Orissa High Court
Santosh Biswal vs State Of Odisha on 25 January, 2021
CRLA No.417 of 2019
1
I.A. No.993 of 2019
1. Santosh Biswal
2. Surendra Kumar Dash
3. Krushna Behera
... Appellants/
4. Manoj Kumar Sahu
Petitioners
-Versus-
State of Odisha ... Respondent/
Opp. Party
13. 25.01.2021 This matter is taken up through Hybrid
arrangement (video conferencing/physical mode).
This is an application under Section 389 of
Cr.P.C. for grant of bail.
Heard.
The appellants-petitioners have been convicted
under sections 376-D/506/34 of the Indian Penal Code
and sentenced to suffer R.I. for twenty years each and
to pay a fine of Rs.30,000/- (rupees thirty thousand)
each, in default, to suffer further R.I. for six months
each for the offence under section 376-D of the Indian
Penal Code, R.I. for two years each for the offence
under section 506/34 of the Indian Penal Code and
both the substantive sentences were directed to run
concurrently by the learned Additional Sessions Judge,
Chatrapur in Sessions Trial No.398 of 2013.
Perused the impugned judgment.
Learned counsel for the petitioners submitted that
the petitioner no.1 Santosh Biswal is known as Bulu
2
Bisoi, who has been named in the first information
report whereas the other three petitioners i.e.
petitioner no.2 Surendra Kumar Dash, petitioner no.3
Krushna Behera and petitioner no.4 Manoj Kumar Sahu
have not been named in the first information report
and the test identification parade was conducted in
Berhampur jail and it is the statement of the victim,
who was examined as P.W.3 that she identified all the
four petitioners before a Magistrate inside the jail
premises and she proved the test identification parade
report marked as Ext.8 and her signature as Ext.8/1.
He further submitted that the learned J.M.F.C.,
Berhampur, who conducted the test identification
parade on 15.05.2013 was not examined during trial
and therefore, the defence counsel could not get any
opportunity to cross-examine the Magistrate and in
absence of the examination of the Magistrate, the
report is not admissible. He relied upon a Full Bench
decision of the Allahabad High Court in the case of
Sheo Raj -Vrs.- State reported in A.I.R. 1964
Allahabad 290 as well as a Division Bench of this
Court in the case of the State -Vrs.- Debraj Bhakta
reported in 34 (1968) Cuttack Law Times 16. He
further submitted that the place of incident was a
rough surface and when gang rape was committed on
the victim, it was natural that there would have been
injuries on different parts of the body of the victim
particularly on the back and private part but the
3
doctor, who examined the victim has not been
examined and the medical examination report of the
victim which was marked as Ext.24 indicates that there
was no injury present either on her person or in and
around her private parts. He further submitted that in
view of the available materials on record, there are
good chances of success in the appeal, balance of
convenience is in favour of the petitioners and the
petitioners are in judicial custody since 07.05.2013 and
thus they have undergone seven and half years of
substantive sentence and there is no chance of early
hearing of the appeal in the near future and therefore,
the bail application of the petitioners may be
favourably considered.
Learned counsel for the State, on the other hand,
placed the evidence of the victim in which the victim
not only identified the appellant no.1 Santosh Biswal in
Court as the auto driver but also stated that other
three petitioners standing inside the dock were present
at the scene of occurrence and committed sexual
intercourse with her but she could not say their names.
She further stated that she identified the petitioners in
the jail campus in presence of the Magistrate.
The points raised by the learned counsel for the
appellants regarding the effect of non-examination of
the learned Magistrate, who conducted the test
identification parade as well as the doctor, who
examined the victim are to be adjudicated at the time
4
of final hearing of the appeal.
In view of the available materials on record
particularly the nature and gravity of the accusation
and since it is a case of gang rape, in view of the
evidence of the victim, at this stage, I am not inclined
to release the petitioners on bail.
If the appeal is not ready for hearing even after
the appellants have undergone half of the substantive
sentence, then the appellants are at liberty to renew
their prayer for bail.
Accordingly, the I.A. stands rejected.
.............................
S.K. Sahoo, J.
I.A. No.992 of 2019
14. 25.02.2021 Heard.
There shall be stay of realization of fine amount
imposed by the learned trial Court on the appellants-
petitioners till disposal of the criminal appeal.
The I.A. is disposed of.
Urgent certified copy of this order be granted as
per rules.
.............................
S.K. Sahoo, J.
RKM
