The Bombay High Court recently granted bail to a rape accused after noting that the 16-year-old victim knew about consequences of act and the accused had used a condom while engaging in sexual intercourse with her.
Single-judge CV Bhadang was hearing a bail application of the accused who was arrested by the Kolhapur police on September 9, 2019 and had been in custody since then.
Justice Bhadang stated that though the victim was below 18 years of age making her a minor under the Protection of Children from Sexual Offences Act (POCSO Act), she was 16.5 years and was aware of the consequences of her action.
"It is necessary to note that the victim had attained the age of 16 years and 6 months and ought to be aware of the nature and the consequences of the act. There are circumstances to indicate that there was no element of force or coercion at the instance of the Applicant in having physical relations with the victim. It is significant to note that the medical report vide Clause 15(F) shows that the Applicant had even used protection (condom) during the relationship," the Court noted.
Justice Bhadang also observed that the accused been in custody for over two years and proceeded to grant him bail subject to furnishing a surety of ₹25,000.
According to the prosecution case, the victim was 16 years and 6 months of age at the relevant time when the FIR was lodged by her father.
The accused was victim's friend's brother and was acquainted with him.
In May 2019, the victim stated that the accused had called her behind her house where he forcibly raped her on the pretext that he was in love with her and wanted to marry her.
This continued for a few months and eventually, the victim's father learnt about the relationship and filed an FIR against the accused.
Advocate Paras Yadav, appearing for the accused, pointed out that the victim though a minor, had attained an age which made her capable of understanding the nature and the consequences of the act. He further relied upon the medical reports of the victim, which he said indicated that the relationship was consensual.
Countering the contentions, additional public prosecutor AR Kapadnis argued that the victim was a "child" within the Protection of Children from Sexual Offences (POCSO) act and that the accused abused her sexually on multiple occasions.
The Court accepted the contentions of the accused and proceeded to grant bail to him.