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2021 DIGILAW 65 (ORI)

Sipun Kumar Kabi v. State Of Odisha

2021-02-15

S.K.PANIGRAHI

body2021
JUDGMENT 1. BLAPL No.5786 of 2020 and BLAPL No.5787 of 2020 being similar in facts, nature of offence committed and the involvement of the same person, hence both are heard analogously and taken up together for disposal by this common judgment. 2. The petitioner has filed BLAPL No.5786 of 2020 under Section 439 of Cr.PC seeking bail in connection with Khandagiri P.S. Case No.272 of 2020 dated 19.05.2019 corresponding to C.T. Case No.2187 of 2019 pending before the court of the learned S.D.J.M., Bhubaneswar. The petitioner herein is the accused in connection with alleged commission of offences punishable under Section 394 of I.P.C and Sections 25 and 27 of the Arms Act. 3. The case of the prosecution, in short, is that the complainant on 19.05.2019 at about 5:30 to 6:00 A.M. while on his way to drop his brother-in-law Deepak Rout at the Railway Station, was attacked by some suspects in front of Jaya Durga Club, Jagamara. The alleged suspects appeared on two bikes, attacked them and on the point of Bhujali and Pistol, took away their gold chains, lockets, gold ear ring and escaped. Thereafter the complainant lodged the FIR in the Khandagiri Police Station as he further came to know that the suspects also snatched away gold ornaments of two other women at different places in a similar manner. 4. The petitioner has also filed BLAPL No.5787 of 2020 under Section 439 of CrPC seeking bail in connection with Khandagiri P.S. Case No.317 of 2020 dated 10.06.2019 corresponding to C.T. Case No.2540 of 2019 further corresponding to C.T. No.41 of 2020 pending before the court of the learned Additional Sessions Judge, Bhubaneswar. The petitioner herein is the accused in connection with alleged commission of offences punishable under Sections 364 and 394 of I.P.C. 5. The case of the prosecution is that the complainant Dillip Dehury is a driver of an Innova car and on 09.06.2019 at about 10 P.M. while he was taking his car out from the parking area in front of SBI ATM near Gitanjali Vatika, he was strongly received a blow on his head from behind. Thereafter, the suspects forcibly made the complainant sit on the middle seat and tied a napkin on his face. One of the suspects drove the vehicle while the others caught hold of him. After sometime the suspects parked the car and took the complainant to kill him. Thereafter, the suspects forcibly made the complainant sit on the middle seat and tied a napkin on his face. One of the suspects drove the vehicle while the others caught hold of him. After sometime the suspects parked the car and took the complainant to kill him. However, the complainant managed to escape and fled away from the spot and with the help of local people he informed the Police after which he was taken to hospital for treatment. 6. The forwarding report in Badagada P.S. Case No.186, dated 04.08.2019 reveals that the present accused is involved in 15 other Criminal Cases of similar nature. It is further revealed that on that particular date, the IIC, Badagada P.S. got information about the presence of accused and co-accused Harekrushna Sahu in Rabi Talkies area. At about 3:15 A.M. in the night, the IIC Badagada P.S. along with his staff tried to apprehend the accused and his associate. However, rather than surrendering, they fired five rounds of bullets at the police. In the counter firing, the present accused and his associates got injured and both of them were apprehended. Out of their possession, one loaded pistol with live ammunition, mobile phones and cash were recovered. 7. Heard Ms. Prajna Sarita Mohanty, learned counsel appearing for petitioner and Mr. S. S. Kanungo, learned Additional Government Advocate for the State and perused the case records. 8. Learned counsel for the petitioner, Ms. Prajna Sarita Mohanty has submitted that a bare perusal of the FIR would go to show that there is no specific allegation against the present petitioner or person by name. The petitioner has been falsely implicated in the alleged crime though there is complete absence of evidence on record to implicate him in the crime. Further, she has submitted that the statement of the witnesses recorded under Section 161 of Cr.P.C. reveals that none of the witnesses have seen the petitioner committing the alleged offences. Rather from the stereotype 161 statements it can be easily inferred that all the witnesses have been planned in order to implicate this innocent petitioner in the case. Learned counsel has relied on the Supreme Court case in Surinder Kumar Khanna vs Intelligence Officer Directorate of Revenue1 and Odisha High Court case in Rabinarayan Jena and Ors. vs State of Orissa2 1 (2018) 8 SCC 271 . 2 2013 (II) OLR 262 . Learned counsel has relied on the Supreme Court case in Surinder Kumar Khanna vs Intelligence Officer Directorate of Revenue1 and Odisha High Court case in Rabinarayan Jena and Ors. vs State of Orissa2 1 (2018) 8 SCC 271 . 2 2013 (II) OLR 262 . and submits that the confessional statement of the co-accused cannot be used as a substantive piece of evidence in the Court: '14. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused.' 9. Learned counsel for the petitioner has further submitted that the perusal of materials available on record would go to show that there is no specific evidence and reason for alleging against the petitioner for commission of the alleged offences. Further, the Police have completed the investigation and submitted the charge-sheet. As such, any further detention of the petitioner shall in no way be beneficial for the prosecution. Hence, he may be granted bail. 10. The Honble Supreme Court in the case of Haricharan Kurmi v. State of Bihar3 held that: '12... though such a confession may not be evidence as strictly defined by Section 8 of the Act, it is an element which may be taken into consideration by the Criminal Court and in that sense, it may be described as evidence in a nontechnical way. But it is significant that like other evidence which is produced before the Court, it is not obligatory on 3 AIR 1964 SC 1184 . the Court to take the confession into account. When evidence as denned by the Act is produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however be adopted by the Court in dealing with a confession, because Section 30 merely enables the Court to take the confession into account.' 11. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however be adopted by the Court in dealing with a confession, because Section 30 merely enables the Court to take the confession into account.' 11. Kerala High Court in the case of K.C. Peter vs State of Kerala4 has provided the importance of confessional statement of coaccused and its consonance with 69th Law Commission Report: '17 The main condition to consider and act upon such a confession statement is that through such confession statement, he shall inculpate himself as well as the other accused who jointly tried along with the maker. A confession statement made by the co-accused inculpating another accused but exculpating himself-the maker will not come under Section 30 of the Evidence Act. Of course, the value of a confession statement made by a co-accused is lesser than the evidentiary value of the statement of an accomplice. Still then, according to me, a confession statement of the co-accused can be considered for the purpose of appreciating the evidence in that trial and for taking appropriate judicial decision in a criminal trial. The purpose under which Section 30 was incorporated in the Evidence Act, according to 69th report of the Law Commission is that if a person implicates himself (while implicating others), there is some guarantee that the implication is true. In paragraph 11.78 of the 69th Law Commission report, it is stated as 'It is also said that it 4Crl.Rev.Pet.No. 624 of 2011. is difficult in such a situation to require the court to exclude the statement altogether from its mind, when it comes to consider the case against the other accused.' I am of the view that the above purpose is more relevant and required in this time. According to me, at the time of incorporating Section 30 in the Evidence Act, the I.P.C. offences against the mankind and the society are comparatively lesser than the present one. Now-a-days, the number of economic offences and other offences connected with monetary interest are being increased and to commit such offences, the wrong doers are using all the modern sophisticated devices so as to screen the offenders, offence and evidence and to escape from the clutches of law and penal liability. Now-a-days, the number of economic offences and other offences connected with monetary interest are being increased and to commit such offences, the wrong doers are using all the modern sophisticated devices so as to screen the offenders, offence and evidence and to escape from the clutches of law and penal liability. Such economic offences as well as crimes are being committed in pursuance of criminal conspiracy and by way of abetment and particularly with the help of modern devices including computers. Therefore, though it is not practically impossible, it is difficult to get direct evidence.' 12. It is significant that like other evidence which is produced before the Court, it is not obligatory on the Court to take the confession into account. However, when evidence as denned by the Act is produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Further while considering bail applications, the Court must consider the nature of accusation, severity of punishment in case of conviction, apprehension of tampering with evidences and the case history of the accused persons while looking at the confession of the co-accused as the sole evidence. 13. At this juncture, it would be appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of Dipak Shubhashchandra Mehta v. CBI and another5, wherein it has been held as under: '32. court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering a petition for grant of bail in a non- bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted.' 14.In the instant case, the investigation is still going on. From perusal of the FIR, it appears that offences under the Indian Penal Code, are prima facie made out. A perusal of the FIR and charge sheet filed in the present cases shows that there are very specific 5 (2012) 4 SCC 134 . allegations against the Petitioner, who is same person in both cases arrayed as an accused. It is not, as if, the allegations are casual and sweeping against all the accused in general. Moreover, the IIC, Badagada in P.S. Case No.186 dated 04.08.2019 has reported that there are 15 other criminal cases of similar nature are pending against the petitioner and further he has tried to refrain arrest by firing at the police officers with the help of his associates. 15. There are numerous other allegations as well in the charge sheet which are very detailed and need not be reproduced since the above extracts are sufficient to indicate that the allegations are specific and not of a general nature. Upon a reading of the FIR and the charge sheet as a whole, it is not possible to come to the conclusion that they do not make out even a prima face case against the petitioner for the offences in question. Moreover, the allegations are specific qua each of them. 16. In view of the above, I am not inclined to allow the prayer for bail of the petitioner in both the bail applications. Accordingly, both the bail applications are dismissed. 17. However, the petitioner will be at liberty to raise all the points, already raised in these petitions, at the time of framing of the charge, which will be considered by the trial court concerned by passing a reasoned order. None of the observation made herein above shall come in the way of the fair trial of the instant case.