1 cr-appa-726-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN. NO. 726 OF 2010 IN CRI. APPEAL NO. 430 OF 2010 Mr. Pappu @ Ravindra Devidas Khedkar ..Applicant Vs. The State of Maharashtra ..Respondent .... Mr. R.V.Katore Adv. for applicant Smt. M.M.Deshmukh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 04 , 2010 P.C.: 1 Heard the learned advocate for the applicant-original accused and the learned APP for the State. 2 The applicant has been convicted for the offences under Sections 363, 366 and 376 of IPC and maximum sentence imposed on the applicant is seven years. The appeal preferred by the applicant is pending. The applicant is now seeking bail. 3 The prosecution case is that applicant kidnapped the 2 cr-appa-726-10 prosecutrix and took her to various places i.e. Jeur, Akkalkot and Ganagapur. Thereafter, he has committed rape on her in a lodge at Ganagapur. 4 The learned advocate for the applicant submitted it is a case of consent and not a case of forcible sexual intercourse. The learned APP contended that as the prosecutrix was below 16 years of age at the relevant time, hence, assuming that there was consent on her part, such consent is immaterial. To support her contention, she has placed reliance on Exh. 23 which shows that the date of birth of the prosecutrix is 16.6.1994. The learned APP pointed out that the first incident of rape occurred on 16.4.2008 and as per Exh. 23 as the prosecutrix was below 16 years of age at the time of the incident, her consent is immaterial. However, it is seen that the prosecution has brought on record not only certificate Exh. 23 wherein the date of birth of the prosecutrix was shown as 16.6.1994 but it has also brought on record another document Exh. 86 wherein the date of birth of the prosecutrix is shown on 11.5.1992. This is a certificate issued by the school showing date of birth as 16.6.1994. Looking to the fact that there is discrepancy in the date of birth of the victim girl in both these Exhibits and the fact that evidence of Dr. Gaikwad the Medical Officer from the civil hospital shows that the prosecutrix was 17 to 19 years of age at the time of the incident, I am of 3 cr-appa-726-10 the opinion that it cannot be reliably said that the prosecutrix was below 16 years at the time of the incident. 5 Moreover, it is seen that the prosecutrix has traveled with the applicant to various places. If the accused was taking her away against her wish, she would have made attempts to escape but she does not appear to have done so. At no point of time, she sought help from any one nor has she made any attempt to run away. Though they have traveled to various places by public transport including by train and bus wherein she has sufficient opportunity to seek help from people and even police, she has not done so. This does show that the events which occurred, took place with her consent. Thus, looking to the above facts, I am inclined to grant bail to the applicant. 6 The applicant-Pappu @ Ravindra Devidas Khedkar be released on bail in the sum of Rs. 20,000/- (Rs. twenty thousand only) with one or two sureties to make up the said amount. The applicant is directed to report to Karmala Police Station, once in three months till the disposal of the appeal. 7 Application disposed of. [ SMT. V.K.TAHILRAMANI, J.]