Rajendra @ Shiba Telenga @ Kuda vs State Of Odisha

V. Narasingh, J

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

2.The Petitioner is an accused in S.T. No.19 of 2022 pending on the file of learned Addl. Sessions Judge, Kantamal, arising out of Manamunda P.S Case No.150 of 2021, for commission of the offence alleged under Sections 302/34 IPC.

Learned counsel, on instruction, submits that except the present BLAPL, no other bail application of the Petitioner relating to the aforementioned P.S. case is pending in any other Court.

Being aggrieved by the rejection of his application for bail U/s.439 Cr.P.C. by the learned Addl. District & Sessions Judge, Kantamal, by order dated 27.12.2023 in the aforementioned case, the present BLAPL has been filed.

The Petitioner is in custody since 16.11.2021 on the allegation of causing death of one Subala Telenga.

It is submitted by the learned counsel for the Petitioner referring to the deposition on record of 14 witnesses that P.Ws.1 to

8 and P.Ws.10 to 13 have not supported the Prosecution and P.Ws.9 and 14 are seizure witnesses.

Learned counsel for the Petitioner submits that one co-accused Banamali Telenga was released on bail by this Court by order dated 13.12.2022 in BLAPL No.10095 of 2022 and while so releasing this Court had referred to the statement of one Rajani Telenga-wife of the Petitioner and one Rabi Sahu. She has been examined as P.W.12 and Rabi Sahu as P.W.7. Both of them have resiled.

It is the further submission of the learned counsel for the Petitioner that two of the material witnesses i.e. wife of the deceased-Arati Telenga (C.W.1) and her mother Rupei Telenga-C.W.2 in spite of issuance of several summons are not appearing for which the trial is lingering. Hence, taking into account the nature of evidence on record qua the accusation vis-à-vis the Petitioner, his further continuance in custody is unwarranted. It is submitted that the accused-Petitioner ought not to be incarcerated because the prosecution is not able to produce key witnesses.

Learned counsel for the State opposes the prayer and submits that reliance on the release of the co-accused is ex-facie misconceived since what weighed with this Court is his age and since both the material witnesses i.e. C.Ws.1 & 2 as referred to hereinabove have not been examined, the bail application does not merit consideration.

Instruction submitted through the IIC indicating that since the material witnesses which learned counsel for the State referred to belong to “wandering groups” the summons could not be served, “due to non-availability of the witnesses” is taken on record.

Taking into account the period in custody, the nature of evidence on record and the instruction of the IIC as noted, this Court directs the Petitioner to be released on bail on such terms to be fixed by the learned court in seisin.

Additionally, it is directed that the Petitioner shall not leave the State of Odisha without express permission of the learned Court in seisin and shall appear before the jurisdictional police station once every month on such date and time to be fixed by the learned Court in seisin till conclusion of trial. Certification of such appearance shall be submitted to the Court in seisin.

Accordingly, the BLAPL stands disposed of.

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

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