1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.541 OF 2010 Shankar Raysan Balla Age-28 years, Occ-Labour R/o Shivaji Nagar, Nagar-Kalyan Road, Ahmednagar APPLICANT VERSUS The State of Maharashtra RESPONDENT ........ Mr.A.K.Gawali, Advocate for applicant Mrs.Yogita M.Kshirsagar, APP for respondent State. ........ [CORAM : A.V.POTDAR, J.] DATE : 16th February 2010 PER COURT : 1. By this application, the applicant has prayed to release him on bail in connection with CR No.376/2009 registered with Kotwali police station, Ahmednagar for an offence punishable u/s 376 (1) of the Indian Penal Code, which came to be registered on 21.11.2009 and the applicant is arrested on 22.11.2009 and since then he is in jail. 2. Heard learned counsel for the applicant followed by learned APP. Perused the papers of investigation carried out till today. 2 3. It appears that the offence is registered on the basis of complaint lodged by Usha, mother of victim Jyoti, in respect of an incident occurred at about 9.00 p.m. on 19.11.2009. Admittedly, victim and applicant are relatives of each other. Age of the victim is also not disputed. As the applicant is in jail for more than 70 days, the only question arise is to consider that in view of investigation carried out till today, whether he is entitled to be released on bail considering the act committed by him and age of the prosecutorix. 4. Statement of the victim indicates that she did no resist till she suffered pain. This statement of the victim itself goes to show that she was the consenting party. In this respect, observations of this Court in the matter of "Sayed Malloomiyah Sayed V/s State of Maharashtra” reported in 2004 ALL MR (Cri) 1 requires to be consider. Para 4 of the said judgment reads thus- “The prosecutrix, who claimed to be of 16 years of age, in her complaint to the police stated that the incident was of 20.02.2003 and she approached the police for filing the FIR on 24.02.2003. The FIR and the supplementary statement recorded indicates that, in the meanwhile, she had gone to the lady, who had lured her on two/three occasions, but did not choose to file any complaint with the police. It does not appear that she raised any alarm when she was allegedly molested by the accused persons in the night around 8 p.m. on 20.02.2003 near the Golf Club. The supplementary statement recorded by the police, if read in its totality, along with the FIR, indicates that the present applicant 3 is required to be released on bail. Whether the prosecutrix was a minor is an issue which will have to be decided by the trial Court. Her statement recorded by the police prima facie, does not reflect that she was not a consenting party. However, all these issues can be decided in the pending trial based on the evidence that may come before the Sessions Court. The view taken by the Court below does not appear to be reasonable.” 5. In view of this, as the material investigation is over and only formality of filing of charge sheet has remained and if the evidence of the victim is taken as it is, there are no chances of tampering of evidence. In the premise, case is made out to enlarge the applicant on bail. 6. In the result, application is allowed. The applicant be released on bail on his furnishing surety in the sum of Rs.15,000/- and on executing PR bond in the like amount. Applicant is directed not to contact or tamper the prosecution witnesses. (A.V.POTDAR, J.) drp/A10/criapln541-10