‘Victim had sufficient knowledge, full capacity to know import of her actions’; Bombay HC grants bail to 24-year-old accused of raping his then 14-year-old girlfriend

Bombay High Court: In a bail application filed by a 24-year-old who was incarcerated for more than five years for allegedly raping his 14-year-old girlfriend when he was 19 years old, a Single Judge Bench of Milind N. Jadhav, J., allowed the application holding that the victim had sufficient knowledge and capacity to know the full import of her actions and had voluntarily stayed with the accused.

Background

Allegedly, the victim, the daughter of the complainant, aged 14 at the time, informed the complainant that she was going to visit her sister. When the complainant did not hear from the victim for four days, he inquired and found that the victim had visited her sister on the first day but later left her house and never returned. He found the victim roaming with the accused, aged 19 at the time, due to which he filed the FIR under Sections 363¹ and 376² of the Penal Code, 1860, read with Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’).

According to the victim, she and the accused were in a relationship for 2 years. She had been with the accused for three days and three nights, and on the third night, the accused ravished her modesty. In the medical report, she narrated that she and the accused had a consensual relationship, including the incident in respect of which the present complaint was filed.

Analysis

The Court stated that prima facie, there was a clear difference between the victim’s and the complainant’s statement. The Court noted that the victim changed her statement regarding the fate of the alleged incident. Further, the victim knew the accused, as he used to work at the same hotel as the complainant.

The Court also noted that one witness statement was of the hotel owner, who had warned the accused during the three days that the victim was missing, stating that if he continued his relationship, he would be fired. Therefore, on reading the FIR, prima facie, the complainant was aware of her love relationship with the accused.

Regarding the charges under POCSO, the Court stated that though the provisions were stringent, they did not deter the Court from granting or refusing bail in order to secure the ends of justice. Further, the prosecution’s conduct was indicative of the fact that the victim left her home by her own will without informing her parents and stayed with the accused for four days. The Court remarked that, undoubtedly, she was a minor however the facts indicated that she had sufficient knowledge and capacity to know the full import of her actions and had voluntarily stayed, travelled, and had a sexual encounter with the accused. In this regard, the Court relied on Sunil Mahadev Patil v. State of Maharashtra 2015 SCC OnLine Bom 6204, wherein the Court held that consent of the minor prosecutrix was a mitigating circumstance for the Trial Court to consider, especially while dealing with bail applications.

The Court reiterated that while deciding a bail application, the Court has to keep in mind that the principal rule of bail was to ascertain whether the accused was likely to appear before the Court for trial. Other broad parameters like the gravity of the offence, the likelihood of the accused reoffending while on bail, whether he would influence the witnesses and tamper with the evidence, and his antecedents, were also required to be considered in such cases. The Court added that there were multiple decisions of the Supreme Court and various other Courts favouring the release of young offenders on bail pending trial so that the regressive influences of the jail environment could be avoided and keeping in mind the principle of best interest.

The Court remarked that it was crucial to consider whether the act between the parties was violent or otherwise, and in the present case, it was not. Other mitigating factors were that the accused had no antecedents and had been incarcerated for more than 5 years.

Thus, the Court allowed the petition and granted bail to the accused upon furnishing a bail bond of Rs 15,000.

[Vijay Chand Dubey v. State of Maharashtra, Criminal Bail Application No. 3899 of 2024, decided on 17-02-2025]

Advocates who appeared in this case :

For the applicant: Prem Kumar Pandey, Pavan Kumar Pande, Sneha Mishra and Kajal Mishra

For the respondent: Manisha Arjun Devkar

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