Orissa High Court
Nanda @ Sunil Nayak vs State Of Odisha on 4 March, 2021
CRLA No.127 of 2019
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I.A. No.386 of 2019
Nanda @ Sunil Nayak ... Appellant/
Petitioner
-Versus-
1. State of Odisha
... Respondents/
2. Surendra Naik
Opp. parties
11. 04.03.2021 This matter is taken up through Hybrid
arrangement (video conferencing/physical mode).
This is an application under Section 389 of Cr.P.C.
for grant of bail.
Heard.
The appellant-petitioner has been convicted
under section 304, Part-II of the Indian Penal Code
and sentenced to undergo R.I. for ten years and to pay
a fine of Rs.5,000/- (rupees five thousand), in default
of payment of fine, to undergo R.I. for six months
more for the offence under section 304, Part-II of the
Indian Penal Code by the learned Additional Sessions
Judge, Bhanjanagar in Spl. G.R. No.13 of 2017.
Perused the impugned judgment.
Learned counsel for the petitioner submitted that
the petitioner is in judicial custody since 08.06.2017
and there are two eye witnesses to the occurrence i.e.
P.W.1 and P.W.2 and there are discrepancies in the
evidence of the two witnesses. He further submitted
that it appears that the deceased was a peaceful
intervener and since he intervened while the quarrel
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was going on between the petitioner and his wife, on
being provoked, the petitioner has assaulted the
deceased by means of a crowbar on his abdomen. He
further submitted that the doctor (P.W.8) has noticed
one injury which is a contusion below the left nipple
and fracture of left 11th vertebra. He further submitted
that in view of the background of the case and the
manner of assault and the surrounding circumstances
under which the crime has taken place, it cannot be
said that the order of conviction of the petitioner under
section 304, Part-II of the Indian Penal Code is
sustainable in the eye of law. He further submitted that
there are good chances of success in the appeal and
there is no chance of early hearing of appeal in the near
future and balance of convenience is in favour of the
petitioner and therefore, the bail application of the
petitioner may be favourably considered.
Learned counsel for the State has placed the
evidence of the eye witnesses P.Ws.1 and 2 so also the
doctor (P.W.8). The doctor has specifically stated that
the cause of death was on account of rupture of
stomach leading to peritonitis.
Considering the submissions of learned counsel
for the respective parties, the nature of evidence
adduced by the prosecution during trial, the medical
evidence, the substantive sentence imposed by the
learned trial Court, the period already undergone by
the petitioner and absence of any chance of early
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hearing of the appeal in the near future, the prayer for
bail is allowed.
Let the appellant-petitioner be released on bail
pending disposal of the appeal on furnishing bail bond
of Rs.50,000/- (rupees fifty thousand) with two local
solvent sureties each for the like amount to the
satisfaction of the learned trial Court.
The I.A. is disposed of.
.............................
S.K. Sahoo, J.
I.A. No.385 of 2019
12. 04.03.2021 Heard.
There shall be stay of realization of fine amount
imposed by the learned trial Court on the appellant-
petitioner till disposal of the criminal appeal.
The I.A. is disposed of.
Urgent certified copy of this order be granted as
per rules.
.............................
S.K. Sahoo, J.
RKM
