Orissa High Court
Tuna Pradhan vs State Of Odisha on 21 January, 2021
CRLA No.93 of 2018
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Misc. Case No.240 of 2018
Tuna Pradhan ... Appellant/
Petitioner
-Versus-
State of Odisha ... Respondent/
Opp. party
06. 21.01.2021 The matter is taken up through Video
Conferencing.
This is an application under Section 389 of
Cr.P.C. for grant of bail.
Heard.
The appellant-petitioner has been convicted
under section 376(2)(n) of the Indian Penal Code and
sentenced to undergo R.I. for ten years and to pay a
fine of Rs.10,000/- (rupees ten thousand), in default of
payment of fines, to suffer further R.I. for six months
for the offence under section 376(2)(n) of the Indian
Penal Code by the learned A.D.J. -cum- Special Judge,
Boudh in Special Case No.03 of 2014 (POCSO Act).
Perused the impugned judgment.
Learned counsel for the petitioner submitted that
the petitioner was on bail during trial and he has never
misutilised his liberty and out of ten years of
substantive sentence imposed by the learned trial
Court, he has already undergone about four years of
substantive sentence. He further submitted that there
is no specific finding by the learned trial Court that the
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victim was a minor at the time of occurrence, in fact,
the learned trial Court has observed in paragraph-8
that it creates doubt regarding the actual date of birth
of the victim and the prosecution has not proved the
age of the victim to be minor beyond all reasonable
doubt. Placing the evidence of the victim who has been
examined as P.W.2, learned counsel submitted that the
victim moved with the petitioner on a cycle and then in
a bus and then they went to a railway platform and it
is stated that at different places, the petitioner
committed sexual intercourse with her and though she
had opportunity to raise objection and not to
accompany the petitioner but she did not oppose to the
same that which shows that she was a consenting
party. He further submitted that the doctor has not
been examined in the case and there are good chances
of success in the appeal and there is no chance of early
hearing of appeal in the near future and balance of
convenience is in favour of the petitioner and
therefore, the bail application of the petitioner may be
favourably considered.
Learned counsel for the State opposed the prayer
for bail.
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,
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the fact that the petitioner was on bail during trial and
there is no allegation of misutilization of his liberty
while on bail 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.241 of 2018
07. 21.01.2021 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
