SURJYA PRASAD SWAIN Vs. STATE OF ODISHA

JUDGEMENT

(1.) 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 Sec. 439 of Cr.P.C. in connection with Puri Sadar P.S. Case No.272 of 2019 corresponding to S.T. Case No.6/116 of 2020 pending in the Court of learned 2nd Addl. Sessions Judge, Puri for offences punishable under Sec. 302/120-B/34 of the Indian Penal Code read with Sec. 25 of the Arms Act.

(2.) The petitioner moved an application for bail before the Court of learned 2nd Addl. Sessions Judge, Puri, which was rejected on 14/12/2022. Learned counsel for the petitioner submitted that the petitioner is in judicial custody since 19/12/2019 and when he earlier approached this Court for bail in BLAPL No.7958 of 2020, the same was rejected vide order dtd. 20/4/2021 taking into account the statement of the eye witness Susanta Kumar Biswal @ Tina, who is the informant in the case and liberty was granted to him to renew his prayer for bail after examination of the said witness. Learned counsel further submitted that in the meantime, trial has commenced and out of twenty eight charge sheeted witnesses, fourteen witnesses have been examined and though the informant being examined as P.W.11 has supported the prosecution case and stated that it is the petitioner, who assaulted the deceased by means of a sword on the head and thereafter other accused persons surrounded the deceased and assaulted him by means of sword and iron rod but the evidence of the brother of the deceased, namely, Manas Biswal who was examined as P.W.9 indicates that when he heard about the quarrel, he went to search for his brother and reached near an apartment located near the Korua Square and when he reached there, all the accused persons ran away from the spot and fled away in four motorcycles and then he entered inside the apartment and found his brother lying dead under a cot inside a room in a pool of blood on the floor and there were cut injuries on his right hand near the wrist and his face was cut into two halves and there were also stab injuries on his abdomen. Learned counsel further submitted that P.W.9 in his evidence has further stated that seeing this incident, out of fear, he returned home and told his mother and then he accompanied his mother to the spot and seeing the deceased, his mother became senseless and thereafter he brought his mother back. He further stated that while he was returning home, he found P.W.11 was sitting on the village square where his mother narrated the incident to P.W.11 and then P.W.11 went to lodge the F.I.R. Learned counsel submitted that in view of such statement of P.W.9, it is very doubtful whether P.W.11 is an eye witness to the occurrence inasmuch as P.W.9 has never stated about the presence of P.W.11 at the spot when he first time visited the spot rather from his evidence, it appears that P.W.11 was a post occurrence witness and while P.W.9 along with his mother were returning home, they narrated the incident to P.W.11 and accordingly P.W.11 lodged the F.I.R. at police station though he posed himself as an eye witness not only in the F.I.R., in his 161 Cr.P.C. statement but also in his deposition in Court. Learned counsel further submitted that in view of the progress of the trial so far, the available material on record, the period of detention of the petitioner in judicial custody and change in the circumstances after rejection of the earlier bail application, the bail application of the petitioner may be favourably reconsidered.

(3.) Learned counsel for the State, on the other hand, opposed the prayer for bail and submitted that not only in the F.I.R., 161 Cr.P.C. statement but also in Court, P.W.11 has deposed as an eye witness to the occurrence. Considering the submissions made by the learned counsel for the respective parties, the nature of accusation against the petitioner, taking into account the evidence of P.W.9 and P.W.11 and the period of detention of the petitioner in judicial custody and since at the stage, it would not be proper to appreciate the evidence and give a finding on the acceptability or otherwise of the evidence of P.W.9 and P.W.11, which exercise is to be performed by the learned trial Court at the appropriate stage, 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 the petitioner shall appear before the learned trial Court on each date to which the case is posted for trial and shall not try to tamper with the prosecution evidence.