1. Sanjaya Jena 2. Subhashree Jena State of Orissa v. Opp. Party
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 3193 of 2024 1. Sanjaya Jena 2. Subhashree Jena State of Orissa Petitioners Mr. Pratap Kumar Nayak, Advocate ….. Vs. Opp. Party Mr.L. Samantaray, A.G.A. CORAM: ….. JUSTICE SAVITRI RATHO Order No. 01. ORDER 09.08.2024 (Through hybrid mode) 1. This is the third successive bail application of the petitioners under Section 439 of the Cr.P.C. in connection with Tangi P.S. case No. 126 of 2020 corresponding to G.R. Case No. 1503 of 2020which is now pending before the learned Second Additional Sessions Judge, Cuttack in S.T. Case No. 64 of 2022. 2. Petitioner No.1 Sanjay Jena had earlier filed BLAPL No. 11301 of 2021which had been withdrawn on 17.05.2022 before a co-ordinate bench of this Court. He had thereafter filed BLAPL No. 10396 of 2023 which has been disposed of by me on 29.02.2024. Page1 of 8 3. Petitioner No.2 Subhashree Jena had earlier filed BLAPL
Decision
No. 8146 of 20212 which had been disposed of on 01.02.2023 by a co-ordinate bench of this Court permitting her to renew her prayer after examination of the Executive Magistrate-Sub- Collector. Thereafter, she had filed BLAPL No. 4424 of 2023 which has been disposed of by me on 27.07.2023. 4. BLAPL No. 10396 of 2023 and BLAPL No. 4424 of 2023 had been placed before me as BLAPL No. 7547 of 2020 filed by co-accused RashmitaMallick had been disposed of by me on 23.12.2020. 5. The prosecution case in brief is that the deceased had eloped with Ajay Jena, the informant in the year 2015 for which she did not have much contact with her family members. In the year 2019, she had been assaulted by her in-laws for which she had been taken to hospital, thereafter on 22.07.2019 on account of some family dispute, in the absence of the informant, the present petitioners had poured kerosene and set the deceased on fire. When the informant returned to his house, he tried to douse the fire and the deceased was taken to hospital with 86% burn injuries. He lodged FIR. Her dying declaration had been Page2 of 8 recorded and she expired on 27.07.2020 in the Cuttack S.C.B. Medical College and Hospital. The informant had stated in the F.I.R. that his sister JayantiMallick had assisted the present petitioners in setting the deceased on fire. During investigation the deceased had been examined by the I.O. on 22.07.2020 and her dying declaration had been recorded on 23.07.2020 where she implicated the present petitioners. 6. Mr. P. K. Nayak, learned counsel for the petitioner submits that the petitioner No.1 Sanjay Jena is in custody since 27.11.2021 while Petitioner No.2 is in custody since 08.01.2022. In view of the tender age of their son and the ill-health of their father, they had been released on interim bail by this Court on different occasions and have surrendered in time without misusing the liberty granted to them. He further submits that out of 24 charge sheeted witnesses, 16 witnesses have been examined so far and the husband of the deceased-the informant, the co-villagers, labourers and masons who have been examined as P.W.2, P.W.3, P.W.4, P.W.5, P.W.6, P.W.7 and P.W.8 in the trial have not supported the prosecution case. P.W.1-the informant, who is the husband of the deceased in the case has not Page3 of 8 supported the prosecution case and has stated that the deceased has committed suicide. His further submission is that though the prosecution relies on the dying declaration recorded in the presence of the Executive Magistrate, P.W.13- Sameer Ranjan Das, but th admitted that; e same can’t be relied upon as the Magistrate has (i) the exact verbatim of the statement of the deceased has not been recorded, (ii) there is no endorsement that the deceased was in a fit state of mind when her statement was recorded or (iii) that the contents of the statement have not been read over to her and (iv) thather LTI and signature have not been taken in the statement. 7. Referring to the paragraph 9 & 10 of the cross- examination of the evidence of P.W.11-Dr. Praveen Kumar Pradhan, the doctor who has conducted post mortem examination of the deceased, he submits that the brain of the deceased was swollen due to water content for which there may be disorientation and mental clouding of patient due to edema of Page4 of 8 the brain and in such type of cases, the patient suffers from severe pain, nerve damage and delirium normally happens in burn cases for which patients face difficulties due to memory problem and the feet and palms of the deceased were not burnt for which her nail clippings had been collected, he submits that it is unsafe to rely on such a dying declaration. He has also referred to the evidence of P.W.16-Dr. Sunil Kumar Neti,which he has filed in Court today, who had purportedly recorded the dying declaration of the deceased and submits that this witness has stated in his cross-examination that he had not asked the patient whether she was capable of giving answer or not and the blood pressure and pulse rate of the deceased were not recorded in the statement and that he has not recorded the exact verbatim of the victim nor obtained her signature or thumb impression and not given any endorsement to that effect. He has also admitted after recording the statement he has not read over the same and explained the same to the victim in oriya and that he is not aware of the burn injuries suffered by the deceased. His final submission is that as almost all the independent witnesses and husband of the deceased have not supported the prosecution Page5 of 8 case and the dying declaration cannot be relied upon in view of the evidence on record, the prayer for bail of the petitioners may be allowed. 8. Mr. L. Samantaray, learned Additional Government Advocate opposes the prayer for bail stating that P.W.11, P.W.13 have clearly stated about recording of dying declaration of the deceased where she has implicated the present petitioners to have poured kerosene on her and set her on fire. The value of the dying declaration and the effect of the admissions of the witnesses during cross-examination can be considered by the trial Court and as the case is in midst of trial any observation by this Court may influence the learned trial Court. He further submits that P.W.16, the doctor who has conducted the post mortem examination has stated in his examination-in-chief that the patient was well-oriented about time, place and person and correctly answered her name and address and after verifying her mental condition, she had stated that there were some family disputes with her husband and brother-in-law(elder brother of the husband) for which she had suffered injuries last year. She has also stated on 22.07.2020, there was a spat Page6 of 8 between her husband and her brother-in-law over some property related issues and while she was trying to calm down the two brothers, the present petitioners poured kerosene over her body and set her on fire. He has stated about recording of dying declaration of the patient in the bed head ticket but the ticket was not available on that date and he has denied the suggestion that no such statement of the victim was recorded and he has denied that he has not mentioned anything in the bed head ticket of the victim about the dying declaration and has stated that the victim was mentally fit at the time to give her statement and denied that he was deposing falsehood as per instruction of the Police Officers. He also submits that a number of vital witnesses remained to be examined, for which detailed examination of the evidence of the witnesses by this Court may influence the learned trial Court. 9. After going through the depositions of P.W.11, P.W.13 and P.W.16, I am not inclined to release the petitioners on bail. I am also of the view that the detailed examination of the depositions of the witnesses at this stage may influence the learned trial Court which is in the midst of examining the witnesses. Page7 of 8 10. The BLAPL is accordingly dismissed. 11. However, it is made clear that no observation in this order shall influence the learned trial Court, which is hearing the case. 12. Since the petitioner No.1 is in custody since more than two years, the learned trial Court is requested to make an endeavor to complete the trial by the end of this year. 13. Copy of this order be sent to the learned trial Court. Subhalaxmi (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 12-Aug-2024 19:31:30 Page8 of 8