Orissa High Court
Kumuti Himirika vs State Of Odisha on 9 July, 2024
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 373 of 2019
Kumuti Himirika .... Appellant/
Petitioner
Mr. B.R. Tripathy, Advocate
-versus-
State of Odisha .... Respondent/
Opp. Party
Mr. Priyabrata Tripathy,
Addl. Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No. 09.07.2024 07. I.A. No.895 of 2019
1. This is an application under section 389 of Cr.P.C. for grant of bail.
2. The Appellant-Petitioner has been convicted under sections 302/201/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- (Rupees Two Thousand), in default, to further undergo Rigorous Imprisonment for a period of two months for the offence under section 302/34 of the Indian Penal Code and undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.2,000/- (Rupees Two Thousand), in default, to further undergo Rigorous Imprisonment for two months for the offence under section 201/34 of the Indian Panel Code by the learned Sessions Judge, Rayagada vide Page 1 of 2 judgment and order dated 22.04.2019 passed in C.T No.21 of 2017.
3. Mr. Tripathy, learned counsel for the Petitioner, namely, Kumuti Himirika submits that the Petitioner is in judicial custody since 09.11.2016. The Petitioner and the co-accused Aenku Himirika @ Bhenku were found guilty U/s.302/34 of the Indian Penal Code so also U/s.201/34 of the Indian Panel Code and the co-accused Aenku Himirika @ Bhenku has been additionally found guilty U/s.506 of the Indian Panel Code. Learned counsel further submits that the Petitioner is similarly situated like co- accused Aenku Himirika @ Bhenku, who has preferred CRLA No.440 of 2019 and has been directed to be released on bail as per order dated 22.09.2023 taking into account the evidence mainly of two witnesses i.e. P.W.2 and P.W.6 as well as the period of detention of the Petitioner in judicial custody. Learned counsel for the Petitioner further argued that P.W.6. Surendra Kulesika is the sole eye witness to the occurrence and P.W.2 Sripati Himirika stated to have heard about the occurrence from P.W.6. It is the contention of the learned counsel for the Petitioner that P.W.6 implicated one Kumuti Kulesika to have dealt a blow by means of an iron rod on the face for which the deceased fell down and thereafter, all the accused persons dragged the deceased and hit him on the stone. It is the further contention of the learned counsel for the Petitioner that the Petitioner's name is Kumuti Himirika and not Kumuti Kulesika who is the main assailant and therefore, the bail application of the Petitioner may be favorably considered.
Page 2 of 64. Learned counsel for the State, on the other hand, submits that only one accused, namely, Kumuti Himirika i.e. the Appellant was facing trial and Kumuti Kulesika may be a typographical error in Para-1 of the deposition of P.W.6 and nothing has been brought out on record by the defence that Kumuti Kulesika and the Petitioner is not the one and same person. The learned counsel for the State referred to the evidence of the Doctor (P.W.7), who has not only noticed a lacerated wound on skull in mid parietal reason but also other injuries on different parts of the body and opined that the injuries were sufficient to cause death so also those are all ante mortem in nature and specifically stated that the death was due to head injury leading to subdural haemorrhage. It is the contention of the learned counsel for the State that the Petitioner is not similarly situated like the co-accused Aenku Himirika @ Bhenku as specific overt act of assault has been attributed against the Petitioner and therefore, claim of parity as contended by the learned counsel for the Petitioner cannot be resorted to.
5. In the case of Leti @ Jayadeb Roy and another-Vrs.-The State reported in (1990) 3 Orissa Criminal Reports 427, wherein it is held as follows:-
"21. Stage has reached to express our view on the question whether the convicts who have been in jail for three years because of non-disposal of their appeals could claim their release on bail with the aid of Art.21 of the Constitution? According to us, Art.21 demands that the cases of such convicts have to be liberally viewed while examining the question Page 3 of 6 of their release on bail and in run-of-mill cases enlargement on bail in the first instance for a temporary period of say three months for cogent personal reasons may not be refused. We have mentioned about temporary release in the first instance, to enable all concerned to watch the performance of the convict during the interregnum. If it would be found that he has misused the liberty, the period of his release on bail would not be enlarged. If, however, there be nothing against the convict, he would merit release on bail till the disposal of his appeal. Of course, for special reasons, which would include the nature of the crime and the antecedents of the convict, the benefit of release on bail even for a temporary period may be denied. The types of cases in which this benefit should be denied cannot be laid down exhaustively but should be akin to those about which reference has been made earlier. This apart, if the character and antecedent of the convict be such as would give ground to believe that his release on bail may not be safe, he too may be denied the protective shield of Art.21."
6. Considering the submissions made by the learned counsel for the respective parties, the nature of evidence adduced by the prosecution during the trial particularly by P.W.6, the evidence of the Doctor (P.W.7) and since specific overt act has been attributed against the Petitioner, while not inclining to release the Petitioner Page 4 of 6 on bail on merit but taking into account the period of detention of the Petitioner in judicial custody, absence of any chance of early hearing of the appeal in the near future and keeping in view the ratio laid down by this Court in the case of Leti (supra), we are inclined to release the Petitioner on interim bail for a period of three months from the date of release and the Petitioner shall surrender before the learned trial Court immediately on expiry of the three months period.
7. For the above period, let the Appellant-Petitioner be released on interim bail in the aforesaid case on furnishing bail bond of Rs.50,000/-(rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned trial Court subject to condition that he shall not indulge in any criminal activities in any manner.
8. Violation of any of the conditions shall entail cancellation of interim bail.
9. Learned counsel for the State shall produce the report from the concerned I.I.C. regarding the conduct of the Petitioner while on interim bail.
10. The I.A. is disposed of accordingly.
11. A free copy of the order be handed over to the learned counsel for the State.
(S.K. Sahoo) Judge (Chittaranjan Dash) Judge Page 5 of 6 I.A. No.896 of 2019
08. 1. This is an application for stay of realization of fine.
2. Heard.
3. There shall be stay of realization of fine amount imposed on the Appellant-Petitioner by the learned Sessions Judge, Rayagada, vide judgment dated 22.04.2019 passed in C.T No.21 of 2017.
4. The I.A. is disposed of.
5. Issue certified copy as per rules.
(S.K. Sahoo) Judge (Chittaranjan Dash) Judge CRLA No.373 of 2019
09. 1. List this matter in the week commencing from 21.10.2024.
Learned counsel for the Appellant shall produce the surrender certificate of the Appellant on the next date.
(S.K. Sahoo)
Judge
Signature Not Verified (Chittaranjan Dash)
Digitally Signed
Signed by: BIJAY KETAN SAHOO Judge
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 10-Jul-2024 11:30:23
A.K. Pradhan/ Bijay
Page 6 of 6