Partly allowed¶35

Painkuram Kishan v. State of Odisha

Orissa HC7 May 2024BLAPL/883/2024

Case brief

AI extract

What is this about?

Section 439 Cr.P.C. regular bail; BLAPL No.883 of 2024, Orissa HC Cuttack, 07.05.2024, Justice Aditya Kumar Mohapatra; offences under Sections 364, 302, 201, 34 IPC; Hemgir P.S. Case No.92 / G.R. Case No.89 of 2023 / S.T. Case No.226 of 2023, Sundargarh; bail granted to accused implicated only on co-accused statement with no witness-attributed overt act, no eye witnesses, circumstantial-evidence case; bail refused to co-petitioner against whom case-diary materials existed; bail bond Rs.40,000 with two local solvent sureties.

What did the court decide?

Bail granted to Petitioner No.1 (Painkuram Kishan) on a Rs.40,000/- bail bond with two local solvent sureties each for the like amount, with discretion to the court in seisin to impose further conditions; bail application of Petitioner No.2 (Bhabani Nishad) rejected. The BLAPL was disposed of.

Painkuram Kishan Vs State of Odisha — Murder and Culpable Homicide | Orissa HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether Petitioner No.2 (Bhabani Nishad, referred to in the body of the order as Bhawani Nishad) should be released on regular bail, given the materials against him in the case diary implicating him in the assault on the victim. +1 more

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Court's answer

On analysis of the materials on record and witness statements from the case diary, the Court found there are some materials against Petitioner No.2 (Bhawani Nishad) and therefore declined to release him on bail; his bail application was rejected.

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Ratio / Principle

The Court found there were no eye witnesses to the occurrence, the entire prosecution case resting on circumstantial evidence; none of the independent witnesses stated anything regarding any overt act by Petitioner No.1, who was implicated only on the co-accused Rajesh Soni's statement. Observing that bail cannot rest merely on a co-accused's statement in the absence of material facts or any overt-act allegation against Petitioner No.1, the Court decided to release him on bail subject to stringent conditions.

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Key takeaways

Direction for release: Petitioner No.1 to be released on furnishing a bail bond of Rs.40,000/- (Rupees Forty thousand) with two local solvent sureties each for the like amount, to the satisfaction of the court in seisin; that court may impose other conditions as deemed just and proper, and violation shall entail cancellation of bail.ratio¶29

Detailed headnote1 paragraphs

Orissa HC (Cuttack), Justice Aditya Kumar Mohapatra, 07.05.2024 — BLAPL No.883 of 2024: Regular bail under Section 439 Cr.P.C. sought by Painkuram Kishan (Petitioner No.1) and Bhabani Nishad (Petitioner No.2) in S.T. Case No.226 of 2023 (G.R. Case No.89 of 2023; Hemgir P.S. Case No.92 dt.29.03.2023), pending before the District and Sessions Judge, Sundargarh, for offences under Sections 364, 302, 201, 34 IPC; petitioners in custody since 13.03.2023, charge sheet filed 27.07.2023. Court found materials against Petitioner No.2 implicating him in the assault and rejected his application. For Petitioner No.1, the Court recorded no eye witnesses and an entirely circumstantial-evidence case, no independent witness attributing any overt act to him, and implication resting solely on co-accused Rajesh Soni's statement; held that bail cannot be withheld merely on a co-accused's statement absent material facts or overt-act allegations, and released him on a Rs.40,000/- bond with two local solvent sureties, leaving further conditions to the trial court. Application disposed of.

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IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.883 of 2024

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1) Painkuram Kishan

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Bhabani Nishad

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.....

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Petitioners

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Represented By Adv. - Uma Shankar Patel

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-versus-

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State Of Odisha

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.....

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Opposite Party

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Represented By Adv. – P.C.Das, ASC

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CORAM:

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THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA

ORDER

Order No.

02.

07.05.2024

This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard learned counsel appearing for the Petitioners and learned Additional Standing Counsel appearing for the State-Opposite Party. Perused the materials placed before this Court.

