( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.96 OF 2009 (FOR BAIL) CRIMINAL APPLICATION NO.96 OF 2009 (FOR BAIL) CRIMINAL APPLICATION NO.96 OF 2009 (FOR BAIL) IN IN IN CRIMINAL APPEAL NO.72 OF 2009 CRIMINAL APPEAL NO.72 OF 2009 CRIMINAL APPEAL NO.72 OF 2009 Balasaheb @ Suhas Nivrutti Lohar @ Nanavare .. Applicant (Appellants) V/s The State of Maharashtra Through Sinnar Police Station, Nashik .. Respondent Mr.Hagade i/by Mr.K.S.Patil for the Applicant. Mr.Y.S.Shinde, APP for the State. CORAM : CORAM : CORAM : A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE : 13TH FEBRUARY, 2009. DATE : 13TH FEBRUARY, 2009. DATE : 13TH FEBRUARY, 2009. P.C. P.C. P.C. 1. The Applicant has been convicted for the offences punishable u/s.363 and 376 of the Indian Penal Code. He has been sentenced to suffer Rigorous Imprisonment for three years for the offence punishable U/s.363 and and he has been sentenced to suffer Rigorous Imprisonment for seven years for the offence punishable U/s.376 of the Indian Penal Code. The Applicant was not enlarged on bail during the pendency of the trial. The incident is of 24th August, 2007. The Applicant was arrested on 30th August, 2007. 2. The main contention raised by the Counsel for the Applicant is that the age of the prosecutrix on the relevant date was more than 16 years and this was the case of consent on the part of the prosecutrix. The learned A.P.P. has opposed the prayer for bail. He submitted that the date of birth of the prosecutrix is ( 2 ) 9th February, 1994 and therefore, on the date of commission of the offence, she was a minor. 3. I have considered the submissions and perused the notes of evidence and the impugned judgment. The date of birth disclosed by the prosecutrix is 9th February, 1994. PW No.6-Khacherao Murlidhar Jadhavrao, the headmaster of the concerned School stated that in the register maintained by the School the same birth date has been entered. He stated that birth date has been entered on the strength of original School Leaving Certificate . However, the said original School Leaving Certificate was not produced by the prosecution. 4. PW No.9-Dr.Yuvraj Hari Pawar, Radiologist was examined by the prosecution on the issue of age of the prosecutrix. On the basis of radiological examination he issued certificate recording the opinion that the age of the prosecutrix was 15 to 16 years. In the cross-examination he admitted that there may be difference of plus or minus three years in shch an opinion. In the examination-in-chief he stated that from X-ray it appears that the lower end of radius ephiphysis had appeared and was not fused. He stated that normally in case of female it fuses at the age between 16 and half to 18 years. 5. Perusal of the evidence of the prosecutrix shows ( 3 ) that from 24th August, 2007 onwards the prosecutrix moved with the Applicant from place to place. The prosecutrix had many occasions to protest, however, prima-facie it appears that, that has not been done by the prosecutrix. There is some substance in the submission of the learned Counsel for the Applicant that there is an element of consent. 6. Applicant is already in custody for one & half years. The learned Counsel for the Applicant stated that Applicant will not enter the Sinnar Town till the disposal of the Appeal, if he is enlarged on bail. 7. Considering the aforesaid circumstances, Applicant deserves to be enlarged on bail subject to certain stringent conditions. Hence, the Application is disposed of by passing the following order:- (i) The Applicant shall be enlarged on bail in the sum of Rs.15,000/- with one or two sureties in the like amount. (ii) The Applicant is enlarged on bail subject to the condition that till disposal of the Appeal, he will not enter the Sinnar town. (iii) The Applicant shall be enlarged on bail only after he furnishes to the Jail Superintendent the detailed address where he would reside after his release on bail, and the contact/telephone number, if any. (iv) The order granting bail shall be given effect only after the Applicant pays the fine amount. (v) The bail is granted subject to further condition that the Applicant will report to the concerned local police station having jurisdiction over his place of ( 4 ) residence, once in every calender month till the disposal of the Appeal. (A.S.OKA J.) (A.S.OKA J.) (A.S.OKA J.)