of the accusation against the petitioner. 2. The first information report was lodged by one Bijayani Mishra, the daughter of Jayashree Mishra (hereafter ‘the deceased’) before the Inspector in-charge, Town police station, Sambalpur on 21.07.2019 wherein it is stated that the deceased was found missing from her house for which on the report of the informant, Sambalpur Town P.S. SDE No.365 dated 14.10.2011 and MMR No.25 of 2011 were registered. The informant came to know from the locality that petitioner had kidnapped her mother, committed her murder and concealed the dead body somewhere. The local people were also aware about the incident but out of fear, they did not disclose the matter. She received phone calls about the fact from the local people that the petitioner was not staying in the village since the date of occurrence. It is further stated that the family members of the petitioner were also involved in the kidnapping of her mother. Taking the advantage of death of the father of the informant and since there was no male member in the family to look after them, the petitioner used to borrow money and jewellery from the deceased from time to time. Basing on such written report, Sambalpur Town P.S. Case No.289 dated 21.07.2019 was registered under sections 364/302/201 of the Indian Penal Code against petitioner. 3. Basing on such written report, Sambalpur Town P.S. Case No.289 dated 21.07.2019 was registered under sections 364/302/201 of the Indian Penal Code against petitioner. 3. During course of investigation, S.I. of police Sri R.K. Biswal, the Investigating Officer examined the informant Bijayini Mishra, her brother Bhabani Shankar Mishra and others and recorded their statements and finding prima facie materials against the petitioner, the I.O. arrested the petitioner on 22.07.2019 and during interrogation, the petitioner confessed his guilt and disclosed that he strangulated the neck of deceased by means of a towel and killed her brutally and buried her dead body at Mahulmunda side and after the occurrence, he left the village and resided at Jharsuguda area for three years and then he was residing at Jujomura since one year. The I.O. sent a requisition to S.D.M., Sambalpur to depute an Executive Magistrate to disinter the dead body of the deceased from the spot. He also made a requisition to the Scientific Officer, DFSL, Sambalpur to assist in the collection of physical evidence with videographer. As per version of petitioner, the I.O. proceeded to village Badsinghari, Mahulmunda along with Executive Magistrate, scientific team and witnesses and searched for the dead body of deceased at all the possible places as per statement of the petitioner but found no result. As prima facie evidence was found for commission of offences under sections 364/302/201/120-B of the Indian Penal Code against the petitioner, the I.O. arrested him and forwarded him to Court on 22.07.2019. The wearing apparels of the petitioner were seized and he was taken on police remand as per the orders of the Court and during police remand, the petitioner further led the police team, Scientific team, Executive Magistrate and witnesses to Badasinghari, Mahulmunda where the petitioner had concealed the dead body of the deceased. During unearthing of the place, some bone parts suspected to be the bone parts of the deceased were recovered which was captured by videography. Those bone parts were collected and sealed in presence of the Executive Magistrate and witnesses. The I.O. seized the exhibits on production by the Scientific Officer, DFSL, Sambalpur in presence of Executive Magistrate and witnesses and seizure list was prepared and the petitioner was forwarded to judicial custody after his medical examination. Those bone parts were collected and sealed in presence of the Executive Magistrate and witnesses. The I.O. seized the exhibits on production by the Scientific Officer, DFSL, Sambalpur in presence of Executive Magistrate and witnesses and seizure list was prepared and the petitioner was forwarded to judicial custody after his medical examination. Subsequently, Sri R.C. Dora, IIC of Town P.S., Sambalpur took charge of investigation from Sri R.K. Biswal, re-examined the informant and other witnesses and recorded their statements, re-visited the spot in presence of the informant and other witnesses and made a prayer to the ADMO, Medical, DHH, Sambalpur to collect the blood sample of the informant for DNA profiling as per the order of the learned S.D.J.M., Sambalpur. As per the requisition to the ADMO, DHH and order of the learned SDJM, Sambalpur, the blood sample of the informant was collected and the same was sent to SFSL, BBSR for DNA profiling. The I.O. received the DNA examination report from SFSL, Rasulgarh, BBSR in which it was opined that the DNA conducted on the exhibits could not be generated as the required quantity of DNA could not be extracted and therefore, the comparison with other exhibits was not possible and hence, the opinion was inconclusive. The report from Dept. of Forensic Medicine and Toxicology, VIMSAR, Burla was received, in which it was opined that the skeletal remains examined appears to be human in origin, age of the examined occipital bone was less than sixty years, the individuality of the skeletal remains could not be determined from the available contents and time since death was more than one year at the time of examination. During further investigation, the I.O. received some reliable information that, the marriage between Dinesh Pandey and Purnima Mishra who is eldest sister of informant Bijayini Mishra was held on 23.06.2011 and deceased was found missing since 09.06.2011. The I.O. sent the exhibits to the Director, CDFD, Hyderabad for DNA profiling and for chemical examination and opinion, which could not be received till submission of chargesheet. The case was supervised by Dr. Kanwar Visal Singh, Superintendent of Police, Sambalpur and ultimately charge sheet was submitted on 16.11.2019 against the petitioner under sections 364, 302 and 201 of the Indian Penal Code. The case was supervised by Dr. Kanwar Visal Singh, Superintendent of Police, Sambalpur and ultimately charge sheet was submitted on 16.11.2019 against the petitioner under sections 364, 302 and 201 of the Indian Penal Code. Subsequently DNA profiling report was received from the Director, CDFD, Hyderabad in the Court of learned S.D.J.M., Sambalpur on 20.02.2020 which indicated that the sources of exhibit A (occipital bone and broken parts of cervical vertebrae with soil remnants) and exhibit B (parietal bone fragment) did not yield any DNA profiles and therefore, no opinion could be furnished. 