Brajaraj @ Brajabandhu Dakua vs State Of Odisha

S.K. Sahoo, J

I.A. No.826 of 2019

This matter is taken up by video conferencing mode. This is an application under Section 389 of Cr.P.C. for grant of bail.

Heard.

The appellant-petitioner has been convicted under section 6 of the POCSO Act and sentenced to undergo R.I. for ten years and to pay a fine of

Rs.10,000/- (ten thousand), in default, to undergo further R.I. for ten months by the learned Special Judge, Nayagarh in T.R. No.39 of 2017.

Perused the impugned judgment and the deposition copies of the witnesses.

Learned counsel for the petitioner submitted that the petitioner is in judicial custody since 19.03.2017 and though he has been convicted under section

6 of the POCSO Act and sentenced to undergo R.I. for ten years and with fine of Rs.10,000/- (rupees ten thousand) so also the default sentence but

in the factual scenario, the ingredients of the offence under section 6 of the POCSO Act is not satisfied. He further submitted that the victim has been

examined as P.W.5 in this case and there is no medical evidence on record and even if the statement of the victim is accepted for the sake of

argument, then the alleged Act would not come within the definition of ‘penetrative sexual assault’ as defined under section 3(b) of the POCSO

Act in the case in hand and in the facts and circumstances of the case, rather it would come within the definition of ‘sexual assault’, which has

been defined under section 7 of the said Act. He further submitted that this appeal is of the year 2019 and there is no chance of early hearing of

appeal in the near future and balance of convenience is in favour of the petitioner and therefore, the bail application of the petitioner may be

favourably considered.

Learned counsel for the State, on the other hand, placed the evidence of the victim (P.W.5), the evidence of P.W.1 as well as the first information

report and also placed the relevant parts of the impugned judgment.

Considering the submissions of learned counsel for the respective parties, the nature of evidence adduced by the prosecution during 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 conditions that while on bail, the petitioner shall

not try to keep any contact with the victim or her family members in any manner and he shall not indulge in any criminal activities.

Violation of any terms and conditions shall entail cancellation of bail.

The I.A. is disposed of.

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available

in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s

Notice No. 4587 dated 25th March 2020 as modified by Court’s Notice No. 4798 dated 15th April 2021.

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