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The present bail application under Section 439 of Cr.P.C. has been filed by the Petitioners for regular bail in connection with S.T. Case No.226 of 2023, arising out of G.R. Case No.89 of 2023, corresponding to Hemgir P.S. Case No.92 dt.29.03.2023, pending in the Court of learned District and Sessions Judge, Sundargarh for alleged commission of offence punishable under Sections 364, 302, 201, 34 of IPC.

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It is submitted by the learned counsel for the Petitioners that the Petitioners are in custody since 13.03.2023. He contended that in the meantime the investigation has been concluded and the charge sheet has been submitted on 27.07.2023. Learned counsel for the Petitioners further contended that initially the present petitioner No.1 was not

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Page 1 of 4.

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named in the F.I.R. Subsequently, he has been implicated in the present case on the basis of the co-accused statement. He further contended that so far the Petitioner No.1 is concerned, there is no allegation of any overt act by any of the witness examined so far by the I.O. in course of his verification. He further contended that there are no eye witnesses to the occurrence of the present crime. He further contended that one of the witnesses has specifically stated that one Lokanath Pradhan and Rajesh Soni took away the victim in their motor cycle and thereafter, the next day, it was found that the victim was dead. Prior to the aforesaid occurrence, the accused persons, Bhawani Nishad- Petitioner No.2 and Mukesh Soni had gone to the house of the victim and they had assaulted the victim. In view of the aforesaid facts and circumstances, learned counsel for the Petitioners submitted that the Petitioner No.1 has no role in the alleged crime and the Petitioner No.1 has been falsely implicated in the present case. In such view of the matter learned counsel for the Petitioners contended the Petitioner No.1 be released on bail on such terms and conditions as this Court deems fit and proper in the facts and circumstances of the case.

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Learned Additional Standing Counsel on the other hand submitted that there are serious allegations against the present Petitioners. He further contended that the present petitioners have been implicated in the present case on the basis of the statement of the accused, namely Rajesh Soni. Referring to the statement of some of the witnesses, learned Additional Standing Counsel submitted that they have stated that Bhawani Nishad- Petitioner No.2, Mukesh Soni, Lokanath Pradhan and Rajesh Soni, all assaulted the victim. He further contended that part of the occurrence was witnessed by some persons of the locality, who have been examined in this case. Thereafter, the victim was forcibly taken away by Lokanath Pradhan and Rajesh Soni on their bike. So far the present Petitioner No.1 is concerned, learned

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Page 2 of 4.

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Additional Standing Counsel submitted that on the basis of the statement of the co-accused, namely, Rajesh Soni, the Petitioner No.1 has been implicated in the present crime. Therefore, there are materials against the present Petitioner No.1. On such ground, learned counsel for the State submitted that the bail application of the Petitioners be rejected at this juncture.

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On a careful analysis of the materials on record as well as the statement of the witnesses from the case diary it appears that there are some materials against the Petitioner No.2- Bhawani Nishad. Accordingly, this Court is not inclined to release the Petitioner No.2 on bail and hence his bail application is hereby rejected.

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Having heard the learned counsels for the respective parties and on careful consideration of the surrounding facts as well as materials on record, this Court found that there are no eye witnesses to the occurrence. Further, the entire prosecution case is based on circumstantial evidence. So far the present Petitioner No.1 is concerned, none of the independent witnesses have stated anything with regard to any overt act being committed by the present Petitioner No.1. However, the Petitioner No.1 has been implicated on the basis of the statement of the co-accused-Rajesh Soni. This Court at this juncture would like to observe that merely on the basis of the statement of the co-accused and in the absence of any material facts against the present Petitioner No.1 and, in the absence of any allegation with regard to any overt act being committed by the petitioner No.1, this Court is inclined to release the Petitioner No.1 on bail subject to imposition of stringent conditions.

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Hence, it is directed that the Petitioner No.1 be released on bail in the aforesaid case on furnishing a bail bond of Rs.40,000/(Rupees Forty thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned court in seisin over the matter.

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Page 3 of 4.

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Anil

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