Orissa High Court
Pramod Khalko vs State Of Odisha on 4 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.165 of 2018
1. Pramod Khalko
2. Sudeep Ekka .... Appellants/
Petitioners
Mr. B.P. Chhualsingh, Advocate
for appellant no.1
Mr. S. Sourav, Advocate for
appellant no.2
-versus-
State of Odisha .... Respondent/
Opp. Party
Mr. S.S. Mohapatra
Addl. Standing Counsel
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 04.09.2023
Misc. Case No.413 of 2018
&
I.A. No.523 of 2023
06. This matter is taken up through Hybrid
arrangement (video conferencing/physical mode).
Mr. B.P. Chhualsingh, learned counsel appearing
for the appellant no.1-petitioner no.1 submitted that
though Misc. Case No.413 of 2018 was filed for bail of
both the petitioners, he is now confining the prayer for
bail only in this Misc. Case only for petitioner no.1 as
petitioner no.2 has preferred a separate interim
// 2 //
application i.e. I.A. No.523 of 2023 for bail.
Both the applications under Section 389 of
Cr.P.C. for grant of bail.
Heard.
The appellants-petitioners have been convicted
under section 376(D) of the Indian Penal Code and
section 6 of the POCSO Act and sentenced to undergo
R.I. for a period of twenty years each and to pay a
fine of Rs.5,000/- (rupees five thousand) each, in
default, to further undergo R.I. for a period of six
months for the offence under section 376(D) 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 by the learned Additional
Sessions Judge -cum- Special Judge, Sundargarh in
Special G.R. Case No.60 of 2014.
Perused the impugned judgment.
Both the learned counsel for the appellants-
petitioners submitted that the petitioners were on bail
during trial and there is no material that they have
been misutilized their liberty while on bail. It is further
argued that after pronouncement of the impugned
judgment on 12.01.2018, they have never been
released on bail and the star witness on behalf of the
prosecution is none else than the victim, who has
been examined as P.W.4 and though the victim
identified the petitioners in Court during trial on
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03.05.2016 but the occurrence took place in the
intervening night of 28/29.09.2014 and a few days
after the occurrence, when she participated in the test
identification parade, which was held on 18.10.2014
in jail, she could not identify any of the petitioners.
Learned counsel for the petitioners further submitted
that the identity of the petitioners is a doubtful
feature and the victim has stated in her cross-
examination that she did not know the petitioners
prior to the incident and she stated that she saw the
petitioners during the 8karma dance night9 and
thereafter, saw them again in the trial Court and she
further admitted that during investigation of the case,
she was taken to the jail for identification but in the
jail, she could not identify them before the Magistrate
out of fear, however, she stated that she has not
expressed her fear either before the Magistrate or
before the police. Learned counsel further submitted
that the victim further stated that after lodging of the
first information report, she had seen the petitioners
in the police lock up and if the victim had the
opportunity to see the petitioners in the police lock up
prior to the test identification parade in which she
could not identify any of the petitioners, reliance
cannot be placed on the identification in Court for first
time. Learned counsel further submitted that the
identification for the first time in Court cannot be
// 4 //
sufficient in itself to establish the complicity of the
petitioners in the alleged crime and the petitioners
have good chances of success in the appeal and
balance of convenience is in their favour and there is
no chance of early hearing of appeal in the near
future and therefore, the bail application of the
petitioners may be favourably considered.
Learned counsel for the State placed the
evidence of the doctor (P.W.21), who examined the
victim on the next day of the occurrence i.e.
30.09.2014 and found no external injury, however,
bleeding from the private part at 7 O9clock position.
The doctor in the cross-examination has stated that
she had not mentioned if the bleeding was fresh blood
or for mensuration.
Considering the submissions of learned counsel
for the respective parties, the fact that the petitioners
were on bail during trial and there is no material that
they have misutilized their liberty in any manner while
on bail, the nature of evidence adduced by the victim
and the fact that she failed to identify the petitioners
in the test identification parade soon after the
occurrence but identified them almost one year and
seven months after the date of occurrence and
absence of any chance of early hearing of the appeal
in the near future, the prayer for bail is allowed.
// 5 //
Let the appellants-petitioners be released on bail
pending disposal of the appeal on furnishing bail bond
of Rs.50,000/- (rupees fifty thousand) each with two
local solvent sureties each for the like amount to the
satisfaction of the learned trial Court.
Accordingly, the Misc. Case and the I.A. are
disposed of.
( S.K. Sahoo)
Judge
Misc. Case No.412 of 2018
07. Heard.
There shall be stay of realization of fine amount
imposed by the learned trial Court on the appellants-
petitioners 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: 08-Sep-2023 11:50:15
