Orissa High Court
Ramesh Naik vs State Of Odisha on 9 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 414 of 2019
Ramesh Naik .... Appellant/
Petitioner
Mr.R.N. Behera, Advocate
-versus-
State of Odisha .... Respondent/
Opp.Party
Mrs.Susamarani Sahoo,
Addl. Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 09.05.2022
I.A. No. 985 of 2019
10. This matter is taken up through Hybrid Arrangement
(Video Conferencing/Physical Mode).
This is an application for bail.
The appellant-petitioner has been convicted under
sections 363, 366, 376(2)(f)(i)(l) of the Indian Penal
Code and section 6 of the POCSO Act and sentenced to
undergo rigorous imprisonment for a period of five years
and to pay a fine of Rs.2,000/- (rupees two thousand)
and in default, to undergo rigorous imprisonment for a
further period of six months for the offence under
section 363 of the Indian Penal Code, to undergo
rigorous imprisonment for a period of seven years and to
pay a fine of Rs.5,000/- (rupees five thousand) and in
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default, to undergo rigorous imprisonment for a further
period of six months for the offence under section 366 of
the Indian Penal Code, to undergo rigorous
imprisonment for a period of ten years and to pay a fine
of Rs.10,000/- (rupees ten thousand) and in default, to
undergo rigorous imprisonment for a further period of
six months for the offence under section 376(2)(f)(i)(l)
of the Indian Penal Code and to undergo rigorous
imprisonment for a period of ten years and to pay a fine
of Rs.10,000/- (rupees ten thousand) and in default, to
undergo rigorous imprisonment for a further period of
one year for the offence under section 6 of the POCSO
Act and the substantive sentences were directed to run
concurrently by the learned Addl. Sessions Judge -cum-
Judge, Special Court (POCSO), Dhenkanal vide judgment
and order dated 11th March, 2019 in C.T. (Spl.) POCSO
Case No. 06 of 2017.
Learned counsel for the petitioner submitted that the
petitioner is in judicial custody since 01.03.2017 and as
such, he has already undergone sentence of five years
and two months sentence out of ten years of substantive
sentence imposed on him by the learned trial Court.
Learned counsel further submitted that the victim has
been examined as P.W.2 and she was a deaf and dumb
girl and the Court engaged an interpreter and accordingly
her evidence was recorded. He further placed the
evidence of the victim (P.W.2), who stated that the
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petitioner undressed her and started misbehaving her
(KHARAP KAMA KALA) and the petitioner touched her
chest during the misbehavior and the petitioner also
detained her for which she was crying and her mouth was
gagged when she shouted. However, in the cross-
examination, she has stated that she has not sustained
any bleeding injury due to the physical assault by the
petitioner. Learned counsel placed the evidence of the
doctor (P.W.11), who examined the victim and stated that
she did not find any bodily injury on the victim suggestive
of sexual intercourse and further stated that on
ossification test, the age of the victim was found to be
thirteen to fifteen years. Learned counsel further that in
view of the nature of evidence adduced by the victim, it
cannot be pin-pointly stated that the ingredients of the
offences under section 376(2)(f)(i)(l) of the Indian Penal
Code so also under section 6 of the POCSO Act are
attracted. Learned counsel for the petitioner further
contended that sentencing the petitioner both for the
offence under section 376 of the Indian Penal Code as
well as under section 6 of the POCSO Act was not justified
in view of section 42 of the POCSO Act. It is further
submitted that the petitioner has got a fair chance of
success in the appeal and balance of convenience lies in
his favour and therefore, the bail application of the
petitioner may be favouraly considered.
Learned counsel for the State, on the other hand,
opposed the prayer for bail and placed the evidence of
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the mother of the victim, who has been examined as
P.W.1 and she stated that P.W.2 disclosed before her
about the commission of rape by the petitioner. Learned
counsel for the State further submitted that in view of the
evidence of P.W.1, since the victim is a deaf and dumb
girl and she has stated that the petitioner misbehaved
with her (KHARAP KAMA KALA), no irregularity has been
committed by the learned trial Court in convicting the
petitioner for the aforesaid offences.
Considering the submissions made by the learned
counsel for the respective parties, I am of the humble
view whether the ingredients of the offence under
section 376(2)(f)(i)(l) of the Indian Penal Code and
section 6 of the POCSO Act are attracted or not, are to
be adjudicated at the final stage of hearing of the appeal
and expressing any opinion at this stage while
considering the application for bail would not be proper
and justified. However, keeping in view the period of
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 solvent
sureties each for the like amount to the satisfaction of
the learned trial Court with such terms and conditions as
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the learned Court may deem just and proper including
the conditions that the petitioner shall not try to come in
contact with the victim and shall not indulge in any
criminal activities. Violation of any of the conditions shall
entail cancellation of bail.
The I.A. is disposed of.
Issue urgent certified copy as per Rules.
( S.K. Sahoo)
Judge
I.A. No. 986 of 2019
11. This is an application for stay of realization of fine.
Heard.
There shall be stay of realization of fine amount
imposed on the appellant-petitioner pursuant to the order
dated 11.03.2019 passed by the learned Addl. Sessions
Judge -cum- Judge, Special Court (POCSO), Dhenkanal
vide judgment and order dated 11th March, 2019 in C.T.
(Spl.) POCSO Case No. 06 of 2017 pending disposal of the
criminal appeal.
The I.A. is disposed of.
Issue certified copy as per rules.
( S.K. Sahoo)
Judge
PKSahoo
