This common order disposed of two bail applications filed by Chandana Panda and Jamir @ Javed @ Jamirul Sk in a murder case under Section 302 IPC. The High Court, finding prima facie strong circumstantial evidence and a risk of absconding, dismissed the applications.
Both bail applications are dismissed and the petitioners remain in custody.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 49 of 2020
Application under section 439 of the Code of Criminal Procedure, 1973 in connection with S.T. Case No. 139 of 2019 pending in the Court of learned Addl. Sessions Judge-II, Baripada, Mayurbhanj.
Chandana Panda …..… Petitioner -VersusState of Orissa ……… Opp. Party
BLAPL No. 10975 of 2019
| Jamir @ Javed @ Jamirul Sk |
…..… | Petitioner |
|---|---|---|
| -Versus- | ||
| State of Orissa | ……… | Opp. Party |
| For Petitioner: (in BLAPL No.49 of 2020) |
- |
Mr. Gautam Misra (Senior Advocate) |
| For Petitioner: (in BLAPL No.109 of 2019) |
- 75 |
Mr. D.P. Dhal (Senior Advocate) |
| For Opp. Party: |
- |
Mr. Jyoti Prakash Patra Addl. Standing Counsel |
| For Informant: ------ |
- ------------------ |
Suryakanta Dwibedi ----- |
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S. K. SAHOO
……………………………………………………………………………………… Date of Hearing and Order: 14.09.2020
S.K. SAHOO, J. The petitioner in BLAPL No. 49 of 2020 namely Chandana Panda and the petitioner in BLAPL No. 10975 of 2019 namely Jamir @ Javed @ Jamirul Sk have prayed for bail in connection with Baripada Town P.S. Case No.104 of 2019 corresponding to S.T. Case No.139 of 2019 pending on the file of learned Addl. Sessions Judge-II, Baripada in which charge sheet has been submitted for offences punishable under sections 302/120-B of the Indian Penal Code.
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.
The petitioner Chandana Panda is the widow of Aditya Narayan Panda (hereafter the ‘deceased’) and she is in judicial custody in connection with this case since 30.04.2019 and petitioner Jamir @ Javed @ Jamirul Sk is in judicial custody since 02.05.2019.
The first information report was lodged by the father of the deceased namely Harishchandra Panda before the
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Inspector in-charge, Town police station, Baripada, Mayurbhanj on 29.04.2019 wherein it is stated that the deceased married to the petitioner Chandana Panda since seven years and they were blessed with a male child. The petitioner Chandana Panda was having illicit relationship with one Pupun Panda, who happens to be the son of the younger brother of the informant. On account of such illicit affair, the petitioner Chandana Panda was torturing the deceased both physically and mentally and fleeing away with the said Pupun Panda repeatedly and prior to the occurrence, the matter was reported in the police station and it was amicably settled between the parties. The petitioner Chandana Panda was threatening the deceased with dire consequence. The deceased along with petitioner Chandana Panda and their male child were remaining separately. On 28/29.04.2019 night at about 2 O’ clock, the informant heard groaning sound from the room of the deceased and the cries of the male child of the deceased and petitioner Chandana Panda. The informant knocked the door of the room where the deceased was sleeping with petitioner Chandana Panda but nobody responded. He called the covillagers and they came and thereafter the door was opened and they found the deceased was lying with bleeding injuries on his neck and he was immediately shifted to the hospital where the
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deceased was declared dead. The informant suspected the involvement of petitioner Chandana Panda and his nephew Pupun Panda in the commission of murder of the deceased and accordingly on the basis of the F.I.R., a case under section 302/34 of the Indian Penal Code was registered against petitioner Chandana Panda and Pupun Panda.
