Asina Karjee State of Orissa … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 12539 of 2023 Asina Karjee State of Orissa ….. Vs. ….. Petitioner Mr. Chandan Samantray, Advocate Opposite Party Mr. D.K. Mishra, AGA CORAM: JUSTICE SAVITRI RATHO Order No. 01. 1.
Decision
ORDER 09.11.2023 (Through hybrid mode) Heard Mr. Chandan Samantray, learned counsel for the petitioner and Mr. D.K. Mishra, learned Additional Government Advocate. 2. This application under Section 439 Cr.P.C. has been filed in connection with Jarada P.S. Case No. 220 of 2022 corresponding to S.T. Case No. 225 of 2022 pending in the court of the learned Sessions Judge, Ganjam, Berhampur under Section 302 of IPC. 3. The prayer for bail of the petitioner has been rejected vide order dated 11.07.2023 passed by learned Sessions Judge, Ganjam, Berhampur in S.T. No. 225 of 2022 on the ground that trial of the case has commenced and three witnesses have been examined and evidence of the eye witness account was against the accused while other material witnesses were yet to be examined. 4. The prosecution allegations in brief against the petitioner are that on 12.07.2012 at about 5.30 P.M., his elder uncle-in-law Asina Karjee Page 1 of 5 has killed his younger brother Kartika Karjee inside the house of one Kanhei Naik assaulting him on his neck with a sharp weapon and when the informant questioned the accused as to the reason for killing Kartika Karjee, he replied that it was because he always quarreled with him. 5. Mr. Chandan Samantray, learned counsel for the petitioner submits that the petitioner is in custody since 25.10.2022 and in the trial the informant has been examined as P.W.2. In his cross-examination, he has stated that without knowing the contents of exhibit P-1, the F.I.R., he signed on it at the instance of the Police and he cannot tell who has killed Kartika Karjee. He further submits that P.W.1 who claims to be an eye witness to the occurrence should not be believed as he could not have seen the occurrence which took place inside the house of Kanhei Naik and, his house is not next to the house of Kanhei Naik. This witness has admitted that he was asked by the Police to be a witness in the case. 6. Mr. D.K. Mishra, learned Additional Government Advocate opposes the prayer for bail stating that P.W.1 has implicated the petitioner as he has stated that he was standing outside the house of Kanhei Naik and has seen the petitioner leaving the house with a kati after which he went inside and found the deceased with bleeding injuries on his neck and his evidence has not been demolished in cross- examination. Page 2 of 5 7. A threadbare examination of the deposition of witnesses while considering the prayer for bail is not proper. But in order to consider the submission of the learned counsel for the petitioner, I have perused the deposition of P.W.1, Raghunath Karzy. He has stated in his examination chief as follows:- “Kartika has expired about seven months back inside the house of Kanhei Naik of our village Gujilingi. On the date of incident at about 05.30 P.M., when the younger brother of the accused i.e., Kartika Karjee was inside the house of Kanhei Naik of our village, at that time, the accused Asina Karjee killed Kartika Karjee by assaulting through Kati and when Asina Karjee came out from the house of Kanhei Naik after killing his younger brother Kartika Karjee, holding the weapon of offence i.e., kati. Then, I entered into the house of Kanhei Naik and found that Kartika Karjee has been laid there being dead sustaining bleeding injuries on his neck.” In cross-examination, he has stated as follows: “3. I have witnessed the incident by standing in front of the house of Kanhei Naik as the spot was directly visible from the place of my standing. The house of Kanhei Naik and our house is intervened by one house. There was previous dispute between the accused and the deceased. 4. I do not able to recollect the exact date and day of incident. I was Page 3 of 5 asked by the police to be a witness in this case. As I was direct eye witness to the incident, for which, the police told me to be a witness in this case. 5. I have good relationship with the accused Asina Karjee. On the next day of the incident, I had stated about the incident before the police, in front of our house i.e., on village danda. I was not called by the police to the police station. 6. It is not a fact that, I have not seen the incident and that, I was not present at the time of incident. It is not a fact that, I had previous enmity with the accused and that, for such enmity, I am deposing falsehood against the accused.” 8. On a careful reading of the above deposition, it cannot be said that this witness has not witnessed the occurrence as he stated that he was standing in front of the house of Kanhei Naik and the spot was directly visible from the place of his standing. He has also stated that he was asked by the Police to be a witness in the case as he was an eye witness to the incident and that he has stated about the incident before the Police in front of his house in the village danda and that he was not called to the Police Station. It cannot therefore be concluded that this witness has not seen the occurrence nor can it be said that he has not been examined by the Police. Page 4 of 5 9. In view of the above discussion, I am not inclined to allow the prayer for bail for which the BLAPL is dismissed granting liberty to the petitioner to move for bail afresh in case there is undue delay in conclusion of the trial. 10. No observation in this order will influence the learned trial court in any manner during trial as they have been made for the purpose of consideration of the prayer for bail. 11. Urgent certified copy of this order be granted on proper application. ………………………... (SAVITRI RATHO) JUDGE puspa Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 15-Nov-2023 19:48:50 Page 5 of 5