1 Cri.Appln No.877/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 877 OF 2010 IN CRIMINAL APPEAL (STAMP) NO. 534 OF 2010 Sarfaraz Ahmad Siddiqui ...Applicant vs. The State of Maharashtra ...Respondent Mr.Aniket Vagal for the Applicant. Mr.J.P. Kharge, APP for the State. CORAM : V.M. KANADE, J. DATED : JULY 16, 2010 P.C. :- 1 Heard Counsel for the applicant and APP for the State. 2 The applicant has been convicted for the offence punishable under Section 376(1) of the IPC and sentenced to suffer RI for 7 years and to pay a fine of Rs.5000/- and in default, to suffer further 2 Cri.Appln No.877/2010 RI for three months. 3 It is the case of the prosecution that the raid was conducted by the police after they received information that a brothel was run by original accused no.1 in the said premises. When they entered the premises, they found the present applicant and one girl in a semi-nude condition. According to the prosecution, the girl was forced to be a sex worker by original accused no.1. The prosecution has examined the girl  PW 2 who has stated that the accused no.1 had brought the customer who had promised to give Rs.5000/- and that the applicant had sexual intercourse with her and at that time, the police came and arrested him. 4 It is submitted that there is a discrepancy in the statement of PW 1 and PW 2. It is submitted that PW 1 has stated that when the police entered the premises, they found the applicant and PW 2 in a 3 Cri.Appln No.877/2010 semi-nude condition. It is, therefore, submitted that the theory of rape does not establish. 5 I have perused the deposition of PW 1 and PW 2. From the said evidence, it appears that the applicant was a customer and he was brought by original accused no.1. From the evidence of PW 1 and PW 2, it does appear that therefore, there was consensus sex between the applicant and PW 2. The only allegation is regarding the age of the prosecutrix. The prosecution has brought on record the Birth Certificate at Exhibit 44 to show that the date of birth is 24 th December, 1993. Ossification test shows her age to be 13 to 14 years and PW 2 has stated that in her evidence that her age is 15 years. So far as ossification test is concerned, there is always a margin of error of 2 years on either side. If it is, therefore, established that the girl was above 16 years of age, there is possibility that the charge of 376 could not said to 4 Cri.Appln No.877/2010 be proved against the applicant. Taking into consideration these peculiar facts, the applicant deserves to be released on bail. The applicant was 23 years of age at the time when the said incident took place, that is the another aspect which needs to be considered while deciding the application for bail. 6 The applicant, therefore, be released on bail on execution of P.R. Bond in the sum of Rs. 5000/- with one or two sureties in the like amount. The applicant, however, shall report to the concerned police station once in a month. 7 Application is disposed of. (V.M. KANADE, J.)