MOHAMMAD FARUQUE Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner in BLAPL No. 7833 of 2020, namely, Mohammad Faruque and the petitioners in BLAPL No. 6890 of 2020, namely, Sahebaj Hussain @ Janu and Uttam Das have approached this Court for bail for the second time in connection with Lakhna P.S. Case No.66 of 2019 corresponding to S.T. Case No.24/5 of 2020 pending on the file of learned Addl. Sessions Judge, Nuapada in which charge sheet has been submitted for offences punishable under Sec. 147/148/302/326-A/120- B/149 of the Indian Penal Code, after their bail applications were rejected by the learned trial Court on 7/9/2020. The earlier bail application of the petitioners in BLAPL No.389 of 2020 before this Court was disposed of on 5/8/2020 on the submission being made by the learned counsel for the petitioners to renew the prayer for bail before the Court below as chargesheet was filed during pendency of the bail application. Since both the bail applications arise out of same case, with the consent of the parties, those were heard analogously and disposed of by this common order.

(2.) The first information report was lodged by one Anil Sahoo before the Inspector in-charge, Lakhana police station on 8/11/2019 alleging therein that the deceased Alok Sahoo happened to be his brother-in-law and he had come to village Rathore with the deceased for contacting video camera recording of the marriage ceremony of the deceased. While they were returning home at about 6.30 p.m., the informant stopped the motor cycle on the way and went to attend the call of nature leaving the deceased near the motor cycle. On his return after attending call of nature, the informant could not find either the deceased or the motor cycle. Hearing the cry of deceased for help, the informant rushed towards the field and found four to five persons running away towards village Lakhna. The informant came near the deceased and saw that acid had been thrown on different parts of his body including head and eyes and there was also bleeding injury on the scalp. The informant made a query to the deceased about the culprits, who informed him that the Faruque, Janu, Uttam, Manoj of Lakhna and others threw acid on him to take away his life and fled away. The informant brought the deceased in an injured condition to the house of the deceased, where the deceased again named the same culprits to have thrown acid on him. The informant then shifted the deceased to District Headquarter Hospital, Nuapada for treatment where his health condition became critical. On the basis of such F.I.R., Lakhna P.S. Case No.66 dtd. 8/11/2019 was registered under Sec. 307, 326-A/34 of Indian Penal Code against the petitioner and others. The I.O. visited the spot on 8/11/2019 and made recovery of one empty 'Unwanted' kit cover, a green coloured ladies panty and a portion of chunri of light green colour etc. from the spot. The deceased Alok Sahoo was initially treated at DHH, Nuapada, where the doctor noticed acid burn injuries on both the eyes, whole scalp, face, abdomen and both the thighs and lacerated injury on the vertex of the scalp. The deceased was referred to VSS Medical College & Hospital, Burla where his dying declaration was recorded by the Executive Magistrate -cum- Asst. Collector in presence of the doctors on 8/11/2020 in the Surgery Ward as per the requisition made by I.I.C., Burla police station. The deceased was then shifted to S.C.B. Medical College & Hospital, Cuttack for better treatment of his burn injuries, where he was treated in Plastic Surgery Department. The petitioner was arrested on 8/11/2019 and forwarded to Court. On 21/11/2019 one Ratneswari Barik appeared at Lakhna police station and confessed to have committed the crime with the help of her friends Santoshi Yadav, Rinky @ Nafisa Banu and Kabita Rout. Her confessional statement was recorded by the I.O. and then the said Ratneswari Barik led the I.O. and the witnesses to the spot where some incriminating articles were recovered. From the house of the said Ratneswari Barik, one blue colour top and bottom which were torn and partly burnt by acid and one mobile phone were seized. Ratneswari Barik, Santoshi Yadav and Rinky @ Nafisa Banu were arrested and forwarded to Court on 22/11/2019 and on 25/12/2019 Kabita Rout @ Bag was arrested and forwarded to Court. The deceased while undergoing treatment at S.C.B. Medical College and Hospital, Cuttack died on 30/1/2020. The post mortem report indicates the cause of death was on account of ante mortem acid burn injuries and its complications. First charge sheet was submitted on 6/3/2020 under Sec. 302/120-B/34 of the Indian Penal Code against the petitioners and others. The seized exhibits were sent for chemical analysis to Dy. Director, RFSL, Berhampur through S.D.J.M., Nuapada. The doctor of DHH, Nuapada opined to the query made by the I.O. that the injuries caused to the deceased were possible by throwing of acid. On completion of investigation, final charge sheet was submitted on 12/11/2020 against the petitioner and six others under Sec. 147, 148, 302, 326-A, 120-B/149 of the Indian Penal Code.

(3.) Mr. Devashis Panda, learned counsel appearing for the petitioner Mohammad Faruque in BLAPL No. 7833 of 2020 argued that the petitioner has been implicated on the basis of the dying declaration stated to have been made before the informant as mentioned in the F.I.R. and before others in the village and no direct evidence is available. Pointing out the discrepancies in the oral as well as recorded dying declaration, it is argued that the name of the lady accused Ratneswari finds place in the recorded dying declaration with whom the deceased was having an affair but he did not marry her. Learned counsel further submitted that the full names of the petitioner and other accused persons are not there in the oral dying declaration except the full name of petitioner Uttam Das in the recorded dying declaration and no efforts have been made by the I.O. to find out whether there are any similar named persons in village Lakhna like the names mentioned in the dying declaration except the petitioners and even though the death of the deceased took place on 30/1/2020 which was eleven weeks after the date of occurrence, the Investigating Officer did not make any endeavour during the said period to ascertain the clear identity of the accused persons named in the dying declaration by examining the deceased. Mr. Panda argued that there are criminal antecedents against the deceased and the possibility of some others committing the crime cannot be ruled out. He argued that there is only one criminal antecedent against the petitioner, which was registered at Lakhana police station on the night of occurrence alleging that he and others came to the police station and caused disturbance and in the said case, he is on bail. According to Mr. Panda, there is no material to show that there was any prior acquaintance or enmity between the deceased and the petitioner, rather materials collected during investigation indicate that four lady accused persons threw acid on the deceased. It is further argued that since after chilly powder was thrown in the both eyes of the deceased, acid was thrown on his head, face and body and there was darkness, it would not have been possible on the part of the deceased to identify the persons who committed the crime. It is further argued that the seizures made at the spot and from the house of co-accused Ratneswari Barik revealed the complicity of four lady accused persons in the crime and therefore, the bail application of the petitioner may be favourably considered. He placed reliance in the cases of State of Punjab -Vrs.- Parveen Kumar reported in (2005) 9 Supreme Court Cases 769, Amol Singh -Vrs.- Madhya Pradesh reported in (2008) 5 Supreme Court Cases 468 and Thurukanni Pompiah and another -Vrs.- State of Mysore reported in A.I.R. 1965 S.C.939.