SUSHIL KUMAR NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) "Injustice anywhere is a threat to justice everywhere" -Martin Luther King, Jr. More than two decades after the pronouncement of the much celebrated judgment by the Hon'ble Supreme Court in case of Nilabati Behera -Vrs. - State of Orissa reported in AIR 1993 SC 1960 awarding compensation against the State to the mother of a young man consequent upon his death in police custody and even after the amendment to section 41 Cr.P.C. in the year 2010, the civilized society has not been spared with one of worst form of crimes which is called "custodial death". The protectors of the life and liberty of a citizen continue to behave inhumanly resulting the happenings of such crime. Article 21 of the Constitution of India no way bothers them and they act dehors such statutory provision. Here is a case where not only there is accusation of custodial death but the culprits have gone a step ahead by disposing of the dead body to cause disappearance of evidence.

(2.) The petitioner who was the officer in charge of Bheden Police Station, Bargarh is an accused in Ulunda P.S. Case No. 84 of 2015 which corresponds to G.R. Case No. 297 of 2015 pending in the Court of learned S.D.J.M., Biramaharajpur for offences punishable under sections 342, 302, 201, 218 and 120 -B of the Indian Penal Code. He has filed this application under section 439 Cr.P.C. for bail as his prayer for grant of bail was turned down by the learned Sessions Judge in charge, Sonepur vide order dated 23.11.2015.

(3.) On 24.09.2015 one Biju Bag, son of Makhnu Bag (hereafter 'the deceased') of village Dekulba presented a written report before the Inspector in Charge of Ulunda Police Station alleging therein that on 17.07.2015, his father had been to Bheden Police Station, Bargarh and did not return back and he was wearing a ghee coloured shirt and check lungi. The informant along with others searched for the deceased and after much enquiry, they received information that one human skeleton was lying in the Metakani Jungle near Ulunda. Basing on such information and with the assistance of local people, they searched and detected a skeleton and seeing the shirt attached to it and the lungi lying near it, they identified the skeleton to be that of the deceased. It is stated in the First Information Report that the police officials of Bheden Police Station tortured the deceased and committed his murder and disposed of the dead body in Metakani Jungle to conceal the offence. On the basis of such First Information Report, Ulunda P.S. Case No.84 of 2015 was registered on 24.09.2015 under sections 302/201 of the Indian Penal Code. The Investigating Officer visited the spot along with other police officials and Tahasildar -cum -Executive Magistrate, Ulunda and other independent witnesses and found bones, printed lungi, ghee coloured shirt, printed blanket etc. were lying at the spot. The Investigating Officer conducted inquest over the eight -one pieces of bones lying at the spot in a scattered manner and seized the same in presence the witnesses and prepared the inquest report as well as seizure list. He sent the seized bones and other seized articles to the Professor -cum -Head of the Department, FMT, VSS Medical College and Hospital, Burla to conduct autopsy over the collected bones and also prayed for DNA test. After post -mortem examination, the samples of three numbers of molar teeth, a bunch of hairs and a femur bone kept in three envelops collected by the Medical Officer were produced by the constable which were seized. The Investigating Officer arrived at the DNA Division of SFSL, Rasulgarh, Bhubaneswar and submitted requisition to the Director for issue of two numbers of FTA cards for collection of blood sample of the mother and son of the deceased for DNA profiling test to ascertain whether the bones found from Panichhapar Jungle belonged to the deceased or not. The Investigating Officer contacted the SDMO, Birmaharajpur to depute one Medical Officer for collection of blood sample of the mother and son of the deceased and accordingly the same was done. The doctors who conducted post -mortem examination opined that all the bones belonged to a single human being, the age of the human being was approximately between 55 to 65 years, the height of the individual was approximately 185 cms., cause of death could not be opined, however, time since death was approximately within three months at the time of autopsy. The Investigating Officer subsequently received the DNA test report which indicated that the molar tooth was of the deceased and accordingly, it was held that the bones collected from Panichhapar Jungle belonged to the deceased Makhnu Bag. The call details report of the accused persons including the petitioner were collected and the accused persons were arrested who confessed their guilt and described as to how the deceased died in the police custody and how his dead body was disposed of in the jungle in order to cause disappearance the evidence. The Investigating Officer seized the Station Diary book of Bheden Police Station and other relevant documents. The petitioner was arrested on 02.11.2015 and he was forwarded to Court on the very day as prima facie evidence under sections 342, 302, 201, 218 and 120 -B of the Indian Penal Code was made out against him.