Bombay High Court
State Of Mah. Thr. Pso Tumsar Tah.Tumsar ... vs Virendra Alias Viru Ramesh Fule on 12 July, 2021
Author: Amit B. Borkar
Bench: V.M. Deshpande, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APPA) NO. 424 OF 2020
IN
CRIMINAL APPEAL NO. OF 2021
The State of Maharashtra through PSO Tumsar, Dist. Bhandara
Vs.
Virendra @ Viru Ramesh Fule and another
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri T. A. Mirza, A.P. P. for applicant/State.
None present for non-applicants.
CORAM :- V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATED :- 12.07.2021
Hearing was conducted through Video
Conferencing and learned counsel agreed that the audio and visual quality were proper.
2. This is an application filed by the State seeking leave to file appeal challenging the judgment and order of the acquittal passed by learned Special Judge (under POCSO Act), Bhandara dated 24.02.2020 in Special Criminal (POCSO) Case No. 49/2018, whereby the non-applicants were acquitted for the offence punishable under Sections 376-D, 341, 323 and 506 read with Section 34 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short, "POCSO Act").
3. Heard Shri T. A. Mirza, learned A.P.P. for the applicant/State. None present for the non-applicants.
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4. The victim girl is 14 years of age. On 09.09.2018, she was clinically examined by Dr. Anita Karemore (PW3). Dr. Anita's evidence shows that on examination she found abrasion over left forearm, abrasion over right forearm, abrasion over left leg of the victim girl. The victim is also examined as PW1. Her evidence would show that she was dragged in half constructed shop in the lane and thereafter there was sexual assault on her.
5. We are of the view that re-look to the impugned judgment is absolutely necessary due to the observation made by the learned Trial Judge that presumption under Sections 28 and 29 of the POCSO Act cannot be made applicable in this case because, the prosecution has fails to rebut the intention of the accused. This observation cannot be sustained the scrutiny of law in view of the evidence of the victim girl and the Doctor.
6. Hence, we pass the following order:-
(i) The application is allowed.
(ii) Leave is granted to file the appeal
challenging the judgment and order of acquittal passed by learned Special Judge (under POCSO Act), Bhandara dated 24.02.2020 in Special Criminal (POCSO) Case No. 49/2018.
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CRIMINAL APPEAL NO. OF 2021
Heard.
2. Admit.
3. Action under Section 390 of the Code of Criminal Procedure (Cr.P.C.) be taken against respondent no. 2.
4. When the respondent is are brought before the Court, in execution of action under Section 390 of Cr.P.C., they shall be released on bail in respect of the present case on they executing P.R. Bond in the sum of Rs.5,000/- with one solvent surety of the like amount.
5. So far as the action under Section 390 of Cr.P.C. against the respondent no. 1 is concerned, since according to learned A.P.P. the respondent no. 1 is already serving life imprisonment therefore, the notice of this appeal to be served on respondent no. 1 in jail, where he was serving life sentence.
JUDGE JUDGE
RR Jaiswal
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