Orissa High Court
Nilu @ Bibek Nayak vs State Of Odisha ..... Opposite Party on 24 July, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.22 of 2024
Nilu @ Bibek Nayak ..... Appellant
Represented by
Mr. P.C.Jena, Advocate
-versus-
State of Odisha ..... Opposite Party
Represented by A.S.C.
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
Order No. 24.7.2024.
16. 1. This matter is taken up through hybrid mode.
2. Heard learned counsel for the Petitioner and learned Addl. Standing Counsel for the State.
3. The Appellant is a C.I.C.L. and is in custody since 28.3.2022 in connection with Chandabali P.S. Case No.63/2022 corresponding to JGR Case No.12/2022 pending in the Court of learned A.D.J.-cum-Children's Court, Bhadrak, for the alleged commission of the offence under Sections 363/364/465/471/302/201/34 of I.P.C.
4. The prosecution allegation is that one Manas Kumar Swain (deceased) was kidnapped at the instance of one Sarmistha Page 1 of 4 // 2 // Rout and taken to an Ashram where he was severely assaulted and ultimately killed. It is alleged that some other persons including the Appellant were present at the spot and had jointly assaulted the deceased. Subsequently, all of them carried the dead body to a faraway place and buried it to conceal the evidence. Several persons were arrested in course of investigation including the principal accused Sarmistha Rout, whose bail application has been rejected. The bail application of another co-accused namely Jhuna Bhoi has also been rejected though subsequently she was granted interim bail.
5. In so far as the present appellant is concerned, Mr. P.C. Jena, learned counsel for the Appellant, would argue that there is no admissible evidence to show the complicity of the Appellant save and except the T.I. parade. Though P.W.1 (Sarat Ch. Panda) has deposed about the T.I. parade yet in cross examination he clearly admits that he had not stated anything against the Appellant or his identity in the original case tried by the Sessions Judge. Bhadrak. Mr. Jena further submits that the witness whose statement is strongly relied upon by the prosecution namely, Sarojini Sitha has given prevaricating statements inasmuch as at the initial stage she had named the C.I.C.L., but in her subsequent statement recorded by the Crime Branch, she did not whisper his name.
6. Mr. S.K. Mishra, learned State counsel, opposes the prayer for bail by submitting that the evidence of P.W.1, who Page 2 of 4 // 3 // identified the C.I.C.L. during the T.I. parade as also in Court cannot be questioned. The grounds raised by the counsel for the Appellant are relatable to minor contradictions, which cannot be treated as fatal to the prosecution case.
7. After considering the rival submissions and on going through the materials available in the case diary including the statement of Sarojini Sitha, this Court finds that save and except some evidence to show that the Appellant was present at the spot at the time of the occurrence, there is no clear-cut and admissible evidence attributing any specific overt act to him. Though the prosecution relies upon the disclosure statement of the co-accused (Raj @ Ranjan Nayak), but the same is obviously inadmissible save and except the part relating to discovery of the weapon of offence. If all these materials are left out, there is no admissible evidence that would show the complicity of the Appellant. Moreover, the apparent contradictions in the statement of P.W.1 prima facie further weakens the case of the prosecution as against the Appellant.
8. Taking into consideration all the above facts as also the Social Investigation Report submitted by the C.W.P.O, I find no reason to direct further detention of the Appellant particularly, when he has already spent 2 years and 7 months in the observation home. Further, his father (Bimal Nayak @ Nahak) has also submitted an affidavit specifically stating that he shall abide by any condition that may be imposed by this Page 3 of 4 // 4 // Court while granting him bail and has also undertaken to provide food, shelter, clothing better education, better surrounding and better health to the C.I.C.L.
9. Taking into consideration all the above facts, I am inclined to take a lenient view. Let the Appellant be released on bail on such terms and conditions as may be imposed by the Court in seisin over the matter in the aforesaid case including the condition that out of two sureties for such amount as may be specified by the court below, one shall be the father of the appellant and he shall personally appear before the court below on each date of posting of the case without seeking representation through counsel.
10. The CRLA is disposed of.
11. Urgent certified copy of this order be granted on proper application.
(Sashikanta Mishra)
AKB Judge
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 25-Jul-2024 11:34:54 Page 4 of 4