Orissa High Court
Kailash Sethy vs State Of Odisha .... Opp. Party on 8 September, 2021
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.2509 of 2021
Kailash Sethy .... Petitioner
Mr. S.S. Ray(2), Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.S. Pradhan,
Addl. Government Advocate
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 08.09.2021 05. This matter is taken up through Hybrid
Arrangement (Video Conferencing/Physical Mode).
Heard learned counsel for the petitioner and learned counsel for the State.
This is an application under section 439 of Cr.P.C. for grant of bail to the petitioner in connection with G.R. Case No.198 of 2020 arising out of Dharakote P.S. Case No.147 of 2020 pending in the Court of learned J.M.F.C., Sheragada for offence punishable under section 302/34 of the Indian Penal Code.
The petitioner moved an application for bail before the Court of learned Additional Sessions Judge, Aska, which was rejected on 24.02.2021.
// 2 // Learned counsel for the petitioner submitted that the petitioner Kailash Sethy is in judicial custody since 07.10.2020 and he has been charge sheeted under section 302/34 of the Indian Penal Code. He further submitted that the occurrence in question took place on 05.10.2020 and the first information report was lodged by Gobardhan Sethy on the very same day and one Kuna Patra is an eye witness to the occurrence and as per his statements recorded under section 161 Cr.P.C. as well as 164 Cr.P.C., he was in the company of the deceased Sanyasi Sethy when the occurrence took place and they were coming in two bicycles from their work and on the way, two persons restrained the movement of the deceased and there was tussle and at that point of time, Kuna Patra, the eye witness left the spot and informed about the incident in the family of the deceased. He further submitted that no attempt has been made by the Investigating Officer to make a prayer for holding test identification parade to establish the complicity of the petitioner in the alleged crime and to substantiate that the petitioner was one of those two persons, who restrained the movement of the deceased at the scene of occurrence but in speculation, the informant Gobardhan Sethy has stated that he learnt about the participation of the petitioner in the assault of the deceased from Kuna Patra. He further submitted that when Kuna Patra Page 2 of 4 // 3 // himself has not named the assailant, the statement of the informant that he came to know the names of the assailants from Kuna Patra is very difficult to be accepted. He further submitted that in view of the available materials on record, the bail application of the petitioner may be favourably considered.
Learned counsel for the State while not disputing that the eye witness has not named the petitioner submitted that there is motive behind the crime and the deceased had married the sister of the petitioner who committed suicide and thereafter, a case was instituted against the deceased and he was taken into custody and after being released on bail, a compensation amount of Rs.3,75,000/- (rupees three lakhs seventy five thousand) was also paid by him to the family of the petitioner. He further submitted that at the instance of the petitioner, a sharp cutting weapon, which is called 'Fatka' was recovered.
Considering the submissions made by the learned counsel for the respective parties, the nature of accusation against the petitioner, since the eye witness to the occurrence has not named the petitioner as one of the two persons, who restrained the movement of the deceased at the scene of occurrence and no test identification parade has been conducted to establish the identity of the petitioner to have participated in the assault of the deceased and further taking into account Page 3 of 4 // 4 // the period of detention of the petitioner in judicial custody, I am inclined to release the petitioner on bail.
Let the petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000.00 (rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further terms and conditions as the learned Court may deem just and proper.
The BLAPL is accordingly disposed of. Issue urgent certified copy as per Rules.
( S.K. Sahoo) Judge RKM Page 4 of 4