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2021 DIGILAW 344 (ORI)

Mohammad Faruque v. State Of Odisha

2021-08-09

S.K.SAHOO

body2021
ORDER S.K. Sahoo, J. - The petitioner in BLAPL No. 7833 of 2020, namely, Mohammad Faruque and the petitioners in BLAPL No. 6890 of 2020, namely, Sahebaj Hussain @ Janu and Uttam Das have approached this Court for bail for the second time in connection with Lakhna P.S. Case No.66 of 2019 corresponding to S.T. Case No.24/5 of 2020 pending on the file of learned Addl. Sessions Judge, Nuapada in which charge sheet has been submitted for offences punishable under sections 147/148/302/326-A/120- B/149 of the Indian Penal Code, after their bail applications were rejected by the learned trial Court on 07.09.2020. The earlier bail application of the petitioners in BLAPL No.389 of 2020 before this Court was disposed of on 05.08.2020 on the submission being made by the learned counsel for the petitioners to renew the prayer for bail before the Court below as chargesheet was filed during pendency of the bail application. Since both the bail applications arise out of same case, with the consent of the parties, those were heard analogously and disposed of by this common order. 2. The first information report was lodged by one Anil Sahoo before the Inspector in-charge, Lakhana police station on 08.11.2019 alleging therein that the deceased Alok Sahoo happened to be his brother-in-law and he had come to village Rathore with the deceased for contacting video camera recording of the marriage ceremony of the deceased. While they were returning home at about 6.30 p.m., the informant stopped the motor cycle on the way and went to attend the call of nature leaving the deceased near the motor cycle. On his return after attending call of nature, the informant could not find either the deceased or the motor cycle. Hearing the cry of deceased for help, the informant rushed towards the field and found four to five persons running away towards village Lakhna. The informant came near the deceased and saw that acid had been thrown on different parts of his body including head and eyes and there was also bleeding injury on the scalp. The informant made a query to the deceased about the culprits, who informed him that the Faruque, Janu, Uttam, Manoj of Lakhna and others threw acid on him to take away his life and fled away. The informant made a query to the deceased about the culprits, who informed him that the Faruque, Janu, Uttam, Manoj of Lakhna and others threw acid on him to take away his life and fled away. The informant brought the deceased in an injured condition to the house of the deceased, where the deceased again named the same culprits to have thrown acid on him. The informant then shifted the deceased to District Headquarter Hospital, Nuapada for treatment where his health condition became critical. On the basis of such F.I.R., Lakhna P.S. Case No.66 dated 08.11.2019 was registered under sections 307, 326-A/34 of Indian Penal Code against the petitioner and others. The I.O. visited the spot on 08.11.2019 and made recovery of one empty 'Unwanted' kit cover, a green coloured ladies panty and a portion of chunri of light green colour etc. from the spot. The deceased Alok Sahoo was initially treated at DHH, Nuapada, where the doctor noticed acid burn injuries on both the eyes, whole scalp, face, abdomen and both the thighs and lacerated injury on the vertex of the scalp. The deceased was referred to VSS Medical College & Hospital, Burla where his dying declaration was recorded by the Executive Magistrate -cum- Asst. Collector in presence of the doctors on 08.11.2020 in the Surgery Ward as per the requisition made by I.I.C., Burla police station. The deceased was then shifted to S.C.B. Medical College & Hospital, Cuttack for better treatment of his burn injuries, where he was treated in Plastic Surgery Department. The petitioner was arrested on 08.11.2019 and forwarded to Court. On 21.11.2019 one Ratneswari Barik appeared at Lakhna police station and confessed to have committed the crime with the help of her friends Santoshi Yadav, Rinky @ Nafisa Banu and Kabita Rout. Her confessional statement was recorded by the I.O. and then the said Ratneswari Barik led the I.O. and the witnesses to the spot where some incriminating articles were recovered. From the house of the said Ratneswari Barik, one blue colour top and bottom which were torn and partly burnt by acid and one mobile phone were seized. Ratneswari Barik, Santoshi Yadav and Rinky @ Nafisa Banu were arrested and forwarded to Court on 22.11.2019 and on 25.12.2019 Kabita Rout @ Bag was arrested and forwarded to Court. The deceased while undergoing treatment at S.C.B. Medical College and Hospital, Cuttack died on 30.01.2020. Ratneswari Barik, Santoshi Yadav and Rinky @ Nafisa Banu were arrested and forwarded to Court on 22.11.2019 and on 25.12.2019 Kabita Rout @ Bag was arrested and forwarded to Court. The deceased while undergoing treatment at S.C.B. Medical College and Hospital, Cuttack died on 30.01.2020. The post mortem report indicates the cause of death was on account of ante mortem acid burn injuries and its complications. First charge sheet was submitted on 06.03.2020 under sections 302/120-B/34 of the Indian Penal Code against the petitioners and others. The seized exhibits were sent for chemical analysis to Dy. Director, RFSL, Berhampur through S.D.J.M., Nuapada. The doctor of DHH, Nuapada opined to the query made by the I.O. that the injuries caused to the deceased were possible by throwing of acid. On completion of investigation, final charge sheet was submitted on 12.11.2020 against the petitioner and six others under sections 147, 148, 302, 326-A, 120-B/149 of the Indian Penal Code. 