Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
CASE NO.:
Appeal (crl.) 251 of 2008
PETITIONER:
Narayan Ghosh @ Nantu
RESPONDENT:
State of Orissa
DATE OF JUDGMENT: 04/02/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO 251 OF 2008
(Arising out of SLP (Criminal) No.6875 of 2007)
WITH
CRIMINAL APPEAL NO 252 OF 2008
(Arising out of SLP (Criminal) No.5941 of 2007)
Sankar Adeya \005. Appellant
Versus
State of Orissa \005. Respondent
V.S. SIRPURKAR, J.
1. Leave granted.
2. Being aggrieved by the refusal of bail by the High Court both the
accused persons have come up before us by filing separate appeals.
3. The accused before us along with six other accused persons are
facing the prosecution for the offences of criminal conspiracy under
Section 120B IPC, murder under Section 302/34 IPC as also the offences
under Section 25 and 27 of the Indian Arms Act. The case of the
prosecution appears to be that the 8 accused persons conspired and in
pursuance of that conspiracy one Tapas Mitra was murdered on the Puri
Sea Beach. Immediate report with regard to the murder was lodged at the
Puri Sea Beach Police Station by one Prashanta Bala to the effect that the
informant along with some others, all of whom were the members of
Baragaon Motor Association, about 250 members, had come to Puri and
stayed in the hotels and deceased Tapas Mitra who was a Councilor of
Baragaon Municipality was one of them. It was alleged that he was a
member of the Trade Union and was an invited guest and was staying at
Hotel Mayur and on 22.6.2006 at about 9.20 p.m. when the informant
along with deceased Pallav Das, Tapas Ghosh and Swapan Seth were
sitting on the sea beach in front of Hotel R.L., a man suddenly came on
the spot and fired at Tapas Mitra, as a result of which Tapas Mitra
sustained bleeding injuries. It was further averred that the persons present
there tried to catch the assailant but he was able to escape. It was
expressed specifically in the FIR that it was due to the political rivalry and
previous enmity that Tapas Mitra was murdered. On the basis of the
investigation some persons were arrested and a charge-sheet came to be
filed against eight accused persons. However, after further investigation
as per Section 173(8) Cr.P.C., the SDJM, Puri by his orders dated
2.1.2007 took cognizance of the offences under Section 302/34 IPC as
also under Sections 25/27 of the Arms Act against the accused persons
and as such they were arrested on 30th March, 2007 by Banagaon Police
Station on the requisition of Puri Sea Beach Police Station.
4. To begin with, the appellants were released by Calcutta High Court
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
on interim bail by order dated 5.4.2007 on certain conditions and they were
further directed to surrender before the appropriate court, i.e., SDJM, Puri
within two weeks from the date of their release. The appellants
accordingly surrendered on 20.4.2007 and prayed for the bail. However,
that prayer was rejected. The appellants, therefore, moved the Sessions
Judge, Puri. Even the Sessions Judge dismissed their bail applications.
They thereafter moved the High Court of Orissa. However, even the High
Court seems to have dismissed their bail applications. The appellants
have now come up before us.
5. We have heard Shri Uday Umesh Lalit and Shri Panigrahi, learned
Senior Counsels appearing on behalf of both the appellants. It was urged
that both the appellants have been falsely implicated on account of their
alleged political differences. It is further stated that the theory of
conspiracy has no legs to stand as there is absolutely no evidence to
support the same. It is also pointed out that the three witnesses who were
set up in support of the conspiracy were already examined before the
Sessions Court and all of them did not support the theory, in the sense that
they turned hostile. Learned counsel further urged that the only possible
material against them would be the confessions of the co-accused and
even assuming that such confessions are admissible under Section 10 of
the Indian Evidence Act, they would be of no consequences since such
confessions cannot be used as substantive evidence. It is then pointed out
that otherwise there is absolutely no material implicating the appellants
and, therefore, they are liable to be released on bail.
6. Shri Janaranjan Das, learned counsel for the prosecution
vehemently opposed the appeals. It is pointed out that the trial has
already commenced and has substantially proceeded inasmuch as a large
number of witnesses have already been examined. It is also expressed
that at this stage of the trial it would not be proper to release the accused
on bail as such release was likely to affect adversely the evidence of the
proposed witnesses in the sense that there was every likelihood of the
witnesses being intimidated because of the release of the appellants on
bail.
7. Shri Lalit also supported his arguments by suggesting that the
appellant Sanker Adeya was suffering from a serious kidney disorder and
was in precarious health and pressed the ground of health in support of
plea of bail. Learned counsel also further pointed out that there are some
inherent defects in the prosecution story inasmuch as though Sanker
Adeya was in Bangladesh from 19.5.2006 to 30.5.2006 yet it was
suggested by prosecution witness Swapan Mondal that he had met Sankar
Adeya and Naryana Ghosh at Tarapith temple and had a feast where the
conspiracy for the murder was hatched. Learned counsel also pointed out
that the statement of witnesses like Nirmal Biswas and Ashok Das @
Putke were recorded late and after the arrest of the appellant Sankar
Adeya. All this, according to the learned counsel, went on to suggest that
the appellants were actually innocent and were unnecessarily implicated.
