This single-paragraph order rejects an application for anticipatory bail for the accused charged with rape of a girl under 15. The High Court held that prima facie evidence regarding the age of the prosecutrix established an offence under Section 376 IPC, precluding bail.
Application for bail is rejected.
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mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 211 OF 2008
Mustaq Hakim Shaikh .. Applicant
versus
State of Maharashtra .. Respondent
Mr.A.S. Khandeparkar for the applicant.
Mr.K.V. Saste APP for the State.
CORAM : D.G.KARNIK, J
DATED : 18th February 2008
P.C.:
1. Heard.
2. The applicant has been arrested in
connection with the offence registered against him
with Byculla police station under C.R.No.54 of 2007
for alleged offence punishable u/s.363, 366, 376 r/w
sec.34 of the IPC. The prosecution case is that on
23rd February 2007, the applicant forcibly took away
the prosecutrix Taslim Baby and had a forcible
intercourse with her. Learned counsel for the
applicant invited my attention to the supplimentary
statement of Taslim Baby as also of the land lady of
the premises where she was alleged rape and submitted
that the intercourse was consensual.
3. Learned APP however submitted that on the
date of incident the prosecutrix was less than 15
years of age and relied upon a copy of the
certificate of birth which says her birth date to be
26th February 1992. As per the birth certificate the
prosecutrix was under age girl of less than 15 years.
In the circumstances, prima facie offence u/s.376 is
made out. Hence, in my view, the applicant is not
entitled to bail at this stage.
4. The learned Sessions Judge vide his order
dated 15th November 2007 has rejected the application
for bail. Though the aspect as to the age of the
applicant is not discussed by the learned Sessions
Judge, in view of the prima facie evidence regarding
the age of the prosecutrix I am of the view that the
applicant is not presently entitled to bail. Hence,
application for bail is rejected.
(D.G. KARNIK, J)
1 issue framed by the court
Whether the applicant is entitled to bail in a case involving rape of a girl under 15 years of age.
Mustaq Hakim Shaikh
State of Maharashtra
D.G. KARNIK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court