During course of investigation, the Scientific Officer visited the spot which was the bed room of the deceased and petitioner Chandana Panda and they seized different incriminating materials. The petitioner Chandana Panda was arrested and apart from confessing her guilt to have committed murder of the deceased in association of the petitioner Jamir @ Javed @ Jamirul Sk, on the basis of her statement recorded under section 27 of the Evidence Act, there was recovery of cash of Rs.30,000/- which was meant for hiring the petitioner Jamir @ Javed @ Jamirul Sk to commit murder of the deceased and also one SIM card which was used by petitioner Chandana Panda for making communication with the other co-accused persons. The doctor conducting post mortem examination over the dead body of the deceased noticed various injuries including one horizontal ligature mark around the neck and opined the cause of death to be asphyxia on account of strangulation of the neck by ligature.
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On completion of investigation, charge sheet was submitted against the two petitioners as well as one Latu Sk.
Mr. Gautam Misra, learned counsel appearing for the petitioner Chandana Panda submitted that the case is based on circumstantial evidence and the petitioner is having a small child of five years and she has to take care of the child and he further submitted that in view of the proviso to section 437(1) of Cr.P.C., the bail application may be favourably considered as there is no chance of her absconding.
Mr. D.P. Dhal, learned counsel appearing for the petitioner Jamir @ Javed @ Jamirul Sk submitted that except the confessional statement of the co-accused i.e. petitioner Chandana Panda, there is no other material against the petitioner and there is also no clinching material relating to any conspiracy between the two petitioners to kill the deceased and therefore, the bail application may be favourably considered.
Mr. Jyoti Prakash Patra, learned counsel appearing for the State produced the case diary and opposed the prayer for bail and contended that since the deceased was with the petitioner Chandana Panda in the night of occurrence inside the bed room and the deceased sustained injuries on his person and met with a homicidal death and no explanation is forthcoming
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from the side of the petitioner Chandana Panda in that respect, this circumstance alone is sufficient to make out a prima facie case under section 302 of the Indian Penal Code against the petitioner. He further submitted that incriminating articles were seized by the Scientific Officer from the spot room during the spot visit which is also another clinching circumstantial evidence against the petitioner Chandana Panda. He further submitted that the illicit relationship between petitioner Chandana Panda and Pupun Panda and the objection of the deceased to such illicit relationship was the motive behind commission of crime. He further submitted that the petitioner Jamir @ Javed @ Jamirul Sk is an outsider and belongs to State of West Bengal and there was frequent telephonic communication between the two petitioners as per the call detail reports on the previous day of the occurrence as well as on the date of occurrence and he was hired by the petitioner Chandana Panda to commit the crime. He further submitted that if the petitioners are released on bail, there is every likelihood of tampering the evidence and the petitioner Jamir @ Javed @ Jamirul Sk is likely to abscond, in the event which there would be difficulty in ensuring his attendance at the time of trial and therefore, the bail applications should be rejected.
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Mr. Suryakanta Dwibedy, learned counsel appearing for the informant vehemently opposed the prayer for bail and placed the statements of Harishchandra Panda, Satyaranjan Behera and Bichitra Kumar Bhuyan. He further submitted that in view of section 106 of the Evidence Act, since the homicidal death of the deceased was within the knowledge petitioner Chandana Panda as she was present with the deceased in their bed room in the night of occurrence and the deceased was found dead with injury on the neck and it is a case of strangulation as per the post mortem report, she has to explain as to under what circumstances the deceased died. He further submitted that the manner in which the deceased was killed in connivance with the co-accused persons for the lust of the petitioner Chandana Panda, even though she is a lady and having a small child, she does not deserve to be released on bail.
