Orissa High Court
Tutu @ Kailash Barik vs State Of Odisha on 21 November, 2024
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.681 of 2023
Tutu @ Kailash Barik ..... Appellant/Petitioner
Mr. Sk. Zafarulla, Advocate
-versus-
State of Odisha ..... Respondent/Opp. Party
Mr. Sarat Pradhan
Addl. Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No. 21.11.2024
I.A. No.2892 of 2024
04. 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
sections 498-A/302/304-B/34 of the Indian Penal Code
and section 4 of the D.P. Act and sentenced to undergo
rigorous imprisonment for a period of three years and to
pay a fine of Rs.3,000/- (rupees three thousand), in
default, to further undergo R.I. for a period of three
months for the offence under section 498-A/34 of the
Indian Penal Code and imprisonment for life and to pay
a fine of Rs.5,000/- (rupees five thousand), in default,
to further undergo R.I. for a period of three months for
the offence under section 302/34 of the Indian Penal
Code, R.I. for a period of ten years and to pay a fine of
Rs.2,000/- (rupees two thousand), in default, to further
undergo R.I. for a period of two months for the offence
under section 304-B/34 of the Indian Penal Code and
R.I. for a period of four months and to pay a fine of
Rs.1,000/- (rupees one thousand), in default, to further
undergo R.I. for a period of one month for the offence
under section 4 of the D.P. Act and all the substantive
sentences were directed to run concurrently by the
learned Additional Sessions Judge, Bhadrak in S.T. Case
No.12-300 of 2015.
Perused the impugned judgment.
Learned counsel for the petitioner submitted that
the petitioner is in judicial custody since 11.04.2015 and
the case is based on circumstantial evidence and though
the petitioner faced trial under sections 498-A/304-
B/406/34 of the Indian Penal Code and section 4 of the
D.P. Act apart from under section 302/34 of the Indian
Penal Code, but the father of the deceased, who is the
informant, being examined as P.W.10 has stated in the
cross-examination that the deceased was leading a
happy conjugal life till her death and further stated that
there was never any demand of dowry from any side in
connection with the marriage of her daughter and that
the deceased had some problem in her abdomen for
which she used to suffer severe pain and due to such
severe pain, the deceased could not bear the pain and
committed suicide and that the petitioner and his family
members are completely innocent and they are in no
way involved in the case and that he had never been
examined by the police. This is completely contrary to
the evidence given by him in the examination-in-chief.
However, it appears that the learned Public Prosecutor
has strikingly not chosen to declare the witness hostile
after the cross-examination and did not even prefer to
re-examine him, even though his evidence in chief
examination is contrary to the cross-examination.
Learned counsel for the petitioner further
submitted that in absence of any other clinching
evidence, it cannot be said that the prosecution has
successfully established the charges. There are good
chances of success in the appeal and balance of
convenience is in favour of the petitioner and there is no
chance of early hearing of the appeal in the near future
and therefore, the bail application of the petitioner may
be favourably considered.
Learned counsel for the State, on the other hand,
opposed the prayer for bail and submitted that the
evidence of P.W.10, the father of the deceased that the
deceased committed suicide is contrary to the medical
findings as given by the doctor (P.W.9), who conducted
post mortem examination and noticed the ligature
mark, which was almost horizontal at the level of
thyroid cartilage and pressure abrasion was detected.
However, we find that the doctor has reserved his
opinion pending chemical analysis of the preserved
viscera and the viscera report was received, which
indicates that there was no organophosphorous poison
detected but the doctor has stated that the rope in
question has sufficient strength for infliction of the said
ligature mark on the neck of the deceased.
Considering the submissions made by the learned
counsel for the respective parties, the nature of
evidence adduced during trial particularly by the father
of the deceased i.e. P.W.10, the period of detention of
the petitioner in judicial custody and absence of any
chance of early hearing of the appeal in the near future,
we are inclined to release the petitioner on bail.
Let the appellant-petitioner be released on bail
pending disposal of the appeal on furnishing bail bond of
Rs.20,000/- (rupees twenty thousand) with one local
solvent surety for the like amount to the satisfaction of
the learned trial Court.
Accordingly, the I.A. is disposed of.
(S.K. Sahoo)
Judge
(Chittaranjan Dash)
Judge
05. 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)
Judge
(Chittaranjan Dash)
Judge
RKM
Signed by: RABINDRA KUMAR MISHRA
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-Nov-2024 17:55:06
