Kangress Swain vs State Of Odisha

S.K. Sahoo, J

This matter is taken up through Hybrid arrangement (video conferencing/physical mode).

Heard learned counsel for the petitioner and learned counsel for the State.

This is an application under section 439 of Cr.P.C. in connection with Kabisuryanagar P.S. Case No.224 of 2019 corresponding to S.T. Case No.156 of 2020 pending in the Court of learned Addl. Sessions Judge, Kodala, Ganjam for the offences punishable under sections 341/294/302/120-B/323/324/307/34 of the Indian Penal Code and sections 4 and 5 of the Odisha Prevention of Witch Hunting Act 2013.

The petitioner moved an application for bail before the Court of learned Addl. Sessions Judge, Kodala, Ganjam, which was rejected on 26.11.2021.

Learned counsel for the petitioner submitted that the petitioner is in judicial custody since 28.09.2019 and his first bail application before this Court in BLAPL No.652 of 2020 was rejected as per the order dated 28.09.2020 and in the meantime, trial has commenced and number of witnesses have been examined including eye witnesses, P.W.6 and P.W.7 and though P.W.6 has stated in his chief examination that the petitioner was holding one iron rod and he along with the co-accused person Toka Swain, who was holding a kati and Jilu Swain who was holding an iron rod assaulted the deceased-Banamali Swain but in the cross-examination, he has stated that the petitioner was holding a long kati with curve at the tip. Learned counsel further submitted that the post mortem examination report indicates that the injury sustained by the deceased has been caused by hard and blunt weapon. Learned counsel further submitted that since one eye witness like P.W.6 has stated in his cross-examination that the petitioner was holding a kati and such weapon cannot cause the injuries which were noticed on the person of the deceased, the bail application of the petitioner may be favourably reconsidered.

Learned counsel for the State, on the other hand, opposed the prayer for bail and submitted that P.W.7 Siba Shankar Swain is the informant in the case and stated that the petitioner was holding an iron rod at the time of occurrence.

Learned counsel for the petitioner submitted that P.W.7 in his cross-examination has stated that M.O.I is the iron rod which was seized by the police but that was not his presence and he had not seen when the police seized the said iron rod.

Considering the submissions made by the learned counsel for the respective parties, the period of detention of the petitioner in judicial custody for more than three years and seven months, the progress of trial so far, the nature of evidence adduced so far in the learned trial Court and absence of any material in the case diary to show that the petitioner is having any criminal antecedent, I am inclined to reconsider the prayer for bail and direct the petitioner to be released on bail.

Let the petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000.00 (rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further terms and conditions as the learned Court may deem just and proper including the conditions that he shall not indulge in any criminal activities and shall appear before the learned trial Court on each date to which the case would be posted for trial.

Violation of any of the conditions shall entail cancellation of bail.

The BLAPL is accordingly disposed of.

Issue urgent certified copy as per Rules.

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