Prem Kumar Agarwal vs State Of Odisha

S.K. Sahoo, J

The petitioner Prem Kumar Agarwal has filed this application under section 439 of Cr.P.C. seeking for bail in connection with Rourkela Plantsite P.S. Case No.44 of 2021 corresponding to G.R. Case No.189 of 2021 pending in the Court of learned S.D.J.M., Panposh, Rourkela in which charge sheet has been submitted against the petitioner for offences punishable under sections 302/120-B/34 of the Indian Penal Code.

The petitioner moved an application for bail in the Court of learned 2nd Addl. Sessions Judge, Rourkela in BLAPL No.138/32 of 2021 which was rejected vide order dated 16.04.2021.

The prosecution case, as per the first information report lodged by one Mr. Kailash Kumar Agarwal is that on 10.02.2021 while he was in his house, he heard a loud sound and he immediately ran towards the source and found his elder brother Sajan Kumar Mittal (hereafter 'the deceased') was lying seriously injured at the entrance of the ground floor of the house with excessive amount of blood poured out of the backside of his head. The informant along with his son Ayush and other neighbours immediately shifted the deceased to Ispat General Hospital, Rourkela where he was declared dead. According to the informant, someone has killed the deceased.

Basing on such first information report, in absence of I.I.C., Plantsite police station, S.I. H.S. Barik registered the case under section 302 of the Indian Penal Code against unknown persons and took up investigation of this case. Subsequently, the I.I.C. of Plantsite police station took up charge of investigation of the case. During course of investigation, the Investigating Officer visited the spot and recorded the statements of witnesses. The scientific team visited the spot and they collected physical clue from the spot. Inquest was held over the dead body of the deceased and the dead body was sent to S.D. Hospital, Panposh, Rourkela for autopsy. Biological exhibits as well as wearing apparels of the deceased were seized. The P.M. Report of the deceased indicated that there were injuries on the occipital region and on dissection of the skull, fracture of occipital bone and hematoma 6"x4" over the occipital region of the scalp was noticed. The opinion regarding cause of death was kept reserved pending chemical analysis of viscera. The queries on the post mortem report of the deceased received from the doctor indicated that the injuries sustained by the deceased on the occipital region were ante mortem in nature which can cause death in normal circumstances and the injuries can be possible by hard and blunt object. Two numbers of CD containing the video footages of the occurrence and the spot of the case collected from the CCTV installed at the house of the deceased and certificate under section 65B of the Evidence Act were seized. Preserved viscera of the deceased were sent to S.F.S.L., Bhubaneswar for chemical analysis and opinion. One Pulsar motorcycle used by the culprits to flee away from the spot after commission of murder was seized along with one country made pistol, one iron hammer and a keypad mobile phone of co-accused Rajat Biswakarma from his possession in presence of witnesses. Mobile phones of all the accused persons including SIM cards were seized from their possession observing all the formalities of seizure. The petitioner was arrested on 14.03.2021 and the copy of sale deed dated 20.02.2020 executed between Smt. Bijaya Pati and others with the partners of SHYAMPURIA REALTECH LLP, copy of re-constitution of deed of SHYAMPURIA REALTECH LLP along with a cell phone were seized from the petitioner and the petitioner was forwarded to Court on 15.03.2021. First charge sheet was submitted against the petitioner under sections 302/120-B/34 of the Indian Penal Code on 06.07.2021 keeping the investigation open for receipt of chemical examination report of viscera of the deceased. Subsequently, the F.S.L. report was received from the Director, S.F.S.L., Bhubaneswar and as per the report, no poisonous compound, alcohol and drugs were detected in viscera. The final opinion regarding cause of death of the deceased was obtained from the Medical Officer who opined that the death was due to head injury and hematoma over occipital region of the brain and the injuries were possible by hard and blunt object. Final charge sheet was submitted on 04.08.2021 against seven accused persons including the petitioner who was charge sheeted under sections 302/120-B/34 of the Indian Penal Code.

