1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2613 OF 2009 Dadasaheb S/o.Balaji Wagh, Age-65 years, Occu-Agriculturist, R/o.Satwad, Tal.Pathardi, Dist. Ahmednagar APPLICANT VERSUS 1. The State of Maharashtra, Through Pathardi Police Station, Pathardi, Tq.Pathardi, Dist. Ahmednagar 2. Raosaheb Kisan Pathak, Age-21 years, Occu-Agriculturist, R/o.Ghatshiras, Tq.Pathardi, Dist. Ahmednagar RESPONDENTS Mr.R.K.Temkar, learned counsel for applicant/original complainant Mr.N.B.Patil, learned counsel for respondent State. Mr.Joydeep Chatterji, learned counsel for respondent no.2/original accused, who is released on bail. (CORAM : A.V.POTDAR, J.) DATE : 18/12/2009 PER COURT : 1. By the present application u/s. 439(2) of The Cr.P.C., the applicant/original complainant has approached this Court, challenging the order passed in Cri.M.A. 853/2009 by which 2 respondent no.2 was released on bail by the Additional Sessions, Judge, Ahmednagar in an offence registered vide CR No.161/2009, registered in Pathardi Police Station. 2. Heard learned counsel appearing for applicant/original complainant followed by the submissions of learned APP appearing for State. Learned APP supports the contention raised by the counsel for applicant/ original complainant followed by the submissions of learned counsel appearing for 2nd respondent, the accused who was released on bail under the impugned order, the subject matter of the present application. 3. It is not disputed that the complaint came to be lodged by one Dadasaheb Balaji Wagh on 27/06/2009 about his daughter Satyasheela initially found missing from 25/06/2009 and who was at that time was sexually ravished by the present applicant with assistance of one Popat 4. In connection with the said offence, respondent no.2 appeared to be arrested on 27/06/2009. Immediately thereafter he moved an application before the Additional Sessions Judge, Ahmednagar for his release on bail on 02/07/2009 vide application no.853/2009 which came to be allowed by the impugned order passed by the Additional Sessions Judge, Ahmednagar dated 13/07/2009. 5. The main ground to challenge this order about the observation 3 in para no.3 and 4 of the impugned order wherein it is urged before the Trial Court by the learned APP, who appeared for State that even though the statement of the minor girl appeared that she willingly accompanied the accused, however she being minor girl, sexual intercourse though occurred with her consent amounts to the crime. In para no.4 of the impugned order, it is observed by the learned Trial Court that it appears that the girl willingly accompanied the accused and merely on that ground, the application came to be allowed on 13/07/2009. It is also urged across the bar that apart from these observations, after released on bail, by the co-accused, family members of the prosecutrix are repeatedly receiving threats that unless the case is withdrawn, there is danger to their life. 6. The charge sheet is already filed which contains the school leaving certificate of the prosecutrix in which her date of birth is shown as 28/11/1993. The alleged incident occurred either on 25/06/2009 or 26/06/2009. On calculation of days from the date of birth of the victim prosecutrix, as 28/11/1993 on the date of offence, her age is 15 years 7 months and some days. That means, the prosecutrix is below the age of 16 years. If the prosecutrix is minor at the time of alleged offence, even she is consenting party, it can not be said that no offence is to the credit of 2nd respondent who has allegedly committed the offence of rape as the complaint was registered u/s. 363, 366, 376 r/w. 34 of IPC. In the premise, before completion of investigation, the learned Trial Court ought not to have recorded the finding that it appears that the girl willingly 4 accompanied the accused and she is a consenting party to the acts committed by the present applicant. It appears that it is a patent error appeared to have committed by the Lower Court. 7. During the course of submissions advanced on behalf of the 2nd respondent, reliance is placed on the rulling reported in 2004 All MR (cri) 1, in the matter of Sayed Malloomiyah Sayed versus State of Maharashtra, wherein it is observed that “the supplementary statement recorded by the police, if read in its totality, alongwith the FIR, indicates that the present applicant 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.” 8. On plain reading of this ruling cited, which is silent on the point whether the prosecutrix in the case in which the application was moved before the Hon’ble Court was a consenting party to accompany the accused and a consenting party to the sexual abuse to the prosecutrix. In the premise, the facts of the present application are deferred from the facts of the application in the said rulling. Hence not applicable. 9. Apart from it, papers of investigation shows that after 27/06/2009, the prosecutrix was medically examined and during the 5 said medical examination, there are remarks of hymen ruptur which shows that the prosecutrix was sexually ravished soon before her medical examination and if it is so, at the time of alleged offence, if the victim is a minor and her consent if obtained under the pretext of marriage, then it can not be said that because of said consent the prosecutrix is consenting party. Also the family of the victim is receiving threats for withdrawal of the same complaint lodged by the complainant. 10. In the result, the order passed by the Learned Additional Sessions Judge, Ahmednagar in Criminal Application No.853/2009, dated 13/07/2009 is to be cancelled. The applications succeeds. The applicant to surrender before the concerned police station within the period of 2 weeks from today. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/DEC 2009/cri.appl.2613-09