Orissa High Court
Laxman Bhumia @ Gouda vs State Of Odisha on 4 February, 2021
CRLA No.629 of 2017
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Misc. Case No.1632 of 2017
Laxman Bhumia @ Gouda ... Appellant/
Petitioner
-Versus-
State of Odisha ... Respondent/
Opp. party
06. 04.02.2021 The matter is taken up through Video
Conferencing.
This is an application under Section 389 Cr.P.C.
for grant of bail.
Heard.
The appellant-petitioner has been convicted
under sections 363/376(2)(n)/344 of the Indian Penal
Code read with section 4 of the POCSO Act and
sentenced to undergo R.I. for ten years and to pay a
fine of Rs.10,000/- (rupees ten thousand), in default,
to undergo R.I. for three months for the offence under
section 376(2)(n) of the Indian Penal Code, R.I. for
five years and to pay a fine of Rs.5,000/- (rupees five
thousand), in default, to undergo R.I. for two months
for the offence under section 363 of the Indian Penal
Code and R.I. for three years and to pay a fine of
Rs.5,000/- (rupees five thousand), in default, to
undergo R.I. for two months for the offence under
section 344 of the Indian Penal Code and no separate
punishment is awarded under section 4 of the POCSO Act
in view of section 42 of the POCSO Act and all the
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substantive sentences were directed to run concurrently
by the learned Additional Sessions Judge -cum- Special
Judge, Malkangiri in C.T. No.121 of 2015.
Perused the impugned judgment.
Learned counsel for the petitioner submitted that
the petitioner is in judicial custody since 01.05.2015
and out of ten years of substantive sentence imposed
by the learned trial Court, the petitioner has already
undergone five and half years of the substantive
sentence. He further submitted that the victim has
been examined as P.W.1 and in the cross-examination,
the victim stated that she was staying in the house of
the appellant for about one month and though the
doctor (P.W.12), who examined the victim stated her
age to be sixteen to seventeen years at the time of his
examination but he has not clarified from which
examination, he came to hold that the victim's age was
sixteen to seventeen years. The learned trial Court has
mentioned that the medical officer conducted
ossification test and found the age of the victim to be
sixteen to seventeen years but no ossification test
report has been proved in this case and even the
doctor (P.W.12) has not stated to have given his
opinion basing on any ossification test report and
therefore, the observation of the learned trial Court
regarding the age of the victim is not acceptable. He
further submitted that there is no chance of early
hearing of appeal in the near future and balance of
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convenience is in favour of the petitioner and
therefore, the bail application of the petitioner may be
favourably considered.
Learned counsel for the State on verification of
the deposition copies and going through the impugned
judgment fairly submitted that no ossification report
has been proved in this case. He placed the statement
of the victim and the doctor.
Considering the submissions of learned counsel
for the respective parties, the nature of evidence
adduced by the prosecution during trial, the
substantive sentence imposed by the learned trial
Court, the period already undergone by the petitioner
and absence of any chance of early hearing of the
appeal in the near future, the prayer for bail is allowed.
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 Misc. Case is disposed of.
.............................
S.K. Sahoo, J.
Misc. Case No.1633 of 2017
07. 04.02.2021 Heard.
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 Misc. Case is disposed of.
Urgent certified copy of this order be granted as
per rules.
.............................
S.K. Sahoo, J.
RKM
