Simanchal Swain vs State Of Odisha
2023 Latest Caselaw 2847 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLA No.933 of 2022

              Simanchal Swain                   ....     Appellant/
                                                        Petitioner

                                 Mr.Biswajit Nayak, Advocate

                                     -versus-

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

                                 Mrs. Susamarani Sahoo,
                                 Addl. Standing Counsel
                                    CORAM:
                               JUSTICE S.K. SAHOO

                                     ORDER

Order No.                         05.04.2023
                               I.A. No. 1744 of 2022

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

This is an application for bail.

The appellant-petitioner Simanchal Swain has been convicted for the offence punishable under section 376(2)(n) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.30,000/- (rupees thirty thousand) and in default, to undergo rigorous imprisonment for a further period of three months for the offences under sections 376(2)(i)(n) of the Indian Penal Code by the learned Ad-hoc Addl. Sessions Judge, (F.T.S.C.), under POCSO Act, Berhampur, Ganjam vide // 2 //

judgment dated 22.09.2022 in G.R. Case No.62 of 2015 /T.R. No.47 of 2021 (F.T.S.C).

Learned counsel for the petitioner submitted that the petitioner was on bail during trial and he has never misutlized his liberty. Drawing attention of this Court to the paragraph no.16 of the judgment, he submitted that the learned trial Court has held that the victim was more than eighteen years of age at the time of occurrence. He further submitted that if the victim is assessed to be more than eighteen years then in view of her evidence, it appears that she is a consenting party and the ingredients of the offence under section 376(2)(i) of the Indian Penal Code would not be attracted and that there are good chances of success in the appeal and there is no chance of early hearing of the appeal in the near future and balance of convenience is in his favour and therefore, the bail application may be favouraly considered.

Learned counsel for the State, on the other hand, opposed the prayer for bail and submitted that the finding of the learned trial Court that the victim was more than eighteen years of age is erroneous and further submitted that the State has not preferred any appeal challenging the order of acquittal of the petitioner from the offence under section 376(2)(i) of the Indian Penal Code or section 6 of the POCSO Act. He further placed the evidence of the victim (P.W.1) so also the doctor

// 3 //

(P.W.10).

Considering the submissions made by the learned counsel for the respective parties, the nature of evidence adduced by the victim and the doctor during trial, the fact that the petitioner was on bail during trial absence of any material that he has misutilized the liberty while on bail 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 the learned Court may deem just and proper.

The I.A. is disposed of.

Issue urgent certified copy as per Rules.

( S.K. Sahoo) Judge

Sipun