Harihar Harijan vs State Of Odisha
2023 Latest Caselaw 12871 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.577 of 2018

              Harihar Harijan                   ....   Appellant/
                                                     Petitioner

                                Mr. P.K. Sahoo, Advocate.

                                     -versus-

              State of Odisha                   .... Respondent/
                                                  Opp. Party
                                Mr. Priyabrata Tripathy,
                                Additional Standing Counsel.

                                 CORAM:
                            JUSTICE S.K. SAHOO

                                       ORDER

Order No.                            17.10.2023

                             I.A. No.1408 of 2018

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

Heard Mr. Satya Ranjan Acharya, learned counsel on behalf of Mr. Prasanta Kumar Sahoo, learned counsel for the petitioner and Mr. Priyabrata Tripathy, learned counsel for the State.

The appellant-petitioner has been convicted under section 376(2)(n)/417 of the Indian Penal Code and section 6 of the POCSO Act and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in // 2 //

default, to undergo further R.I. for a period of two months for the offence under section 376(2)(n) of the Indian Penal Code, to undergo R.I. for a period of six months for the offence under section 417 of the I.P.C. and to undergo R.I. for a period of ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to under R.I. for a further period of two months for the offence under section 6 of the POCSO Act and all the sentences were directed to run concurrently by the learned Additional Sessions Judge & Special Judge, Nabarangpur in C.T. Case No.48 of 2014 (T).

Learned counsel for the petitioner submitted that the petitioner was taken into judicial custody for the first time on 23.02.2014 and he was directed to be released on bail on 31.07.2014 and after pronouncement of the judgment by the learned trial Court on 20.06.2014, again he was taken into judicial custody as such he has remained inside the custody for more than five years. Learned counsel further submitted that the learned trial Court has committed illegality in imposing the sentence not only for the offence under section 376(2)(n) of the I.P.C., but also for the offence under section 6 of the POCSO Act in violation of the provision under section 42 of the POCSO Act. He placed the evidence of the victim (P.W.2) and the doctor (P.W.5), who has stated that the victim was

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capable of sexual intercourse, no bodily injuries were found on the body of the victim, no recent sign of sexual intercourse were found and the age of the victim was between 17 to 18 years. Learned counsel further submitted that the petitioner has got a 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 opposed the prayer for bail and submitted that the victim was a minor as on the date of crime.

Considering the submissions made by the learned counsel for the respective parties, the nature of evidence, period of detention of the petitioner in judicial custody and absence of any chance of early hearing, I am inclined to reconsider the prayer for bail of the petitioner.

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 with the further conditions that the petitioner shall not come contact with the victim and shall not indulge in any criminal activities. Violation of any of the conditions

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shall entail cancellation of bail.

The I.A. is disposed of.

( S.K. Sahoo) Judge I.A. No. 1409 of 2018

10. 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 by the learned trial Court pending disposal of the criminal appeal.

The I.A. is disposed of.

Issue certified copy as per rules.

( S.K. Sahoo) Judge amit

Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 19-Oct-2023 14:56:16