BASANTA PANDA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner Basanta Panda has filed this application under section 439 of Cr.P.C. in connection with S.T. Case No.21 of 2020 pending in the Court of learned Sessions Judge, Sambalpur which arises out of Sambalpur Town P.S. Case No.289 of 2019 in which charge sheet has been submitted under sections 364, 302, 201 of the Indian Penal Code. The petitioner moved an application for bail in the trial Court which was rejected vide order dated 12.10.2020. The first bail application of the petitioner was rejected by this Court in BLAPL No.365 of 2020 vide order dated 03.08.2020 taking into account the manner in which the occurrence has taken place, the extra judicial confession by the petitioner before the labourer, the surrounding circumstances in which the offence was committed and the nature and gravity of the accusation against the petitioner.

(2.) The first information report was lodged by one Bijayani Mishra, the daughter of Jayashree Mishra (hereafter 'the deceased') before the Inspector in-charge, Town police station, Sambalpur on 21.07.2019 wherein it is stated that the deceased was found missing from her house for which on the report of the informant, Sambalpur Town P.S. SDE No.365 dated 14.10.2011 and MMR No.25 of 2011 were registered. The informant came to know from the locality that petitioner had kidnapped her mother, committed her murder and concealed the dead body somewhere. The local people were also aware about the incident but out of fear, they did not disclose the matter. She received phone calls about the fact from the local people that the petitioner was not staying in the village since the date of occurrence. It is further stated that the family members of the petitioner were also involved in the kidnapping of her mother. Taking the advantage of death of the father of the informant and since there was no male member in the family to look after them, the petitioner used to borrow money and jewellery from the deceased from time to time. Basing on such written report, Sambalpur Town P.S. Case No.289 dated 21.07.2019 was registered under sections 364/302/201 of the Indian Penal Code against petitioner.

(3.) During course of investigation, S.I. of police Sri R.K. Biswal, the Investigating Officer examined the informant Bijayini Mishra, her brother Bhabani Shankar Mishra and others and recorded their statements and finding prima facie materials against the petitioner, the I.O. arrested the petitioner on 22.07.2019 and during interrogation, the petitioner confessed his guilt and disclosed that he strangulated the neck of deceased by means of a towel and killed her brutally and buried her dead body at Mahulmunda side and after the occurrence, he left the village and resided at Jharsuguda area for three years and then he was residing at Jujomura since one year. The I.O. sent a requisition to S.D.M., Sambalpur to depute an Executive Magistrate to disinter the dead body of the deceased from the spot. He also made a requisition to the Scientific Officer, DFSL, Sambalpur to assist in the collection of physical evidence with videographer. As per version of petitioner, the I.O. proceeded to village Badsinghari, Mahulmunda along with Executive Magistrate, scientific team and witnesses and searched for the dead body of deceased at all the possible places as per statement of the petitioner but found no result. As prima facie evidence was found for commission of offences under sections 364/302/201/120-B of the Indian Penal Code against the petitioner, the I.O. arrested him and forwarded him to Court on 22.07.2019. The wearing apparels of the petitioner were seized and he was taken on police remand as per the orders of the Court and during police remand, the petitioner further led the police team, Scientific team, Executive Magistrate and witnesses to Badasinghari, Mahulmunda where the petitioner had concealed the dead body of the deceased. During unearthing of the place, some bone parts suspected to be the bone parts of the deceased were recovered which was captured by videography. Those bone parts were collected and sealed in presence of the Executive Magistrate and witnesses. The I.O. seized the exhibits on production by the Scientific Officer, DFSL, Sambalpur in presence of Executive Magistrate and witnesses and seizure list was prepared and the petitioner was forwarded to judicial custody after his medical examination. Subsequently, Sri R.C. Dora, IIC of Town P.S., Sambalpur took charge of investigation from Sri R.K. Biswal, re-examined the informant and other witnesses and recorded their statements, re-visited the spot in presence of the informant and other witnesses and made a prayer to the ADMO, Medical, DHH, Sambalpur to collect the blood sample of the informant for DNA profiling as per the order of the learned S.D.J.M., Sambalpur. As per the requisition to the ADMO, DHH and order of the learned SDJM, Sambalpur, the blood sample of the informant was collected and the same was sent to SFSL, BBSR for DNA profiling. The I.O. received the DNA examination report from SFSL, Rasulgarh, BBSR in which it was opined that the DNA conducted on the exhibits could not be generated as the required quantity of DNA could not be extracted and therefore, the comparison with other exhibits was not possible and hence, the opinion was inconclusive. The report from Dept. of Forensic Medicine and Toxicology, VIMSAR, Burla was received, in which it was opined that the skeletal remains examined appears to be human in origin, age of the examined occipital bone was less than sixty years, the individuality of the skeletal remains could not be determined from the available contents and time since death was more than one year at the time of examination. During further investigation, the I.O. received some reliable information that, the marriage between Dinesh Pandey and Purnima Mishra who is eldest sister of informant Bijayini Mishra was held on 23.06.2011 and deceased was found missing since 09.06.2011. The I.O. sent the exhibits to the Director, CDFD, Hyderabad for DNA profiling and for chemical examination and opinion, which could not be received till submission of chargesheet. The case was supervised by Dr. Kanwar Visal Singh, Superintendent of Police, Sambalpur and ultimately charge sheet was submitted on 16.11.2019 against the petitioner under sections 364, 302 and 201 of the Indian Penal Code. Subsequently DNA profiling report was received from the Director, CDFD, Hyderabad in the Court of learned S.D.J.M., Sambalpur on 20.02.2020 which indicated that the sources of exhibit A (occipital bone and broken parts of cervical vertebrae with soil remnants) and exhibit B (parietal bone fragment) did not yield any DNA profiles and therefore, no opinion could be furnished.