Orissa High Court
Babuni Bhol @ Babani vs State Of Odisha on 2 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.227 of 2018
Babuni Bhol @ Babani .... Appellant/
Bala Petitioner
Mr. Soura Chandra Mohapatra,
Senior Advocate
-versus-
State of Odisha .... Respondent/
Opp. Party
Mr. Rajesh Tripathy,
Addl. Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 02.05.2023
I.A. No.549 of 2018
09. This matter is taken up through Hybrid arrangement
(video conferencing/physical mode).
As per the order dated 20.03.2023, learned counsel
for the State has produced the custody certificate of the
petitioner which is dated 24.03.2023 from which it
appears that as on 25.03.2023, the petitioner has
undergone sentence of six years six months and twenty
days. The custody certificate is taken on record.
This is an application under Section 389 of Cr.P.C.
for grant of bail.
Heard.
// 2 //
The appellant-petitioner has been convicted under
section 376-D of the Indian Penal Code and sentenced to
undergo R.I. for a period of twenty years and to pay a
fine of Rs.20,000/- (rupees twenty thousand), in default,
to further undergo R.I. for a period of two years by the
learned Additional Sessions Judge-cum- Special Judge,
Kendrapara in G.R. Case No.490 of 2013.
Perused the impugned judgment.
Mr. Soura Chandra Mohapatra, learned Senior
Advocate appearing for the appellant-petitioner
submitted that the petitioner was charged, inter alia, for
commission of offence under section 376-D of the Indian
Penal Code on the accusation that he along with co-
accused persons Parsuram Mallik and Debendra Mallik
committed rape on the victim, who was a minor girl. It is
argued that the two co-accused persons were found to be
juvenile and they faced enquiry before the Juvenile
Justice Board, Kendrapara in JGR No.490 of 2013 also for
offences under sections 376(2)(i)/376-D of the Indian
Penal Code and section 6 of the POCSO Act and vide
judgment and order dated 28.02.2017, those two co-
accused persons were found not guilty of the offences
charged and accordingly, they were acquitted. It is
further argued by the learned counsel for the petitioner
that when specific charge has been framed against the
petitioner for commission of offence under section 376-D
of the Indian Penal Code that he along with two co-
// 3 //
accused persons have committed rape and two co-
accused persons have been acquitted, the conviction of
the petitioner under section 376-D of the Indian Penal
Code is not sustainable in the eye of law. It is further
argued that though the petitioner was charged also under
section 376(2)(i) of the Indian Penal Code and section 6
of the POCSO Act, the learned trial Court has acquitted
him of such charges. It is further argued that according
to the victim (P.W.1), the occurrence in question took
place on 19.04.2013 at about 9.30 p.m. and she was
examined by the doctor (P.W.16) on 20.04.2013 at about
4.15 p.m. and the doctor has found no recent sign and
symptoms of sexual intercourse. It is further argued that
there are good chances of success in the appeal and
balance of convenience is in favour of the petitioner and
there is no chance of early hearing of appeal in the near
future and therefore, 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 the victim (P.W.1).
Considering the submissions of learned counsel for
the respective parties, the fact that the co-accused
persons have been acquitted after facing the enquiry
before the Juvenile Justice Board and the petitioner has
been found not guilty of the other offences except section
376-D of the Indian Penal Code which prima facie
appears to be not sustainable in the eye of law in view of
// 4 //
the acquittal order of the co-accused persons and further
taking into account the nature of evidence adduced
during the trial and absence of any chance of early
hearing of the appeal in the near future and the period
already undergone by the petitioner in judicial custody,
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.
Accordingly, the I.A. is disposed of.
( S.K. Sahoo)
Judge
I.A. No.548 of 2018
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
RABINDRA Digitally signed by
RABINDRA KUMAR
KUMAR MISHRA
Date: 2023.05.05
MISHRA 11:54:41 +05'30'
