CRLA/27/2020
2021 Latest Caselaw 401 Ori

                       CRLA No.27 of 2020




                                   I.A. No.45 of 2020

11.   12.01.2021           This matter is taken up through Video Conferencing
                   mode.
                           Heard     Mr.B.S.Rayaguru,     learned     counsel   for   the
                   appellant/petitioner and Mr. G.N.Rout, learned Addl. Standing
                   Counsel.
                           The aforesaid application under Section 389 of Cr.P.C.
                   has been filed by the appellant/petitioner-Mithilesh Kumar for
                   suspension of sentence and grant of bail upon appeal.
                           The     appellant/petitioner   has    been    convicted    for
                   commission of offences under section 302/201/34 of I.P.C. and
                   sentenced to undergo imprisonment for life and to pay a fine of
                   Rs.20,000/-, in default of payment of fine to undergo R.I. for
                   six months for the offence under Section 302/34 of I.P.C. and
                   to undergo R.I. for five years and to pay a fine of Rs.2,000/-, in
                   default of payment to undergo R.I. for two months for the
                   offence under Section 201/34 I.P.C. vide judgment and order
                   dated 21.12.2019 passed by the learned Addl. Sessions Judge,
                   Rairangpur in S.T. Case No.06 of 2016.
                           Learned counsel for the appellant/petitioner submits that
                   there is      absolutely   no   evidence on      record   against the
                   appellant/petitioner and that the learned Addl. Sessions Judge
                   only on the alleged confessional statement made by the
      Bichi        appellant/petitioner before the police has convicted him for the
                   offences as aforesaid.
                           On carefully examination of the record, it is revealed that
                   the doctor who has conducted the postmortem examination on
                   the skeletal remains of the deceased has not come to a definite
                   conclusion regarding the homicidal nature of death of the
                           //2//




deceased. It is also found that the learned Addl. Sessions
Judge has relied upon the inculpatory confessional nature of
the statement purported to have been recorded under Section
27 of the Evidence Act. Clearly such a statement is not
admissible in evidence. The part of the statement whether
amounting to confession or not, leading to discovery of fact is
only admissible in evidence. The rest of the statement, made by
the accused, who is in custody, before the police officer, is not
admissible. The prosecution relied upon the identity of the
deceased which has been made by the parents of the deceased
who identified the wearing apparels of the deceased. However,
no material objects have been led into evidence in this case.
      If weightage is given to the submission of learned counsel
for   the   appellant/petitioner,   there     is   a    very   good
chance/possibility of the appeal being allowed. Moreover, the
appellant/petitioner was on bail in course of trial and there is
no allegation on the part of the prosecution that the
appellant/petitioner has mis-utilised the liberty granted to him.
            On the other hand, Mr. G.N.Rout, learned Addl.
Standing     Counsel      opposes     the     release     of    the
appellant/petitioner on bail at this stage.
            Keeping in view the submissions of the counsels
and the materials available against the appellant/petitioner, we
are inclined to grant bail to the appellant/petitioner upon
appeal.
            Accordingly, the application for bail is allowed and
sentence imposed by the Addl. Sessions Judge, Rairangpur is
hereby suspended.
            Let the appellant/petitioner- Mithilesh Kumar be
released on bail on such terms and conditions as deemed just
                            //3//




and proper by the learned Addl. Sessions Judge, Rairangpur in
the aforesaid case.
            The I.A. is accordingly disposed of.
              As restrictions are continuing due to COVID-19
pandemic, learned counsel for the appellant/petitioner may
utilize the soft copy of this order available in the High Court's
official website or print out thereof at par with certified copies in
the manner prescribed, vide Court's Notice No.4587 dated
25.03.2020.

                                       ..............................
                                        S.K.Mishra, J.

............................. Savitri Ratho, J. //4//