[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.1758 OF 2008 Mr.Rajesh Baban Devkar ..Applicant Vs. The State of Maharashtra ..Respondent ... Mr.Santosh R.Dubey Advocate for Applicant Mr.S.S.Pednekar APP for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JULY 10, 2008 DATE : JULY 10, 2008 DATE : JULY 10, 2008 P.C. P.C. P.C. 1. Heard the learned advocate for the applicant and the learned A.P.P. for the State. 2. The applicant is seeking bail in CR No.235 of 2007 of Mulund Police Station, Mumbai. The said case is mainly under Sections 363 and 376 of IPC. 3. The prosecutrix has stated that on 4.4.2007 the applicant kidnapped her from Mumbai. Thereafter, they went to Shirdi via Manmad. They resided at Shirdi. Thereafter the applicant again brought her to Mumbai, where he took room on rental basis. There the prosecutrix resided with the applicant for a period of one and half month to two months. It is the case of the prosecutrix that at that [-2-] time, the applicant had sexual intercourse against her will. Thereafter, prosecutrix and the applicant resided in one hut near Powai Police Station for about five months. Thereafter, all of them resided at Airoli in a hut for about two months. Thereafter, the police called the applicant to the police station and he came to be arrested. In the present case, complaint has been filed by the mother of the prosecutrix. 4. The prosecutrix was over 16 years of age at the time of the incident. It is her case that she was kidnapped by the applicant and taken to various places and she resided with the applicant for about 9 to 10 months. If the prosecutrix had been taken away by the applicant due to inducement or the applicant has forcible sexual intercourse with the prosecutrix, when the prosecutrix was taken from place to place, she would have made an attempt to escape or she would have sought help from the people. It is not her case that the applicant had locked her up and kept her confined. For the period of eight months, they were moving by public transport from place to place. In such case, if the prosecutrix had really been kidnapped, she [-3-] would have sought help from people. It is also pertinent to note that for about five months, the prosecutrix was residing with the applicant in a hut near Powai Police Station. In such case if sexual intercourse was against her will or if she had been taken away against her will, the prosecutrix would have approached the police and sought help and/or she would have made attempt to run away. The very fact that prosecutrix has not done so, clearly shows that whatever has happened, has happened with the consent of prosecutrix. The facts on record show that the prosecutrix had sufficient knowledge and awareness of the nature and consequences of her act. 5. The Supreme Court in the case of S.Varadrajan S.Varadrajan S.Varadrajan Vs. State of Madras Vs. State of Madras Vs. State of Madras reported in AIR 1965 SC 942 AIR 1965 SC 942 AIR 1965 SC 942 has observed that: ".. where the minor alleged to have been taken by the accused person left her father’s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused [-4-] person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian." 6. Looking to the above facts, I am inclined to grant bail to the applicant. 7. The applicant-Rajesh Baban Devkar to 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 sureties shall be the local sureties. The applicant to report to Mulund Police Station, Mumbai once in two months till the conclusion of the trial. 8. Application is disposed of. [-5-] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]