Adverting to the contentions raised by the learned counsel for the respective parties and after going through the case records, it prima facie appears that the occurrence in question took place inside the bed room of the deceased during the midnight where the deceased, the petitioner Chandana Panda and their child were present. At the first instance, when the informant knocked the door of the bed room of the deceased
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hearing groaning sound, the petitioner Chandana Panda did not open the door and subsequently when the co-villagers of the informant came on being called and the door was opened, the deceased was found with bleeding injury particularly on the neck and he was immediately shifted to the hospital where he was declared dead by the doctor. The post mortem report indicates that it is a case of homicidal death. The Scientific Officer found incriminating articles from inside the bed room which were collected and sent for chemical examination. There are prima facie materials on record to show that the petitioner Chandana Panda was having illicit relationship with Pupun Panda and she left the house of her husband on many occasions for such illicit relationship and the deceased was objecting to such illicit affairs and the matter was also compromised and the deceased was tortured by the petitioner Chandana Panda physically and mentally for such illicit relationship and she threatened the deceased with dire consequence. The seizure of cash and the SIM card at the instance of the petitioner Chandana Panda is another clinching circumstance. The call details report between the two petitioners is also a clinching circumstance to show that
there was link between the two prior to the occurrence. Both the petitioners are to face the trial and the petitioner Chandana
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Panda has to explain as to under what circumstance the deceased met with homicidal death inside the bed room. Even though the case is based on circumstantial evidence, the learned trial Court is to assess the evidence to be adduced before it to see whether the five golden principles so as to constitute "Panchasheel" in the proof of a case based on circumstantial evidence as observed in the case of Sharad Birdhichand Sarda -Vrs.- State of Maharashtra reported in A.I.R. 1984 S.C.
1622 are satisfied or not. I am satisfied that there are prima facie clinching materials on record which raise accusing finger against the two petitioners. The petitioner Jamir @ Javed @ Jamirul Sk. is an outsider and it is rightly urged on behalf of the State that there is chance of his absconding and also tampering with the evidence at the instance of the two petitioners. The ghastly crime has been committed in a pre-planned manner for which an aged person like the informant lost his son and a minor child lost his father. In my humble view, grant of bail to the petitioners is likely to shock the conscience of the society. The petitioner Chandana Panda is no doubt a lady but the accusation against her are very serious and she does not deserve to be released on bail with the aid of proviso to section 437(1) of Cr.P.C. The discretion conferred by the said proviso has to be
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exercised judicially and not in an arbitrary manner and the Court has to keep in mind the nature and gravity of the accusation against a lady accused, likelihood of her tampering with the witness and absconding and also impact of her release on bail on the society. The cause of public justice and interest of society are to jealously guarded compared to the right of the lady applicant.
In view of the foregoing discussions, after giving due consideration to the submissions made by the respective parties, taking into account the nature and gravity of the accusation, the manner in which the crime has been committed in a pre-planned manner, the punishment prescribed for the offences under which charge sheet has been submitted, prima facie availability of supporting materials to establish such accusation, the role played by the petitioners in the entire episode, the impact of such offences on the society, the chance of absconding of the petitioner Jamir @ Javed @ Jamirul Sk. and the likelihood of tampering with the evidence, I am not inclined to release the petitioners on bail.
Wherever I have observed relates to the materials collected during course of investigation and the findings recorded
herein are for the purposes of adjudication of the bail applications only. This may not be taken as an expression of
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opinion on the merits of the case. The learned Trial Court would be at liberty to decide the matter in the light of evidence which shall come on record after it is led de hors any finding recorded in this order.
Accordingly, both the bail applications being devoid of merits, stand dismissed.
………………………… S.K. Sahoo, J.
Orissa High Court, Cuttack The 14th September 2020/Pravakar
3 issues framed by the court
Whether bail should be granted to the petitioners facing charges under Section 302 IPC for a pre-planned murder.
Whether the proviso to Section 437(1) Cr.P.C. applies to the female petitioner given the serious nature of the accusation.
Whether there is a likelihood of absconding and tampering with evidence if the petitioners are released on bail.
Colour shows how this judgement treated each authority
Sharad Birdhichand Sarda-Vrs.- State of MaharashtraExplained¶35
Sharad Birdhichand Sarda -Vrs.- State of Maharashtra reported in A.I.R. 1984 S.C. 1622 · Who else cites this
5 provisions across 4 enactments
Chandana Panda
Jamir @ Javed @ Jamirul Sk
State of Orissa
S. K. SAHOO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
