Orissa High Court
Durga Singh vs State Of Odisha on 9 September, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.65 of 2019
Durga Singh .... Appellant/
Petitioner
Mr. Debadipta Panigrahi,
Advocate
-versus-
State of Odisha .... Respondent/
Opp. Party
Mr. D.K. Pani,
Addl. Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 09.09.2021
I.A. No.33 of 2021
04. 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 appellant-petitioner has been convicted under
section 376(2)(l)(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 fine, to undergo further R.I. for six months
// 2 //
by the learned Additional Sessions Judge -cum- Judge,
Special Court under POCSO Act, Bhubaneswar in T.R.
Case No.46 of 2016.
As per order dated 12.08.2021, the learned
counsel for the State has produced the report relating
to the status of the victim as well as her minor child.
In the report furnished by the Inspector in-charge of
Mahila police station, Bhubaneswar UPD, which is
dated 25.08.2021, it is mentioned that the victim
along with her female child was residing at Subhadra
Mahatab Seba Sadan from 21.06.2016 to 10.05.2018
and thereafter, on attaining the age of eighteen, she
was placed to after care by the order of the Addl. Child
Welfare Committee, Bhubaneswar and the victim has
already been married in the meantime on 22.03.2021
and the child of the victim has been kept under the
supervision of Subhadra Mahatab Seba Sadan for
further management. The copy of the report furnished
by the Inspector in-charge of Mahila police station,
Bhubaneswar UPD is taken on record.
Perused the impugned judgment.
Learned counsel for the petitioner submitted that
the petitioner is in judicial custody since 23.03.2016
and thus out of ten years of substantive sentence
imposed by the learned trial Court, he has already
undergone more than five years and five months of
substantive sentence for his conviction under section
// 3 //
376(2)(l)(n) of the Indian Penal Code. Learned counsel
for the petitioner further submitted that even though
the petitioner was also charged under section 6 of the
POCSO Act but the learned trial Court after discussing
the evidence on record, has been pleased to hold that
the prosecution has failed to prove the age of the
victim and accordingly, acquitted him under section 6
of the POCSO Act. Placing reliance on the statement of
the victim, the learned counsel for the petitioner
submitted that the petitioner is related to the victim
and the occurrence stated to have been taken place
while the victim was sleeping in the house of the
petitioner with the sister of the petitioner and she
stated that she raised hulla when the petitioner
attempted to commit rape on her but the sister of the
petitioner who was sleeping with her did not woke up,
which is an improbable feature. He further submitted
that the sister of the petitioner was examined as
P.W.18 and she has been declared hostile by the
prosecution. The doctor (P.W.6) has stated that she
did not notice any visible external as well as internal
injury and there was no tear or bleeding and there was
no recent sign and symptoms of recent sexual
intercourse and the vaginal canal easily admitted two
fingers and she found that LMP was six months back.
It is further submitted that there are good chances of
success in the appeal and balance of convenience is in
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favour of the petitioner and since the petitioner has
already undergone half of the substantive sentence
and there is no chance of early hearing of appeal in the
near future, the bail application of the petitioner may
be favourably considered.
Learned counsel for the State opposed the prayer
for bail and placed the evidence of P.W.3, P.W.6 as
well as P.W.18.
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 sentence already undergone by the
petitioner and absence of any chance of early hearing
of the appeal in the 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 local
solvent sureties each for the like amount to the
satisfaction of the learned trial Court.
The I.A. Case is disposed of.
( S.K. Sahoo)
Judge
RKM