8. Shri Janaranjan Das, learned counsel appearing for the prosecution
pointed out that the prosecution has the material to show that as many as
six accused persons, namely, Satyajit Lohar, Tarun Kumar Bhowmik @
Raja, Samir Durlav, Bapi Roy, Rajen Biswas and Samir Das had boarded
a vehicle Tata Sumo from Chakdaha in the evening of 18.6.2006 and
came to the Siromani Mondal at Gaganpur where they halted and next
morning all these six persons along with three others, namely, Buro @
Akas, Kalo, etc. left for Puri and arrived there on 19.6.2006 and stayed in
Hotel Kingfisher. Next day they were joined by Kaka and Munna who had
arrived by Puri Express. All these persons, helped by two other persons to
identify Tapash Mitra @ Tofan Mitra, firstly attempted to murder him in the
afternoon but failed. However, in the evening on information that Tapas
Mitra had gone to Puri Sea Beach, the accused persons located Tapas
Mitra who was sitting there. Accused Raju, Bapi Roy and Akas @ Buro
went and sat behind Tapas Mitra and one of them fired at Tapas Mitra,
resulting in his death. The accused thereafter fled from the scene of
occurrence. It was then contended that Bapi Roy had confessed about the
conspiracy. It has also come out that both the appellants were friends and
they had common grudge against Tapas Mitra.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
9. Considering everything, we are of the clear opinion that it will not be
possible to release the accused on bail at this stage. It is an admitted
position that the Sessions trial had almost come to an end, and there are
only few more witnesses to be examined. The prosecution has expressed
that the appellants are politically influential and financially strong and are
capable of influencing the witnesses. It has also been expressed that the
appellants are residents of Banagaon District which is on the Bangladesh
border and, therefore, there is every likelihood of their fleeing from the
judicial process.
10. It is an admitted position that the appellants Sankar Adeya and
Narayan Ghosh are the residents of Banagaon District which is a border
District. Therefore, it cannot be said that the apprehension expressed by
the learned counsel for the Prosecution is totally unfounded. Learned
counsel, however, insisted that we should consider the material and more
particularly the evidence regarding the conspiracy. We do not think that it
would be proper for us to discuss the evidence threadbare as any
expression of ours would undoubtedly affect the trial. It was admitted
during the debate that some witnesses who were the witnesses for
conspiracy were examined and had to be declared hostile. If that is so,
that is all the more reason for us not to release the appellants when the
trial is at a precarious stage.
11. Much debate was devoted about the non admissibility of the
confessions of the co-accused which were likely to be relied upon by the
prosecution. Reference was made to the reported judgments more
particularly of Jayendra Saraswathi Swamigal v. State of Tamil Nadu
[(2005) 3 SCC 13]. It was urged, relying on that decision, that there was
no reasonable ground to believe that two or more persons in this case had
conspired together to commit an offence and if there was no prima facie
evidence of the existence of conspiracy, then there was no question of any
evidence of the acts and statements made by any of the accused in
furtherance of the common object being admissible at all. Learned
counsel strenuously argued that there was no prima facie evidence to
show that the two appellants were party to the conspiracy and had
conspired together between themselves or with any other accused
persons. It was pointed out from the reported decision that it was only
when the conspiracy was being hatched, whatever was said could become
admissible. Our attention was invited to the following observations:
"The words of Section 10 are not capable of being widely
construed so as to include a statement made by one
conspirator in the absence of the other with reference to past
acts done in the actual course of carrying out the conspiracy,
after it has been completed. The words ’common intention’
signify a common intention existing at the time when the thing
was said, one or written by one of them. Things said, done or
written while the conspiracy was on foot are relevant as
evidence of the common intention, once reasonable ground
has been shown to believe in its existence. But it would be a
very different matter to hold that any narrative or statement or
confession made to a third party after the common intention or
conspiracy was no longer operating and had ceased to exist is
admissible against the other party. There is then no common
intention to the conspirators to which the statement can have
reference."
There is no dispute about the principles stated in the ruling, however, we
do not think that it would be proper for us to discuss at this juncture about
prima facie finding. In our opinion it would be for the trial court to consider
and appreciate the evidence which comes before it in support of the plea of
conspiracy and to arrive at the correct finding. We will not, at this stage,
comment upon the nature of the evidence one way or the other. In that
view of the matter we do not think that the High Court was in error in
refusing the bail to the appellants.
12. However, in view of the plea regarding the health of Sankar Adeya,
we direct that all the timely medical help shall be made available to him.
We also further direct that the trial shall be completed without any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
unnecessary delay and as far as possible within four months from today.
With these observations, we dismiss both the appeals.