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2021 DIGILAW 331 (ORI)

Pyarasa Naik v. State Of Odisha

2021-07-29

S.K.SAHOO

body2021
ORDER 1. This matter is taken up by video conferencing mode. 2. This interim application has been referred to me to adjudicate grant of bail to the appellant no.1 Pyarasa Naik. 3. Both the appellants Pyarasa Naik and Malla Naik along with accused Ramesh @ Kampa Behera faced trial in the Court of learned Sessions Judge, Ganjam, Berhampur in S.T. No.61 of 2013 for the offences punishable under sections 341, 294, 506, 324, 326, 307, 302/34 of the Indian Penal Code. The learned trial Court vide impugned judgment and order dated 18.07.2017, has been pleased to hold all of them guilty under sections 302, 324/34 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- (rupees five thousand) each, in default of payment of fine, to suffer further rigorous imprisonment for one year each for the offence under section 302/34 of the Indian Penal Code and to undergo rigorous imprisonment for a period of one year for each for the offence under section 324/34 of the Indian Penal Code and the sentences were directed to run concurrently. 4. This interim application for bail was argued before the Division Bench of this Court presided over by Honble Mr. Justice S.K. Mishra and Honble Miss. Justice Savitri Ratho and after hearing the learned counsel for the appellants as well as the learned counsel for the State, Honble Mr. Justice S.K. Mishra vide order dated 09.03.2021 directed release of both the appellants, i.e. Pyarasa Naik and Malla Naik on bail, however, Honble Miss. Justice Savitri Ratho while directing release of appellant No.2 Malla Naik on bail, rejected the prayer for bail of appellant No.1 Pyarasa Naik. In view of the difference of opinion of two Honble Judges of this Court regarding grant of bail and suspension of sentence in respect of appellant No.1 Pyarasa Naik, the matter was directed to be placed before Honble Chief Justice for appropriate order/orders and accordingly, the matter has been assigned to me by the Honble Chief Justice as per order dated 23.03.2021. 5. Ms. 5. Ms. Bijayalaxmi Tripathy, learned counsel appearing for the appellant no.1 Pyarasa Naik submitted that during investigation of the case, the appellant no.1 surrendered in the Court below on 06.11.2012 and he was directed to be released on bail as per order dated 23.07.2013 of this Court in BLAPL No.9836 of 2013 and after filing bail bonds, he was released from custody on 27.07.2013. After pronouncement of the judgment on 18.07.2017, appellant no.1 was taken into custody and since then he is in judicial custody. Learned counsel further submitted that the occurrence in question took place on 31.10.2012 and the F.I.R. was lodged on 01.11.2012 by one Rupa Naik (P.W.1) and the deceased Kartika Bisoi, who was assaulted at the time of occurrence expired on 01.11.2012 while undergoing treatment at M.K.C.G. Medical College and Hospital, Berhampur. It is contended that out of nineteen witnesses examined on behalf of the prosecution, P.W.1 Rupa Naik, P.W.3 Ranjan Naik, P.W.6 Urmila Bisoi and P.W.13 Baidhar Bisoi are the eye witnesses to the occurrence and P.W.16 Dr. Kiran Kumar Patnaik conducted autopsy over the dead body of the deceased. It is further contended that the version of the eye witnesses relating to the overt act committed by the accused persons, particularly that of appellant No.1 Pyarasa Naik are discrepant in nature and there is no chance of early hearing of the appeal in near future and balance of convenience is in favour of appellant No.1 and therefore, the bail application may be favourably considered. 6. Mr. J.P. Patra, learned Addl. 6. Mr. J.P. Patra, learned Addl. Standing Counsel appearing for the State, on the other hand, opposed the prayer for bail and submitted that the appellant No.1 Pyarasa Naik and the co-accused Ramesh @ Kampa Behera stabbed the deceased Kartika Bisoi on his abdomen, as a result of which his intestine came outside and he fell down on the ground and the doctor conducting post-mortem examination noticed two stab wounds on the abdomen region of the deceased and specifically stated that those two injuries and corresponding internal injuries mentioned in the post mortem report (Ext.16) could be possible by the seized weapon i.e. the knife and further stated that the external injury no.(i) with its corresponding internal injuries alone and all the injuries in combination are sufficient to cause death of the deceased in ordinary course of nature and the death of the deceased was due to hemorrhage and shock as a result of injury to major abdominal structures and vessels due to external injury no.(i). Learned counsel for the State further submitted that the discrepancies, if any, in the statements of the eye witnesses are very trivial in nature and in view of the nature and gravity of accusations against appellant no.1, the bail application should be rejected. 