Bombay High Court
Virendra Tufani @ Surendra Tufani ... vs The State Of Maharashtra And Anr on 30 July, 2021
Bench: Prakash Deu Naik
rpa 1/5 30 ia 1159 2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1159 OF 2020
IN
CRIMINAL APPEAL NO.377 OF 2020
Virendra Tufani @
Suresh Tufani Vishwakarma .. Applicant/ Appellant
Versus
State of Maharashtra .. Respondent
......
Mr.Viral Rathod i/b. Mr.A.A. Sothe, Advocate for the
Applicant/Appellant.
Mr.S.R. Agarkar, APP for the Respondent - State.
PSI Subhash Sawant Nirmalnagar Police Station, Mumbai,
present.
......
CORAM : PRAKASH D. NAIK, J.
DATED : JULY 30, 2021.
P.C. :
This is an application for suspension of sentence and
grant of bail during the pendency of criminal Appeal No.377 of
2020, preferred by the applicant challenging the judgment and
order dated 13th January, 2020, passed by the Special Judge under
Digitally
signed by
RAJESHRI
RAJESHRI
PRAKASH the Protection of Children from Sexual Ofences Act ("POCSO
PRAKASH AHER
AHER Date:
2021.07.31
17:27:00
+0530
Act", for short) in POCSO Special Case No.244 of 2018.
rpa 2/5 30 ia 1159 2020.doc
2 The applicant has been convicted for the ofence
punishable under Section 4 of POCSO Act, and, sentenced to
sufer R/I for 10 years and to pay fne of Rs.15,000/-,, in default to
sufer further R/I for 3 months. He is also convicted for the
ofence punishable under Section 8 of POCOS Act and sentenced
to sufer R/I for 5 years and to pay fne of Rs.5,000/-,, in default to
sufer further R/I for one month. The applicant is further
convicted for the ofence under Section 363 of IPC, and,
sentenced to sufer R/I for 5 years and to pay fne of Rs.5,000/-, in
default to sufer further R/I for one month. He is further
convicted for the ofence under Section 366 of IPC and sentenced
to sufer R/I for 7 years and to pay fne of Rs.10,000/-,, in default,
to sufer further R/I for two months.
3 Complainant is impleaded as respondent no.2 in this
application. It was directed that intimation be given to
complainant through concerned police station. Notice was issued
to respondent no.2 is returned unserved with report that
complainant is not residing at given address and she is not known
to residents. The respondent no.2 was contacted by concerned
police station and it was disclosed that complainant is at Gujarat.
The application was than adjourned to accommodate
complainant. Today report submitted by Senior Inspector of
rpa 3/5 30 ia 1159 2020.doc
Police, Nirmal Nagar Police Station, Mumbai dated 30 th July,
2021, is tendered by learned APP. The same is taken on record.
The report refers to eforts taken by police to establish contact
with complainant and intimate her about the notice of this
application. Learned APP, on instructions, submitted that
complainant is at Gujarat. She is not present in Court.
4 Prosecution case is that the victim was minor. At the
time of incident, she was 15 years old. On 24 th February, 2018,
the victim was not found in the house. Matter was reported to
police. Missing complaint was fled. On 2 nd March, 2018, the
victim returned to police station along with accused. Applicant
was arrested on 5th March,2018. It is alleged that after eating
chocolate, the victim followed accused. She was taken to Palghar.
They performed symbolic marriage in temple. There was physical
relationship. The applicant was tried. Prosecution examined
about 7 witnesses.
5 The contention of the learned counsel for the
applicant is that the applicant was on bail during the trial. The
victim herself has claimed her age to be 18 years. There is no
authentic evidence to show that she was minor. There are
discrepancies in the evidence of P.W.4, who had conducted
rpa 4/5 30 ia 1159 2020.doc
ossifcation test. The relationship is apparently consensual. The
applicant was on bail during the trial. He has not misused the
facility of bail.
6 Learned APP submitted that the victim was minor.
Even if she has consented, it is of inconsequential. Prosecution
has proved its case beyond doubt.
7 The defence has claimed discrepancies in the
evidence with regards to the age of the victim. Complaint was
lodged by mother of victim. She was missing from house on 24 th
February, 2018. Victim has deposed that, she was acquainted with
accused as he was their neighbour. She was ofered chocolate and
taken to Palghar. She was taken to residence by accused. His
mother, brother were available in house. There was physical
relationship. She stayed there for three days. Thereafter, they
came to Nirmal Nagar chowky. P.W.4 is Medical Oficer. He
conducted ossifcation test of victim for age determination. He
admitted that he is not dentist nor radiologist. Victim was not
referred to him by police. The defence of the accused is that the
relationship was consensual. Apparently, the victim and the
applicant stayed together. There was physical relationship
rpa 5/5 30 ia 1159 2020.doc
between them. The applicant was on bail during the trial. It is not
reported that he has misused the facility of bail. Considering all
these facts and circumstances, case for suspension of sentence is
made out.
:: O R D E R ::
(i) Interim Application No.1159 of 2020, is allowed;
(ii) Pending hearing and fnal disposal of criminal
Appeal No.377 of 2020, the sentence of
imprisonment awarded by the trial Court vide
judgment and order dated 13th January, 2020, is
suspended and the applicant is directed to be
released on bail on executing P.R.Bond in the sum
of Rs.25,000/-,, with one or more sureties in the like
amount;
(iii) Applicant is directed to attend trial Court once in
six months;
(iv) Interim Application No.1159 of 2020, is disposed of
accordingly.
(PRAKASH D. NAIK, J.)
