/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPICATION NO. 680 OF 2008 IN CRIMINAL APPEAL NO. 563 OF 2008 Kunal Madhukar Jagtap ...Applicant Vs. The State of Maharashtra ...Respondent --- Shri Vikas Shivarkar i/b. Vipin Bidkar Shri S.S. Pednekar APP for the State ---- CORAM: V.M. KANADE J. DATED 12TH DECEMBER, 2008 P.C. 1. Heard the Learned Counsel appearing on behalf of the Applicant and the Learned APP for the State. 2. The Applicant has been convicted for the offence punishable under sections 363, 366 and 376 of the Indian Penal Code and is sentenced to suffer R.I. for seven years. 3. The prosecution case is that the Applicant was 21 years of age and the prosecutrix was about 13 years old at the time of incident. According to the prosecution, the Accused and his friends forcibly abducted the prosecutrix on 20.7.2006 while she was coming home from the school and, thereafter, she was taken to West Bengal where she was forcibly kept in the house of other Accused Muniral Shaikh for about eight days. The prosecution case is further that the Accused no.1 Kunal Jagtap had forcibly committed rape on her on 4 to 5 occasions and, thereafter, she was rescued by her father and police, who had gone to West Bengal in search of her. The Trial Court has observed that the prosecution has established that the prosecutrix was 13 years old on the date of incident by relying on the birth certificate at / 2 / Exhibit 13 and on the basis of the evidence of PW-1 and PW-2. The Trial Court has relied upon the evidence of Doctor Abhijit Anandate – PW-3, who had stated that on radiological examination of the prosecutrix, her age was between 13 to 16 years. 4. The Learned Counsel appearing on behalf of the Applicant submitted that the Applicant and the prosecutrix had been in love together and had got married and she was staying with the Applicant. He invited my attention to the evidence of the prosecutrix, where in the cross examination she admitted that though she had ample opportunities to create hue and cry or to file a police complaint, she had not done so. She had clearly indicated in her evidence that she had gone with the Applicant by her own free will. It is submitted that the Trial Court had erred in relying on the birth certificate at Exhibit 30 since it contains the name of the prosecutrix, which has created doubt about the veracity of the document. He further submitted that the prosecution case indicated that the age of the prosecutrix was between 13 to 16 years, and therefore, the benefit of the said certificate ought to have been given to the Applicant. He submitted that the Applicant had already undergone the sentence of 8 months during trial and six months after he was convicted by the Trial Court. He further submitted that the Applicant was hardly 21 years of age when the said incident took place. 5. In my view, taking into consideration the peculiar facts and circumstances of the case, the Applicant is entitled to be released on bail. From the evidence of the prosecutrix, it is apparent that she had eloped with the Applicant willingly and the only question requires to be considered is about her age. If it is established by the Applicant that she was above 16 years of age, he is likely to succeed in the case. 6. Under these circumstances, therefore, the Applicant be released on / 3 / bail in the sum of Rs.5,000/- with one or two sureties in the like amount. The Applicant, further, shall not enter the jurisdiction of Pimpri Police Station during pendency of appeal. The Applicant shall report to Deccan Gymkhana Police Station once in a month. 7. Application is, accordingly, disposed of in the aforesaid terms. V.M.KANADE J.