4. Mr. Devashis Panda, learned counsel appearing for the petitioner contended that the petitioner who is aged about sixty years is in judicial custody since 22.07.2019 and the case is based on circumstantial evidence and there is no clinching material available on record against the petitioner. The occurrence in question stated to have taken place in the year 2011 and the first information report was lodged only on 21.07.2019. He argued that the date of missing of the deceased as per the statement of the informant is also discrepant. After the petitioner was taken into custody, he stated to have led the police to a place to show where he buried the dead body but nothing was found and again he was taken on police remand and gave his statement, on the basis of such statement, some bone fragments were recovered by digging the earth. He further argued that DNA profiling report which was received from the Director, CDFD, Hyderabad in the Court of learned S.D.J.M., Sambalpur on 20.02.2020, which is a very vital document was not placed at the time of rejection of the earlier bail application by this Court. According to Mr. Panda, since the DNA profiling report indicated that the occipital bone and broken parts of cervical vertebrae with soil remnants and parietal bone fragment did not yield any DNA profiles for which no opinion could be furnished, it cannot be said the bones recovered by digging out the earth were that of the deceased and as such the place of burial of the dead body as per the statement of witness Chaitanya Kunar @ Manu is not acceptable. The so-called extrajudicial confession of the petitioner is a concocted version to falsely entangle the petitioner in the alleged crime. The so-called extrajudicial confession of the petitioner is a concocted version to falsely entangle the petitioner in the alleged crime. He further placed reliance in the case of Babu Singh -Vrs.-State of Uttar Pradesh reported in A.I.R. 1978 S.C. 527 and contended that even in the absence of any change in the circumstances, since the important document like DNA profiling report was not placed and it was not considered while rejecting the earlier bail application, the same can be considered to take a different view as the refusing bail is an interim adjudication. It is further argued that trial has not yet commenced even though the petitioner is in custody for two years and in view of the delayed trial, the bail application of the petitioner may be favourably reconsidered. Mr. Purna Chandra Das, learned Addl. Standing Counsel appearing for the State on the other hand opposed the prayer for bail and placed the statement of one Chaitanya Kunar @ Manu to show that how he was asked to dig the soil which according to the prosecution case was the place utilized for burying the dead body. He further submitted that the murder was committed in a very pre-planned and calculated manner and the circumstantial evidence is very clinching and even though the DNA profiling report of occipital bone and broken parts of cervical vertebrae with soil remnants and parietal bone fragment did not yield any result but in view of the available materials on record, the complicity of the petitioner in the crime is clearly borne out and when the earlier bail application was rejected on merit on 03.08.2020 and the petitioner moved for bail in the trial Court on 28.09.2020, which came to be rejected on 12.10.2020, in absence of any change in the circumstances, the bail application of the petitioner should be rejected. Mr. S.S. Das, learned Senior Advocate for the informant also vehemently opposed the prayer for bail and contended that there was motive behind the commission of crime, the petitioner was last seen in the company of the deceased, the petitioner made extra judicial confession before the labourer whose services were utilised for digging the soil for burying the dead body. The petitioner kept his identity secret after the occurrence. The statements of witnesses namely Dr. The petitioner kept his identity secret after the occurrence. The statements of witnesses namely Dr. Birendra Kumar and Geeta Mohanty indicate that the petitioner employed himself as a cook in DIET-ITC Sunarimund in the name of Bibhuti Panda from the year 2011 to 2015 and those witnesses could came to know about the correct identity of the petitioner when his photograph was telecasted in electronic media. It is argued that once the petitioner is released on bail, he is likely to tamper with the evidence and the trial is yet to commence and therefore, till all the material witnesses are examined in the trial Court, the petitioner may not be released on bail. He placed reliance in the cases of Kalyan Chandra Sarkar -Vrs.-Rajesh Ranjan reported in A.I.R. 2004 S.C. 1866 and Jogia @ Jogendra Jena -Vrs.-State of Odisha reported in 2018(1) Cuttack Law Times Crl (Supp) 781. 5. Adverting to the contentions raised by the learned counsel for the respective parties, it is the admitted position that there is no change in the circumstance after the rejection of the earlier bail application by this Court on 03.08.2020 in BLAPL No.365 of 2020, except the fact that the case has been committed to the Court of Session and the petitioner is detained a further period of one year. The learned counsel for the petitioner contended on 23.04.2021 that even though there is no change in the circumstances but since some important materials could not be placed before this Court at the time of hearing of the earlier bail application, in this successive bail application, those materials can be considered and he also took time to place certain citations in that respect and accordingly, Mr. Panda relied upon the case of Babu Singh (supra). In the said decision, the Hon’ble Supreme Court has held that at an earlier stage, the application for bail of the petitioners was rejected by the Court on 7th September 1977, but an order refusing application for bail does not necessarily preclude another, on a later occasion, giving more materials, further development and different consideration. It is further held that an interim