7. When a query was made by this Court regarding availability of any criminal antecedents against the appellant no.1, learned counsel for the appellant No.1 submitted that there are no criminal antecedents against the appellant no.1. Learned counsel for the State submitted that the records received by him are silent in that respect. 8. Honble Mr. Justice S.K. Mishra, while passing the order for grant of bail in favour of the appellants, have been pleased to hold that all the witnesses stated that the accused persons have assaulted the deceased by means of knife without specifying the name of the person, who actually dealt the knife blow on the belly of the deceased and the appellants are permanent residents of village Padamari Harijan Sahi, P.S. Pattapur in the district of Ganjam and there is no reasonable chance of their abscondance from the process of justice. However, Honble Miss. However, Honble Miss. Justice Savitri Ratho discussing the evidence of four eye witnesses to the occurrence so also the evidence of the doctor (P.W.16), has referred to the bail order of appellant No.1 Pyarasa Naik passed in BLAPL No.9836 of 2013 and the bail order of appellant no.2 Malla Naik passed in BLAPL No. 9651 of 2013 and the reasons for grant of bail to the appellants in those two bail applications, though concurred with the view of Honble Mr. Justice S.K. Mishra regarding grant of bail to the appellant no.2 Malla Naik but came to hold that in view of the facts and circumstances, the bail application of appellant No.1 Pyarasa Naik stood rejected. 9. Section 389 of the Code of Criminal Procedure deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of section 389 of Cr.P.C. is the requirement for the Appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. (Ref: State of Haryana -Vrs.- Hasmat: 2004 Criminal Law Journal 3840). In the case of Vinay Kumar -Vrs.- Narendra and Ors. reported in (2002) 9 Supreme Court Cases 364, it is held that the principle is well settled that in considering the prayer for bail in a case involving serious offence like murder punishable under section 302 of the Indian Penal Code, the Court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. 10. 10. In the case of Kashmira Singh -Vrs.- State of Punjab 1977 Criminal Law Journal 1746, Honble Justice P.N. Bhagwati speaking for the Bench observed as follows:- 'Now, the practice in this Court as also in many of the High Court has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person:`We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?' What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a Judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.' 11. In my humble view, while considering an application for bail under section 389 of Cr.P.C., the reasons for grant of bail to the accused either at the stage of investigation or at the stage of trial, is not necessary to be taken into account. 12. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail. (Ref: Sidharth Vashisht -Vrs.- The State (N.C.T. of Delhi) : (2008) 5 Supreme Court Cases 230). 13. The appellate Court can adjudicate the bail application on the basis of the evidence adduced during trial and also keeping in view the nature of the accusation made against the accused, the manner in which the crime has been committed, the gravity of the offence and the desirability of releasing the accused on bail. If there are good chances of success in the appeal on the basis of evidence adduced during trial and there is no reasonable prospect of early hearing of the appeal in the near future, the same can also be taken into account. If there are good chances of success in the appeal on the basis of evidence adduced during trial and there is no reasonable prospect of early hearing of the appeal in the near future, the same can also be taken into account. If the accused has not misutilized the liberty granted to him during the pendency of the trial and there is no chance of absconding of the accused and there is absence of any criminal antecedents against the accused, those aspects are certainly plus points in favour of the accused and the same can also be taken into account while adjudicating the bail application. 14. A detailed documentation on the merits of the appeal by making threadbare analysis of evidence adduced during trial should be avoided at the stage of consideration of the bail application inasmuch as that would have an adverse effect on the final adjudication of the criminal appeal. 15. After going through the evidence of the witnesses placed by the learned counsel for the parties, I find that the homicidal death of the deceased Kartika Bisoi is not in dispute which has been established through evidence of the doctor (P.W.16), who conducted post mortem examination, the post mortem report (Ext.16) and also the other surrounding circumstances. 