(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 2448 of 2011 (In Criminal Appeal No. 286 of 2011) Umesh s/o. Kaduba Kathar, Age : 23 years, Occupation : - , .. Applicant/ R/o. Rajabazar, Appellant/ Aurangabad. (Original accused) versus The State of Maharashtra. .. Respondent. ....................... Mr. H.F. Pawar, Advocate, for the applicant. Mr. B.V. Wagh, Additional Public Prosecutor, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 1ST JULY 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. (2) 2. This is an application preferred by the applicant / appellant (original accused no.3), seeking bail pending hearing and final disposal of Criminal Appeal No. 286/2011, suspending substantive sentences inflicted upon him, by way of judgment and order dated 13-5-2011, rendered by the learned Additional Sessions Judge-9, Aurangabad, in Sessions Case No. 142/2010 3. It appears that the applicant herein faced the trial in Sessions Case No. 142/2010 and was convicted for the offences punishable under Section 366A read with Section 34 of IPC, and was sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs. 5,000/-, in default of payment of fine, to suffer further rigorous imprisonment for 6 months, and also he was convicted for the offence punishable under Section 354 of IPC, and was directed to suffer rigorous imprisonment for one year, with further direction that both the substantive sentences shall run concurrently. The applicant herein has questioned the said conviction and sentence by filing Criminal Appeal No. 286 of 2011 and I have already admitted the said appeal by passing order therein separately on 20th June 2011. 4. Adv. Mr. H.F. Pawar, for the applicant, canvassed that the applicant was arrested on 2nd February 2010, and he is in (3) custody since then till today, and he has undergone almost 17 months in the custody i.e. near about half of the sentence awarded to him by way of aforesaid impugned judgment, and therefore, the applicant is entitled to be enlarged on bail pending hearing and final disposal of Criminal Appeal No. 286/2011, since there is no likelihood that the said Criminal Appeal would be taken up for final hearing in the near future. Learned Counsel for the applicant has also submitted that the substantive sentences awarded to the applicant are of short term sentences and placed reliance upon the case of Kiran Kumar Vs. State of M.P., reported at 2001 AIR SCW 5130. 5. Learned Counsel for the applicant has invited my attention to the aspect that although the applicant herein was convicted by the learned trial court for the offence punishable under Section 366A of IPC, the very ingredients of the said Section are missing and lacking in the present case. It is also pointed out by the learned Counsel for the applicant that the prosecution has miserably failed to prove and establish the age of the prosecutrix below 18 years and although she had undergone the ossification test, the prosecution has failed to prove report of the said ossification test on record. In the said context, learned Counsel for the applicant has invited my attention to the testimony of Dr. Anjanadevi (PW 2), wherein she (4) has stated that the prosecutrix was used to sex and her secondary sex character was fully developed. According to the learned Counsel for the applicant, even the testimony of prosecutrix Sharda (PW 3) indicates that she had full knowledge about the act she was doing and even she did not rebel in the area of Kranti Chowk at 11.15 p.m. on the date of incident i.e. on the night of 1st February 2010. Hence, it is canvassed by the learned Counsel for the applicant that the very ingredients of Section 366A of IPC are absent in the present case, and therefore, the applicant is entitled to be released on bail, pending hearing and final disposal of the Criminal Appeal filed by him. 6. It is further canvassed by the learned Counsel for the applicant, that the age of the applicant being 23 years i.e. young age be considered and his future period should not be wasted behind the bars. It is also canvassed by the learned Counsel for the applicant, that the evidence adduced and produced by the prosecution against the applicant is weak type of evidence and even having comprehensive view of the matter, there is apparently no reliable and clinching evidence against the applicant, and hence, the applicant deserves to be enlarged on bail during the pendency of the appeal. 7. Learned Counsel for the applicant has relied upon (5) judgment of learned Single Judge of this Court, in the case of Dnyaneshwar Sudama Bhagat Vs. The State of Maharashtra, reported at 2008(1) Bom.C.R. (Cri.) 161, and another judgment of learned Single Judge of this Court, in the case of Somnath Bhanudas More Vs. The State of Maharashtra, reported at 2009(2) Bom.C.R.(Cri.) 441. Accordingly, learned Counsel for the applicant urged that the present application be allowed and the applicant be released on bail pending hearing and final disposal of the Criminal Appeal. 