2023:BHC-AS:31877 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO.2423 OF 2023 RAHUL SHIVAJI KANAGE ..APPLICANT VS.

THE STATE OF MAHARASHTRA AND ANR. ..RESPONDENTS ------------

Adv. Manisha Devkar a/w Adv. Siddhi Patil for the Applicant.

Ms. Veera Shinde, APP for the State.

Adv. Keral Mehta for respondent No.2.

API Ganesh Chaudhari, Akluj Police Station, District Solapur.

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CORAM : M. S. KARNIK, J.

DATE : OCTOBER 23, 2023 P.C. :

1. Heard learned counsel for the applicant, learned APP for the State and learned counsel for respondent No.2.

2. This is an application for bail in respect of the offence punishable under Sections 376, 376(2)(i), 363, 366(A) of the Indian Penal Code (hereafter ‘IPC’ for short) and under Sections 4, 8 of the Protection of Children from Sexual Offences Act, 2012 (hereafter “POCSO Act”, for short) registered on 31.05.2023 vide C.R. No.415 of 2023 with Akluj Police Station, District Solapur.

3. The FIR was registered on 31.05.2023 by the mother of the victim. The victim’s statement was recorded on

01.06.2023. At the relevant time of the incident the victim was 13 years and 9 months of age. The applicant at the relevant time was 22 years of age. The applicant was previously married and has a 5 years old child. The applicant's wife however died due to some complications that happened as a result of the appendix operation as per the information supplied by the learned APP on instructions. 4. Learned APP and learned counsel for respondent No.2 opposed the application for bail. It is submitted that the victim being a minor clearly stated in the statement recorded under Section 161 of the Code of Criminal Procedure (hereafter “the Cr.P.C.” for short) about forcible sexual intercourse that the applicant had with the victim against her wish. It is submitted that the victim being a minor her consent is immaterial.

5. So far as the accusations are concerned, the victim who is a minor stated that she called up the applicant on 20.05.2023 and told him that the two of them should elope to get married. The applicant accordingly went to the house of the victim. Thereafter they eloped. In the statement of the victim recorded under Section 161 of the Cr.P.C. it is stated that the applicant had forcible sexual intercourse with her. Thereafter on the basis of the missing complaint the applicant and the victim were traced and the statement of the victim was recorded on 01.06.2023. As mentioned in the medical history, the applicant stated that there was no sexual intercourse of the victim. The statement under Section 164 of the Cr.P.C. was recorded on 03.06.2023. In the statement it is stated by the victim that she knew the applicant since childhood. It is the victim who told the applicant on 20.05.2023 that she wants to stay with him. Thereafter the applicant took her to Pune where he said that they could get married. In the statement recorded under Section 164 of the Cr.P.C. the victim has stated that there was no sexual intercourse which took place between them. Considering the age of the victim her consent even otherwise is immaterial. Prima facie, as the material stands, there is no history of any sexual intercourse by the applicant in the medical history or under Section 164 statement of the victim. The applicant was arrested on

02.06.2023 and is in custody since then. The investigation is complete and the charge-sheet has been filed. There are no criminal antecedents reported against the applicant. The applicant does not appear to be a flight risk. In the facts and circumstances of the present case I am inclined to enlarge the applicant on bail. Hence, the following order :-