Judgment

S.P. BHARUCHA, J.- Leave granted.

2. This appeal, filed by the State of Orissa, impugns the judgment and order of the High Court of Orissa allowing the release of Rajendra Prasad Bharadia, the first respondent, and Purakh Chand Chandak, the second respondent, "on bail of Rs 50,000 (fifty thousand) each with two local sureties each for the like amount to the satisfaction of the SDJM, Cuttack, subject to the further conditions that they shall personally appear in court on each date on which the case is posted; they shall not leave Calcutta without Courts permission excepting for appearing in the case till the trial is over; they shall report at Lal Bazaar Police Station, Calcutta, every fortnight on Sunday and they shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court".

3. The two respondents along with eight others are charged under Section 302 read with Section 34 of the Indian Penal Code in Chauliaganj P.S. Case No. 33 of 1993. The case was instituted on the first information report lodged by Bijoy Mohapatra on 17-2-1993, alleging that at about 7 p.m. on that day he had heard the cries of a woman from the premises of the Central Flour Mill at Naya Bazaar and that on reaching that spot he had heard that Smt Bina Jhawar, daughter of Kali Prasad Bharadia, had been assaulted by Rohit Chandak, his employees and others and that they had poured some liquid upon her and set her afire. The High Court noted that an earlier application for bail filed by the respondent Purakh Chand Chandak during the stage of investigations had been dismissed on 23-4-1993. The principal case against the respondents rested upon the dying declarations said to have been made by the deceased Bina. Considering the same and apposite judgments, the High Court stated:

"The tenor of her statements is that Rohit Chandak, the petitioners and several other persons physically assaulted her and poured some liquid on her body and Rohit Chandak set fire to her body due to which she sustained burn injuries. As the medical reports show, the deceased had sustained 90% burns on her body. Whether the dying declarations in the present case will be accepted as true and if so its evidentiary value and the weight to be attached to it can appropriately be considered at the trial of the case, but as the position stands at present the two petitioners have been named as assailants by the deceased in the dying declarations made by her from time to time. Therefore, it cannot be said that no prima facie case is made out against the petitioners. But this is not conclusive of the matter, as held by the Apex Court. The other relevant circumstances are to be considered.

The investigation is complete and charge-sheet has been submitted. Though a number of persons had witnessed the incident and statements of many of them have been recorded under Section 161 CrPC, none of the occurrence witnesses has directly implicated the petitioners in the incident relating to assault on the deceased and setting her body ablaze. They have, however, generally stated about presence of the petitioners on the mill premises during the other incident which is said to have taken place at about 3 p.m., about four hours before the incident in question in which the mother of the deceased was assaulted. The dying declaration made by the deceased which is concededly the only incriminating material against the petitioners have been made in the presence of doctors in the hospital where the deceased received treatment, (sic) her lawyers and police officers. Therefore, the apprehension of risk of winning over such witnesses or tampering with their evidence is remote."

Upon this basis the High Court passed the order aforementioned.

4. It may be noted for the completeness of the record that the brother of the deceased Bina, namely, Raghabendra Bharadia, had filed an application under Section