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2013 DIGILAW 492 (ORI)

Swadesh Ranjan Swain v. State of Orissa

2013-12-12

D.DASH, P.MOHANTY

body2013
ORDER In these applications, prayer has been made by the appellant to release him on bail. Heard Mr. Panigrahi, learned counsel for the appellant-petitioner and Mr. B. Pradhan, learned Addl. Government Advocate for the State. Learned counsel for appellant submits that there is no material against the present appellant and the other co-accused person has been acquitted of the charge, but the present appellant is languishing in custody since 22.5.2004 and as such, has undergone imprisonment for more than nine years. He further submits that since the criminal appeal is not likely to reach for hearing within ten years, applying the ratio decided by the apex Court in the case of Smt. Akhtari Bi V. State of M.P., (2001) 4 SCC 355 , the appellant-petitioner be released on bail. Mr. Pradhan, learned Addl. Government Advocate vehemently opposes the prayer for bail and submits that the petitioner was convicted for the offences under Section 120-B/364-A/302 and 201 read with Section 34, IPC. P.W.10, who is the witness to the last seen theory has stated that he saw the present appellant along with the deceased on 19.5.2004 at about 11.30 A.M. While in custody, the accused led the police to the place of concealment which gave recovery of the weapon of offence, i.e. rope. P.W. 7, who is the owner of the telephone booth has also identified the accused to have booked a telephone call and took a rope from him on the plea of binding a bag of rice, which he had given to the accused by cutting a portion of the rope in which he had bound the broom stick. P.W., 6, the father of the deceased has specifically stated that he received a telephone call on 19.5.2004 at 12.05 P.M. from the appellant demanding a sum of Rs. 5,00,000/- for return of his kidnapped son. The medical evidence also corroborates the weapon of offence to be rope. P.W. 8, the doctor has specifically stated that the cause of death was due to asphyxia and venus congestion may be due to strangulation and the strangulation was applied by means of a rope manually tied around the neck. Learned Addl. Government Advocate further submits that the ratio decided by the apex Court in the case of Smt. Akhtari Bi (supra) has no application to the present case as the fact of that case are different from the present case. Learned Addl. Government Advocate further submits that the ratio decided by the apex Court in the case of Smt. Akhtari Bi (supra) has no application to the present case as the fact of that case are different from the present case. Perused the decision cited by learned counsel for the appellant. In the said case, the apex Court considering the allegation made against the appellant coupled with the fact and keeping in view the fact that the appellant being an old and infirm lady and her daughter-in-law having died during pendency of trial giving birth to a male child who had to be kept in jail to be looked after by the appellant, the appellant was released on bail. In the present case, the facts are different. The present appellant kidnapped a child, demanded a sum of Rs. 5,00,000/- from his parents and gave threat to his father that if he would not fulfil his demand, he would kill the child and ultimately he killed the child. Thereafter the dead body was recovered from a hill top, the neck being covered with stone. Therefore, the decision in the case of Smt. Akhtari Bi (supra) does not come to the aid of the appellant-petitioner. Perused the LCR. Considering the submissions made by learned counsel for both the parties and keeping in view the evidence of P.Ws. 1, 2, 3, 6, 7, 8 and 10 and looking at the heinous crime committed by the appellant-petitioner, this Court is not inclined to admit the appellant-petitioner to bail. Both bail applications are accordingly rejected. Application rejected.