The High Court
Case Details
Order No. 05. IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.9951 of 2024 Birendra Prasad Yadav …. Petitioner Mr. P.K. Maharaj, Advocate State of Odisha -versus- …. Opp. Party Mr. S.J. Mohanty, ASC CORAM: JUSTICE SIBO SANKAR MISHRA ORDER 08.01.2025 1. The petitioner is an accused in connection with Brajarajnagar P.S. Case No.118 of 2023 corresponding to C.T. Case No.456 of 2023 in the court of learned JMFC-1 (Cog. Taking), Jharsuguda corresponding to CT (Sessions) Case No.108 of 2023, pending in the court of learned Additional Sessions Judge, Jharsuguda for the alleged commission of offences punishable under Section 302/34 IPC. The petitioner had approached the learned Additional Sessions Judge, Jharsuguda in C.T. (Sessions) Case No.108 of 2023 praying for grant of bail. The learned Court below vide its order dated 20.08.2024 rejected Page 1 of 7 the bail application of the petitioner. Being aggrieved, the petitioner has filed the present petition under Section 439 of the Cr.P.C. praying for enlargement on bail.
Legal Reasoning
2. Learned counsel for the petitioner, on instruction from the petitioner, submits that, except the present bail application, no other bail application of the petitioner is pending in any other Court relating to the aforesaid F.I.R. 3. The prosecution case is that the informant’s husband namely Indrajit Paswan (deceased) was working as a truck driver of Birendra Yadav (Petitioner) since last 4 years. The petitioner was not paying his wages in time. When Indrajit Paswan was asking for payment to Birendra Yadav (petitioner) and his son Deepak Yadav were paying only 2 to 3 thousand rupees and assaulted him. On 16.05.2023 at 11.30 AM Deepak Yadav has taken the informant’s husband saying there is loading work. On 17.05.2023 at 2.00 PM Deepak and Asish brought her husband by a motor cycle in serious condition and left him outside of the house. When the informant asked about the matter Deepak told that, her husband is under influence of liquor and fled away. On being asked in presence of her mother-in-law and son, her husband said that Deepak and Birendar have assaulted him. After sometime the condition of her husband was critical for Page 2 of 7 which they shifted him to hospital where the doctor declared him dead. Birendra Yadav, Deepak Yadav and others committed murder of her husband by assaulting. Hence the F.I.R. 4. During investigation, statement of three vital witnesses, namely, Sarita Devi, Pramila Devi and Amit Paswan were recorded under Section 164 Cr. P.C. Sarita Devi, the wife of the deceased and Amit Paswan is the minor son of the deceased. Apart from these three witnesses, all other witnesses have already been examined by the prosecution. Sarita Devi, the wife of the deceased has been examined as P.W. 3, who in her statement inter alia has stated as under:- “1. I am the complainant of this case. I do not know the accused persons standing in the dock. I also do not know the accused Birandra (name Yadav suggested). The deceased is my husband. produced through V.C. to whom 2. I have not lodged any FIR in the police station. My husband had stated before me that he was working as a driver under one Birendra I have never seen. On Yada to 16.05.2023, my husband had been Samaleswari Mines for laoding the truck of Birendra Yadav. On 17.05.2023, two unknown persons brought my husband by a motor cycle and left him in our home by saying that he was ill due to sun stroke. Thereafter, my father-in- law for to Mandalia Hospital In Mandalia Hospital doctor treatment. declared him dead. My husband died due to heart attack because of sun stroke.” took him The said witness has resiled from her earlier stament made under Section 164 Cr.P.C. and did not Page 3 of 7 support the prosecution. 5. The other witness, namely, Pramila Devi, who has been examined as P.W.4 has also not supported the prosecution and in her statement inter alia she has stated as under: 1. I know the informant Sarita Devi. I know the deceased. I do not know the accused persons standing in the dock. I also do not know the accused Birendra Yadav produced through V.C. 2. I do not know anything about this case. I have not been examined by police about this case. My statement was recorded by the Magistrate in the Court. I do not remember as to what it had stated before the Magistrate.” 6. It is only the child witness, i.e., P.W.2 Amit Paswan, who has supported the prosecution case. He in his statement has inter alia stated as under:- “1. The informant is my mother. The deceased Indrajit Paswan was my father. I know the accused persons namely Deepak Yadav, Birendra Yadav and Ashish. 2. The occurrence took place on 17.05.2023. On that day at about 12.30 PM, the accused persons Ashish and Deepak came to our home by a motor cycle with my father and left my father in front of our house. My father was not able to move, for which my mother requested the above accused persons to leave my father inside our house and thereafter the accused persons left my father inside our house and went away. 3. On being asked by my mother and grandmother, my father told them that accused persons namely Birendra and Deepak had assaulted my father. I was also present in our home at the time when my father told that accused persons Deepak and Page 4 of 7 Birendra had assaulted him. Thereafter my mother told me to call the accused Birendra to our home. I proceeded to the house of the accused Birendra and asked about the reason as to why my father was complaining pain, but the accused Birendra told me that I cannot do anything and you go to your home. Thereafter, I returned back from the house of the accused Birendra and found that my father was completely silent and was not able to speak. So, I called to my grandfather, who was outside of our home for work. Immediately, my grandfather reached in our home and took my father to DHH, Jharsuguda where doctor declared him dead.” 7. It is apparent from the testimony of the child witness, i.e., P.W.2 that he is not an eye witness to the occurrence but he has heard while his mother was asking the accused persons as to how his father sustained injury. He has stated that when his mother asked the accused persons as to how his father is sustained injury, they have stated that they had assaulted. However his own mother who has been examined as P.W.3 has resiled from her own statement. Therefore, for the prosecution, except the statement of the minor witness, who has partly supported the case of the prosecution, all other material witnesses have refused to support the prosecution. There is no eye witness to the occurance. The prosecution solely relies upon the extra-judicial confession of the petitioner. The witnesses to the extra-judicial confession have deposed before court Page 5 of 7 narrating in contradiction. 8. The petitioner has been in custody since 20.05.2023. There are 37 charge sheeted witnesses to be examined by the prosecution and out of them only five witnesses have been examined till date. There is bleak chance of conclusion the trial in the near future. 9. Regard being had to the nature of evidence born on record as on date and the period of custody, I am inclined to enlarge the accused-Petitioner on bail. 10. Hence, the Petitioner is directed to be released on bail by the learned Court in seisin over the matter in the aforesaid case on such terms and conditions as it would deem just and proper, subject to the following additional conditions: (1) The petitioner shall appear before the Court diligently without fail, on every date of hearing; (2) He shall not influence any of the witnesses related to this case in any manner whatsoever; and (3) He shall not commit any offence while on bail. In the event, the petitioner is found wanting for violation of any of the bail conditions imposed by this Court or the trial Court even on a single occasion, the Page 6 of 7 prosecution is at liberty to move appropriate application before the Court below for cancellation of the concession of bail granted by this Court. If such application is filed, the trial Court should decide the application on its own merit.
Decision
11. The BLAPL is accordingly disposed of. Judge (S.S. Mishra) Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Jan-2025 18:43:13 Page 7 of 7