Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 566 (ORI)

SOBANA SETHY v. STATE OF ORISSA

2016-07-27

S.K.SAHOO

body2016
JUDGMENT : S.K. Sekhoo, J. - Heard Mr. Soura Chandra Mohapatra, learned counsel for the petitioner and Mr. Prem Kumar Patnaik, learned Additional Government Advocate for the State. 2. This is an application under Section 439 Cr.P.C. in connection with S.T. Case No. 320 of 2015 arising out of Salipur P.S. Case No. 79 of 2015 pending in the Court of learned C.J.M.-cum-Asst. Sessions Judge, Cuttack for offences punishable under sections 341, 326-A, 307 read with section 34 of Indian Penal Code. 3. The petitioner moved an application for bail before the Court of learned 1st Addl. Sessions Judge, Cuttack which was rejected on 07.01.2016. 4. Learned counsel for the petitioner submits that the petitioner is in custody since 17.05.2015 and charge sheet has been submitted under sections 341, 326-A, 307 read with section 34 of the Indian Penal Code and the case has already been committed to the Court of Session and it is pending before the Court of learned C.J.M.-cum-Asst. Sessions Judge, Cuttack in S.T Case No. 320 of 2015 and all the relevant witnesses including the victim have already been examined and at this stage, there is no chance of tampering with the evidence and therefore, taking into account the period of detention of the petitioner in judicial custody, the bail application of the petitioner may be favourably considered. It is the further contention of the learned counsel for the petitioner that the victim lady has stated before the Investigating Officer that she could not recognize the person who threw acid on her but from his physical feature, she suspected him to be the petitioner whereas in Court being examined as P.W.9, she has stated that it is the petitioner who came from her backside riding a motor cycle, intercepted her by parking his vehicle and all on a sudden threw acid on her body which he had held in a glass on to her body, as a result of which she cried out of burning pain and thereafter, she jumped into a nearby pond. Learned counsel for the petitioner further submits that there are material contradictions in the evidence of the victim and therefore, she cannot be held to be a reliable witness. Learned counsel for the petitioner further submits that there are material contradictions in the evidence of the victim and therefore, she cannot be held to be a reliable witness. He further contends that the petitioner was arrested and forwarded to the Court of learned J.M.F.C., Salipur, Cuttack on 17.05.2015 and the forwarding report indicates that it is accused Tukuna Sethy who threw acid on the victim and thereafter he informed the petitioner who was at that point of time at Duburi, Jajpur on his duty. It is further contended that materials which were collected during investigation implicating Tukuna Sethy in the crime, have been suppressed by the investigating agency and the said Tukuna Sethy has been made as a witness in the charge sheet but he has been declined to be examined by the prosecution in the learned Trial Court. It is further contended that in view of the available materials on record, balance of convenience lies in favour of the petitioner and therefore, taking into account the period of detention of the petitioner in judicial custody, the bail application of the petitioner may be favourably considered. 5. Learned counsel for the State on the other hand contended that the statement of the victim regarding the implication of the petitioner in throwing acid at her is consistent throughout and she has categorically implicated the petitioner during trial and her evidence is corroborated by the doctor who has been examined as P.W.8 in the learned Trial Court. It is further urged that while under treatment, the victim disclosed before her parents at S.C.B. Medical College and Hospital that it is the petitioner who threw acid on her body and her parents being examined in the learned Trial Court as P.W.2 and P.W.3 have supported the prosecution case. He further urged that when the victim had got close acquaintance with the petitioner, even though the petitioner was wearing a helmet at the time of occurrence, the identification of the petitioner by the victim basing on his demeanor, gesture, movement and body language cannot be doubted at all. He further urged that when the victim had got close acquaintance with the petitioner, even though the petitioner was wearing a helmet at the time of occurrence, the identification of the petitioner by the victim basing on his demeanor, gesture, movement and body language cannot be doubted at all. Learned counsel for the State further submitted that in view of the injury sustained, the victim was hospitalized since 12.05.2015 and she was discharged only on 09.06.2015 and when such type of crime is rampant in the society and the bail application of the petitioner has been rejected earlier, at this stage when the victim has supported the prosecution case during trial and clinching evidence has come out during trial, it would not be proper to release the petitioner on bail. 6. Considering the submissions of learned counsels for the respective parties, I am of the view that the crime alleged to have been committed by the petitioner is ghastly and inhuman in nature and it has ruined the life of a young girl, who was going on her bicycle to attend her computer class. Acid has been thrown on her face and other parts of the body. The evidence further revealed that the victim was hospitalized at S.C.B. Medical College and Hospital, Cuttack and plastic surgery (skin grafting) was conducted over the raw area i.e. neck, chest and the back of the victim and she was discharged only on 09.06.2016 and the doctor (P.W.8) has opined that the victim has sustained chemical burn injuries due to fall of corrosive acid upon her body. 7. The cases of acid throwing on innocent and defenseless young girls are increasing during these days and hence legislature has also taken note of the said fact and has, by way of Criminal Law Amendment Act, 2013 (13 of 2013) introduced separate provisions under sections 326-A and 326-B of the Indian Penal Code, incorporating stringent punishment extending upto life imprisonment in case of grievous hurt by use of acid caused and imprisonment extending upto seven years in case of attempt to throw the acid with an intention to cause permanent or partial damage or deformity or burn. The Government has also imposed restrictions on sale and purchase of acid. The entire intention behind doing so is to curb the acts of throwing acid, which has the far reaching damaging consequences on the victim. The Government has also imposed restrictions on sale and purchase of acid. The entire intention behind doing so is to curb the acts of throwing acid, which has the far reaching damaging consequences on the victim. Acid violence rarely kills a victim but it causes such severe physical, psychological and social scarring that victim is often left to suffer throughout her life. It turns the victim into the living dead. It does not just deforms one's face and body but it takes away her whole personally and her identity. 8. The noting of the investigating officer in the forwarding report that it was accused Tukuna Sethy who threw acid on the victim is not a substantive evidence and opportunity has to be provided to the investigating officer when he will be examined during trial to explain such noting in the forwarding report, otherwise it cannot be utilized against the prosecution. In view of the evidence of the victim, her parents and the doctor, sufficient materials are available on record regarding the involvement of the petitioner in the heinous crime and therefore, I am not inclined to release the petitioner on bail. 9. Accordingly, the BLAPL stands dismissed. 10. Considering the period of detention of the petitioner in judicial custody, the learned Trial Court shall do well to conclude the trial within a period of two months from the date of receipt of the order. The learned Trial Court shall not be influenced by any observations made in this order as the same have to be restricted for deciding the bail matter and it is made clear that I have not expressed any opinion on the merits of the case. 11. A copy of the order be sent to the learned Trial Court for compliance. Final Result : Dismissed