1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1364 OF 2010 The State of Maharashtra ...Applicant Versus Ganesh s/o Ramnath Thokal ...Respondent ..... Mr. N.R. Shaikh, A.P.P. for the applicant-State Mr. A.R. Borulkar, advocate for respondent ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATED: 10TH AUGUST, 2010 PER COURT:- 1 We heard learned A.P.P. Mr. Shaikh for the applicant-State and Mr. Borualkar, learned counsel for the respondent sole. 2 The respondent was charged and tried for the offences punishable under Sections 363, 366 and 376 of I.P.C. in Sessions Case No. 156 of 2009. On trial, the learned Sessions Judge, acquitted the respondent sole, by its judgment and order dated 1.1.2010. 2 3 With the assistance of the counsel for the parties, we have carefully considered oral evidence of prosecutrix herself, PW 7 father of the prosecutrix, evidence of PW5 Head Master of the school, who had issued two certificates in relation to date of birth of the prosecutrix and evidence of Investigating Officer. Counsel for the respondent points out omissions amounting to contradictions in the evidence of prosecutrix. All these omissions and contradictions initially have been marked by the learned Judge by letters A, B, D and E. All these omission(s) amounting to contradictions have been proved in the evidence of Investigating Officer and collectively they are marked at Exh.42. 4 We have also noticed two certificates issued by the school concerned. One on letter head and another is on plain piece of paper. One certificate shows that the colour photograph of the prosecutrix is pasted on it. Other is without photograph. These certificates are proved in the evidence of Head Master, PW 5 at Exh. 24 and 25, which mentions the date of birth of prosecutrix as 14.10.1993. 5 Counsel for the respondent submitted that prima facie, offence under Section 363 cannot be said to have been proved. Section 376 carries more stringent punishment. We have considered Section 376 of I.P.C.. We have also considered the material/evidence for offence under Section 363 (kidnapping). In our view, case for grant of leave to 3 file appeal, as prayed by the applicant and direction to Registry to treat this criminal application as criminal appeal, is established. 6 Criminal application is allowed in terms of prayer clause “B” and “D” and disposed of. We make it clear that the leave to file appeal is granted. This application to be treated as appeal. 7 We direct action under Section 390 of Cr.P.C.. The respondent shall be released on furnishing P.R. bond in the sum of Rs.15,000/- with one surety in the like amount. Learned Principal District and Sessions Judge, Aurangabad shall secure the presence of the respondent once in a quarter. Such quarter shall commence from 1.9.2010 onwards. ( S. S. SHINDE. J.) (S.B. DESHMUKH, J.) rlj/