1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 904 OF 2009 Shri Gurunath Bhaskar Bhagat ..... Applicant. V/s The State of Maharashtra ...... Respondent. Mr. P.L. Sapkale for the applicant. Mr. Rajesh More, APP for the State. CORAM : V.M. KANADE, J. DATE : 4th March, 2009 P.C:- 1. Heard the learned Counsel for the applicant and the learned APP for the State. 2. Applicant was arrested on 27/09/2007 for the offence punishable under sections 376, 342, 506 of the Indian Penal Code. According to the applicant, the age of the prosecutrix was 16 years and 10 months whereas, according to the prosecution, she was about 16 years old on the date of the said incident. The case of the applicant is that there was a consensual sex whereas, according to the prosecution, the prosecutrix was mentally retarded and, therefore, the question of consent did not arise and that according to the school record her age was 14 years 10 months and 16 days 2 on the date of the incident. The Municipal Birth Certificate has not been produced. Thus, apparently, there are two conflicting birth dates on record. Prosecution has not carried out ossification test. In the event, it is established that the prosecutrix was above 16 years of age, the defence of consent would then be available to the applicant. The accused, in such cases, would be entitled to get the benefit of doubt. In these circumstances, the applicant who is jail since last one year, need not be detained indefinitely in jail as an under trial prisoner since the trial cannot be over for considerable period of time. Applicant, therefore, under these circumstances, in my view, deserves to be released on bail subject to certain conditions being imposed on him. 3. Applicant be released on bail in C.R. No.I 299/07 in the sum of Rs 5000/- with one or two sureties in the like amount. He shall report to the nearest Police Station from his residence twice in a month. Applicant shall not threaten the prosecutrix or any other prosecution witnesses. 4. Application is disposed of. (V.M. KANADE, J.)