Orissa High Court
Mithun Swain vs State Of Odisha on 6 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.6826 of 2023
Mithun Swain .... Petitioner
Mr. A. Das, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. P.C. Das, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 06.10.2023
06. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner and learned counsel
for the State. Perused the F.I.R., case diary and other relevant
documents as well as statement of the witnesses.
3. This is an application under Section 439 of the Criminal
Procedure Code.
4. The Petitioner is an accused in S.T. Case No.13 of 2022
arising out of Berhampur Sadar P.S. Case No.163 of 2021 pending in
the court of learned 3rd Additional Sessions Judge, Berhampur,
Ganjam for commission of offence punishable under Sections 498-
A/302/506/304-B/306/406/34 of the I.P.C. and Section 4 of D.P. Act.
5. The prosecution case in the brief is that the informant namely
Laxmi Patra lodged a written report on 27.05.2021 alleging therein
that she had given her daughter Mandakini marriage with the
petitioner Mithuna Swain two years back. At the time of marriage
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dowry articles were given as per the demands. The couples were
blessed with a male child. It is further alleged therein that the
petitioner along with other accused persons (Family members)
demanded more dowry from the deceased. The parents of the
deceased did not fulfill the demands for which they tortured her both
physically and mentally. On 26.5.2021 the deceased intimated the
torture to her brother over telephone and when the informant along
with her family members reached at the house of the petitioner, they
noticed the deceased was lying dead in the house. The informant
suspects that the accused persons including the petitioner might have
committed the murder of her daughter.
6. Learned counsel for the Petitioner submitted that the Petitioner
is in custody since 26.05.2021. It was contended that initially the
case was registered under Section 498-A/302/506/304-B/34 of I.P.C.
read with Section 4 D.P. Act, however, after investigation charge
sheet has been filed by adding 306/406 I.P.C. He further contended
that the petitioner is in custody since almost 2 ½ years and in the
meantime the trial has progressed and most of the material witnesses
have been examined. It is also concluded that nothing substantial
from any of the material witness, so far to implicate the petitioner in
the alleged crime. In such view of the matter, learned counsel for the
Petitioner submitted that the Petitioner released subject to any terms
and conditions that would be suitable in the facts and circumstances
of the case.
7. Leaned Additional Standing Counsel for the State on the other
hand opposed the bail application of the petitioner principally on the
ground that the nature of allegations are made in the F.I.R. are very
serious in nature. It is contended that the Petitioner is the husband of
the victim. Even assuming that the victim had committed suicide and
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the moral responsibility is of the petitioner-husband. He further
contended that it was due to mentally and physically tortured the
victim committed suicide. It was also contended that taking into
consideration the seriousness and gravity of the allegation the
Petitioner is entitled to release on bail and accordingly the bail
application should be dismissed.
8. On a careful examination of the materials on record as well as
case diary and the copies of the deposition of the witnesses, this
Court is of the prima facie view that the death of the victim appears
to be a suicidal one. So far, the roles of the co-accused persons are
concerned, the same is to be determined in trial and accordingly, the
punishment is imposed by the trial court. However, considering the
period of detention in custody and further keeping in view the fact
that the Petitioner is having a minor son, this Court is of the
considered view that the Petitioner should be released on bail on
stringent terms and conditions. Further, in course of his argument,
learned counsel for the Petitioner also referred to a judgment of the
Hon'ble Supreme Court Nitish Chauhan vs. State of Uttar Pradesh
reported in AIR 2023 SC 2149 to interest upon this Court that since
the accused was in custody for nearly 2 years and 4 months and the
trial was continuing, the Hon'ble Supreme Court was pleased to
release the accused-Petitioner in that case on bail who was facing
identical charges.
9. Having heard the learned counsels appearing for the respective
parties and on a careful consideration of the case diary as well as
statement of the witnesses and the deposition recorded during trial of
the same of the material witnesses, this Court is of the considered
view that in that absence of any eye witnesses implicating the
Petitioner directly in the alleged offence, the prosecution case is
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likely to be established on the basis of presumption act as well as
circumstantial evidence available. Moreover, out of 32 prosecution
witnesses only 7 witnesses have been examined so far. If so that the
trial is progressing at a very slow pace. In the aforesaid background,
this Court is inclined to grant bail to the Petitioner and it is directed
that let the Petitioner be released on bail in the aforesaid case on
furnishing a bail bond of Rs.30,000/- (Rupees Thirty thousand) each
with two local solvent sureties each for the like amount to the
satisfaction of the learned court in seisin over the matter subject to
terms and conditions to be fixed by the learned court in seisin over
the matter as would be deemed fit and proper in the facts and
circumstance of the present. While imposing conditions learned Court
shall impose following conditions:-
I. The Petitioner shall appear before the trial court on each date
of posting of case without fail.
II. He shall not harass, threaten and terrorise any of the
prosecution witness and shall not temper any of the prosecution
evidence.
Violation of any terms and conditions shall entail cancellation
of the bail application.
10. The Bail Application is accordingly disposed of.
11. Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra )
Judge
Anil
Signature Not Verified
Digitally Signed
Signed by: ANIL KUMAR SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Odisha
Date: 10-Oct-2023 11:45:52
