Prem Kumar Agarwal vs State Of Odisha

S.K. Sahoo, J

This is the second successive bail application of the petitioner Prem Kumar Agarwal under section 439 of Cr.P.C. seeking for bail in connection with Rourkela Plantsite P.S. Case No.44 of 2021 corresponding to S.T. Case No. 16/11 of 2022 pending in the Court of 2nd Addl. Sessions Judge, 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 Ist Addl. Sessions Judge, Rourkela which was rejected vide order dated 18.06.2022.

The prosecution case, as per the first information report dated 10.02.2021 lodged by one Mr. Kailash Kumar Agarwal before the Inspector in-charge, Plantsite police station, Rourkela is that on 10.02.2021 at about 10.45 p.m. 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.

The petitioner approached this Court for bail in BLAPL No.3502 of 2021 and vide order dated 25.10.2021, the bail application was rejected with following observation:-

“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.”

Mr. Soura Chandra Mohapatra, learned Senior Advocate appearing for the petitioner submitted that the petitioner was taken into jail custody since 15.03.2021 and after rejection of the earlier bail application by this Court, trial has commenced and out of fifty one charge sheet witnesses, fifteen witnesses including material witnesses have been examined, nine witnesses have been declined and the rest witnesses are mostly official witnesses and at this stage, there is no chance of tampering with the same. There is no clinching evidence adduced so far against the petitioner in the trial Court and on suspicion, he has been falsely entangled in the case. The petitioner has undergone coronary angiography and stents have been implanted in his coronary arteries and the petitioner has been advised for complete cardiology care. The petitioner is a permanent resident of Hotel Delux Lane under Plantsite police station, Rourkela and there is also chance of his absconding and after availing interim bail for a period of one month as per the order dated 15.11.2022 of this Court in I.A. No.1316 of 2022, he surrendered at right time and he has not misutilised his liberty while on interim bail and therefore, in view of the observation made while rejecting the earlier bail application and the progress of the trial, the bail application may be favourably reconsidered.

Mrs. Susamarani Sahoo, learned Additional Standing Counsel appearing for the State opposed the prayer for bail and contended that prior to this case, the petitioner has got one criminal antecedent i.e. Plantsite P.S. Case No.339 of 2020 which was instituted on account of property dispute. She further argued that the petitioner is involved in the conspiracy to eliminate the deceased and the petitioner stated to have given Supari to the co-accused persons to kill the deceased. It is further argued that half of the list of charge sheet witnesses are yet to be examined in the trial Court and at this stage, 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 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 few material charge sheet witnesses are yet to be examined and statements of some important witnesses have not been submitted by the I.O. for which a petition has been filed by the learned Public Prosecutor to call for such statements which is pending for consideration. It was argued that the petitioner along with the partners of M/s. Shyampuria Realtek LLP namely Sumit Agrawal and Suman Agrawal conspired to kill the deceased as he did not agree to vacate the premises at Dwibedi market complex near UCO Bank where the partners wanted to construct a huge apartment for commercial purpose even though he was offered Rs.30 lakhs for which Supari killers were engaged to kill the deceased. 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. He further argued that there was motive behind the commission of crime and the circumstantial evidence unerringly points towards the guilt of the petitioner. He placed reliance in the case of Sudha Singh -Vrs.- State of Uttar Pradesh reported in (2021) 83 Orissa Criminal Reports (SC) 115.

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 present bail application has been moved basically in view of the changed circumstances and the observation made while rejecting the earlier bail application.

Successive bail application is permissible under the changed circumstances inasmuch as without the change in the circumstances, the second application would be deemed to be seeking review of the earlier order which is not permissible under the criminal law. The Court entertaining such subsequent bail application has a duty to consider the reasons and grounds on which the earlier bail application was rejected. In such a case, the Court has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier application. Law is well settled that at the stage of granting bail, a detailed examination of evidence and elaborate documentation on the merits of the case are not to be undertaken. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case, but at the same time, right to bail is not to be denied merely because of the sentiments of the community is against the accused. There is a need to indicate reasons for prima facie concluding why bail is being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider, among other circumstances, the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witnesses or apprehension of threat to the witnesses and prima facie satisfaction of the Court in support of the charge.

