Bhaskar Khatua @ Bulu vs State Of Odisha

I.A. No. 120 of 2022

This matter is taken up through hybrid mode.

Heard Mr. G.M. Rath, learned counsel appearing for the Applicant and also Ms. S. Pattnaik, learned Addl. Govt. Advocate appearing for the State.

This is an application under Section 389 of the Cr.P.C. for granting bail on suspension of the sentence till pendency of the appeal.

Mr. Rath, learned counsel has submitted that serious appreciation of the evidence would irresistibly show that the conviction has been returned on surmises and no legal evidence is available against the Applicant [the Appellant in CRLA No.102 of 2019]. The Applicant has been convicted under Section 302 read with Section 34 of the IPC along with two others and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/, in default, to suffer rigorous imprisonment for a further period of one year.

Mr. Rath, learned counsel has quite emphatically submitted that there is no evidence relating to the identification of the Applicant that he had committed the offence. The circumstantial evidence as relied on are not based on acceptable pieces of evidence.

According to the prosecution, P.W.2 has identified the Applicant as he was found seated nearby her husband who was found in the next morning in a semiconscious state. P.W.2 has stated that her husband [the deceased] told that the person sitting next to him, gave some biscuits and water to him and thereafter, he gradually lost his consciousness. In course of time, her husband died in the hospital. What we have noticed that in the examination in chief, there is no statement relating to identification of the Applicant in the dock. It is an undisputed fact that, P.W.2 has testified that the said person was sitting next to her husband, but did not know him from before.

According to Mr. Rath, learned counsel, there is no other evidence incriminating the Applicant. As such, subject to the outcome of the appeal, the Applicant may be released on bail on reasonable terms and conditions.

In order to repel the submissions of Mr. Rath, learned counsel for the Applicant, Ms. Pattnaik, learned Addl. Govt. Advocate for the State has submitted that P.W.2 had identified the convict [the Applicant] in the Test Identification Parade in presence of the Judicial Magistrate, but P.W.2 did not identify the applicant in the court. The memorandum of the T.I. parade has been admitted in the evidence. Therefore, it is not the correct to say that there is no evidence to convict the Applicant. That apart Ms. Pattnaik, learned Addl. Govt. Advocate has drawn our attention to the cross-examination of P.W.2 where the P.W.2 has stated that she had seen the accused person.

Ms. Pattnaik, learned Addl. Govt. Advocate has submitted that at the instance of the Applicant that few tablets were seized and the mobile phone of the deceased was recovered. However, the independent seizure witnesses did not support the discovery at the instance of the Applicant. They turned hostile. Ms. Pattnaik, learned Addl. Govt. Advocate has brought to our notice that one constable who was witness to seizure had testified in the trial and his testimony cannot be just brushed aside because he is a constable of the police.

Be that as it may, we are not deciding the appeal on merit. Since the case is based on circumstantial evidence and the prosecution case is found not totally consolidated, we would extend the benefit of bail to the Applicant.

It is ordered that the Appellant in CRLA No. 102 of 2019 namely Bhaskar Khatua @ Bulu shall be released on bail subject to the terms and conditions as will be decided by the Sessions Judge, Ganjam, Berhampur in S.T. Case No. 96 of 2015, including following terms and conditions :

(i) The Appellant (the applicant herein) shall not leave his village Talapada without informing the I.I.C., Tirtol Police Station.

(ii) The Appellant shall also report to the Police Station once in an every month preferably on a Sunday between 5.00 p.m. to 8.00 p.m.

(iii) He will not indulge in any criminal activity.

Accordingly, this Interim Application stands allowed and disposed of.

Urgent certified copy of this order be granted as per rules.

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