Orissa High Court
Rajendra Prasad Bharadia And Shri ... vs State Of Orissa on 26 July, 1993
Equivalent citations: 1993CRILJ3803, 1993(II)OLR186
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
ORDER D.P. Mohapatra, J.
1. The two petitioners Purakh Chand, Chandak and Rajendra Prasad Bharadia along with eight others have been charge- sheeted Under Sections 302/34. Indian Penal Code in Chauliaganj P.S. Case No. 33 of 1993 which corresponds to G R, Case No. 271 ,of 1993, pending in the Court of the Subdivisional Judicial Magistrate. Cuttack. The said criminal case was instructed on the First Information Report lodged by Shri Bijoy Mohapatra on 17-2-1993 at about 7.15 P. M. alleging inter alia, that at about 7 P. M. when he was passing by the Central Flour Mill at Naya Bazar he heard the cries of a woman from the mill premises. On reaching the place he heard that Smt. Bina Jhawar, daughter of Kali Prasad Bharadia has been attacked by Rohit Chandak, his employees and others and they had assaulted her, poured some liquid on her body and set fire to it. The informant further stated In the report that the incident took place near the Bakery situated within the flour mill premises and many persons had witnessed the occurrence.
As the case diary reveals, in the investigation statements of of several persons have been recorded under Sec, 161 Cr PC, statements of four persons have been recorded Under Section 164, Cr PC| medical reports have been collected and on completion of the investigation charge sheet has been submitted against the petitioners and eight other accused persons.
2. The application for bail filed by one of the petitioners, Purakh Chand Chandak, Criminal Misc. Case No, 662/93 during the stage of investigation of the case was dismissed on 23-4-1993.
3. The main thrust of the submissions of Shri Ram Jethamalini appearing for the petitioners was that after refusal of the previous application for bail by this Court (by one of the petitioners) a significant change in the case has taken place, inasmuch as the investigation has bean completed and charge-sheet has been submitted, that the prosecution case against the petitioners is solely based, on the dying declarations made by the deceased which is a weak piece of evidence; particularly in the facts arid circumstances of the case when the deceased after being injured in the incident on 17-2-1993 was removed to Delhi on 19-2-1993 for better treatment and she died there of cardiac arrest on 27-2-1993; that the dying declaration cannot be accepted to be true since there are several unsatisfactory features in it and the statements purportedly made by the deceased from time to time differ significantly. Shri Jethamalani further submitted that the petitioners' are residents of Calcutta having' substantial business interest there and there is little scope for their absconding or tampering with prosecution evidence. He stated that the petitioners will be ready and willing to abide by any reasonable condition including reporting at any designated Police Station at Calcutta if this Court so directs.
Elucidating the points, Shri Jethamalini submitted that the factual background of the case is that the petitioners, the father of the deceased and others were partners of the firm which owned the flour mill in question. The deceased armed with a power of attorney of her father had come to Cuttack with her mother to take prossesion of the mill on the plea that her father had become the sole proprietor of the firm by an agreement entered by the partners. Her move was opposed by Rohit Chandak and his supporters, The deceased had, therefore engaged private security men, had sought for police help and had also moved the Court seeking prohibitory order. In essence, according to Shri Jethamalini business and commercial interest was behind the incident.
4. Learned Government Advocate on scrutiny of the case diary fairly conceded that the dying declarations said to have been made by the deceased are the only incriminating materials against the petitioners, but he contended that the dying declarations are true and acceptable and can form the basis of conviction against the petitioners. He also contended that there are other materials as showing the presence of the petitioners on the mill premises at the time of the incident.
5. Before considering the case on its merits, it will be helpful to discuss certain principles laid down by the Apex Court relating to bail.
In the case of Shri Gurubaksh Singh Sibbia and Ors. v. State of Punjab, reported in 1980 S.C.C. (Criminal) 465 the Apex Court interpreting Sac. 438, Criminal Procedure Code made the following observations :
"The question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. Therefore, the High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly they must be left free to refuse bail if the circumstances of the cast; so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant Under Section 439 of the Code. The judicial discretion granted Under Section 438 should not be read down by reading into the statute conditions that are not to be found therein. The Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful ..." (Ouoted from placitum) The Apex Court in the case of Bhagirathisingh Judeja v. State of Gujarat, reported in AIR 1984 SC 372 considering the question of cancellation of bail Under Section 439, Cr. P. C. observed :
"...It is now well-settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence."
(Quoted from placitum)
6. From the principles enunciated in the decisions noted above, it is clear that exercise of discretion in the matter of grant of bail depends on various circumstances which it is neither desirable nor proper to state exhaustively. Some of the circumstances which usually play in the minds of the Courts in considering applications for bail are existence of prima facie case against the applicant, nature of the allegations made against him, manner in which the crime is alleged to have been committed, availability of the accused at the trial of the case, likelihood of his fleeing from justice, possibility of his tampering with evidence or attempting to win over prosecution witnesses, likelihood of misutilisation of liberty granted to him by the bail order, etc. As the Apex Court observed, if it is held that no prima facie case is made out against the applicant the question of considering the other circumstances does not arise in a case where a prima facie case is established against the applicant that by itself is not sufficient to dispose of the application for bail and the other relevant criteria are to be considered.
