Sambhu Behera vs State of Orissa

B.N. Mahapatra, J.—This petition has been filed u/s 439, Cr. P.C. with a prayer to release the Petitioner on bail with any conditions in connection with S.T. Case No. 454 of 2010 now pending in the Court of Learned 1st Additional Sessions Judge, Cuttack corresponding to GR. Case No. 486 of 2010 arising out of Malgodwn PS. Case No. 37 of 2010. The Petitioner is alleged to have committed offences punishable under Sections 365/ 302/ 120-B/ 201/ 34, I.P.C.

Prosecution case in brief is that one Bansidhar Panigrahi had land business with the deceased Ramesh Chandra Biswal & in such business Bansidhar Panigrahi suffered heavy loss. Bansidhar Panigrahi, in order to take revenge against the deceased, chalked out a plan & hatched conspiracy with his supporters to kill the deceased. He gave them assurance to pay Rs. 10 lakhs for the said work & in advance he paid Rs. 1 lakhs. Ramesh Chandra Biswal, the deceased was dealing with Ayurvedic medicine of "Sri Ram Dev Baba". As per conspiracy among the accused persons, accused Jiban @ Jibanjit Dakua was set to visit the house of the deceased to receive Ayurvedic treatment so as to gain confidence of Ramesh Chandra Biswal. Accordingly, Jibanjit Dakua frequently went to the house of deceased Ramesh Chandra Biswal & gained his confidence day-by-day. By the by, the deceased proposed Jibanjit Dakua to sell his land to a suitable customer pursuant to which Jibanjit Dakua introduced one Pabitra @ Pabi to the deceased through phone as a customer for purchase of land worth Rs. 30 lakhs: The accused persons to gain further confidence took the deceased to verify the land physically. On 15.04.2010 the deal was finalized at Rs. 30 lakhs & it was decided to register the land in question on 16.04.2010 at Bhubaneswar. As per the plan, on 15.04.2010 Jibanjit Dakua, Bhima @ Panchanan Behera, Sambhunath Behera, Pradip Bisoi & Sanjaya arranged a Bolero vehicle from Daringibadi & came to Bhubaneswar & stayed in a Lodging at Bhubaneswar. Accordingly, on 16.04.2010 all the above accused persons came to the house of the deceased & parked the Bolero vehicle near the house of the deceased at Bombay Hotel, College Square, Cuttack. As Jibanjit Dakua was conversant & acquainted with the deceased & his house, he asked the deceased to come with him for monetary transaction. The deceased could not read the minds of the accused persons & in good faith came along with Jibanjit Dakua & sat in the Bolero vehicle which proceeded towards Bhubaneswar being driven by accused Tulu Nayak. Further allegation is that the accused persons named in the FIR kidnapped the deceased & on the way towards Bhubaneswar killed him & threw the dead body from Kalinga Ghati towards the low level of the hill & fled away from the spot.

Learned 1st Additional Sessions Judge, Cuttack has rejected the bail application of the Petitioner on the ground that a large number of witnesses have stated before the police that the deceased had (sic) dispute with Bansidhar Panigrahi who wanted to kill the deceased & therefore, engaged some hired killers. Post-mortem report supports the prosecution case; cause of death was due to constriction around the neck by a ligature. Charge sheet submitted by the police speaks a volume against the accused persons who are principal offenders.

Mr. Debasnan Das, Learned Counsel appearing on behalf of the Petitioner submitted that the Petitioner has no complicity in the alleged crime & the entire case has been foisted against him on suspicion & there is no eye witness to the alleged murder. The entire case is purely based on circumstantial evidence. There is no other clinching circumstantial evidence to connect the present Petitioner except the statement of co-accused persons. The present Petitioner has not been named in the F.I.R. & no incriminating material was recovered from his possession. It is further submitted that the Petitioner without having any criminal antecedent is languishing inside the jail custody from 17.5.2010. The Petitioner has got permanent abode within the jurisdiction of Daringibadi Police Station. So the question of fleeing away from the course of justice does not arise. In the meantime, investigation has already been completed & case has been committed; so there is no question of tampering with the evidence. In the meantime also co-accused persons, namely, Amulya Kumar Mallik, Tulu Nayak & Kartik Bisoi have already been released on bail by this Court. Learned Counsel for the Petitioner placing reliance upon some judicial pronouncements in support of his contention submitted that the prayer for bail deserves consideration on the ground of parity.