Mr. Devashis Panda, learned counsel for the petitioner submitted that the petitioner has not been named in the F.I.R. but subsequently, in the 161 Cr.P.C. statements of the witnesses, he has been falsely implicated. The whole story of the prosecution is based upon surmises and conjectures and the petitioner has been implicated with the aid of section 120-B of the Indian Penal Code as a conspirator but the prosecution has not been able to show any prior meeting of mind of the petitioner with the co-accused persons to make out such offence. It is further submitted that the petitioner was also implicated in another case i.e. Plantsite P.S. Case No.339 of 2020 wherein the dispute was between the Mittal Family and one Dilip Kumar Sharma and counter case was filed by him which was registered as Plantsite P.S. Case No.340 of 2020. The petitioner was in partnership with one M/s SHYAMPURIA REALTECH LLP for buying and selling property so also to construct on such property and sale till 01.10.2020. The property was purchased in the name of Limited Liability Partnership firm and the LLP was represented by designated partner Sri Sumeet Agarwal and the petitioner had got no personal interest in the property except being a partner in the firm. He further submitted that though the petitioner was initially working as a partner but on 01.10.2020, he resigned from the said partnership and become independent and relieved himself from any liability in the aforesaid company. After the petitioner resigned from the said partnership, one Suman Agarwal, the wife of Sumeet Agarwal became the partner on the very same day of the resignation of the petitioner. It is further submitted that the petitioner had undergone coronary angiography and two stents have been implanted in his coronary arteries and the petitioner has been advised for complete cardiology care. It is further submitted that the omnibus nature of allegation has been leveled against the petitioner and he is languishing in jail custody since long. The investigation of the case has been completed and there is no chance of his absconding or tampering of evidence and therefore, the bail application of the petitioner may be favourably considered.

Mr. Jyoti Prakash Patra, learned Additional Standing Counsel appearing for the State opposed the prayer for bail and contended that prior to this case, the petitioner has been charge sheeted in another case which was registered as Plantsite P.S. Case No.339 of 2020 regarding the disputed property. The son of the deceased in his 161 Cr.P.C. statement has categorically stated that prior to four days of the occurrence, the petitioner had threatened his father (deceased) to kill him and Mr. Biren Kumar Pati who is the original owner of that market complex in his 161 Cr.P.C. statement submitted that the petitioner was involved in the conspiracy to eliminate the deceased. He further submitted that two culprits were identified in the CCTV footage to have committed murder of the deceased and they are Rajesh @ Raju Singh and Neel Paul @ Sarada @ Rajat Biswakarma and they implicated one co-accused Aman Prasad who in turn in his inculpatory statement implicated himself as well as the petitioner to have given Supari to him to kill the deceased. It is contended that at this stage, when the case has not even been committed to the Court of Session, grant of bail to the petitioner would cause hindrance in the smooth progress of trial and the petitioner is very likely to tamper with the evidence by gaining over witnesses and therefore, the bail application of the petitioner should be rejected.

Mr. Lalitendu Mishra, learned counsel appearing for the informant vehemently opposed the prayer for bail and contended that C.D.R (Call Detail Report) of the mobile phones of the accused persons were collected during investigation which showed that they made frequent calls among themselves. The registered sale deed dated 20.02.2020 executed between the vendors of the property and with the partners of the M/s. SHYAMPURIA REALTECH LLP was seized from the possession of the petitioner which shows that the petitioner had an interest on the property and he engaged co-accused Dilip Sharma to vacate the market complex at any cost and he resigned from the partnership deliberately to show that nobody would raise accusing finger at him in future. There are ample evidence to establish the factum of criminal conspiracy and planning against the petitioner. The mobile phone call details, seizure of sale deed from his possession, statement of the son of the deceased to have seen the petitioner standing near his house with some other accused persons to show the house of the deceased are very incriminating circumstances against him. He further submitted that the co-accused Dilip Kumar Sharma is a person who was engaged for vacating the land. The petitioner conspired with Sumit Agarwal and Suman Agarwal and engaged accused Dillip Kumar Sharma to vacate the market complex. Accused Dilip Kumar Sharma engaged Supari killers namely Rajat Biswakarma, Suraj Kumar Jha @ Ravaan to kill the deceased. The petitioner along with Sumit and Suman are the persons who had intention to grab the property for which they took the help of accused Dilip Kumar Sharma to kill the deceased. He further submitted that there was motive behind the commission of crime and the circumstantial evidence unerringly points towards the guilt of the petitioner.

It is argued that the real culprits namely Sumit Agarwal and Suman Agarwal are the beneficiaries and they had the master mind behind of the crime and they conspired with the petitioner to commit murder of the deceased at any cost, so that they could grab the property in a lesser price and construct a huge apartment for commercial purpose and in a pre-planned manner, the crime was committed. The Investigating Officer intentionally has not submitted charge sheet against Sumit Agarwal and Suman Agarwal and given them clean chit and they are moving scot free in the locality. Learned counsel for the informant further submitted that the informant has filed one CRLMP application vide CRLMP No.980 of 2021 before this Court challenging perfunctory investigation which is subjudiced and there is possibility of addition of more accused persons in the case.

Placing reliance on the ratio laid down in the cases of Suresh Chandra Bahri -Vrs.- State of Bihar reported in 1995 Supreme Court Cases (Cri) 60 and Sudha Singh -Vrs.-State of Uttar Pradesh reported in (2021) 83 Orissa Criminal Reports (SC) 115, it is argued that it is a case of contract killing out of sheer animosity and for obvious reasons and there is grave and potential threat to the lives of family members of the victims and the witnesses and release of bail of the petitioner would cause serious prejudice to them and trial of the case would be hampered.