3. Mr. Devashis Panda, learned counsel appearing for the petitioner Mohammad Faruque in BLAPL No. 7833 of 2020 argued that the petitioner has been implicated on the basis of the dying declaration stated to have been made before the informant as mentioned in the F.I.R. and before others in the village and no direct evidence is available. Pointing out the discrepancies in the oral as well as recorded dying declaration, it is argued that the name of the lady accused Ratneswari finds place in the recorded dying declaration with whom the deceased was having an affair but he did not marry her. Learned counsel further submitted that the full names of the petitioner and other accused persons are not there in the oral dying declaration except the full name of petitioner Uttam Das in the recorded dying declaration and no efforts have been made by the I.O. to find out whether there are any similar named persons in village Lakhna like the names mentioned in the dying declaration except the petitioners and even though the death of the deceased took place on 30.01.2020 which was eleven weeks after the date of occurrence, the Investigating Officer did not make any endeavour during the said period to ascertain the clear identity of the accused persons named in the dying declaration by examining the deceased. Mr. Mr. Panda argued that there are criminal antecedents against the deceased and the possibility of some others committing the crime cannot be ruled out. He argued that there is only one criminal antecedent against the petitioner, which was registered at Lakhana police station on the night of occurrence alleging that he and others came to the police station and caused disturbance and in the said case, he is on bail. According to Mr. Panda, there is no material to show that there was any prior acquaintance or enmity between the deceased and the petitioner, rather materials collected during investigation indicate that four lady accused persons threw acid on the deceased. It is further argued that since after chilly powder was thrown in the both eyes of the deceased, acid was thrown on his head, face and body and there was darkness, it would not have been possible on the part of the deceased to identify the persons who committed the crime. It is further argued that the seizures made at the spot and from the house of co-accused Ratneswari Barik revealed the complicity of four lady accused persons in the crime and therefore, the bail application of the petitioner may be favourably considered. He placed reliance in the cases of State of Punjab -Vrs.- Parveen Kumar reported in (2005) 9 Supreme Court Cases 769, Amol Singh -Vrs.- Madhya Pradesh reported in (2008) 5 Supreme Court Cases 468 and Thurukanni Pompiah and another -Vrs.- State of Mysore reported in A.I.R. 1965 S.C.939. Mr. Rajesh Mohapatra, learned counsel appearing for the petitioners Sahebaj Hussain @ Janu and Uttam Das in BLAPL No.6890 of 2020 adopted the argument advanced by Mr. Panda and submitted that dying declarations cannot be relied upon due to variations and improvements and since there is no direct evidence in the case, in view of the period of detention of the petitioners in judicial custody, their bail application may be favourably considered. Mr. P.C. Das, learned Addl. Standing Counsel appearing for the State submits that not only at the spot but also after the arrival of the deceased in his house in an injured condition, he made dying declaration implicating the petitioners and others to have committed the crime. Similarly, the dying declaration recorded by the Executive Magistrate also indicates the names of the petitioners and others. Standing Counsel appearing for the State submits that not only at the spot but also after the arrival of the deceased in his house in an injured condition, he made dying declaration implicating the petitioners and others to have committed the crime. Similarly, the dying declaration recorded by the Executive Magistrate also indicates the names of the petitioners and others. The dying declaration of the deceased that the accused persons threw acid on different parts of his body is corroborated by the medical evidence. It is further submitted that since the trial has not commenced, at this stage, if the petitioners are enlarged on bail, there is chance of tampering with the evidence and the petitioner Mohammad Faruque is having one criminal antecedent and therefore, the bail applications should be rejected. 4. Law is well settled that at the stage of passing orders on the bail application, a detailed examination of the evidence and elaborate documentation on the merits should be avoided. Detailed reasons touching upon the merits of the case is likely to cause prejudice to the accused. No party should have the impression that his case has been prejudged. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself. Since there is no direct evidence in the case and the implication of the petitioners is mainly based on the dying declaration of the deceased, let me discuss the decisions relied upon by Mr. Panda on this aspect. In the case of Parveen Kumar (supra), it is held that the Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. In the case of Amol Singh (supra), it is held that if a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If there are more than one dying declarations, they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of inconsistencies, namely, whether they are material or not. The statement should be consistent throughout. If there are more than one dying declarations, they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of various surrounding facts and circumstances. In the case of Thurukanni Pompiah (supra), it is held that a truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated, but the Court must be satisfied that the declaration is truthful, the reliability of the declaration should be subjected to close scrutiny considering that 'it was made in the absence of the accused' who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of declaration alone without further corroboration. Thus, in cases where there is more than one dying declaration, each dying declaration has to be considered independently on its own merit in its correct perspective so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other, rather the Court has to satisfy itself which one of them reflects the true state of affairs. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. However, at the stage of considering the bail application when the examination of witnesses has not started in the trial Court, it would not be proper to give any opinion whether the dying declaration is voluntary, reliable and made in a fit mental condition. 5. The deceased made the first oral dying declaration at the spot itself before his brother-in-law Anil Sahoo, the informant of the case who has mentioned the same in the F.I.R. that on being asked, the deceased told that in order to kill him, Faruque, Janu, Uttam, Manoj and others of Lakhana threw acid on him. 5. The deceased made the first oral dying declaration at the spot itself before his brother-in-law Anil Sahoo, the informant of the case who has mentioned the same in the F.I.R. that on being asked, the deceased told that in order to kill him, Faruque, Janu, Uttam, Manoj and others of Lakhana threw acid on him. It is further mentioned in the F.I.R. that the same statement was made by the deceased when he was shifted to the village and asked about the occurrence before others. The persons, who were present there in the village near the deceased, have also stated that the deceased named four persons, namely, Faruque, Janu, Uttam and Manoj of village Lakhana to have thrown acid on him. Thus there is consistency in the names of accused in the oral dying declaration mentioned in the F.I.R. as well as in the statements of the co-villagers of deceased before whom such declaration was made. However, in the dying declaration of the deceased which was recorded on 08.11.2019 by the Executive Magistrate -cum- Assistant Collector, Sambalpur, it is mentioned that at first Faruque, Janu, Uttam Das, Motilal, Raja and Arun threw chilli powder on his eyes and one girl Ratneswari Barik and others poured acid on his head. Thus, in the recorded dying declaration, the deceased has named some more persons to have participated in the crime and further added about the throwing of chilli powder on his eyes first, which he has not stated in the oral dying declaration. He has not attributed throwing of acid on him to the petitioners in the recorded dying declaration. The complete names of the accused persons and their addresses have not been stated by the deceased either in the oral dying declaration or in the recorded dying declaration to come to a clear picture about identity of the persons involved. The Investigating Officer seems to have not collected any material to show that the short names or nick names of the persons mentioned in the dying declarations relate only to the petitioners and none else and that there are no other persons in those names in village Lakhna. The clarification about the identity of the culprits could have been ascertained by examining the deceased who was under treatment in the hospital for a very long period after the occurrence. The clarification about the identity of the culprits could have been ascertained by examining the deceased who was under treatment in the hospital for a very long period after the occurrence. Prima facie there appears to be variations and improvements in the oral vis-a-vis recorded dying declaration. In the case of Gopal Singh -Vrs.- State of M.P. reported in A.I.R. 1972 S.C. 1557, it is held that a dying declaration which does not contain complete names and addresses of the person charged with the offence, even though may help to establish their identity, is not of such a nature on which conviction can be based. It cannot be accepted without corroboration. Adverting to the contentions raised by the learned counsel for the respective parties, in absence of any other clinching circumstantial evidence appearing on record against the petitioners to show their involvement in the crime in question, the nature of accusation and further taking into account the period of detention of the petitioners in judicial custody, I am inclined to release the petitioners on bail. 6. Let the petitioners in both the bail applications be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000/-(rupees fifty thousand) each with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin over the matter with such terms and conditions as the learned Court may deem just and proper including the conditions that they shall not try to come in contact with any of the prosecution witnesses or tamper with the evidence, they shall not indulge in any criminal activities and shall appear before the learned trial Court on each date to which the case would be posted for trial. Violation of any of the terms and conditions shall entail cancellation of bail. Both the bail applications are allowed. 7. Before parting, I would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this order has been so said only for the purpose of disposing of the prayer for bail made by the petitioners. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the trial Court at the appropriate stage of the trial. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the trial Court at the appropriate stage of the trial. Issue urgent certified copy as per Rules.