D.G.R.PATNAIK, J. - (1.) HEARD learned Counsel for the petitioners in all three bail application and learned Counsel for the C.B.I.
(2.) PETITIONERS are accused for the offence under Sections 302, 307,326,120 -B and 34 of the Indian Penal Code read with Section 27 of the Arms Act. Learned Counsel for the petitioners submits that petitioners have been falsely implicated in this case on frivolous and cooked -up allegation. Learned Counsel explain that case relates to the alleged murder of one Sushanto Sen Gupta and two others, which had occurred on 4.10.2002 and the case was initially investigated by the local police for more than two years and thereafter, pursuant to the order passed by this Court on the prayer of the informant, investigation was entrusted to the C.B.I. on 1.7.2004. Thereafter, on 17.1.2005 the investigating agency had procured few witnesses including one Kashi Nath Paswan and on the allegation that the said witness, whose statement was recorded under Section 164 Cr. P.C., had given incriminating evidence against the petitioners, petitioners were arrested. Learned Counsel further explain that even going by the statement of the said witness, it would transpire that statement was recorded more than two years after the alleged date of occurrence and he has not offered any reasonable explanation as to why he had never bothered to inform the investigating agency in respect of the information which he had relating to the occurrence against the petitioners. It is further submitted that even according to the Statement of the said witness, it would transpire that way back in the month of January -February, 2001, the present petitioners had approached him along with two strangers seeking help for their accommodation and confided with him that strangers were being hired for committing murder of the deceased, but the said witness did not agree to extend any help to the petitioners and about a month later, an attempt was made on the life of Sushanto Sen Gupta (deceased) and yet, this witness did not bother to inform the police about the possible involvement of the petitioners in that case. Another ridiculous statement of this witness is that after 15 -20 days of the murder of the deceased Sushanto Sen Gupta and others, he had visited the office of the M.L.A. where he had found the present petitioners in a happy mood and they were rejoicing over the death of the deceased Sushanto Sen Gupta. Learned Counsel adds that evidence of this witness is thoroughly unreliable. Mere expression of happiness on the death of a member of the rival party, in itself does not constitute any incriminating circumstance against the petitioners. Referring to the evidence of other witnesses including one Md. Sultan and co -accused Apurwa Ghosh recorded in the case diary, learned Counsel submits that evidence of these witnesses was not recorded under Section 164 Cr. P.C. and even otherwise, it is improbable, as it does not sound to reason as to why a person who being a conspirator in the planned murder, would converse on his cell phone in public and that too within audible distance of the witness.
(3.) LEARNED Counsel for the C.B.I., on the other hand, submits that as per records, it transpires that since local police at the initial stage, did not conduct proper investigation, therefore, the investigation was entrusted to the C.B.I, and it was only after C.B.I. took up the investigation that evidences could be collected, in course of which, statement of the above mentioned witnesses were recorded, both under Section 161 Cr. P.C. as well as under Section 164 Cr. P.C. and from the statement of the witnesses, it will be apparent that the present petitioners had played an active role as coconspirators in the alleged murder of the deceased persons, even though they were not the main assailants.;