Tupa @ Tapan Kumar vs State Of Odisha
2023 Latest Caselaw 14555 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                             CRLA No.827 of 2023

              Tupa @ Tapan Kumar                    ....      Appellant/
              Murmu                                          Petitioner

                                   Mr. D.R. Mishra, Advocate

                                         -versus-

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

                                   Mr. Rajesh Tripathy
                                   Addl. Standing Counsel
                                   CORAM:
                              JUSTICE S.K. SAHOO
                                     ORDER

Order No.                          14.11.2023

                              I.A. No.1758 of 2023

   03.            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 sections 376-D/376(2)(i) of the Indian Penal Code and 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.10,000/- (rupees ten thousand), in default, to undergo further R.I. for a period of three months for the offence under section 376-D of the // 2 //

Indian Penal Code and R.I. for a period of ten years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further R.I. for a period of three months for the offence under section 376(2)(i) of the Indian Penal Code and no separate punishment is awarded under section 6 of the POCSO Act in view of section 42 of the said Act and both the substantive sentences were directed to run concurrently by the learned Presiding Officer, Special Court under POCSO Act, Mayurbhanj, Baripada in C.T. Case No.16 of 2016.

Perused the impugned judgment.

Learned counsel for the petitioner submitted that out of twenty years of substantive sentence imposed by the learned trial Court, the petitioner has undergone five years and eleven months of sentence. He argued that even though the victim being examined as P.W.6 has supported the prosecution case and stated about the commission of rape on her by the petitioner along with the co-accused but the evidence of the doctor (P.W.12) indicates that there was no bodily injury on her person suggestive of forcible sexual intercourse and there was no physical clue of sexual offence in her clothings and there was no sign or symptoms of recent sexual intercourse and the doctor did not find any live or dead spermatozoa

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or any other foreign material in the vaginal swab even though she was examined on the next day of occurrence. Learned counsel further submitted that the petitioner has good chance of success in the appeal and balance of convenience is in his favour and therefore, the bail application of the petitioner may be favourably considered.

Learned counsel for the State, on the other hand, opposed the prayer for bail and submitted that P.W.6 is a minor girl and she stated about the occurrence and it is a case of gang rape and therefore, whether the doctor's evidence would be believable or not and whether the same would be sufficient to disbelieve the commission of gang rape on the victim (P.W.6) is to be adjudicated at the time of final hearing of the appeal. Therefore, the petitioner should not be released on bail. However, he has produced the written instruction received from the Officer in-charge of Bisoi police station, Mayurbhanj to the effect that the victim has already got married at another place and the criminal antecedent of the petitioner was verified and it was found that there is nothing adverse against him. The written instruction is taken on record.

Considering the submissions made by the learned counsel for the respective parties, the nature of evidence adduced by the victim and her age at the

// 4 //

time of occurrence, while not inclining to release the petitioner on bail on merit, but taking into account the period of detention of the petitioner in judicial custody and absence of any chances of early hearing of the appeal in the near future, I am inclined to release the petitioner on interim bail for a period of three months from the date of release and the petitioner shall surrender before the learned trial Court immediately on expiry of the three months period.

For the above period, let the appellant-petitioner be released on interim bail in the aforesaid case 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 he shall not try to come in contact with the victim and shall not indulge in any criminal activities in any manner.

Violation of any of the conditions shall entail cancellation of interim bail.

The I.A. is disposed of accordingly.

( S.K. Sahoo) Judge

CRLA No.827 of 2023

04. List this matter in the week commencing from

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26.02.2024. Learned counsel for the appellant shall produce the surrender certificate of the appellant on the next date.

( S.K. Sahoo) Judge

I.A. No.1759 of 2023

05. 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 RKM

Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Nov-2023 12:38:21