Orissa High Court
BLAPL/9486/2020 on 22 January, 2021
BLAPL No.9486 of 2020
03. 22.01.2021 The matter is taken up through video conferencing.
The memo filed by the learned counsel for the petitioner
is taken on record. By the said memo he prays for deletion of
the averment made in the application that the petitioner was
earlier on bail during the trial. The memo stands accepted.
The petitioner, being in custody in connection with S.T.
Case No. 26/142 of 2017 pending before the learned 2nd Addl.
Sessions Judge, Baripada, faced the trial for commission of
offence under sections 457/376 IPC. The trial court has
convicted the petitioner for commission of offence under
sections 457/376 IPC and consequently, the petitioner has
been visited with the punishment to undergo rigorous
imprisonment for a period of seven years and fine of
Rs.5,000/- with the default stipulation to undergo rigorous
imprisonment for one month for the offence under section 376
IPC. He having been convicted for the offence under section
457 IPC, the trial court has also awarded the punishment of
rigorous imprisonment for a period of three years and fine of
Rs.1,000/- with the default stipulation to undergo rigorous
imprisonment for 15 days. It has also been directed that the
substantive sentences are to run concurrently.
Learned counsel for the petitioner submits that this
petitioner who hails from rural background has been in
custody since 25.07.2017 and his moves to be released on bail
has proved futile. Placing the deposition of the victim-P.W.5, it
is submitted that the petitioner has been highly prejudiced as
the learned counsel who was conducting the defence on his
behalf before the trial court has not advanced any cross-
examination except offering the suggestion as to the falsity of
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her version. He further submits that despite ample scope for
cross-examination to test the trustworthiness of P.W. 5 and
credibility of her version, it appears that there has been total
failure on that count and the Presiding Officer of the trial
court has also acted as a mute spectator instead of
discharging the duty as required under law. He therefore
submits that there is every chance of success in the appeal
and in all probability, a case for retrial is made out. Placing
the long period of detention of the petitioner in custody and
projecting such high chance of success in the appeal when
there remains no scope on the part of the petitioner to flee
from justice as he has his permanent residence within the
jurisdiction of the court below; learned counsel for the
petitioner pending disposal of the appeal urges for suspension
of the execution of sentence and grant of bail to the petitioner
contending that the lower appellate court under the
circumstance ought not to have refused to so direct.
Learned counsel for the State while opposing the move
submits that on the face of the evidence of P.W. 5 as available
on record, the appeal sans of merit.
Keeping in view the submission made, judgment of the
trial court as well as the copies of the depositions of the
prosecution witnesses being perused; this Court finds the
submission of the learned counsel for the petitioner to be
holding water in as much as the cross-examination of all the
witnesses appears to be just for namesake and the trial has
accordingly culminated by recording the conviction against the
petitioner followed by the imposition of the sentence as
aforesaid.
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The lower appellate court appears to have ignored the
above emerged important and significant aspect and simply
keeping in view that conviction has been recorded for
commission of offence under sections 457/376 IPC against the
petitioner as also the fact that the appeal is at the stage of
hearing has rejected the application for suspension of the
execution of the sentence and release of the petitioner on bail.
It is submitted at the Bar that although in the meantime
ten months have passed, the appeal is yet to be heard and
disposed of.
In view of all the aforesaid and further taking into
account the surrounding circumstances including the period
of detention of the petitioner in custody; it is directed that
pending disposal of Criminal Appeal No. 42 of 2019, the
execution of the sentence imposed against the petitioner shall
remain under suspension and the petitioner shall be released
on bail on such terms and conditions as would be deemed just
and proper by the trial court.
While parting, this Court is of the view that interest of
justice would be best served by directing the lower appellate
court to dispose of Criminal Appeal No. 42 of 2019 in
accordance with law as expeditiously as possible and therefore
it is so directed.
It is however needless to mention that the observations
as made hereinabove shall have no influence upon the lower
appellate court in disposing the appeal.
The BLAPL is accordingly disposed of.
.......................
D. Dash,J.
Aks
