Bombay High Court
Prasad S/O. Baliram Kalbande vs The State Of Maharashtra on 15 January, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
905 CRIMINAL APPLICATION NO.3753 OF 2019
IN APEAL/1120/2019
Prasad s/o baliram Kalbande,
Age 22 years, Occupation Education,
R/o Mamdapur Tal. Purna
District Parbhani. ...Applicant.
(Orig.Appellant.)
VERSUS
The State of Maharashtra,
Through Police Station officer,
Police Station, purna Tal. Purna
Dist. Parbhani. ...Respondent.
...
Advocate for Applicants : Mr. S. J. Salunke.
APP for Respondents: Mr. A. A. Jagatkar.
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 15-01-2020.
ORAL ORDER :
1. Present application has been filed by the original accused who has been convicted by the learned Sessions Judge, Parbhani, in Special Case (POCSO) No.23 of 2017, on 05-11-2019, for the offence under Section 3 punishable under Section 4 of the Protection of Children from Sexual Ofencee Act (POCSO), 2012, and Section 323, 506 of Indian Penal code.
2. The present applicant has been convicted and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.1,000/-, in default to suffer further R.I for three months for the offence punishable under section 3/4 of the Protection of Children from Sexual Offences Act. The accused is further sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.500/-, in default to suffer further R.I for one month for the offence punishable ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 04:41:57 ::: 2 CriApln 3753-2019 under section 323 of the Indian Penal Code. He is also sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/-, in default to suffer further R.I for one month for the offence punishable under section 506 of the Indian Penal Code. The substantive sentences shall run concurrently.
3. It is to be noted that, by order dated 11 th December 2019, this Court has admitted the appeal and the appellant is waiting for his appeal to be taken.
4. Heard learned advocate Mr. S. J. Salunke for applicant and learned Additional Public Prosecutor Mr. A. A. Jagatkar for respondent- State.
5. It has been submitted on behalf of the applicant that, the applicant was on bail through out the trial. The sentence that has been awarded to him is small sentence. He is young and a student of engineering. He has been falsely implicated. The evidence adduced by the prosecution would show that, the prosecution had in fact failed to prove the offence beyond reasonable doubt. The victim had supported her First Information Report, however there are many loopholes in the evidence. She had not given her birth date in her First Information Report or during the course of the investigation by the police. Her matriculation certificate was produced at the time of her examination-in-chief and it has been exhibited, but it cannot be said to be a proper proof of the document. She cannot be considered as child within the meaning of POCSO Act. The ocular evidence of the prosecutrix is not supported by the medical evidence ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 04:41:57 ::: 3 CriApln 3753-2019 as well as the report of Chemical Analysis. The cross-examination of the prosecutrix would show that, she had every chance to flee away from the clutches of the accused, if at all the story is to be believed, but then she has not given any reason as to why she did not ran away from the spot. In fact she was standing alone at the place 'Zero Phata' when accused had gone to fetch a motorcycle. Therefore, the cross-examination of the prosecutrix would show that the story itself is unbelievable. There are other contradictions and omissions which would rather give benefit to the accused to show his innocence. Taking into consideration all these points, he needs to be released on bail.
6. Per contra, the learned Additional Public Prosecutor has supported the reasons given by the learned Sessions Judge, and it is submitted that, the ocular evidence is in fact supported by the medical evidence. There was no reason for the prosecutrix to implicate the accused as she has flatly denied that there was any love affair between them.
7. First and foremost fact that is required to be considered is that, the applicant was on bail through out the trial. The sentence that has been awarded is small sentence and in view of the Judge of Hon'ble Supreme Court in, Kiran Kumar v. State of M.P., reported in (2001) 9 SCC 211, applicant is requires to be enlarged on bail. No doubt the Hon'ble Apex Court has stated that, if it is not possible to release the accused on bail then the matter will have to be expedited. However, in this case it appears that, those points which have been raised on behalf of the accused need to be gone into. The prosecutrix though ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 04:41:57 ::: 4 CriApln 3753-2019 supported her First Information Report, it appears that she had not given her birth date. Under such circumstance it is required then to be considered that, whether the executing of the matriculation certificate in her evidence would be the conclusive proof about her age on the date of the offence. So also those facts which have been brought on record in her cross-examination as to how the incident took place and what was her conduct through out the journey is then required to be considered. So also it is required to be noted that, the learned Sessions Judge had not framed charge under Section 363 of Indian Penal Code. Further though the medical opinion has been given by the medical officer regarding the injuries sustained on the person of the prosecutrix, the Chemical Analysis report is not supporting the prosecution. Therefore, taking into consideration all these points, the applicant deserves to be enlarged on bail till the conclusion of the appeal.
8. Hence, the application is allowed. The substantive sentence awarded by learned Sessions Judge, Parbhani in Special Case (POCSO) No.23 of 2017, against the present applicant is hereby suspended till the pendency and conclusion of Criminal appeal No.1120 of 2019. The applicant be released on PR of Rs.30,000/- (in words thirty thousand) with two sureties of Rs.15,000/- (fifteen thousand) each. He shall not commit any offence during pendency of the appeal. Bail before Appellate Court.
(SMT. VIBHA KANKANWADI) JUDGE vjg/-
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