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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

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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 2^nd 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

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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 2^nd 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 fi