[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO. 1817 OF 2008 Sau.Malika Rashid Alias Raju Shaikh ..Applicant Vs. The State of Maharashtra ..Respondent ... Mr.A.I.Deshmukh Advocate for Applicant Mr.K.V.Saste APP for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JULY 15, 2008 DATE : JULY 15, 2008 DATE : JULY 15, 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. 138 of 2007 of Pimpalgaon Baswant Police Station, Dist.Nasik. The said case is under Sections 363, 366-A and 376 r.w. 34 of IPC. 3. The applicant was neighbour of the prosecutrix. The case of the prosecutrix is that about three months prior to the incident i.e. on 10.7.2007, the applicant and three of her associates took her [-2-] to Mumbai and kept her there for about 7 to 8 days. The father of the prosecutrix lodged a complaint against the applicant on 18.7.2007 of kidnapping his daughter. Thereafter they left her back in Nasik. The father of the prosecutrix thereafter kept the prosecutrix with her aunt for about two months. Some days prior to the incident, he had brought back the prosecutrix to his house. 4. On 10.10.2007 the prosecutrix along with sister Savita went to the market at about 4 to 4.30 p.m. At about 6 p.m. Savita returned home alone. On enquiry Savita informed the complainant that when they went to the market, the prosecutrix telephoned someone from the PCO. Thereafter the prosecutrix informed her that she is going to answer the call of nature. Though Savita waited for a long time, the prosecutrix did not come back. As it was dark, Savita returned home. 5. Prosecutrix has stated that she called one Javed Shaikh on his mobile phone. The said Javed Shaikh spoke to her very sweetly and told her to meet him at about 3 p.m. and they would go to Sangamner and get married. He told her that [-3-] applicant has made all the necessary arrangements. Hence, on 10.10.2007 after giving a false excuse that she wanted to answer the call of nature, the prosecutrix left her sister Savita and met Javed. Prosecutrix and Javed went to Sangamner. The applicant was present at Sangamner. From 10.10.2007 to 27.10.2007 the prosecutrix lived along with Javed at Sangamner. It is her case that Javed told her that they were going to get married, and saying so, he had forcible sexual intercourse with her. The prosecutrix in her statement has stated that she was 17 years of age at the time of the incident. So also complainant has stated that the prosecutrix was 17 years of age at the time of the incident. It appears that prosecutrix has voluntarily and willingly left house of her parents and she had accompanied Javed to Sangamner. During the period of 17 days the prosecutrix was with Javed, the prosecutrix made no attempt to escape or seek any help from the people. The prosecutrix has not stated that she was kept confined or that she was forced or threatened to live with Javed and the applicant. Looking to the material on record, it appears to be a case of consent. [-4-] 6. The learned APP submitted that age of the prosecutrix was below 16 years at the time of the incident and he has placed reliance on certificate to show that prosecutrix was below 16 years of age at the time of the incident. However, looking to the fact that prosecutrix as well as complainant have clearly stated that prosecutrix was 17 years of age at the time of the incident, I find some merit in the submission that certificate may have been prepared lateron to support the prosecution case. Looking to the above facts and the ratio laid down by the Supreme Court in the case of S.Varadrajan Vs. State of Madras S.Varadrajan Vs. State of Madras S.Varadrajan Vs. State of Madras reported in AIR AIR AIR 1965 SC 942 1965 SC 942 1965 SC 942 wherein it is 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 person. In such a case we do not think that the accused can be said to have taken her away from the keeping [-5-] 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." 7. Looking to the above facts, I am inclined to grant bail to the applicant. 8. The applicant-Sau.Malika Rashid Alias Raju Shaikh to be released on bail in the sum of Rs.25,000/- (Rs.twenty five thousand only) with one or two sureties to make up the said amount. The applicant to report to Pimpalgaon Baswant police station, Dist.Nasik once in two months till the conclusion of the trial. 9. Application is disposed of. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]