Per- S.K. Mishra vs Unknown
2021 Latest Caselaw 3413 Ori

                                    CRLA No.492 of 2017




07.     09.03.2021               I.A. No.1759 of 2019
 Per- S.K. Mishra, J.            This matter is taken up by Hybrid mode.
                                 Heard M/s. B.L. Tripathy, learned counsel for the
                        Petitioners/Appellants and Mr. G. N. Rout, learned Additional
                        Standing Counsel for the State.
                                 This application has been filed under Section 389 of
                        the Cr.P.C. by the Petitioners/ Appellants- Pyarasa Naik and
                        Malla Naik respectively for grant of bail upon appeal and
                        suspension of sentence.
                                 In this case, the Petitioners/ Appellants and another
                        co-accused, namely, Ramesh @ Kempa Bera have been
                        convicted and sentenced to undergo rigorous imprisonment for
                        life each and to pay a fine of Rs.5000/- each and in default of
                        payment of fine, to suffer further rigorous imprisonment for one
                        year each for the offence under Section 302/34 of the Indian
                        Penal Code, 1860 (hereinafter referred to as "the Penal Code"
                        for brevity) and to undergo rigorous imprisonment for a period
                        of one year each for the offence under Section 324/34 of the
                        Penal Code vide the judgment of conviction and order of
                        sentence dated 18.07.2017 passed by the learned Sessions
                        Judge, Ganjam, Berhampur in Sessions Trial No.61 of 2013.
                                 The earlier application for bail upon appeal of the
                        Petitioners/ Appellants     was rejected vide order dated
                        06.12.2018 passed in Misc. Case No.1294 of 2017 arising out
                        of CRLA No.492 of 2017. However, after lapse of more than
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two years, the appeal has as yet not matured for hearing. Paper
Books have not yet been prepared. It is further borne out from
the record that the Petitioners/ Appellants were on bail during
the course of trial and there is no allegation from the side of the
State that they have misused the liberty granted to them in any
manner.
          Learned Additional Standing Counsel for the State
opposes the prayer for bail upon appeal of the Petitioners/
Appellants and submits that there is chance of the appeal being
dismissed in final hearing.
          However, we are of the opinion that in case the appeal
is allowed in favour of the Petitioners/ Appellants in view of the
materials available on record in the final analysis and it took
some time for disposal, then detention of the Petitioners/
Appellants in this case for two to three years would not be
justified and there is no mechanism in the existing law to
compensate them for their dentention which ultimately ends of
acquittal. On the other hand, if the appeal is dismissed, the State
will not be prejudiced in view of the fact that the appeal is
dismissed and the judgment of conviction is confirmed, then the
Petitioners/ Appellants shall be recommitted to prison to suffer
the remaining part of the sentence imposed on them. That is the
reason for which we are inclined to allow the application for
bail upon appeal of the Petitioners/ Appellants.
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           We have also examined the impugned judgment and
the statements of the witnesses.
           All the witnesses stated that the accused persons have
assaulted the deceased by means of knife without specifying the
name of the person who actually dealt the knife blow on the
belly of the deceased. Moreover, the Petitioners/ Appellants are
permanent residents of village- Padamari Harijan Sahi, P.S.
Pattapur, in the district of Ganjam. Hence, there is no
reasonable chance of their abscondance from the process of
justice.
           In that view of the matter, we are inclined to grant bail
upon appeal to the Petitioners/ Appellants. Accordingly, the
prayer for bail upon appeal of the Petitioners/ Appellants is
allowed. Sentence imposed upon the Petitioners/ Appellants is
suspended.
           Let the Petitioners/ Appellants- Pyarasa Naik and
Malla Naik be released on bail on such terms and conditions as
deemed just and proper by the learned Sessions Judge, Ganjam,
Berhampur in the aforesaid case.
           The fine amount, as directed by the learned Sessions
Judge, Ganjam, Berhampur in the aforesaid case shall remain
stayed till disposal of the appeal.

                                      ........................

(S. K. Mishra) Judge

8. 09.03.2021 Per- Savitri Ratho, J. With all regards to the opinion of my learned Senior

Brother Judge, I record my disagreement regarding grant of bail to the Appellant No.1- Pyarasa Naik.

This is the successive application filed under Section 389 of the Cr.P.C. by the Petitioners/ Appellants-- Pyarasa Naik and Malla Naik to release them on bail during pendency of the appeal.

Their earlier application filed under Section 389 of the Cr.P.C. was rejected vide order dated 06.12.2018 passed in Misc. Case No.1294 of 2017 arising out of CRLA No.492 of 2017.

While advancing the prayer for bail, learned counsel for the Petitioners/ Appellants submits that the Petitioners/ Appellants were on bail during the course of trial vide the order dated 17.07.013 passed in BLAPL No.9651 of 2013 in favour of Appellant No.2- Malla Naik and order dated 23.07.2013 passed in BLAPL No.9836 of 2013 in favour of Appellant No.1-Pyarasa Naik. Copies of the said orders have been produced by the learned counsel for the Petitioners/ Appellants in Court today and I have perused the same.