16. So far as the assault on the deceased Kartika Bisoi is concerned, coming to the statements of eye witnesses, P.W.1 Rupa Naik has stated in her evidence that the accused persons assaulted on the belly of the deceased by means of swords and knives as a result of which the deceased sustained bleeding injuries on his person and fell down and became senseless. In the cross-examination, she stated that appellant no.1 and co-accused Ramesh @ Kempa Behera were holding knives and co-accused Malla Naik and Santosh were holding swords and all the accused persons conjointly armed with swords and knives assaulted the deceased Kartika Bisoi, the injured Ranjan and Baidhar. P.W.3 Ranjan Naik, who is an injured eye witness, stated that the accused persons assaulted on the belly of the deceased by means of knives as a result of which he sustained bleeding injuries on his person and fell down and his liver came outside. P.W.3 Ranjan Naik, who is an injured eye witness, stated that the accused persons assaulted on the belly of the deceased by means of knives as a result of which he sustained bleeding injuries on his person and fell down and his liver came outside. However, in the cross- examination, P.W.3 stated that on the date and time of occurrence, he was present inside his house and when reached at the spot, the deceased was lying senseless on the ground and he was not able to speak. P.W.6 Urmila Bisoi, who is the mother of the deceased, stated that the accused Ramesh along with his friends under the influence of liquor attacked and stabbed on the back of his son Baidhar (P.W.13) and on seeing this, the deceased Kartika rushed to the spot to rescue P.W.13, but the accused persons also attacked him (deceased) and stabbed on his belly as a result of which he sustained bleeding injuries and his intestine came out. She has not stated specifically as to who those friends of accused Ramesh were who assaulted her two sons Baidhar and the deceased Kartika in her chief examination. 17. P.W.13 Benudhar Bisoi, who is another injured eye witness though specifically stated in the chief examination that the absconding accused Jaga @ Santosh Naik and Malla Naik caught hold of the deceased brother Kartika and accused Ramesh @ Kampa Behera and Pyarasa Naik (appellant no.1), mercilessly stabbed on his abdomen and stretched the stab injury, as a result of which his abdomen came outside and he fell on the ground, but in the cross-examination, he stated that he witnessed the incident from a distance of ten cubits that the absconding accused Jaga @ Santosh Naik and the accused Malla Naik caught hold of his deceased brother and accused Ramesh @ Kempa Behera mercilessly stabbed on his abdomen and thus, in the cross-examination, P.W.13 has not implicated the appellant no.1 Pyarasa Naik giving any stab blow to the deceased on his abdomen. In view of the evidence of the four eye witnesses, which were considered by the Honble Judges, I find that the eye witnesses P.W.1, P.W.3 and P.W.6 have not specifically stated relating to any stab blow given by appellant no.1 Pyarasa Naik on the abdomen of the deceased. In view of the evidence of the four eye witnesses, which were considered by the Honble Judges, I find that the eye witnesses P.W.1, P.W.3 and P.W.6 have not specifically stated relating to any stab blow given by appellant no.1 Pyarasa Naik on the abdomen of the deceased. The evidence of P.W.13 relating to the participation of the appellant no.1 Pyarasa Naik in giving stab blow on the abdomen of the deceased is discrepant in nature as already indicated. 18. In view of the materials available on record, the nature of evidence adduced by the four eye witnesses to the occurrence relating to the involvement of the appellant no.1 in the assault of the deceased Kartika Bisoi, the fact that the appellant no.1 was on bail during trial and there is no material that he misutilized the liberty while on bail and since this criminal appeal is of the year 2017 and older appeals are pending before this Court for hearing and there is no chance of early hearing of the appeal in the near future and the appellant no.1 is a permanent resident of village Padamari Harijan Sahi, P.S. Pattapur in the district of Ganjam and in absence of any criminal antecedents against him on record, I am inclined to release appellant No.1 Pyarasa Naik on bail. 19. Let the appellant No.1 Pyarasa Naik be released on bail pending disposal of the appeal on furnishing bail bond of Rs.50,000/-(rupees fifty thousand) with two local solvent local sureties each for the like amount to the satisfaction of the learned trial Court with further conditions that while on bail, he shall not indulge himself in any criminal activities and he shall surrender before the learned trial Court in the event the result of the criminal appeal so requires. 20. The I.A. stands disposed of. 21. As the restrictions due to resurgence of COVID- 19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Courts website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Courts Notice No. 4587 dated 25th March 2020 as modified by Courts Notice No. 4798 dated 15th April 2021.