Orissa High Court
Sankar Swain vs State Of Odisha ......... Opp. Party on 31 July, 2018
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 2254 of 2018
Application under section 439 of the Code of Criminal Procedure,
1973 in connection with Aska P.S. Case No.84 of 2016
corresponding to G.R. Case No.180 of 2016 pending in the Court
of J.M.F.C., Aska.
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Sankar Swain ........ Petitioner
-Versus-
State of Odisha ......... Opp. Party
BLAPL NO. 3022 of 2018
Uma Charan Barada ......... Petitioner
-Versus-
State of Odisha ......... Opp. Party
BLAPL NO. 3024 of 2018
Prafulla Kumar Bisoyi ......... Petitioner
-Versus-
State of Odisha ......... Opp. Party
BLAPL NO. 3025 of 2018
Nilachal Swain
@ Kankada ......... Petitioner
-Versus-
State of Odisha ......... Opp. Party
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BLAPL NO. 3141 of 2018
Pravakar Swain
@ Tunguru ......... Petitioner
-Versus-
State of Odisha ......... Opp. Party
For Petitioners
(in BLAPL Nos. 2254/2018,
3022/2018, 3024/2018
and 3025/2018) - Deepali Mohapatra
For petitioner
(in BLAPL No. 3141
of 2018): - Mr. Debi Prasad Dhal
For Opp. party: - Mr. Arupananda Das
Addl. Govt. Advocate
For Informant: - Mr. S.S. Ray-2
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Order: 31.07.2018
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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
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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, co-
villager 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
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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. 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
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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.
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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
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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.
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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
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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 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
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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.
..........................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 31st July, 2018/Sukanta