'Victim Had Attained Age Of Understanding': Bombay HC Grants Bail To Man Accused of Raping Minor Girl By Giving False Promise To Marry

The Bombay High Court granted bail to an accused of raping a minor girl by giving false promise to marry.

The Prosecution alleged that the Accused had forced physical relations upon the Victim with a false promise to marry. The Court, however, noted that the victim had reached the age of understanding and was aware of the consequences of her actions.

“In any case, it appears that the victim on the date of the incident had attained the age of understanding. She was in a position to understand the consequences of her act. The accused has taken the defence of consensual act. In my view, at this stage, the said defence cannot be accepted. However, in the totality of the facts and circumstances, the accused cannot be denied bail”, the Bench of Justice GA Sanap observed.

Advocate Prabhanjay R. Dave appeared for the Applicant and Additional Public Prosecutor Pallavi N. Dabholkar appeared for the Respondent/State.

The Applicant/Accused approached the High Court seeking bail in a case registered for offences punishable under Sections 376(2)(n) of the Indian Penal Code (IPC) and under Sections 4, 8, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The Applicant contended that despite ample time granted, the prosecution has not obtained a DNA report due to the non-collection of the child's sample. According to the ossification test report, the Medical Officer certified the victim's age to be between 17 and not more than 18 years. The Petitioner asserted that the victim, being aware of her actions, engaged in a consensual act. The Petitioner emphasized that he has been in custody for 2 years and 10 months, and even considering the ossification test, there is a margin of 2 years on either side of the age.

The Respondent argued that the victim was a minor at the time of the crime. Per the FIR the Applicant, under the promise of marriage, had forcibly established physical relations with the victim.

The Court, after analyzing the facts and evidence, noted that the victim had reached the age of understanding on the incident date. Nevertheless, given the circumstances, the Court observed that the denial of bail was unwarranted. Therefore, the Court observed that the continued incarceration was deemed unnecessary.

Accordingly, the Court allowed the Bail Application.

Cause Title: Surender Vijay Paswan v State of Maharashtra and Anr (2023:BHC-AS:34959)

Click here to read/download Judgment