Dipu Behera @ Deepak @ vs State Of Odisha
2025 Latest Caselaw 10226 Ori

Orissa High Court

Dipu Behera @ Deepak @ vs State Of Odisha on 20 November, 2025

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                              CRLA No.1057 of 2024
            Dipu Behera @ Deepak @        .....      Appellant
            Deepak Kumar Behera
                                                         Represented By Adv. -
                                                         Pravat Kumar Muduli

                                         -versus-
            State of Odisha                    .....               Respondent
                                                        Represented By Adv. -
                                                        Sasmita Nayak, A.S.C.

                                CORAM:
                  THE HON'BLE MR. JUSTICE ADITYA KUMAR
                              MOHAPATRA

                                        ORDER

20.11.2025 Order No.

09. I.A. No.2608 of 2024

1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. The convict-appellant has filed this I.A under Section 430 of the BNSS, 2023 with a prayer for suspension of the sentence imposed vide judgment dated 10.09.2024 to release the appellant on bail.

3. Heard learned counsel for the appellant as well as learned counsel for the State. Perused the I.A as well as the appeal memo with the accompanying impugned judgment.

4. The abovenoted appeal has been preferred by the convict- appellant under Section 415 of the BNSS, 2023 thereby challenging the judgment dated 10.09.2024 passed by the learned Ad hoc Additional Sessions Judge (FTSC) (POCSO), Bhubaneswar in T.R

Case No.340 of 2020 which corresponds to Balianta P.S Case No.182 dated 21.08.2020. By virtue of the impugned judgment, learned trial court has found the Petitioner guilty of the offence punishable under Section 376(1) of IPC while acquitting the Petitioner of charges under Section 4 of the POCSO Act and Section 376(3) of the IPC and, accordingly, the Petitioner has been sentenced to undergo R.I for 10 years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand).

5. Learned counsel for the Appellant at the outset contended that there are several flaws in the impugned judgment of the learned trial court. He further submitted that the Appellant has made out a very good case in the appeal and there is every likelihood of the Appellant succeeding in the appeal. In the present I.A, the main thrust of argument of the learned counsel for the Appellant was that on the basis of the sole testimony of the prosecutrix, the Appellant has been convicted by the learned trial court. He further contended that there are no eye witnesses to the occurrence nor is there any corroborative evidence to support the version of the prosecutrix. In the course of his argument, learned counsel for the Appellant laid much emphasis on the Medical Examination Report of the victim. He further submitted that the Medical Officer who conducted the medical examination on the victim has found no signs or symptoms of recent sexual intercourse. The medical evidence is also silent about any physical mark on the body of the prosecutrix. In view of the aforesaid medical evidence, learned counsel for the Appellant contended that the version of the prosecutrix's narration, to the extent that the Appellant dragged her to the nearby bush while she had gone to

attend the call of nature, remains unbelievable and improbable. As has been narrated in the F.I.R, the medical examination of the victim would have revealed external injuries on the body of the victim. However, no such external injury has been reported by the medical officer.

6. With regard to the custodial detention of the Appellant, learned counsel for the Appellant further contended that the Appellant was initially arrested on 26.09.2020, and then released on bail on 22.10.2021, after which he was on bail all throughout the trial. In the meantime, the Appellant has been taken into custody from the date of delivery of the judgment on 10.09.2024 and is in custody since. In view of the aforesaid factual position, learned counsel for the Appellant contended that the Appellant is languishing in jail custody for more than 2 years. Moreover, the possibility of the appeal being heard in the near future is very bleak. On such ground, learned counsel for the Appellant argued that the Appellant be enlarged on bail.

7. In course of his argument, learned counsel for the appellant referred to the judgment of the Hon'ble Supreme Court in the matter of Sudhansu Sekhar Sahoo v. State of Orissa reported in AIR 2003 Supreme Court 2136. In the abovenoted reported judgment, the Hon'ble Apex Court while hearing an appeal of the appellant, acquitted the appellant by giving him the benefit of doubt. In the reported judgment the victim was travelling in a vehicle along with the convict-appellant when the occurrence took place. In the said case, the medical evidence did not support the version of the prosecutrix. Moreover, no stain of blood or semen was detected on her clothes. On a critical analysis of the given facts

of that case, the Hon'ble Supreme Court arrived at the conclusion that the case of the prosecution has many loose ends. Upon a careful examination of the evidence and factual background of that case, the Hon'ble Apex Court, by granting benefit of doubt, acquitted the convict-appellant.

Learned counsel for the convict-appellant in the present case relied upon the above-reported judgment of the Hon'ble Supreme Court to convince this Court that unless the medical evidence supports the version of the prosecutrix, a conviction under Section 376 of the IPC cannot be sustained.

8. On a careful reading of the aforesaid judgment of the Hon'ble Supreme Court, this Court found that although on a cursory look at the judgment it appears to be identical to the facts of the present case, however, on a careful reading of the said judgment, this Court found that the facts of the reported judgment are different to the facts of the present case. Moreover, it is on a critical appreciation of the evidence placed from the side of the prosecution that the Hon'ble Supreme Court has come to a conclusion and granted the benefit of doubt to the appellant- convict. It is also apt to mention here that in the very same judgment, the Hon'ble Supreme Court has categorically held that the sole testimony of the prosecutrix can form the basis for conviction provided the same is safe, reliable and worthy of the acceptance. Nevertheless, at the stage of consideration of the bail application, this Court is not required to go onto the reliability, credibility and worthiness of the evidence laid by the prosecution.

9. On a perusal of the factual background of the present case, this Court, on the basis of the admitted facts, observes that the

occurrence took place on 16.08.2020 and F.I.R was on 21.08.2020. The victim was medically examined on 21.08.2020. Therefore, there was a gap between the time of occurrence and the medical examination of the victim. Moreover, the delay in lodging of the F.I.R has also been explained by the prosecution by saying that the parents of the victim first tried to resolve the dispute through the local ward members and gram panchayat. Since, the family of the Appellant-convict did not agree, the family of the victim was compelled to lodge the F.I.R before the police.

10. Learned counsel for the State seriously objected to the release of the Appellant on bail. She further contended that taking into consideration the gravity and seriousness of the offence and the fact that the alleged crime is of heinous nature, the Appellant is entitled to be enlarged on bail. Learned counsel for the State, drawing attention of this Court to the impugned judgment as well as the evidence laid by the prosecution, stated before this Court the impugned judgment does not suffer from any illegality. It was also contended that the Appellant has undergone only two years of imprisonment out of a maximum period of ten years that has been inflicted by the trial court in the impugned judgment. On such ground, learned counsel for the State objected to the release of the Appellant on bail at this stage.

11. Having heard the learned counsels appearing for the respective parties, on a careful examination of the oral testimony of the witnesses as well as the materials on record, further taking note of the age of the victim and the testimony of the prosecutrix recorded during trial which has remained unimpeached, this Court is not inclined to release the convict-Appellant on bail at this stage.

12. Accordingly, the I.A stands dismissed. However, liberty is granted to the Appellant to move a fresh bail application in the event the appeal is not heard within a year.

13. Office is directed to prepare the paper book as expeditiously as possible.

( A.K. Mohapatra) Judge

Anil

Designation: Junior Stenographer

Location: High Court of Orissa Date: 24-Nov-2025 16:44:06