8. Learned APP Mr. B.V. Wagh, for the respondent, countered the arguments of the learned Counsel for the applicant and opposed the present application vehemently, and submitted that to substantiate the charges levelled against the applicant and other accused persons, prosecution has examined as many as five witnesses, namely :- (1) Mandakini Dhanuka (PW 1) - Panch witness to spot panchanama and panchanama of seizure of vehicle. (2) Dr. Anjanadevi Santpure (PW 2) - Who examined the prosecutrix and issued medical certificate. (3) Sharda Hirpurkar (PW 3) - Prosecutrix. (6) (4) Dnyangir Giri (PW 4) - Police Constable who brought the prosecutrix and applicant in the Police Station. (5) Sarjerao Gaikwad (PW 5) - Investigation Officer According to the learned APP, the alleged date of incident is the intervening night between 1st February 2010 and 2nd February 2010, and the date of birth of the prosecutrix given in the complaint is 8-10-1992, as well as, age of the prosecutrix disclosed in the medical certificate Exhibit 31 is 17 years, and hence, learned APP submitted that although ossification report has not been submitted on record, the prosecution has proved and established the age of the prosecutrix as 17 years at the time of occurrence of the incident, and therefore, the very ingredient of Section 366A of IPC have been proved and established by the prosecution. Moreover, learned APP also canvassed that it is apparently clear from the prosecution case that the prosecutrix, who was below 18 years, was seduced to illicit intercourse with accused nos.4 to 6, and therefore, it is submitted that the learned trial court has rightly convicted and sentenced the applicant for the offence punishable under Section 366A of IPC. In the said context, learned APP invited my attention to very cross examination of the prosecutrix and pointed out that there is absolutely no suggestion in the said cross examination that the (7) age of the prosecutrix is below 18 years and even the date of birth of the prosecutrix has not been challenged therein. It is further canvassed by the learned APP that victim i.e. prosecutrix was seduced by the accused persons for money due to poor and weak financial condition, and the accused persons took disadvantage thereof, as well as, of her minor age, and it is further submitted that there is no substance in the contention of the learned Counsel for the applicant, that there was consent / knowledge of the prosecutrix for the alleged act, since she was minor at the relevant time. Learned APP has supported the impugned judgment and urged that the present application bears no substance and the same is devoid of merits, and hence, urged that it be rejected. 9. I have perused the impugned judgment dated 13-5-2011, and also perused the Record & Proceedings with the assistance of the learned Counsel for parties. 10. As regards the very age of the prosecutrix, the FIR Exhibit 33 dated 2nd February 2010, discloses her age as 17 years. Moreover, medical certificate Exhibit 31, issued by the Casualty Medical Officer, Govt. Medical College & Hospital, Aurangabad, also discloses the age of the prosecutrix, namely, Sharda (PW 3) as 17 years. Moreover, Dr. Anjanadevi (PW 2) (8) has categorically stated in her deposition that she issued the medical certificate Exhibit 31 and she has further stated that she had not received report of radiologist till she issued the certificate Exhibit 31. Moreover, prosecutrix Sharda (PW 3) has stated her age, in her deposition, as 17 years and gave her date of birth therein as 8-10-1992. However, in her cross examination, there is no suggestion denying said date of birth / her age as 17 years. Considering the said aspect and medical certificate and age given by the prosecutrix in her testimony, and the FIR, it appears that the age of the prosecutrix in the intervening night between 1-2-2010 and 2-2-2010 was 17 years, which apparently fulfills the ingredient of Section 366A of IPC. 11. Moreover, it is also reported that the applicant was in custody during the pendency of the trial and his bail applications were rejected by the Sessions Court as well as by this Court. 12. Besides, after considering the ocular, as well as, documentary and also medical evidence on record, apparently, it appears that there is prima facie case against the applicant, and therefore, I am not inclined to enlarge the applicant on bail during the pendency of the Criminal Appeal, and hence, present application deserves to be rejected. (9) 13. As regards the reported judgments of this Court, relied upon by the learned Counsel for the applicant, cited supra, are not applicable while considering the application for bail. 14. In the result, present Criminal Application which is sans merits, stands dismissed. 15. Record & Proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/2448ka