1 Cri.Appln.No.1360/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1360 OF 2011 IN CRIMINAL APPEAL NO.168 OF 2011 Pinu @ Jamal Manik Shaikh ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Shri R.K. Temkar, Advocate for the applicant Shri B.J. Sonawane, A.P.P. for the respondent ..... CORAM : U.D. SALVI, J. DATED : 6th September, 2011. PER COURT : 1. Heard. Perused application and the record. 2. The applicant Pinu @ Jamal Manik Shaikh, convicted of the offence punishable under Section 376 of the Indian Penal Code, 1860, has been sentenced to suffer R.I. for seven years and to pay fine of Rs.1000/-, in default to suffer S.I. for six more months. The applicant/accused has also been convicted of the offence punishable under Section 506 of the Indian Penal Code, 1860 and is sentenced to suffer S.I. for one month and to pay a fine 2 Cri.Appln.No.1360/2011 of Rs.500/-, in default to suffer S.I. for seven more days. According to the prosecution, the applicant/ accused had raped the prosecutrix, a girl of 15 years age around noon time in a sugarcane field. The prosecutrix was youngest amongst the three daughters of a sugarcane worker named Hirabai. Hirabai lodged the complaint with Shevgaon Police Station. According to Hirabai, the prosecutrix went to work on sugarcane field along with other female workers in a tractor driven by the accused as usual and when she returned from the work in the evening, she found her daughter in a disturbed mental condition; and on next day, she happened to learn from one Gayabai, her relation, that there was a talk amongst the female workers regarding the rape of the prosecutrix committed by the accused and despite her enquiries with her daughter, the prosecutrix refused to respond to her enquiries in that regard. Hirabai, in her complaint, a day after such enquiries, took the prosecutrix in confidence and gave courage to open up and thereupon the prosecutrix had narrated the facts concerning the rape committed by the accused in the sugarcane field. 3. The prosecution examined the prosecutrix, complainant, father of the prosecutrix, panchas to the seizure panchanamas and scene of offence panchanama, the Clerk from the office of Shevgaon Panchayat Samiti, medical officers and 3 Cri.Appln.No.1360/2011 investigation officials. Clothes of the victim and the accused were sent to Forensic Science Laboratory and the reports of analysis were tendered in evidence. 4. The applicant/ accused, when confronted with the evidence led by the prosecution, denied his involvement, and revealed that he was falsely implicated in the present case as he had not allowed the prosecutrix to come for work. He did not examine himself or anybody else in his defence. 5. Learned trial Court, on considering the evidence and the submissions made by the rival parties, arrived at the conclusions:- (i) The victim was born on 19.5.1995 and as such, she was about 14 years of age at the time of the incident. (ii) There was forcible sexual intercourse as alleged. 6. Learned Advocate for the applicant/ accused submitted that the conclusions drawn by the learned trial Court were based on erroneous premise as the controversy on the age of the prosecutrix was not put to rest by the evidence on record and the medical opinion revealed several possibilities other than sexual intercourse 4 Cri.Appln.No.1360/2011 for rupture of hymen. Relying on the order of the Apex Court in Criminal Appeal No.725/2000 (Kiran Kumar Vs. State of M.P.), reported in 2001 AIR SCW 5130, he submitted that, the accused having enjoyed liberty during the course of the trial without committing any breach of the conditions imposed therefor, and sentenced to a short term imprisonment, deserves to be released on bail particularly when the appeal is not likely to come up for hearing soon. As regards the age of the prosecutrix, the prosecution had examined parents of the prosecutrix and Junior Clerk of Shevgaon Panchayat Samiti – authority maintaining the birth register. Learned trial Court, the impugned judgment reveals, did consider this evidence as well as the medical certificate issued by the Rural Hospital, Shevgaon. Prima facie, the age of the victim girl at the time of the incident appears to be around 14 years. Learned trial Court also considered the oral testimony in the light of the medical evidence. Though the medical evidence revealed several possibilities other than the sexual intercourse for rupture of hymen as noticed during the medical examination of the prosecutrix, it is not shown through the cross-examination of the witnesses that there were circumstances pointing at such possibilities or any one of them. Prima facie the conclusions drawn by the learned trial Court regarding involvement of the applicant/ accused cannot be faulted. 5 Cri.Appln.No.1360/2011 7. Obviously, the act of the applicant/ accused of committing rape on the girl of 14 years of age and that too a girl coming from lower economic strata, only reveals tendency of the accused to take disadvantage of the circumstances and as such, the crime committed by him is of serious nature. His application, therefore, deserves to be rejected. The application is rejected. However, the applicant may have liberty to move this Court for bail in future. ( U.D. SALVI, J. ) fmp/cri1360.11