Patna High Court - Orders
Kanhaiya Sarawgi @ Kanhaiya Lal Sarawgi vs The State Of Bihar on 30 April, 2014
Author: Anjana Prakash
Bench: Anjana Prakash
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 41126 of 2013
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Kanhaiya Sarawgi @ Kanhaiya Lal Sarawgi Son of Sri Shankar
Lal Sarawgi Resident of Premkunj Apartment M.P. Dwedi
Road, Ghaushala, Police Station - Kotwali, District -
Bhagalpur.
.... .... Petitioner/s
Versus
The State of Bihar.
.... .... Opposite Party/s
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CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH
ORAL ORDER
06. 30.04.2014Heard learned counsel for the Petitioner and the State.
The Petitioner is apprehending his arrest in a case registered under Sections 302, 201 and 120(B)/34 of the Indian Penal Code.
The prosecution case is that on the morning of 22.06.2013 the dead body of the deceased was recovered from his room. Initially, a UD case was instituted but when post-mortem revealed that death had been caused on account of asphyxia a substantive case for murder was instituted against unknown persons.
Fifteen days later, six witnesses were examined under Section 164 Cr.P.C. One Kamal Kumar Chaudhary is to the extent that he was informed by one Aslam that the door was not being opened by the deceased on his calling at which he went there and found him dead. One Navin Parikh son of Pawan Daluka then came there and Patna High Court Cr.Misc. No.41126 of 2013 (6) dt.30-04-2014 2 called Pawan, the present Petitioner and one Deepu Bhuwania who came there. Deepu Bhuwania stated that he had been shown a medical prescription by the deceased from which it appeared that he was suffering from high blood pressure and that he had died in his opinion on account of brain haemorrhage. Thereafter, these persons brought ice and put the dead body on the ice slabs. Later the Inspector came at which Deepu Bhuwania who was the Mayor attempted to speak to the Dy.S.P. Then the dead body was sent for post-mortem. Further, he states that the deceased had earlier four shops and one of the shops had been let out to somebody else and the deceased is to live in the premises given by Deepu Bhuwania for which he was to be given Rs. 12,000/- because the earlier place in which the deceased was living was not vacated by him so as compensation he was being paid Rs. 12,000/-. In the same Dharamshala since the last year a construction was going on which was being conducted by Deepu Bhuwania, Pawan Daluka and the present Petitioner. He stated that the deceased has told him that these three persons might kill him.
The next witness Rakesh Kumar Sharma stated that the deceased used to live in the Dharamshala and in lieu to letting them constructing flats Pawan Daluka and Petitioner had promised to give him a flat and one shop Patna High Court Cr.Misc. No.41126 of 2013 (6) dt.30-04-2014 3 and at this the deceased had vacated his earlier premises and was living in the Dharamshala since then. On the previous night the deceased had asked to give him 'sattu' for drinking. Around 10 P.M. Sudama had called him and told him that while he was with the deceased Pawan and Kanhaiya (Petitioner) had come there who appeared to be in a drunken state and scolded him and sent him away from there. The next day he was found murdered.
The third witness, Md. Aslam is the person who discovered the body of the deceased and had informed Pawan, Atma Ram, Kamal and Chiku. Later, Pawan Daluka had called Deepu Bhuwania and the present Petitioner who came with slabs of ice and put the dead body on the same. When the Inspector came he wanted to get the post-mortem examination done and wanted to speak to Dy.S.P. but Inspector refused. He further stated that the deceased used to often express apprehension that he would be killed by the aforesaid three persons.
The next witness, Rakesh Kumar Sharma was the close friend of the deceased who stated that about eight months back Deepu Bhuwania, Pawan Daluka and Kanhiya Sarwagi had spoken to the deceased with regard to construction of the Dharamshala. The deceased has assured them that he would vacate the premises once he had got adequate space. Later on, he was shifted within Patna High Court Cr.Misc. No.41126 of 2013 (6) dt.30-04-2014 4 the same premises but used to always feel anxious and stated that three aforesaid persons would get him killed. He also started drinking and then he learnt about the death. Sudama Mandal stated that on the night of occurrence while he was pressing the leg of the deceased who was in an intoxicated stage two persons came and called out for deceased. Both of them were Pawan and Kanhaiya. Pawan Daluka told the deceased that once the deceased was drunk he used to speak non-sense and also stated that he would take out his finger nails. Thereafter, he left and next day he learnt that the deceased had been murdered.
