Babuli Jena vs State Of Odisha
2021 Latest Caselaw 12771 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No. 596 of 2018

              Babuli Jena                           ....      Appellant/
                                                             Petitioner

                                   Mr. S.R. Mohapatra, Advocate

                                         -versus-
              State of Odisha                       ....   Respondent/
                                                           Opp. Party

                                   Mr. R. Tripathy,
                                   Addl. Standing Counsel
                                    CORAM:

                             JUSTICE S.K. SAHOO

                                      ORDER

Order No. 13.12.2021

I.A. No.1463 of 2018

06. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).

This is an application for bail.

Heard the learned counsel for the petitioner and learned counsel for the State.

The appellant-petitioner has been convicted under sections 457, 395 and 376-D of the Indian Penal Code and sentenced to undergo R.I. for a period of three years and to pay a fine of Rs.1,000/- (rupees one thousand), in default, to undergo further R.I. for a period of one month for the offence under // 2 //

section 457 of the Indian Penal Code, R.I. for ten years and to pay a fine of Rs.5,000/- (rupees five thousand) in default, to further undergo R.I. for a period of three months for the offence under section 395 of the Indian Penal Code and R.I. for twenty years and to pay a fine of Rs.5,000/- (rupees five thousand) in default, to undergo further R.I. for a period of three months for the offence under section 376-D of the Indian Penal Code and the substantive sentences were directed to run concurrently by the learned Sessions Judge, Kendrapara in S.T. Case No.30 of 2014.

Perused the impugned judgment.

Learned counsel for the petitioner submitted that the petitioner Babuli Jena is in judicial custody since 20.08.2013 and as such, he has remained in custody for more than eight years and three months. The first information report was lodged by Gajendra Nayak (P.W.4), the father of the victim (P.W.3). P.W.4 stated that on getting information from P.W.2 Baidyanath Mallick that some miscreants entered into the house of P.W.3 and assaulted her husband Bijay Nayak (P.W.6) and threw him outside the house and looted the properties, he came to the spot. The victim (P.W.3) stated that after the occurrence, she narrated before her father about the commission of dacoity, but she had not stated about the

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commission of rape on her. Learned counsel for the petitioner further contended that though P.W.4 stated that the condition of P.W.3 was not good when she came to the spot and though she was not senseless but was not in a condition to speak, but the evidence of P.W.3 would indicate that Bulu @ Ashok, her father (P.W.4), her brother, her nephew, her uncle Sadhu and some others reached within ten minutes after the accused persons left their residence and she did not name the miscreants to Bulu and to others and she only stated that the miscreants assaulted her husband and took away gold ornaments and cash and she had not stated anything regarding commission of rape on her. It is further contended that the F.I.R. was lodged on 08.08.2013 immediately after the occurrence and in the F.I.R., there is nothing that rape was committed on P.W.3 and that is how the case was registered under sections 457 and 397 of the Indian Penal Code. It is further submitted that the victim herself stated that the rape was committed on a cement flooring and it was rough but she did not sustain any external injury and she did not raise any objection apprehending danger to the life of her son. It is argued that the case of gang rape was developed at a subsequent stage and the doctor (P.W.11), who examined the

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victim stated that he did not find any external injury and sign of sexual intercourse on her. Learned counsel further drew the attention of this Court to the evidence of the victim wherein she has stated that both at Govindpur Hospital and at Aswini Hospital, Cuttack, on enquiry of the doctors, she narrated to them about the dacoity in course of which her husband was assaulted but she did not state either at Govindpur Hospital or at Aswini Hospital regarding commission of rape upon her. Learned counsel further submitted that in view of the available materials on record, it is very difficult to accept the commission of gang rape on the victim. The victim stated in her cross-examination that she narrated about the commission of rape on her before the wife of P.W.2, but the said lady has not been examined during the trial so as to corroborate the evidence of the victim. It is further submitted that the learned trial Court's finding regarding the commission of gang rape on the victim is not acceptable. Learned counsel further submitted that the victim stated that she knew all the three accused persons and the other two whose names she has stated prior to the occurrence and in the cross-examination, she stated that she was working as Anganwadi Worker since 2005 prior to her marriage and she was in-charge of Ward

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Nos.7, 8 and part of Ward no.6 and as Anganwadi Worker, she knew all the persons of those Wards however, she stated that the accused persons were the residents of Madhubana-Maharakul and their residence are not coming within Ward nos.7, 8 and part of Ward no.6 of which she was in-charge. Learned counsel further argued that if the victim was aware that the petitioner belonged to her village and she was working as Anganwadi Worker even if she had no knowledge about their names, she could have at least stated that the accused persons who were her co-villagers committed the crime but she had not stated so in her statement. It is further submitted that there is no chance of early hearing of the appeal in the near future and balance of convenience is in favour of the petitioner and one of the co-accused, namely, Ashok @ Chhota Jena was also convicted along with the petitioner in the same Sessions Trial and preferred CRLA No.526 of 2018 has already been released on bail vide order dated 04.02.2021 and therefore, the bail application of the petitioner may be favouraly considered.

Learned counsel for the State, on the other hand, opposed the prayer for bail and placed the statement of the victim, her father, P.W.2 and the doctor and submitted that the learned trial Court has

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rightly found the petitioner and others guilty of the offences charged.

Considering the submissions made by the learned counsel for the respective parties, nature of evidence available on record, absence of any allegation of gang rape on the victim in the F.I.R., non-disclosure about the commission of rape on her immediately after the occurrence before her family members by the victim, absence of any medical evidence to corroborate such allegation, the period of detention of the petitioner in judicial custody, release of the co-accused on bail in the connected criminal appeal and absence of any chance of early hearing of the appeal in near future, I am inclined to release the petitioner on bail.

Let the appellant-petitioner be released on bail pending disposal of the appeal on furnishing bail bond of Rs.50,000/- (rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned trial Court.

The I.A. is accordingly disposed of.

(S.K. Sahoo) Judge

I.A. No.1464 of 2018

07. Heard.

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There shall be stay of realization of fine amount imposed by the learned trial Court on the appellant- petitioner till disposal of the criminal appeal.

The I.A. is disposed of.

Urgent certified copy of this order be granted on proper application.

(S.K. Sahoo) Judge RKM