Judgment

B.N. MAHAPATRA, J.

This petition has been filed under Section 439, Cr. P.C. with a prayer to release the petitioner on bail in connection with S.T. Case No.21/19 of 2011, now pending in the Court of learned Ad hoc Additional Sessions Judge, FTC, Puri corresponding to G.R. Case No.1242 of 2007 arising out of Puri Town P.S. Case No.250 of 2007.

2. The petitioner is alleged to have committed offences punishable under Sections 302/294/34, I.P.C. read with Sections 25 and 27 of the Arms Act.

3. Prosecution case, in brief, is that one Ajaya Kumar Sarangi @ Hati was killed by gun shot on 30.08.2007 at 9.30 P.M. at Lions’ Gate of Lord Jagannath Temple, Puri by the petitioner and other accomplices. The informant, who is the elder brother of the deceased, immediately, shifted the deceased to Puri Hospital in police mobile van for medical treatment and due to the critical condition, the victim was referred to S.C.B., Medical College and Hospital, Cuttack. On the way to Cuttack, the deceased succumbed to the injuries. Then the informant-Uttam Kumar Sarangi lodged an FIR and after investigation charge sheet was submitted showing the petitioner as absconder and subsequently, he was produced before the court in custody on the strength of NBW(A).

4. Application for bail filed under Section 439, Cr. P.C. before the Ad hoc Additional Session Judge, FTC, Puri was rejected on the ground that there is prima facie material against the accused, who is alleged to have been involved in a heinous crime like murder and as many as seven witnesses were already examined by the prosecution by the date of passing the order. Therefore, in the larger interest of the society, the learned Ad hoc Additional Sessions Judge, FTC, Puri rejected the said application.

5. Mr. T.P. Mohapatra, learned counsel for the petitioner submitted that due to previous enmity, the petitioner has been falsely implicated in the case. The petitioner is a permanent resident of Sagarpadia, P.S. Basali Sahi, Dist: Puri (Lokanath Road) and he has got some moveable and immovable properties in that locality. Therefore, if the petitioner is enlarged on bail, there would be no chance of his absconding and tampering the evidence. Referring to the statement of Sambhu Singh, S.I., it was submitted that the petitioner has not opened fire at the deceased. In course of hearing, learned counsel for the petitioner filed a Memo stating therein that other co-accused persons, namely, Madhab Chandra Khuntia, Akhi @ Akshaya Kumar Mohapatra, Nari @ Narasingh Mohapatra and Gangadhar Moharana have already been released on bail. Along with memo he has enclosed copies of bail orders of above co-accused persons. Placing reliance upon the bail orders enclosed with the Memo directing release of above named four accused persons, learned counsel for the petitioner emphatically argued that the petitioner may be released on bail on the ground of parity.

6. Learned Additional Standing Counsel for the State submitted that the petitioner is a prime accused in this case. He is not similarly situated with that of the other co-accused persons, who have already been released on bail. It is further submitted that by 06.11.2012, seven witnesses were examined. Referring to the statement of Madhab Mohapatra, who is an eye-witness to the occurrence, learned State counsel submitted that the present petitioner had fired at the deceased and as per the medical report the deceased died because of gun-shot. Further, referring to the statement of the informant-Uttam Kumar Sarangi, it is submitted that in dying declaration the deceased stated that the present petitioner had opened the gun and fired at him. The statement of Kishore Chandra Panda and Deva Ray reveals that they identified the petitioner who was running away from the place of occurrence.

7. On the rival contentions of the parties, the only question that falls for consideration by this Court is whether the petitioner has made out a case for regular bail on the ground