In this case, the case record reveals the motive behind the commission of murder of the deceased. 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 has to 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.

It is the prosecution case that there was criminal conspiracy between the accused persons including the petitioner to kill the deceased. The offence of criminal conspiracy for which charge sheet has been submitted against the petitioner under section 120-B of the Indian Penal Code 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 must 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. In the case of Sudha Singh (supra), while cancelling a bail application of an accused involved in the accusation of contract killing, the Hon’ble Supreme Court 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.”

The learned counsel for the petitioner filed the deposition copies of fifteen witnesses examined so far in the trial Court. On going through the same, it appears that P.W.3 Kailash Chandra Agrawal, the informant of the case who is also the younger brother of the deceased has stated about property dispute, filing of criminal case on account of threat given to the deceased and pendency of civil suit between the parties. P.W.5 Anil Kumar Mittal, the brother of the deceased has stated about the property dispute and threat given by co-accused Dillip Sharma to the deceased and interest of the petitioner in the disputed property. P.W.6 Aman Agrawal, the nephew of the deceased also stated that the petitioner is one of the partners of Sampuria Real Estate, about the property dispute between the parties and threat given by the co-accused Dillip Sharma to the deceased. P.W.8 Anand Mittal, the son of the deceased apart from stating about the property dispute between the parties, stated about the threat given by the petitioner and co-accused Dillip Sharma to the deceased few days prior to the occurrence. P.W.13 Urmila Mittal, the widow of the deceased has stated about the petitioner entrusting co-accused Dillip Sharma to vacate the shop of the deceased in Diwedi complex. She further stated about the threat given by the petitioner and others at the shop of the deceased four days prior to the occurrence. P.W.14 Tarun Mittal, the son of the deceased stated about threat given to the deceased on the date of demolition of shop room at Diwedi complex by co-accused Dilip Sharma. P.W.15 Isha Agrawal, the niece of the deceased stated about the threat given to the deceased at his shop by the petitioner and co-accused Dillip Sharma to vacate it. In view of such evidence adduced by the prosecution witnesses, it cannot be said till date, in the trial of the case, no material has come against the petitioner. It is altogether a different thing whether such materials would be accepted by the learned trial Court and would be sufficient to establish the guilt of the petitioner. Such aspect is not to be discussed here while adjudicating the bail application of the petitioner.

It is stated at the Bar that twenty seven witnesses are yet to be examined to prove different aspects of the prosecution case. CCTV cameras 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. After the arrest of the petitioner, 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. According to the prosecution case, there are sufficient materials on record to prove the nexus between the accused persons including the petitioner.

The materials on record indicate that the petitioner and Sumit Kumar Agarwal purchased Diwedi Market Complex. The petitioner contacted 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 deceased 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. Whether on the basis of evidence already adduced by the prosecution and yet to be adduced, the prosecution would be able to prove that there was criminal conspiracy between the accused persons including the petitioner to kill the deceased and some contract killers were hired for such purpose, is to be decided by the learned trial Court at the appropriate stage.

The case 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 hom icidal death.

The prosecution is trying to prove the charges against the petitioner on the basis of 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. The prosecution has adduced evidence on some of these aspects and the evidence are yet to be adduced on some other aspects through the evidence of the remaining witnesses and documentary evidence. 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.

In view of the foregoing discussions, even though there has been change in the circumstances after rejection of the earlier bail application particularly on account of examination of material witnesses, but considering the nature and seriousness of accusation, the nature of evidence that has come on record so far, the nature of evidence likely to come on record during the examination of the remaining twenty seven witnesses, the background of the case, the impact of the crime on the society, the manner in which the crime was committed, the role allegedly played by the petitioner in the crime, the severity of punishment in case of conviction and above all, the availability of prima facie materials against the petitioner regarding his involvement in the commission of offences, I am not inclined to release the petitioner on bail.

Accordingly, the BLAPL stands rejected. The learned trial Court shall do well to expedite the trial keeping in view the provision under section 309 of Cr.P.C., which provides, inter alia, that in every inquiry or trial, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded and that no adjournments shall be granted at the request of a party, except where the circumstances are beyond the control of that party.

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.

A copy of the order be communicated to the learned trial Court.

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

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