Mr. S. Mohanty, Learned Counsel appearing for the State submitted that it is a case of circumstantial evidence. One of the co-accused,-namely, Jibanjit Dakua in his statement stated that Sambhunath Behera-Petitioner was there in the vehicle. Amulya & Karitika, who were granted bail were not in the alleged vehicle wherein the deceased was murdered. Therefore, the Petitioner is not on the same footing as Amulya & Kartika stand & he may not be released on bail on the ground of parity. It is further submitted that the Petitioner in his confessional statement admitted that he was in the vehicle along with co-accused persons, namely, Tulu Nayak, the driver, Pradipa, Sanjay @ Dilu, Bhima & Jibana in which the deceased was murdered by means of a yellow colour plastic rope & he led the police to the place where the plastic rope was hidden & the police seized the said rope in presence of witnesses. The Petitioner has also stated that he along with others threw the dead body of the deceased to the lower level of the hill. Mr. Mohanty, further submitted that the wife of the deceased was the informant & she did not know the name of the Petitioner while lodging the FIR. Therefore, in the FIR the name of the Petitioner was not available.

On the rival contentions of the Learned Counsel for both parties, the following questions fall for consideration by this Court:

(i) Whether the Petitioner is entitled to be released on bail on the ground of parity as other co-accused persons namely, Amulya, Kartika & Tutu were released on bail?

(ii) Whether the Petitioner, who was arrayed as an accused on the basis of the statements of the co-accused persons, & on the basis of his own confession admitted commission of the offence can be released on bail?

(iii) Whether the Petitioner has made out a case for grant of bail?

Question No. (i) is as to whether the Petitioner is entitled to be released on bail on the ground of parity.

Learned Counsel for the Petitioner submitted that other co-accused persons, namely, Amulya, Tulu & Kartika, who are similarly situated with that of the Petitioner, have already been released on bail vide BLAPL Nos. 18890 of 2011, 8463 of 2011 & 21039 of 2012. Vide Order Dated 18.11.2011 in BLAPL No. 18890 of 2011, bail has been granted to Amulya. Subsequently, Tulu Nayak & Kartika Bisoi have also been released on bail on the ground of parity as their case stands on similar footing with that of Amulya Kumar Mallik. Further, it reveals that bail has been granted to co-accused-Kartika on the footing that he was neither present in the vehicle in which the deceased was murdered nor was he present when the dead body was thrown somewhere at Kalinga Ghati.

Now, the question arises whether the case of present Petitioner is similarly situated with that of Amulya Mallik, Kartika & Tulu; the answer would be certainly not. All the three co-accused persons were released on bail on the ground that they were not present in the vehicle in which the deceased was murdered & they were also not present when the dead body were thrown somewhere at Kalinga Ghati. On the other hand, the record reveals that the present Petitioner was present in the vehicle in which the deceased was murdered & he was also present when the dead body of the deceased was thrown to the lower level of Kalinga Ghati. Apart from the above, the Petitioner also led the police to the place where the rope was hidden by means of which the deceased was murdered & the police recovered the said rope in presence of the witnesses.

In view of the above, it cannot be said that the case of Petitioner stands on same footing with that of the co-accused persons namely, Amulya, Kartika & Tulu.

For the reasons stated above, there is also no need to refer to the Judgments relied upon by Learned Counsel for the Petitioner that similarly situated co-accused persons have been released on bail & the Petitioner has a right to be released on bail on the ground of parity.

Question No. (ii) is as to whether the Petitioner who was arrayed as an accused on the basis of the statements of the co-accused persons & in his own confession admitted commission of the offence, can be released on bail.

Mr. Das, Learned Counsel for the Petitioner submitted that the name of the Petitioner does not appear in the F.I.R. Subsequently, on the basis of the statements of the co-accused persons, he has been arrayed as an accused in the case & the confession made by him before the police is not admissible. As stated above, in addition to the statement of the co-accused persons & confessional statement of the Petitioner, the Petitioner led to recovery of the plastic rope by means of which the deceased was killed & the Investigating Officer seized the said rope in presence of the witnesses. This aspect cannot be ignored while considering the bail application of the Petitioner.

In the fact situation, I am not inclined to accept the prayer of the Petitioner for bait. Hence, the same is liable to be rejected.

Question No. (iii) is as to whether the Petitioner has made out a case for grant of bail. Keeping in mind the gravity of offence & materials available on record, I am of the considered view that the Petitioner has not made out a case for grant of bail. Accordingly, the BLAPL is rejected.