P.Ws.1-Rupa Naik, 3-Ranjan Naik, 6- Urmila Bisoi and 13- Baidhar Bisoi are eye witnesses to the occurrence. P.Ws.1 and 3 have stated that the Appellants and one Ramesh @ Kempa Behera assaulted the deceased on his abdomen by

knives as a result of which he sustained injuries and fell down and his liver came out (as per P.W.3). Subsequently, he succumbed to the injuries. But, P.Ws.6-Urmila Bisoi and 13- Baidhar Bisoi have specifically stated that accused Jaga @ Santosh Naik and Malla Naik caught hold of the deceased while the accused Ramesh @ Kempa Behera and Pyarasa Naik stabbed him in the abdomen. P.W.6 has specifically stated in cross-examination that accused Malla Naik and absconding accused Jaga Naik caught hold of Kartika and Pyarasa and Ramesh stabbed to his belly. P.W.13-Baidhar Bisoi, the elder brother of deceased-Kartika Bisoi @ Kalia and injured has stated that accused Jaga @ Santosh Naik and Malla Naik caught hold of the deceased-Kartika while accused Ramesh @ Kempa Behera and Pyarasa Naik mercilessly stabbed on his abdomen and stretched the stab injury. As a result of which, his abdomen came outside and he fell on the ground.

Evidence of P.W.16-Dr. Kiran Kumar Pattnaik shows that the deceased sustained four external injuries which are as follows:

i). Surgical gauge and bandage was found around the abdomen and soiled with blood on removal of which a surgically stitched and repaired would was found horizontally over the lower abdomen of right side 95 cm. above the level of right foot. On cutting open the stitches a sharp edged spindle shaped hemorrhage stab

of size 3 cm x 2 cm x abdomen cavity deep was detected.

ii). Another stitched wound over right side and mid abdomen 5 cm right to the umbilicus was detected. On cutting open the stitch a sharp edged hemorrhage stab of size 1 cm x 0.5 cm x rectus mussel deep was detected with tailing for 8 cm towards the right with severe oozing of blood.

iii). Cut wound of size 1.5 cm x 0.5 cm consistent with defence wound was found over the middle and little finger of left hand.

iv). An elongated abrasion of size 8 cm x 2 cm over left cubical fossa.

The Evidence of P.W.16 further shows that the deceased sustained three internal injuries which are as follows:

i). The abdominal cavid was found to contain fluid and clotted blood.

ii). On exploration of external injury no.1 mentioned above a penetrating would was found that originates with external injury no.1, punctures, loop of small intestine, the mesentery and upper portion of caecum. The mesenteric vessels adjacent to caecum and ascending colon are severed. Also the major vessels originating from the abdominal aorta on right side were found severed.

iii) other organs were intact.

P.W.16, the doctor, who conducted post-mortem examination over the dead body of the deceased, opined that death was due to hemorrhage and shock as a result of injury to major abdominal structures and vessels due to external injury no.1 and the time since death was within around 12 hours +- three hours prior to the time of post mortem examination.

Perusal of the order dated 17.07.2013 passed in BLAPL No.9651 of 2013 shows that while allowing the prayer for bail, this Court has observed that "One Ramesh Behera @ Kampa is alleged to have assaulted the deceased Kartik Bisoi by stabbing him with a knife on his belly. So far as the present petitioner (Malla Naik) is concerned, he along with others is alleged to have assaulted Baidhar Bisoi (brother of deceased Kartik Bisoi) and one Ranjan Nayak, who are stated to have sustained some injuries".

Perusal of the order dated 23.07.2013 passed in BLAPL No.9836 of 2013 shows that co-accused Pyarasa Naik has been granted bail on the ground that "co-accused Malla Naik, who is stated to be similarly circumstanced with the present petitioner, has already been released on bail vide order dated 17.07.2013 passed in BLAPL No.9651 of 2013".

Considering the above facts and circumstances, I am not inclined to allow the prayer for bail upon appeal of the Appellant No.1-Pyarasa Naik. However, I concur with the

opinion of my learned Brother to allow the prayer for bail upon appeal of the Appellant No.2-Malla Naik.

Accordingly, the prayer for bail upon appeal of the Appellant No.1-Pyarasa Naik is rejected and the prayer for bail upon appeal of the Appellant No.2-Malla Naik is allowed.

.........................

                                                              (Savitri Ratho)
                                                                  Judge
     09.   09.03.2021             I.A. No.1759 of 2019

Since there is a difference of opinion of two judges of this Court regarding grant of bail and suspension of sentence in respect of Appellant No.1- Pyarasa Naik, the matter may be placed before the Hon'ble Chief Justice for appropriate order/ orders.

So far as the Appellant No.2- Malla Naik is concerned, the sentence of imprisonment for life is suspended, he be released on bail on such terms and conditions as deemed just and proper by the learned Sessions Judge, Ganjam, Berhampur in the aforesaid case.

........................

(S. K. Mishra) Judge

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(Savitri Ratho) Judge BJ