1 Cri.Appln.No.1137/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1137/2011 Keshavrao Sukhdeo Wagh and Anr. - APPLICANTS VERSUS The State of Maharashtra - RESPONDENT ***** Mr.AK Bhosale Advocate for Applicant; Mr.KS Patil APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 30th March, 2011. PER COURT : 1) Heard. The accused/applicants, in custody, seek release on bail for an offence under Section 376(2)(g) of Indian Penal Code. 2) Learned Counsel for the accused/applicants submits, with all said and done, matter more leans to love affairs between the accused/applicants and the victim, she may have consensually activated the affairs including sex and, therefore, no infraction of the penal provisions. 3) At this stage of the matter, primarily the Bonafide Certificate issued by the Head 2 Cri.Appln.No.1137/2011 Master, New High School, Gadana, Tq. Khultabad, endorse date of birth of the victim to be 4th January, 1996, naturally, she was 14 years at the time of the incident, which later gave rise to the F.I.R. Theory of consensual sex becomes inconsequential. The victim has delivered a female baby and faced ignominy. 4) Learned Counsel for the accused/applicants placed reliance to the judgment of the Apex Court in the matter of Alamely and Anr. Vs. State, Represented by Inspector of Police, - AIR 2011 SC 715, particularly paragraph 38 thereof. In the said case, the Hon'ble Lordships found, the victim was 16 years 1 month and 16 days on the date of incident. The Transfer certificate was issued by a Government School, duly signed by Head Master and consequently, it was quoted as admissible under Section 35 of the Indian Evidence Act. The Apex Court cautioned about admissibility of such a document of not much evidentiary value to prove age of the girl in the absence of the materils on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. No such event as yet crept in the present case as the evidence is yet to 3 Cri.Appln.No.1137/2011 commence, the source of recording birth date is to be informed by the appropriate peson/authority. On this count, concession of bail as sought for is not warranted. However, another glaring feature is pointed out by the learned Counsel, which tends to primarily blast the stand of the prosecution, i.e. Sandip Tukaram Davane born to Tukaram/Suman was shown as born on 5th February, 1996, as per the entries in the School Transfer record/extract. This glaring omission, at this stage, by itself would not be making the picture affirmative for favouring the accused. Its situation has to be answered by the prosecution at the appropriate place. DNA report is awaited. 5) Taking survey of above facts, application lacks merit, rejected. The learned Sessions Judge, seized with the matter, considering the passage of time of custody faced by the accused/applicants, and the ages of the witnesses or the accused, shall ensure to expedite the matter, to be disposed of within six months of communication. ( K.U.CHANDIWAL ) JUDGE bdv/