Bombay High Court
State Of Mah., Thr. Pso Ps Sakoli, ... vs Kamlabai Ratiram Badole And 7 ... on 3 March, 2022
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. 36 OF 2020
IN
CRIMINAL APPEAL NO. OF 2022
STATE OF MAH., THRU. P.S.O., P.S., SAKOLI, DIST. BHANDARA
VERSUS
KAMALABAI RATIRAM BADOLE AND OTHERS
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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
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Mr. T. A. Mirza, A. P. P. for the applicant/State.
CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.
DATE : MARCH 03, 2022.
1. This is an application filed on behalf of the State
seeking leave to file an appeal challenging the judgment
and order of acquittal passed by the learned Special Judge
under the POCSO Act, Bhandara, dated 31.08.2019 in
Special (Child) Criminal Case No. 13/2017, by which the
learned Judge has acquitted non-applicant nos.1 to 8 for
the offence punishable under Sections 363, 366, 496,
120-B read with Section 34 of the Indian Penal Code.
Also, non-applicant no.8 is acquitted of the offence
punishable under Section 376 and 323 of the Indian Penal
Code and under Sections 4, 6 and 10 of the Protection of
Children from Sexual Offences Act, 2012.
2. The notices were issued on this application to non-
applicant nos.1 to 8 and they are already served. When
the application was taken up for hearing, nobody is
appearing for any of the non-applicants.
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3. We have heard Mr. T.A.Mirza, learned Additional
Public Prosecutor for the applicant/State. He has invited
our attention to paragraphs 12 and 25 of the impugned
judgment. In paragraph 12, the learned Judge himself has
recorded a finding that in view of the birth certificate
(Exh.145), the victim was 'child' within the meaning of
the POCSO Act. Thus, it is clear that the provisions of the
POCSO Act are squarely applicable.
4. Perusal of paragraph 25 of the impugned judgment
shows that though the learned Judge has recorded a
finding that there is evidence on behalf of the prosecutrix
that she was raped by original accused no.8, however, Dr.
Vimal Gupta is not examined by the prosecution and the
evidence of prosecutrix is vague.
5. We have gone through the evidence of the
prosecutrix inasmuch as the copies of the depositions are
placed on record. In our view, while appreciating the
evidence and the prosecution case, perversity has crept in
in the impugned judgment. Therefore, this is a fit case
wherein this Court should grant leave to the State to file
appeal. Resultantly, we pass the following order :
ORDER
1. The criminal application is allowed.
2. Leave is granted to the State to challenge the
judgment and order of acquittal passed by the learned
Special Judge under the POCSO Act, Bhandara, dated
31.08.2019 in Special (Child) Criminal Case No. 13/2017.
3. The application is disposed of.
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CRIMINAL APPEAL NO. OF 2022
Heard Mr. T.A. Mirza, learned Additional Public
Prosecutor for the appellant/State.
ADMIT.
An action under Section 390 of the Code of
Criminal Procedure is directed to be taken.
When the non-applicants will be brought before
the learned Special Judge, Bhandara under execution of
action under Section 390 of the Code, the learned Judge is
directed to release them on bail on they executing PR
bond of Rs.10,000/- each with one solvent surety of the
like amount.
JUDGE JUDGE
Diwale
