Bombay High Court
Harshdeep S/O. Anil Mate vs The State Of Maharashtra Thr. P.S.O., ... on 28 February, 2019
Author: V.M. Deshpande
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO. 80/2019
IN CRIMINAL APPEAL NO.56/2019
Harshdeep s/o Anil Mate (In Jail) .vs. The State of Maharashtra through
PSO Bhandara.
_______________________________________________________________________
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. V. D. Muley, Advocate for appellant.
Mr. S. M. Ghodeswar, A.P.P. for respondent.
CORAM : V.M. DESHPANDE, J.
DATED : FEBRUARY 28, 2019
This is an application under Section 389 Code
of Criminal Procedure for suspension of substantive jail
sentence and for grant of bail.
This criminal appeal arises out of judgment
and order dated 31.12.2018 passed by Special Judge
(Under POCSO Act), Bhandara in Special (Child)
Criminal Case No.17/2017. The said Court below found
that the appellant is liable for conviction for an offence
under Sections 323, 504, 506, 354-D of the Indian Penal
Code, Sections 4 and 25 of the Arms Act and under
Section 8 of the Protection of Children From Sexual
Offences Act. For an offence under Section 323 of the
IPC, he is sentenced to suffer rigorous imprisonment for
one year and to pay a fine of Rs.1,000/-, in default to
suffer simple imprisonment for one month. For an
offence under Section 504 of the IPC, he is sentenced to
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suffer rigorous imprisonment for six months and to pay a
fine of Rs.500/-, in default to suffer simple imprisonment
for fifteen days. For an offence under Section 506 of the
IPC, he is sentenced to suffer rigorous imprisonment for
six months and to pay a fine of Rs.500/-, in default to
suffer simple imprisonment for fifteen days. For an
offence under Section 354-D of the IPC, he is sentenced
to suffer rigorous imprisonment for four years and to pay
a fine of Rs.5,000/-, in default to suffer simple
imprisonment for six months. For an offence under
Sections 4 and 25 of the Arms Act, he is sentenced to
suffer rigorous imprisonment for three years and to pay a
fine of Rs.3,000/-, in default to suffer rigorous
imprisonment for three months. For an offence under
Section 8 of the POCSO Act, he is sentenced to suffer
rigorous imprisonment for four years and to pay a fine of
Rs.3,000/-, in default to suffer rigorous imprisonment
for three months. All the sentences were directed to run
concurrently.
This appeal was admitted on 06.02.2019 and
on the said day, consideration of this application was
deferred till receipt of record and proceedings.
Record and proceedings are received. I have
heard Mr. Muley, learned counsel for the applicant and
Mr. Ghodeswar, learned A.P.P. for the State. Submission
of learned counsel for the applicant is that in any case,
offence punishable under Section 8 of the POCSO Act is
not made out at all from plain reading of examination-
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in-chief of the victim herself. Learned A.P.P. also fairly
submits that at least while considering application for
bail, it would be difficult to make any further submission
on the evidence of the victim in respect of the offence
under the POCOS Act.
With assistance of learned counsel for the
parties, I have gone through evidence of victim (PW1). A
close look to the examination in chief of the victim shows
that it was a simple case of assault on her and her father.
Ingredients of Section 7 of the POCSO Act are not found
in the evidence of the girl.
The applicant was arrested on 13.02.2017
under arrest panchanama Exh.-69. Pending trial, he was
released on the next day by learned Additional Sessions
Judge.
It appears that during the pendency of trial,
the victim girl moved an application for cancellation of
the bail of the applicant. The said application is at Exh.-
24 at page no.32 on file 'D' on record of Court below.
The application shows that after release of the applicant
on bail on 25.03.2017, her sister filed report against
applicant and on the basis of which crime was registered
vide Crime No.188/2017 for an offence punishable
under Sections 354, 506 and 34 of the IPC and under
Section 12 of the POCSO Act. Record shows that learned
Sessions Judge on 07.09.2018 cancelled the bail and
took the applicant in custody. Observation of the
learned Judge while cancelling the bail was that for fair
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trial, applicant must be put behind bars. Accordingly,
the applicant was taken in custody on 17.09.2018 and
thereafter evidence of the prosecution commenced on
10.10.2018 and the last witness which the prosecution
examined was PW13 on 22.11.2018. After appreciation
of the prosecution case, the learned Judge has passed the
impugned judgment. Presently, this Court is considering
the liberty of the applicant, which is withheld in view of
imposition of sentence on him. The maximum period of
sentence is four years. The applicant is in jail since
07.09.2018.
Prima facie, after examining the evidence of
the prosecution witness in general and evidence of victim
in particular, in my view, the applicant has made out a
case for consideration in his favour. Further, age of the
appellant is 28 years. Thus, there is every possibility that
he would be available when the appeal will be taken up
for final hearing in due course of time.
The Hon'ble Apex Court has already observed
in Bhagwam Rama Shinde Gosai And Ors vs State Of
Gujarat, reported in (1999) 4 SCC 421, that when the
sentence is for a fixed duration, the Court should
consider case of the applicant sympathetically.
In view of the law laid down by the Hon'ble
Apex Court and in view of quality of evidence brought on
record, in my view, the applicant has made out a case for
grant of bail. Hence, I pass the following order.
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ORDER
(i) The application is allowed.
(ii) Substantive jail sentence imposed upon the
applicant by judgment and order dated 31.12.2018 passed by learned Special Judge (Under POCSO Act), Bhandara in Special (Child) Cri. Case No.17/2017 shall remain suspended during the pendency of the present appeal.
(iii) Applicant-Harshdeep s/o Anil Mate, shall be released on bail on he executing P.R. Bond in the sum of Rs.5,000/- with one solvent surety in the like amount.
(iv) Bail bonds be executed before Court below.
(v) At the time of execution of bail bonds, the learned Judge shall ensure that fine amount is deposited by applicant.
(vi) The applicant shall mark his presence at Police Station, Bhandara once in every three months and shall maintain a diary showing his presence there, during the pendency of the present appeal.
(vii) The applicant shall remain personally present before this Court at the time of final hearing of appeal.
The application is disposed of.
JUDGE kahale ::: Uploaded on - 01/03/2019 ::: Downloaded on - 22/03/2019 11:17:26 :::