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2017 DIGILAW 844 (ORI)

Jogia @ Jogendra Jena v. State of Orissa

2017-08-08

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. 1. Heard Mr. Prasanta Kishore Ray, learned Senior Counsel appearing for the petitioner and Mr. Arupananda Das, learned Additional Government Advocate appearing for the State. 2. This is an application under section 439 of Cr.P.C. in connection with T.R. Case No. 09 of 2015 arising out of Pipili P.S. Case No. 432 of 2014 pending in the Court of learned 1st Additional Sessions Judge -cum-Special Judge, Puri for offences punishable under sections 376(2)(i)(n), 294, 506, 323 read with sections 109 and 34 of the Indian Penal Code and sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereafter ‘POCSO Act’). 3. The victim who was a girl aged about 13 years lodged the first information report before the Inspector in charge of Pipili Police Station on 10.11.2014 alleging rape against the petitioner on eight occasions taking advantage of the silence of her parents. During course of investigation, the victim was medically examined and her statement under section 164 of Cr.P.C. was recorded and after completion of investigation, charge sheet was submitted against the petitioner and also the parents of the victim. 4. Learned counsel for the petitioner Mr. Ray contended that the earlier bail application of the petitioner was rejected in BLAPL No.2694 of 2015 vide order dated 16.07.2015 considering the nature and gravity of the accusation, the 164 Cr.P.C. statement of the victim who was a minor girl aged about thirteen years and the manner in which she vividly described the entire incident. It is further contended by the learned counsel for the petitioner that the petitioner is in jail custody since 13.11.2014 and he has been charge sheeted under sections 376(2)(i)(n), 294, 506, 323 read with sections 109 and 34 of the Indian Penal Code and sections 4 and 6 of the POCSO Act. It is further contended that in the meantime trial has already commenced and the victim has been examined as P.W.1 and she has been cross-examined and discharged on 10.08.2016 and though the victim supported the prosecution case in her evidence but thereafter the victim filed an affidavit before the learned Trial Court wherein she has stated that she filed the case being instigated by her elder father Harihar Panda and his son-in-laws. She further stated that she was taken to Pipili Court and as per the dictation of an advocate, she wrote the F.I.R. and signed on it which was presented before police and she was sent for medical examination. The learned counsel for the petitioner further contended that after such an affidavit, a petition for recall under section 311 of Cr.P.C. was filed by the defence for further cross-examination of the victim but the learned Trial Court rejected the same vide order dated 07.07.2017 holding that since P.W.1 has been examined in chief and cross examined fully, she cannot be recalled to deny the evidence already given before the Court. It is contended by the learned counsel for the petitioner placing reliance on the decision of the Hon’ble Supreme Court in the case of Zahira Habibulla H. Sheikh and another -Vrs.-State of Gujarat reported in A.I.R. 2004 Supreme Court 346 that the order of rejection of the 311 Cr.P.C. petition is not proper and justified. Learned counsel further placed reliance on the medical evidence of the victim which indicates that there was no injury over her body suggestive of forcible sexual intercourse and there was no sign and symptom of sexual intercourse. It is contended that in view in the change in the circumstances particularly when the petitioner has remained in custody since 13.11.2014, unless his bail application is favourably considered and he is released on bail, he will be seriously prejudiced. 5. Learned counsel for the State Mr. Das on the other hand contended that after the rejection of the first bail application of the petitioner in BLAPL No.2694 of 2015, even though the trial has commenced but the victim during her evidence has supported the prosecution case and she has vividly stated in her evidence as to how she was raped on a number of occasions by the petitioner. The learned counsel further contended that even though the medical evidence is otherwise but in the facts and circumstances of the case when the evidence of the victim is clinching and there is delay in reporting the matter before police because of the reasons assigned in the F.I.R. itself, the same cannot be a ground to grant bail to the petitioner. Learned counsel for the State further contended that in this case the parents of the victim are also accused persons and they have abetted the commission of the crime which is one of the important factors which can be taken note of while considering the delay in lodging F.I.R. as well as delay in the examination of the victim by the doctor. It is further contended that tampering with the evidence of the victim after she had deposed in Court has already started for which an affidavit has been created by pressurizing the minor girl to change her version and the learned Trial Court rightly rejected the petition for recall of the victim. It is contended that the offences for which the petitioner is facing trial i.e. 376(2)(i)(n) of the Indian Penal Code and sections 4 and 6 of the POCSO Act, 2012 carries punishment for life imprisonment and the victim was thirteen year old at the time of occurrence and therefore, the petitioner should not be enlarged on bail. 6. In the case of Kalyan Chandra Sarkar -Vrs.-Rajesh Ranjan @ Pappu Yadav and Anr. reported in A.I.R. 2004 S.C. 1866, it is held as follows:- “12. In regard to cases where earlier bail applications have been rejected, there is a further onus on the Court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration, if the Court is of the opinion that bail has to be granted then the said Court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted.” 7. Successive bail applications are maintainable but there has to be material change in the fact situation and not mere cosmetic change. Successive bail application on the same grounds which were available to the accused at the time of consideration of the earlier bail application would not be maintainable. Neither a ground that the earlier bail application was not properly placed by the previously engaged counsel can be entertained. 8. Whether the learned Trial Court was justified in rejecting the petition under section 311 of Cr.P.C. or not can be adjudicated when the rejection order is challenged by the petitioner by filing appropriate application in the higher Court. Neither a ground that the earlier bail application was not properly placed by the previously engaged counsel can be entertained. 8. Whether the learned Trial Court was justified in rejecting the petition under section 311 of Cr.P.C. or not can be adjudicated when the rejection order is challenged by the petitioner by filing appropriate application in the higher Court. I cannot consider the affidavit filed by the victim before the learned Trial Court when the same was not entertained by that Court ignoring the statement of the victim recoded under section 164 Cr.P.C. and her evidence before the learned Trial Court. 9. Considering the submissions made by the learned counsel for the respective parties, the nature of accusation and the materials available on record particularly the evidence of the victim before the learned Trial Court and the attempt made by the defence to tamper with the evidence of the victim even after she had deposed in the Trial Court and the manner in which a thirteen years old girl was repeatedly raped by the petitioner as per the evidence of the victim, I am not inclined to release the petitioner on bail. Accordingly, the BLAPL application stands rejected. 10. However, considering the fact that the petitioner is in custody since 13.11.2014 and the victim’s evidence is already over since 10.08.2016 and in the meantime about a year has passed and there are only thirteen charge sheet witnesses, I direct the learned Trial Court to expedite the trial and conclude the same by end of October 2017, if possible by holding day to day trial. Whatever I have observed in this order relates to the materials collected during course of investigation and trial so far and the findings recorded herein are for the purposes of adjudication of this bail application only. This may not be taken as an expression of opinion on the merits of the case. The learned Trial Court would be at liberty to decide the matter in the light of evidence which shall come on record after it is led de hors any finding recorded in this order.