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2018 DIGILAW 672 (ORI)

Natha Raksha v. State Of Orissa

2018-07-18

S.K.SAHOO

body2018
ORDER S.K. Sahoo, J. - Heard Mr.V.Narasingh, learned counsel for the petitioner and Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate for the State. 2. This is an application under Section 439 Cr.P.C., 1973 for grant of bail to the petitioner in connection with Hirakud P.S. Case No. 100 of 2016 corresponding to S.T. Case No. 108/171 of 2016-17 pending in the Court of learned Sessions Judge, Sambalpur for offences punishable under sections 363/342/376(2)(i)/376-D of the Indian Penal Code and sections 4 and 6 of the POCSO Act. 3. Learned counsel for the petitioner submitted that the petitioner is in judicial custody since 22.04.2016 and he has been charge sheeted under sections 363/342/376(2) (i)/376-D of the Indian Penal Code and sections 4 and 6 of the POCSO Act. It is further contended that the informant Ajay Bag lodged the first information report on 21.04.2016 which is about two weeks after the alleged BLAPL No. 5738 OF 2017 incident in consultation with the victim and the victim has named only one accused namely Sadasib along with two to three others to have committed rape on her. It is further contended that on the very day of lodging of the first information report, the statement of the victim was recorded and she stated that she can identify those persons who committed rape on her. It is further contended that when the 164 Cr.P.C. statement of the victim was recorded on 26th April, 2016, she again implicated Sadasib and three of his friends to have committed rape on her but not named the petitioner but in the T.I. parade which was conducted on 17.06.2016, the victim identified the petitioner and three others including Sadasib to have committed the crime. It is further contended that during trial, the victim has been examined as P.W.1 and she has named the petitioner along with others including Sadasib to have committed rape on her when she was 15 years of age. It is argued that in her deposition, the victim has named the petitioner and if she was aware about the name of the petitioner, had the petitioner been involved in the crime, she should would have named him on being asked by her brother at the time of lodging the first information report as well as giving her statement before police as well as before the Magistrate. It is contended that since the victim has named only co-accused Sadasib to have committed the crime along with other unnamed persons, therefore, the implication of the petitioner is an afterthought story. It is further contended that two of the co-accused persons namely Deepak Kumar Adha and Bunty @ Upendra Kumar Rana have been granted bail and the petitioner is similarly situated. Learned counsel for the petitioner placed the statement of co-accused Deepak Kumar Adha as well as the statements of Abhiram Sahoo, Arati Ranabida and Manoj Prasad and submitted that in view of the period of detention of the petitioner in judicial custody for more than two years and when the victim has already been examined and there is no chance of tampering with the evidence or absconding of the petitioner, the bail application may be favourably considered. 4. Learned counsel for the State on the other hand submitted that not only the victim identified the petitioner in the T.I. parade but she has attributed specific overt act against the petitioner during trial being examined as P.W.1. It is further contended that the victim girl was minor as on the date of occurrence and she was subjected to gang rape and therefore, in view of the punishment prescribed for such offences, the bail application of the petitioner should be rejected. 5. Adverting to the contentions raised by the learned counsel for the respective parties, it appears that there are prima facie materials to show that the victim was a minor as on the date of occurrence and as per her statement, she has been gang raped. It is correct that the name of the petitioner does not find place in the F.I.R. or in her statements recorded under sections 161 as well as 164 Cr.P.C but the victim has identified the petitioner in the T.I. parade and also implicated him in the commission of gang rape during trial being examined as P.W.1. The co-accused Deepak Kumar Adha who has been enlarged on bail stands on a different footing in as much as not only his name does not find place in the statement of the victim as well as in the F.I.R. but also the victim has accepted such position in her evidence and she has also not stated specifically against coaccused Deepak Kumar Adha to have committed rape on her. So far as the coaccused Bunty @ Upendra Kumar Rana is concerned, on perusal of the order of this Court passed in BLAPL No. 4424 of 2016 vide order dated 20.10.2016, it indicates that the bail was granted relying on the statement of the learned counsel for the petitioner as well as the learned counsel for the State that the said accused was not identified in the T.I. parade. In view of the material placed today by the learned counsel for the State, it appears that the submission which was made by the respective sides during the consideration of the bail application of Bunty @ Upendra Kumar Rana is not correct in as much as Bunty @ Upendra Kumar Rana has been identified by the victim in the T.I. parade which was held on 17.06.2016. 6. In case of Preeti Bhatia vs. Republic of India reported in (2015) 61 Orissa Criminal Reports 131 , it is held that there is absolute hidebound rule that bail must necessarily be granted to the co-accused where another co-accused had been granted bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in flagrant violation of well settled principle of law and ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis for a claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. 7. When the co-accused Deepak Kumar Adha does not stand on the similar footing like the petitioner and when co-accused Bunty @ Upendra Kumar Rana has been granted bail on the basis of wrong submissions made by the learned counsel for the respective parties, I am of the view that the orders of those two co-accused persons cannot form the basis for claiming parity for the petitioner. Though the learned counsel for the petitioner pointed out some discrepancies in the evidence of the victim while referring to the statements of other witnesses but since at the stage of consideration of the bail application, detailed examination of the evidence and elaborate discussion on merits of the case is not required to be undertaken, I refrain from discussing such aspects which may have an adverse effect on the trial Court. 8. After bestowing my anxious consideration to weigh and analyse the materials available on record with utmost care and caution, the nature of accusations, the manner in which a minor girl was duped and wrongfully confined and subjected to gang rape, the punishment prescribed for the offences under which charge sheet has been submitted, prima facie availability of supported materials to establish such accusations, I am of the humble view that merely because the petitioner is in judicial custody for more than two years, it would not be proper to release him on bail. 9. However, the learned trial Court shall do well to expedite the trial. 10 Accordingly, the bail application stands rejected.