Bisia @ Biswanath Swain vs State Of Odisha
2023 Latest Caselaw 10919 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.195 of 2023

              Bisia @ Biswanath Swain          ....     Appellant/
                                                       Petitioner

                                Mr. R.D. Nayak, Advocate

                                    -versus-

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

                                Mr. Arupananda Das,
                                Addl. Government Advocate

                                  CORAM:
                             JUSTICE S.K. SAHOO

                                  ORDER

Order No. 05.09.2023

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

Learned counsel for the appellant submitted that the appellant9s nick name is 8Bisia9 and inadvertently it is mentioned as 8Bisi9 in the cause title and he may be permitted to correct the same.

Permission is granted.

( S.K. Sahoo) Judge

I.A. No.413 of 2023

06. This is an application under Section 389 of Cr.P.C.

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for grant of bail.

Heard.

The appellant-petitioner has been convicted under sections 376(AB) 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 of payment of fine, to further undergo R.I. for a period of six months for the offence under section 6 of the POCSO Act and no separate punishment is awarded under section 376(AB) of the Indian Penal Code in view of section 42 of the POCSO Act by the learned Additional Sessions Judge

-cum- Special Court under POCSO Act, Nayagarh in T.R. No.19 of 2020.

Perused the impugned judgment.

Learned counsel for the appellant-petitioner submitted that the petitioner is in judicial custody since 09.11.2019 and though the victim being examined as P.W.1 stated that the appellant tried to insert his finger into her private part as a result of which she sustained injury on her private part but even though the occurrence in question took place on 08.11.2019 and the F.I.R. was lodged on 09.11.2019 and the doctor (P.W.16) examined the victim on 09.11.2019, she found no recent sign or symptom of sexual intercourse and no bodily injury was found on the victim and no stain was found on her clothes. Learned counsel further argued that it may be

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maximum a case of attempt to commit an offence under section 6 of the POCSO Act and therefore, the imposition of sentence of twenty years was not justified. It is further submitted 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 P.W.1, the victim and the doctor (P.W.16). He further submitted on instruction that the petitioner is having no criminal antecedent.

Considering the submissions of learned counsel for the respective parties, the nature of evidence adduced during the trial, the substantive sentence imposed by the learned trial Court, the period already undergone by the petitioner in judicial custody and absence of any chance of early hearing of the appeal in the near future, 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 subject to condition that he shall not try to come in contact either with the victim or any of her family members and he shall not

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indulge in any criminal activities in any manner.

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

Accordingly, the I.A. is disposed of.

( S.K. Sahoo) Judge

I.A. No.414 of 2023

07. 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: 08-Sep-2023 11:52:19