Jiban Mistry vs State Of Odisha

Savitri Ratho, J

This matter is taken up through hybrid mode.

Heard  Ms.P.P.Mohanty,  learned  counsel  for  the petitioner and Mr.P.C.Das, learned Addl. Standing Counsel. Ms. P.P.Mohanty, learned counsel for the petitioner files the certified copy of the order dated 01.03.2021 and 29.11.2021 passed by the learned Sessions Judge, Malkangiri in C.T. Case No.04 of 2021 in Court today along with a memo. The same be kept on record.

This is an application under Section 439 of Cr.P.C. for grant of bail to the petitioner-Jiban Mistry in connection with M.V. 79 P.S. Case No.48 of 2020 corresponding to G.R. Case No.210 of 2020 in the file of learned J.M.F.C., Motu now pending before the learned Sessions Judge, Malkangiri in C.T. No.04 of 2021 for the offences under Sections 498-A/304-B/306/34 of I.P.C. read with Section 4 of the D.P. Act.

The petitioner had moved an application for bail before the learned Sessions Judge, Malkangiri, which was rejected on 19.03.2021 on the ground that charge has been framed under Section 498-A/304-B/306/34 and Section 4 of the D.P. Act and trial has commenced and only one witness has been examined.

This is the successive bail application of the petitioner-Jiban Mistry, who had earlier approached this Court in BLAPL No.7182 of 2020 along with his mother-Bijli Mistry.

Vide order dated 22.2.2021, the prayer for bail of Bijli Mistry was allowed while the prayer for bail of the petitioner was rejected. While rejecting the bail application, it has been observed that the case is one under Section 498-A/304-B/302/34 of I.P.C. read with Section 4 of the D.P. Act but in fact charge sheet has been submitted in this case against the petitioner and Bijli Mistry for commission of offence under Sections-498-A/304-B/306/34 of I.P.C. read with Section 4 of the D.P. Act.

The allegation against the petitioner is that after few days of marriage of the deceased with the petitioner, the deceased had informed her mother that the petitioner along with his mother tortured her for dowry and on 03.08.2020 on the day of Rakhya Bandhan at about 8.30 A.M., she had asked her mother to send her brother to the river bank as she wanted to go home but at about 9.00 A.M., her mother received a phone call from the father of the petitioner that the deceased had died.

Learned counsel for the petitioner submits that the petitioner is in custody since 11.8.2020. She further submits that one witness, namely, the doctor has been examined in the month of February, 2021, and, thereafter, no witness has been examined and now the case is posted to 5.1.2022 for examination of charge sheeted witness 1 to 5. She further submits that death of the deceased was due to asphyxia and except one ligature mark, there is no other external injury found on the body of the deceased. The evidence of doctor, Dibya Sanjam Mohanty who has been examined as P.W.1 also indicates that except the ligature mark, there is no external injury found on the body of the deceased. Referring to certain statements of witnesses, learned counsel for the petitioner submits that as the deceased wanted to go to her village for Rakshya Bandhan and had asked her husband to take her, but instead of doing so, he went to his land, she went to the house and committed suicide, hence no case under Section 304-B is made out against the petitioner. Further she submits that since the case is posted for trial, so release of petitioner is necessary for preparing his defence. Furthermore, the petitioner is a permanent resident of village: M.V.60, P.S. 79, District:Malkangiri, hence there is no chance of his absconding if he is released on bail.

Mr. P.C.Das, learned Addl. Standing Counsel opposes the prayer for bail stating that some witnesses including the younger sister of the deceased have stated that the deceased was being tortured for bringing motor cycle and cash of Rs.1.00 lakh and the deceased had informed her relations over telephone that the petitioner used to beat her often for non-fulfilment of demand of dowry. She also submits that death of the deceased was within six months of her marriage, so the petitioner should not be released on bail.

Considering the submissions of learned counsels, the materials available against the petitioner and the fact that after investigation, offence under Section 302 of I.P.C. has been dropped from the charge sheet, I am inclined to allow the prayer for bail.

Let the petitioner - Jiban Mistry be released on bail, on such terms and conditions as the learned trial Court may deem fit and proper including the following conditions:

(i) He shall appear on each date fixed for trial

(ii) He shall not make any attempt to influence prosecution witness.

The BLAPL is accordingly disposed of.

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

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