Orissa HC Disposes Application Under Section 439 of Cr.P.C Seeking Bail

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The petitioner, Abdul Wasim, filed for an instant application under section 439 of Cr.P.C seeking bail in connection with Bahalda P.S. Case No.72 of 2019 corresponding to G.R. Case No.619 of 2019.

Facts of the Case

Petitioner/Abdul Wasim, S/o Abdul Mashid of village Baddundu married the now-deceased three years ago. After marriage, the deceased was exposed to brutality for the demand of dowry. On 15.11.2019 the petitioner and deceased had a major argument. The next day at around 4 A.M., the petitioner poured kerosene over the body of the deceased and set her on fire, following which she succumbed to death in the hospital. Thereafter, the informant (brother of the deceased) lodged the FIR in the Bahalda Police Station.

Petitioner’s Submissions

Learned counsel for the petitioner has submitted that the petitioner has been falsely implicated in the case and the prosecution has4 failed to establish a prima facie case against the petitioner. The allegations as expressed in the FIR are omnibus and no specific charge has been levied against the present petitioner.

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The dying declaration recorded by the Senior Medical Officer clarifies that the deceased was cutting onions in the kitchen while the incident took place and there was no individual close to her. The kerosene jerrycan tumbled down over the gas and set fire.

Additionally, the statements of material witnesses show that at the time of the event, the accused was not present at the scene. Accordingly, there is no element of Section 302 of IPC present in this case and thus, the Petitioner must be granted bail.

Respondent’s Submission

Learned counsel for the State presents that at the time of occurrence of the incident i.e. at 4 A.M., which is towards the beginning of the day and the statements of witnesses to support his alibi appears to be unlikely considering the trouble with unavailability of witnesses at quite an early morning in the Winter season.

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Further, he has contended that the dying declaration recorded by the Medical Officer is questionable as it has been recorded in a survey structure which isn’t the standard strategy. He has additionally accentuated that the I.O. has not taken into consideration the dying declaration while attaching Section 302 IPC in the charge sheet. Taking into account these, the bail request must be dismissed.

Court’s Observations

In State of Uttar Pradesh v. Ram Sagar Yadav, the Court speaking through Chandrachud, C.J. iterated that: “It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration.” 

In the present case, the dying declaration recorded by the Senior Medical Officer unmistakably demonstrates that nobody was available with the deceased when the incident took place and that the kerosene jerrycan fell over the gas and burst into flames. This has been additionally confirmed by the statement of the witnesses wherein they have stated that the accused was not in the house when the incident took place.

The learned Additional Sessions Judge, Rairangpur has relied on the contention of the Public Prosecutor that dying declaration recorded by the Medical Officer is questionable as it has been recorded in a questionnaire form which is not the standard method. 

Judgment of the Court

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In light of the abovementioned observation and precedents set by the Courts previously, the court allowed the prayer of the petitioner and observed the case in light of Section 439 of the CrPC. The application was hence disposed under Section 439 of CrPC. The Court further states that any observations made during the course of this bail hearing must not affect the fair trial of the case. Accordingly, the Court disposes of the Bail Application.

Click here to view the full Judgement.


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