direction is not a conclusive adjudication, and updated reconsideration is not over-turning an earlier negation. It is further held that an interim direction is not a conclusive adjudication, and updated reconsideration is not over-turning an earlier negation. The judgment cited does not answer the point raised by the learned counsel for of the petitioner on 23.04.2021 rather it clearly indicates about further development and giving of more materials can be a ground for reconsideration. The question comes up for consideration is whether successive bail application can be entertained and a different view can be taken on the already existing materials when the earlier bail application was rejected on merit, merely because some documents/statements available in the case record were not taken into account. In the case of Kalyan Chandra Sarkar (supra), Hon’ble Supreme Court held as follows: “Before concluding, we must note though an accused has a right to make successive applications for grant of bail, the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.” In the case of Jogia @ Jogendra Jena, I have held as follows: “Successive bail applications are maintainable but there has to be material change in the fact situation and not mere cosmetic change. Successive bail applications on the same grounds which were available to the accused at the time of consideration of the earlier bail application would not be maintainable. Neither a ground that the earlier bail application was not properly placed by the previously engaged counsel can be entertained.” Thus it is the settled position of law that successive bail applications are permissible under the changed circumstances. The change of circumstances must be substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. The change of circumstances must be substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. While entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail application was rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the bail application afresh and to take a view different from the one taken in the earlier application. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which the application for bail of an accused that has been rejected earlier can be reconsidered. If a bail application is rejected considering some grounds urged by the counsel for the accused and on the self same materials and without any change in the circumstances, the successive bail application is moved taking some other grounds and the Court is asked to reconsider the prayer of bail, it would be an endless exercise for the Court and entertaining such application would be a sheer wastage of valuable time of the Court. On the earlier occasion, taking note of statement of Chaitanya Kuanr and that the murder was committed in a calculated manner, the incident being planned and chalked out, the motive behind the commission of crime and the last seen of the petitioner in the company of the deceased, the bail was rejected. While moving the present bail application, the fresh ground which was urged by the learned counsel for the petitioner was the non-placement of DNA profiling report on the earlier occasion and to consider the same and its effect. Since the DNA profiling report received from the Director, CDFD, Hyderabad indicates that the sources of exhibit A (occipital bone and broken parts of cervical vertebrae with soil remnants) and exhibit B (parietal bone fragment) did not yield any DNA profiles and no opinion could be furnished, it neither helps the prosecution nor the accused. The other grounds are just repetitions which were earlier urged in the previous bail application. The other grounds are just repetitions which were earlier urged in the previous bail application. The 161 and 164 Cr.P.C. statements of Chaitnaya Kuanr Amit Swain, Sanjib Panda are very relevant to prima facie show the involvement of the petitioner in the commission of crime. The statements of Dr. Birendra Kuma Padhi and Geeta Mohanty prima facie indicate as to how the petitioner by changing his name as Bibhuti Panda, was employed as a cook in their institution i.e. DIET-ITC, Sunarimanda from November 2011 to June 2015. The motive behind the commission of offence is prima facie apparent from the statements of the informant Bijayini Mishra, Purnima Mishra, Bhabani Shankar Mishra, Prasant Kumar Hota and Laxmi Priya Mishra to the extent that the petitioner had taken cash of Rs.1,60,000/-and gold ornaments from the deceased but when the deceased asked him to refund the same because of its necessity in the marriage of the elder daughter, he did not refund. Detailed discussion of the evidence and elaborate documentation on the merits of the case is to be avoided while considering an application for bail. No party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Where the offence is of serious nature, the question of grant of bail has to be decided mainly keeping in view the nature and gravity of the accusation, character of the evidence, chance of absconding of the accused, chance of tampering with the evidence and also the larger interest of the public. 6. In view of the foregoing discussions, this bail application, being a successive one moved within two months of the rejection of the earlier bail application before the learned trial Court without any changed circumstances and after its rejection, the petitioner has rushed to this Court again, I am not inclined to release the petitioner on bail. The learned trial Court shall do well to expedite the trial and take necessary steps for examination of material witnesses. The petitioner is at liberty to renew the prayer for bail after examination of such witnesses. It is made clear that observations made in this order for rejecting the prayer for bail will not be treated as expression of any opinion on merits of the case and the learned trial Court shall decide the case without being influenced by any such observations. It is made clear that observations made in this order for rejecting the prayer for bail will not be treated as expression of any opinion on merits of the case and the learned trial Court shall decide the case without being influenced by any such observations. In the result, the application for bail stands rejected. A copy of this order be sent down to the learned trial Court forthwith for information and necessary action.