Adverting to the contentions raised by the learned counsel for the respective parties and on verification of the case records, it is apparent that the F.I.R. was lodged against unknown persons, but during course of investigation, materials were collected to prima facie show that the petitioner had strong motive behind the commission of crime. In the case of Suresh Chandra Bahri (supra), it is held as follows:

"21. At the very outset, we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the Court that the accused was guilty of the offence charged with..."

CCTV camera installed very close to the spot and nearby areas were verified by the Investigating Officer and from the footages, it was found that two unknown persons came in a black colour Pulsar motorcycle without having any registration number from the main road following the deceased and the pillion rider of the motorcycle entered inside the house of the deceased and attacked the deceased and fled away from the spot. The rider was wearing helmet and the pillion rider was wearing a dress having hood covering his head. The petitioner was arrested and a copy of sale deed dated 20.02.2020 executed between some persons with the partners of SHYAMPURIA REALTECH LLP, copy of re-constitution deed of SHYAMPURIA REALTECH LLP were seized from his possession. The mobile phone of the petitioner was also seized from the possession of the petitioner. The call detail report of the mobile numbers of the petitioner and other accused persons were analyzed and it was ascertained that they had made frequent calls with each other which proved the nexus between the accused persons.

The materials on record indicates that the petitioner and Sumit Kumar Agarwal purchased Diwedi Market Complex and thereafter the petitioner contacted with the co-accused Dilip Kumar Sharma and entrusted him the job to vacate the shop owners who had occupied Diwedi Market Complex and running their business, to dismantle the shops and to start a new project. Though co-accused Dilip Kumar Sharma could able to vacate few shops from the market complex but the deceased and his younger brother Pawan Mittal did not agree to vacate their shops occupied in the said market complex. During dismantling, there was protest by the petitioner and his brother, assault and counter assault and cases were instituted at Plantsite police station and charge sheets were submitted. The petitioner is an accused in Plantsite P.S. Case No.339 dated 19.10.2020 under sections 447/294/354/323/427/506/34 of the Indian Penal Code. There are prima facie materials to show there was criminal conspiracy between the accused persons to kill the deceased and some contract killers were hired for such purpose. In the case of Baliya @ Bal Kishan v. State of Madhya Pradesh reported in (2012) 9 Supreme Court cases 696, the Hon'ble Supreme Court has held as follows:-

"17. The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the Court drawing such inference much consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally, in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused."

The evidence on record indicates that on 09.02.2021 night, while the deceased after closing his shop and visiting the local temple returned home, the  accused persons  Rajat Biswakarma and Suraj Jha followed him in a black colour Pulsar motorcycle. When the deceased parked his scooty inside his house verandah, at that time, accused Suraj Jha trespassed into the verandah and assaulted the deceased with one iron hammer on the backside of his head causing grievous injuries and then the two accused persons escaped from the spot by Pulsar motorcycle which was a stolen one. The deceased died while undergoing treatment at Ispat General Hospital, Rourkela. The medical evidence confirmed that the deceased died a homicidal death. Thus the motive behind the commission of murder, CCTV camera footage of the occurrence and the spot, the call detail reports of the mobile phones of the petitioner and the co-accused persons, the conspiracy to commit the crime, the seizure of copy of sale deed of the property and reconstitution deed of SHYAMPURIA REALTECH LLP from the possession of the petitioner are very incriminating circumstances against the petitioner. Whether the available materials on record would be sufficient to establish the guilt of the petitioner in the commission of murder of the deceased would be adjudicated by the learned trial Court during trial of the case. Criminal cases are also subjudiced between the parties relating to the property dispute. There are prima facie materials on record to show the hiring of Supari killers to kill the deceased.

In the case of Sudha Singh (supra), while cancelling a bail application of an accused involved in the accusation of contract killing, it is observed as follows:

"8.......It is needless to point out that in cases of this nature, it is important that Courts do not enlarge an accused on bail with a blinkered vision by just taking into account only the parties before them and the incident in question. It is necessary for Courts to consider the impact that release of such persons on bail will have on the witnesses yet to be examined and the innocent members of the family of the victim who might be the next victims.

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There is no doubt that liberty is important, even that of a person charged with crime but it is important for the Courts to recognize the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail."

Without  detailed  examination  of  evidence  and elaborate discussion on merit of the case but considering the nature and seriousness of accusation and its impact on the society, the manner in which the crime was allegedly committed, the role played by the petitioner in the crime, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence and availability of prima facie materials against the petitioner regarding his involvement in the commission of offences and when the case is yet to be committed to the Court of Session, I am not inclined to release the petitioner on bail.

Accordingly, the BLAPL stands rejected. The petitioner is at liberty to renew the prayer for bail after examination of the material witnesses in the trial Court.

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 petitioner. 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.

Urgent certified copy of this order be granted on proper application.

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