Daktar @ Radhamohan vs State Of Odisha
2022 Latest Caselaw 2883 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.361 of 2020

              Daktar @ Radhamohan                  ....      Appellant/
              Singh                                         Petitioner

                                   Mr. Samir Mishra, Advocate

                                        -versus-
              State of Odisha                      ....    Respondent/
                                                           Opp. Party

                                   Mr. Rajesh Tripathy,
                                   Addl. Standing Counsel
                                    CORAM:

                              JUSTICE S.K. SAHOO

                                      ORDER

Order No. 27.06.2022

I.A. No.714 of 2020

12. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).

Learned counsel for the State produced the custody certificate of the appellant-petitioner as per order dated 25.04.2022 which indicates that he has already completed five years of substantive sentence. The custody certificate is taken on record.

This is an application under Section 389 of Cr.P.C. for grant of bail.

Heard.

The appellant-petitioner has been convicted // 2 //

under sections 376(2)(i)/506 of the Indian Penal Code read with section 5 punishable under section 6 of the POCSO Act and sentenced to undergo R.I. for a period of twenty years and to pay a fine of Rs.25,000/- (rupees twenty five thousand), in default of payment of fine, to further undergo R.I. for a period of one year for the offence under section 376(2)(i) of the Indian Penal Code and R.I. for a period of three years and to pay a fine of Rs.3,000/- (rupees three thousand), in default of payment of fine, to further undergo R.I. for a period of one month for the offence under section 506 of the Indian Penal Code and all the substantive sentences were directed to run concurrently by the learned Additional Sessions Judge -cum- Special Judge, Balasore in Special Case No.208 of 2017.

Perused the impugned judgment.

Learned counsel for the petitioner submitted that the petitioner is in judicial custody since 28.04.2017 and as such he has already undergone five years of substantive sentence. It is further submitted that there is no clear evidence as to what was the age of the victim at the time of occurrence and the victim in her evidence stated that on the very day of the occurrence in the night, she lodged the first information report in the police station on being scribed by another person. According to Mr.

// 3 //

Mishra, the said first information report has not seen the light of the day and the first information report which has been registered is dated 27.04.2017 which indicates that the first version of the victim has not come on record. It is further submitted that the victim was examined by the doctor P.W.2, who found no recent sign or symptom of sexual intercourse. However, he found hymen was ruptured having old tears and stated that possibility of sexual intercourse cannot be ruled out. Learned counsel further submitted that the accused was examined by P.W.5, the Medical Officer at D.H.H., Balasore on 27.04.2017 and he could not find any external injury or any clue of recent sign or symptom of sexual intercourse. It is contended by the learned counsel for the petitioner that there is no chance of early hearing of appeal in the near future and balance of convenience is in favour of the petitioner and therefore, the bail application of the petitioner may be favourably considered.

Learned counsel for the State on instruction submitted that the victim has already got married in the meantime and the petitioner is having no criminal antecedent.

Considering the submissions of learned counsel for the respective parties, the nature of evidence adduced during the trial, the period already

// 4 //

undergone by the petitioner in judicial custody and absence of any chance of early hearing of the appeal in the near future, the prayer for bail is allowed.

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 subject to conditions that the petitioner shall not try to come in contact with the victim and he shall not indulge in any criminal activities in any manner.

Violation of any terms and conditions shall entail cancellation of bail.

Accordingly, the I.A. is disposed of. Urgent certified copy of this order be granted as per rules.

(S.K. Sahoo) Judge

RKM