1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.487 OF 2010 Sandeep S/o.Gangadhar Ghavankar/Gavhankar Age-25 years, Occu-Agriculturist, R/o.Gangakhed, Tq.Gangakhed, Dist.Parbhani APPLICANT VERSUS The State of Maharashtra RESPONDENT Smt.S.S.Jadhav, learned counsel for applicant. Mr.N.B.Patil, learned APP for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 17/02/2010 PER COURT : 1. By the present application, the applicant has approached this Court for his release on bail in connection with CR No.186/2009, registered in Gangakhed Police Station of Dist. Parbhani, for the alleged offence punishable u/s. 376, 363 r/w. 34 of IPC. In connection with the said offence, the applicant was arrested on 27/11/2009, and since then, he is in custody. 2. Heard learned counsel for applicant followed by the submissions of learned APP appearing for State. Also perused the papers of investigation till carried out, as the material investigation is 2 over. 3. It is not disputed that the applicant's mother and complainant are close relatives of each other. Some 4 months prior to the incident, proposal of marriage of prosecutrix Priyanka was given to the complainant by the mother of applicant. The victim was on visiting terms to the house of applicant. Both are well acquainted with each other. It appears that the father of the victim informed the mother of applicant that considering the age of Priyanka, they shall wait for some time to perform their marriage, but it appears that for this proposal of her father, victim herself is not ready. It appears that on 05/11/2009, in the morning, victim left the residence of her parents under the pretext to attend the college and straightway reached to Parbhani railway station, where the present applicant was called. From there, the applicant and victim went to Bhusawal, where they got married on 07/11/2009 or 08/11/2009 and accordingly it was informed to the mother of applicant. Thereafter they stayed at Bhusawal as well as at Jalgaon. Somewhere on 27/11/2009, their whereabouts were came to the knowledge of complainant, and hence they were picked up and were brought to Parbhani and thereafter, the applicant was arrested and was taken in custody. It further appears that the custody of victim was initially taken by the mother of applicant and accepted her as her daughter in law. Thereafter, the victim was sent for medical examination and initially an offence was registered u/s. 363, 364 r/w. 34 of IPC. Section 376 of IPC was later on added. The victim was taken from 3 the residential premises of mother of applicant and was produced before the Court. As the custody of the victim was not claimed by the parents, and the victim declined to accompany her parents and to stay with them, hence she was sent to remand home. 4. During the course of investigation, it appears that statement of the victim was recorded, which is not favourable to the prosecution's case except her age, as her statement discloses that she at her own left her parent's residence, accompany applicant, marry with him and stayed as wife of applicant at various places and still she claimed to be the wife of applicant. 5. In this scenario, heard submissions of learned counsel appearing for the applicant. Learned counsel for applicant have come with a case of consent, while opposing the bail application, learned APP claimed that the victim is minor and considering her age on the date of incident that she is of 16 years and 10 months old. In the premise, even though there shall be no offence u/s. 376 of IPC, there shall be an offence punishable u/s. 363 of The IPC. Considering the entire scenario and particularly the statement of victim recorded during the investigation, it prima facie appears that the victim is a consenting party to the act at the hands of applicant. In view of this, merely because on the date of incident, the victim is minor, on that count, it is not necessary to detain the applicant behind bars for uncertain period as the case of the prosecution stands mainly on the statement of victim, which is favourable to the 4 applicant. If it is so, this is a case where discretion u/s. 439 of The Cr.P.C. can be used. Hence order : O R D E R 1. Application is allowed. 2. Applicant be released on bail on furnishing surety in the sum of Rs.10,000/- and on executing PR bond in the like amount. 3. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/FEB 2010/cri.appl.487-10