Orissa High Court
Deba @ Debabrata Majhi vs State Of Odisha on 22 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 376 of 2019
Deba @ Debabrata Majhi .... Appellant
Mr. A.R. Panda, Advocate
-versus-
State of Odisha .... Respondent
Mr. R. Tripathy, A.S.C.
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No.
22.11.2021
I.A. No.900 of 2021
09. 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
section 376(2)(i) 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.5,000/-
(rupees five thousand), in default, to undergo R.I. for
three months for the offence under section 4 of the
POCSO Act as the punishment under section 376(2)(i)
and section 4 of the POCSO Act are the same, no
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separate punishment is given for the offence under
section 376(2)(i) of the Indian Penal Code and the
sentences were directed to run concurrently by the
learned Additional Sessions Judge -cum- Special
Judge, Balasore in Special Case No. 57 of 2016.
Perused the impugned judgment.
Learned counsel for the petitioner submitted
that the petitioner was taken into judicial custody in
connection with this case on 27.02.2016 and as per
the order of this Court, he was released from judicial
custody on 05.10.2016 and till the date of
pronouncement of the impugned judgment and order
of conviction, he was in custody for seven months and
after the pronouncement of the impugned judgment
on 18.05.2019, he was remained in custody for about
two and half years and as such the petitioner has
remained in custody for total period of more than
three years. It is further submitted that the evidence
of the victim that the appellant dragged her from her
backside and took her to the backside of the house
and committed rape on her is getting no corroboration
from the medical evidence as the doctor has stated
that there was no recent mark of sexual intercourse
on the person of the victim but sexual assault cannot
be ruled out. It is stated that the occurrence in
question took place on 23.02.2016 and the F.I.R. was
lodged on 24.02.2016 and the doctor examined the
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victim on 25.02.2016. Learned counsel further
submitted that there are good chances of success in
the appeal and balance of convenience is in his favour
and there is no chance of early hearing of the 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, submitted that the date of birth of the victim
(P.W.2) as per the evidence of the Headmaster of the
school, who was examined as P.W.6 where the victim
was prosecuting her studies is 09.01.2004 and since
the occurrence has taken place on 23.01.2016, the
victim was just aged about thirteen years at the time
of occurrence and the doctor on the basis of
radiologist report found that the victim was within the
age group of fifteen to sixteen years. Learned counsel
for the State further placed the evidence of the victim
from which it appears that the appellant tied her
hands from the backside and also tied her mouth for
which she could not raise any hullah.
Considering the submissions of learned counsel
for the respective parties, the nature of evidence
adduced by the victim during trial who was thirteen
years of age at the time of occurrence coupled with
the medical evidence as well as the evidence adduced
by the Headmaster of the school, at this stage, I am
not inclined to release the petitioner on bail.
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Accordingly, the I.A. stands dismissed.
The appellant is at liberty to renew his prayer for
bail after serving half of the substantive sentence, if
the appeal is not taken up for hearing.
( S.K. Sahoo)
Judge
I.A. No. 901 of 2019
10. 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 I.A. is disposed of.
Urgent certified copy of this order be granted as per
rules.
( S.K. Sahoo)
Judge
P
