IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36099 of 2009 SUNIL DAS, S/O Mohit Das, Resident of Village- Haati, P.S. Kako, District Jehanabad. Versus STATE OF BIHAR ----------- 4 16/12/2009 Heard Mr. Alamdar Hussain, learned counsel for the petitioner and counsel for the State. The petitioner, facing prosecution for the offence under sections 302/34 of the Indian Penal Code, has his defence that his implication is based only on the confessional statement of a co-accused namely Balmiki Das and that the recovery of the alleged weapon i.e. FASULI from the house of the petitioner is only by way of plantation, inasmuch as, the same had been made even earlier to the alleged confessional statement of aforesaid co-accused. This Court had an occasion to consider the prayer for bail of co-accused Balmiki Das and in the order dated 27.11.2009 in Cr. Misc. No.37576 of 2009 this Court while rejecting the prayer for bail of co-accused Balmiki Das had recorded as follows:- “..............The petitioner is facing prosecution for offence under Section 302/34 of the Indian Penal Code and his main defence for seeking bail is that he was not named in the first information report and his implication comes only by way of confessional statement of wife of the deceased Champa Devi. It is to be noted that co-accused Sunil Das is the petitioner in Cr. Misc. 2 No.36099 of 2009 wherein case-diary was called for by order dated 3.11.2009 and from the case-diary and the materials collected during the investigation it becomes absolutely clear that under a well hatched conspiracy the deceased was done to death by three persons namely Balmiki Das (petitioner), Sunil Das as also Lalan Das. The weapons used for killing the deceased recovered from the house of Sunil Das is also based on the confessional statement of petitioner Balmiki Das before the police wherein it is also stated that there was premeditation for doing away with the life of the deceased wherein a sum of Rs.4000/- by way of advance as against the full amount of Rs.10,000/- was paid to him. The aforesaid confessional statement of the petitioner is not exculpatory inasmuch as he himself has accepted that while he had caught hold of the deceased and sat over the chest of the deceased, co-accused Lalan Das had caught hold of both of the legs of the deceased and thereafter co- accused Sunil Das had given fatal Pasuli blow on the neck of the deceased as a result whereof the deceased had died on the spot. Thus, on consideration of the aforesaid material this Court is not inclined to grant bail to the petitioner Balmiki Das and his prayer for bail is hereby rejected. Let this order be also kept on record of the bail application filed by co- accused Sunil Das in Cr. Misc. No.36099 of 2009 for reference............” Mr. Hussain, however, would take a plea that there has been an apparent error on the face of record in the aforesaid order, inasmuch as, there infact was no recovery of any weapon after the alleged confessional statement of co-accused Balmiki Das. In the opinion of this 3 court, the learned Counsel of the petitioner probably has chosen to ignore the manner in which the case of the prosecution has been unfolded during the investigation undertaken by police. From the case diary it is found that initially it was the wife of the deceased namely Champa Devi who had conspired for killing her husband went to reveal the crucial role played by this petitioner Sunil Das in the occurrence. On such statement as recorded in paragraph 33 of the case diary the police had gone to the place of the petitioner and is said to have made recovery of weapon, as is recorded in paragraph 36 of the case diary and only thereafter co-accused Balmiki Das had narrated the whole story before the police implicating himself, the petitioner Sunil Das and Champa Devi and later on reiterated by the petitioner himself in his confessional statement before the police. In that view of the matter, it would be difficult for this Court to rely on the statement of paragraph 50 of the case diary as with regard to the assault by the police on the person of the petitioner to be the reason for his confessional statement inasmuch as at least on that basis this Court cannot reject the earlier confessional statement of co-accused Balmiki Das or that of Champa Devi. This Court however also called for the injury report of the petitioner and from its perusal it would be clear that there was some injury by hard and blunt 4 substance over his person that by itself may not go to show the torture by way of third degree method adopted by the police as is suggested by learned counsel for the petitioner inasmuch as it has been also recorded that the villagers in a fit of range in the brutal manner of killing of the deceased had assaulted the petitioner before his being nabbed by the police. The last part of the submission of learned counsel for the petitioner that no blood stain was found on the Fasuli, is actually not needed to be answered by this Court at this stage as that may prejudice the defence case of the petitioner in course of trial, but then since such plea has been raised by the learned counsel for the petitioner with a lot of conviction it must be recorded that there are materials to show in the case diary which reveal that after the offence was committed by the petitioner the blood stain on Fasuli was wiped by water before being its kept in the house of the petitioner. That being so, when the petitioner in the facts and circumstances appears to be the main assailant, there would be no question for his being released on bail and accordingly his prayer for his bail for the aforementioned reasons must be and is hereby rejected. Let it be however made it clear that anything said and/or observed in this order as with regard to the alleged 5 involvement of the petitioner in the occurrence in question based on scanning of materials in case diary would not prejudice him in course of trial which has to disposed of on the basis of evidence adduced by the prosecution in court. Abhay Kumar (Mihir Kumar Jha, J.)