1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3842 OF 2010 Syed Nisar S/o Syed Pasha Age : 19 years, Occ : Labour, R/o Phalatwadi, Tq. Palam, Dist. Parbhani ..APPLICANT -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mr. N.N. Chitlange, Advocate for applicant. Mr. N.H. Borade, A.P.P. for respondent. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 14 th October, 2010. PER COURT : 1. The application is for bail. 2. Heard learned Advocate for the applicant and the learned A.P.P. Perused the investigation papers. 3. Allegedly, the applicant kidnapped the minor prosecutrix by taking her away from lawful custody of her father on 3rd August, 2010 and thereafter committed sexual intercourse with her. 4. Perusal of the investigation papers purports to show that the statement of the prosecutrix was recorded during the 2 course of investigation and she narrated to the police that she and the applicant were frequently meeting each other. She further stated before the police that they were involved in love affair and the applicant wanted to marry her. Her police statement further shows that on 3rd August, 2008, she remembered the applicant and called him by making a call on the Cell Phone. She went to place where they agreed to meet each other. After their mutual discussion, they went together to Palam and resided together in a room. On 6th August, 2010, the Police came and took her away from the room. 5. The investigation papers prima facie show that the prosecutrix was a consenting party. There is prima facie medical evidence to show that she was on the verge of attaining the majority and could be major because the opinion given by the Medical Officer is that she was in the age group of 17 to 19 years. Considering the marginal error in the assessment of the age, she could be even major at the time of incident and she could decide her own fate. She was in love with applicant and as such eloped with him. The basic element of `taking minor away' appears to be absent so as to satisfy the ingredients of Section 363 of the Indian Penal Code on the premises of material available after investigation carried out so far. The applicant may not be guilty of 3 any offence punishable with death penalty or imprisonment for life. 6. In the result, the application is allowed. The applicant is directed to be released on bail, on furnishing of P.Bs. and S.Bs. in the sum of Rs. 20,000/- (Rupees twenty thousand), to the satisfaction of the Court of Sessions, and on condition that he will attend the concerned Police Station on each Sunday between 10 a.m. and 2 p.m., for consecutive four Sundays, or till filing of the charge sheet, whichever is earlier. He shall not enter the limits of village Phalatwadi till completion of trial and shall furnish his address of residence during period of trial. The applicant shall not contact any of the prosecution witness, particularly the prosecutrix, and shall not tamper with the prosecution evidence. (V.R.KINGAONKAR) JUDGE gas/cri3842.10