Rajesh Kumar Khetan stated that the accused persons used to disturb the living conditions of the deceased and on 21.06.2013 at about 11.30 when the Petitioner had caused a road jam the deceased started abusing him and Deepu Bhuwaniya. However, the Petitioner tried to pacify him and also gave him something to eat and left. On the next day, he learnt that the deceased had been killed.
The Counsel for the Petitioner submits that from the evidence of these witnesses apart from a vague apprehension which had been allegedly expressed by the deceased there is no cogent material against him. Further, it also appears from the statement of the witnesses that Patna High Court Cr.Misc. No.41126 of 2013 (6) dt.30-04-2014 5 the deceased and the Petitioner were on amicable terms and accepted the proposal of the accused persons thus there was no cause for grouse. The further assertion is that the Petitioner has fair antecedents.
On the other hand, Counsel for the Informant submits that the statement given by the witnesses under Section 164 Cr.P.C. is incriminating and suggests that the Petitioner and co-accused Pawan Daluka had been last seen with the deceased and in the light of earlier dispute in all probability he had been killed by them. The further submission is that the accused persons are land grabbers and this is there modus operandi.
The Counsel for the State submits that apart from the statement recorded under Section 164 Cr.P.C there is no further material against the Petitioner in the case diary.
On going through the statements recorded under Section 164 Cr.P.C. I find two witnesses have stated that the Petitioner was last seen with the deceased on the previous night. However, one witness stated that he had seen the Petitioner with the deceased on the previous night but he himself did not identify the Petitioner and co- accused Pawan. He stated that on asking that they had disclosed the name as Pawan and Kanhaiya. He also states that this fact had been mentioned to Chiku (probably Rakesh Kumar Sharma) who also stated that the deceased Patna High Court Cr.Misc. No.41126 of 2013 (6) dt.30-04-2014 6 was used to drinking. However, these facts were not disclosed to anyone on the next day when the Petitioner and other co-accused persons arrived and put the dead body on the slab of ice. It was firstly on 25.06.2013 that Sudama disclosed the aforesaid facts.
Considering the aforesaid as also that the Petitioner has fair antecedents, let him be released on anticipatory bail in the event of arrest or surrender before the learned Court below within a period of four weeks from the date of receipt of the order on furnishing bail bond of Rs. 5,000/- (Five Thousand) with two sureties of the like amount each or any other surety as fixed by the Court to the satisfaction of Chief Judicial Magistrate, Bhagalpur in connection with Kotwali P.S. Case No. 316 of 2013 subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure as also subject to the following conditions:- (i) That one of the bailors will be a close relative of the Petitioner who will give an affidavit giving genealogy as to how he is related with the Petitioner. The bailor will also undertake to inform the Court if there is any change in the address of the Petitioner. (ii) That the affidavit shall clearly state that the Petitioner is not an accused in any other case and if he is he shall not be released on bail. (iii) That the bailor shall also state on affidavit that he will inform the court concerned if the Patna High Court Cr.Misc. No.41126 of 2013 (6) dt.30-04-2014 7 Petitioner is implicated in any other case of similar nature after his release in the present case and thereafter the court below will be at liberty to initiate the proceeding for cancellation of bail on the ground of misuse. (iv) That the Petitioner will give an undertaking that he will receive the police papers on the given date and be present on date fixed for charge and if he fails to do so on two given dates and delays the trial in any manner, his bail will be liable to be cancelled for reasons of misuse. (v) That the Petitioner will be well represented on each date and if he fails to do so on two consecutive dates, his bail will be liable to be cancelled.
(Anjana Prakash, J.) Vikash/-