Orissa High Court
Bholanath Saha vs State Of Odisha on 22 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.609 of 2020
Bholanath Saha .... Appellant/
Petitioner
Mr.P.C. Jena, Advocate
-versus-
State of Odisha .... Respondent
Opp. Party
Mr.R. Tripathy,
Addl. Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No.
22.11.2021
I.A. No. 1169 of 2020
04. The matter is taken up through Video
Conferencing.
This is an application under section 389 Cr.P.C.
for grant of bail.
Heard the learned counsel for the petitioner
and learned Standing Counsel for the State.
The appellant-petitioner has been convicted
under section 376 of the Indian Penal Code and
sentenced to undergo R.I. for a period of seven years
and to pay a fine of Rs.25,000/- (twenty five
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thousand), in default, to undergo R.I. for a period of
one year more by the learned Sessions Judge -cum-
Special Judge, Malkangiri in C.T. No.149 of 2013.
Learned counsel for the petitioner submitted that
the petitioner was on bail during trial and he has
never misutilised his liberty and since the date of the
pronouncement of the impugned judgment by the
learned trial Court on 19.11.2020, the appellant is in
judicial custody. Learned counsel further submitted
that this case arises out of a complaint petition which
was filed by the mother of the victim as it is her case
that the matter was orally reported in the Potteru
outpost but no action was taken thereon and
accordingly, the complaint petition was filed and as
per the order of the learned J.M.F.C. Motu, MV 79
under section 156(3) Cr.P.C., the case was registered
and the matter was investigated and ultimately
charge sheet was submitted against the petitioner and
his other family members and all of them faced trial
and all the co-accused persons were acquitted of all
the charges but the petitioner was found guilty under
section 376 of the Indian Penal Code. It is further
submitted that the petitioner is a seventy years old
man and the doctor who examined him on police
requisition, has specifically stated that he was not
accustomed to regular intercourse and was not
capable of doing sexual intercourse. Learned counsel
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further submitted that no documentary evidence has
been brought on record by the prosecution to
substantiate the age of the victim and though the
doctor (P.W.7) who examined the victim stated her
age to be fourteen to sixteen years at the time of her
examination on 25.03.2006 but it is not clear as to on
what basis she determined the age of the victim. It is
further argued that there are materials on record to
show that there was previous rivalry between the
parties and the Investigating Officer has not been
examined in the case which has caused serious
prejudice to the petitioner. It is further submitted that
there are good chances of success in the appeal and
the balance of convenience is in favour of the
petitioner and there is no chance of early hearing of
appeal in the near future and therefore, the bail
application of the petitioner may be favourably
considered.
Learned counsel for the State, on the other
hand, placed the evidence of the victim (P.W.1), the
doctor (P.W.6) who examined the petitioner as well as
the doctor (P.W.7) who examined the victim and he
also drew the attention of the Court to the relevant
parts of the impugned judgment where the learned
trial Court has not given any importance on the
evidence of the doctor (P.W.6) relating to incapability
of the petitioner for committing sexual intercourse.
// 4 //
Considering the submissions made by the
learned counsel for the respective parties, the nature
of evidence adduced during trial, the fact that the
petitioner was on bail during trial and he has not
misutilised his liberty while on bail, the period already
undergone after pronouncement of the judgment 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
solvent sureties each for the like amount to the
satisfaction of the learned trial Court subject to
condition that the appellant shall not try to keep any
contact with the victim or tamper with any prosecution
evidence in any manner and he shall not indulge in
any criminal activities. Violation of any terms and
conditions shall entail cancellation of bail.
I.A. is accordingly disposed of.
( S.K. Sahoo)
Judge
I.A. No. 1168 of 2020
05.
Heard.
There shall be stay of realization of fine amount
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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