7. Judging the present case in the light of the above principles, the fact that the investigating agency on completion of investigation has submitted charge-sheet against the petitioners is prima facie case against them. But from the materials in the lower Court record, it appears that so far as the petitioners in the present case are concerned, the only incriminating materials against them are the statements made by the deceased from time to time. Indeed the learned Government Advocate conceded that the dying decatenations of the deceased are the only material against the petitioners. Since lengthy arguments were advanced by counsel for both the parties on the evidentiary value of a dying declaration in general and weight to be attached to the dying declarations in the present case, I will notice a few decisions cited at the Bar.
8. The Apex Court in the case of Khushal Rao v. State of Bombay, reported in AIR 1958 SC 22 construing Section 32 of the Evidence Act, 1872 held ;
"In order to pass the test of reliability a dying declaration which has to be subjected a very close scrutiny, keeping the view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and assailants of the victim, there is no question of further corroboration. If on the other hand, the Court after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence but from the fact that the Court in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities".
In the said case the Court further observed :
"It cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated, each case must be determined on its own facts keeping in view the circumstances in which the denying declaration was made, it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying declaration stands on the same tooting as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence a dying declaration which has been recorded by a competent Magistrate in the proper manner; that is to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony, which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
In the case of Munnu Raja and Anr. v. The State of Madhya Pradesh, reported in AIR 1976 SC 2199, the Apex Court reiterating the principles noted above held ;
"It is well-settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of Saw nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from an infirmity by reason of which it was necessary to look out for corroboration."
The Court further observed :
"In order that the Court may be In a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history.
(Quoted from placitum) A similar view taken by the Apex Court in the case of State of Uttar Pradesh v. Ram Sugar Yadav, reported in AIR 1986 SC 416. In that case while reiterating the principles discussed above, the Court ruled that the primary effort of the Court has to be to find out whether the dying declaration is true, if it is no question of corroboration arises, it is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration
9. In the present case, as appears from the records, the deceased is said to have made dying declaration at different places in the S. C. B. Medical College Hospital, Cuttack and in the Hospital in Delhi where she was taken for further treatment; The dying declarations in the S. C. B. Medical College Hospital appear to have been made in presence of the lawyers of the deceased. While the dying declarations made in the S C. B. Medical College Hospital, Cuttack are not stated in the exact words of the deceased that made in the Delhi Hospital is recorded in her own words. The tenor of her statements is that Rohit Chandak, the petitioner and several other persons physically assaulted her and poured some liquid on her body and Rohit Chandak set fire to her body due to which she sustained burn injuries. As the medical reports show, the deceased had sustained 90 per cent burns on her body. Whether the dying declarations in the present case will be accepted as true and if so its evidentiary value and the weight to be attached to it can appropriately be considered at the trial of the case, but as the position stands at present the two petitioners have been named as assailants by the deceased in the dying declarations made by her from time to time. Therefore, it cannot be said that no prima facie case is made out against the petitioners. But this is not conclusive of the matter, as held by the Apex Court. The other relevant circumstances are to be considered.
10. The investigation is complete and chargesheet has been submitted. Though a number of persons had witnessed the incident and statements of many of them have been recorded Under Section 161, Cr PC, none of the occurrence witnesses has directly implicated the petitioners in the incident relating to assault on the deceased and setting her body ablaze. They have however generally stated about presence of the petitioners on the mill premises during the other incident which is said to have taken place at about 3 p.m. about four hours before the incident in question, in which the mother of the deceased was assaulted. The dying declarations made by the deceased which is concededly the only incriminating material against the petitioners have been made in presence of doctors in the Hospital where the deceased received treatment, her lawyers and police officers. Therefore, the apprehension of risk of winning over such witnesses or tampering with their evidence is remote. Further, as stated by Shri R. Jethamalini which was not refuted by the learned Government Advocate, the petitioners ordinarily reside at Calcutta and have substantial business interests there. Shri Jethamalini contended that there is no chance of their fleeing from justice and they are prepared to report at any designated police station at Calcutta at reasonable intervals if this Court so directs. It was not the contention of the learned Government Advocate that there is reasonable basis for apprehension on the part of the prosecution that the petitioners may not be available or that their presence cannot be ensured for trial.
11. On the discussions in the foregoing paragraphs, I am inclined to take the view that the petitioners should be released on bail subject to certain conditions. Accordingly it is ordered that the petitioners shall be released on bail of Rs. 50,000/- (fifty thousand)each with to local sureties each for the like amount to the satisfaction of the S. D. J. M. Cuttack subject to the further conditions that they shall personally appear in Court on each date on which the case is posted, they shall not leave Calcutta without Court's permission excepting for appearing in the case till the trial is over, they shall report at Lal Bazar Police Station, Calcutta every fortnight on Sunday and they shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court.
The Criminal Misc. Cases are disposed of accordingly.