18. cr appa 1407-09.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1407 OF 2009 IN CRIMINAL APPEAL NO. 1104 OF 2007 Namdeo Sonu Gavali .. Applicant Vs The State of Maharashtra .. Respondent Mr. Arfan Sait, advocate appointed for the Applicant Mr. V.B. Konde-Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 27th OCTOBER, 2010. P.C.: 1. The applicant-original accused has preferred this application for bail through jail. 2. Heard learned advocate appointed for the applicant- original accused and learned APP for the State. 3. The applicant-original accused has been convicted under Section 376 of IPC and sentenced to RI for 7 years. The appeal preferred by him against the said order has already been admitted. Now, the applicant is seeking bail. 4. Learned advocate for the applicant stated that besides this case, the applicant has a clean record. He further stated that the applicant was on bail during the trial 1 18. cr appa 1407-09.doc and he has not misused the liberty granted to him. Both these statements have not been controverted by learned APP. 5. Learned advocate for the applicant further submitted that the maximum sentence imposed on the applicant is seven years; out of the said period, the applicant has undergone four and half years of imprisonment. He further submitted that there is no material to show that the prosecutrix was below 16 years of age. In this connection, he has drawn my attention to the evidence of PW 8 Dr. Monali and PW 9 Dr. Gore. Both the doctors have stated the age of the prosecutrix was less than 18 years at the time of incident. Medical certificates as well as evidence on record of these witnesses do not show that there was any recent intercourse or any injury found anywhere on the body of the prosecutrix including the private part. In fact, PW 9 Dr. Gore has not given any opinion as to whether there was any intercourse or not. Dr. Gore has admitted that there were no symptoms of rape or even intercourse. Thus, from the evidence of PW 8 Dr. Monali and PW 9 Dr. Gore, it appears that the prosecutrix was not below 16 years of age at the time of the incident. Moreover, looking to the entire evidence on record, it appears that it was a case of consent. Thus, looking to all the above facts, I am inclined to grant bail to the 2 18. cr appa 1407-09.doc applicant. Hence, the order: O R D E R 1. Applicant-Namdeo Sonu Gavali be released on bail in the sum of Rs. 10,000 /- [Rs. Ten Thousand Only] with one or two sureties to make up the said amount. The Applicant shall report to Wani Police Station once in a month till disposal of the appeal. 2. The order be communicated to the applicant who is in jail. 3. Mr. Arfan Sait be paid fees as per rules. 4. Application is allowed in above terms. [SMT. V.K. TAHILRAMANI, J.] 3 18. cr appa 1407-09.doc 4