In the matter of B.A.K. vs The State of Maharashtra &Anr., the Bombay High Court on 02nd May 2022 granted bail to a man from Pune accused of raping his minor niece ago noting that the survivor though a minor at the time of the incident, was close to the age of majority and understood the repercussions of her actions.
FACTS LEADING TO THE CASE:
The mother of the 17-year-old victim girl filed a report in March 2019 alleging that the accused, who is the victim’s cousin uncle, forcibly took her daughter from college on a motorcycle and sexually assaulted her. The victim was also sexually assaulted two times in the past.
A crime was registered at the instance of the report under Sections 4, 6, 8, and 10 of the Protection of Children from Sexual Offences Act [POCSO], 2012 and Sections 376, 376(2)(n), 323, 506(2) of the Indian Penal Code (IPC).
Thereafter, the accused filed an application to the Bombay High Court seeking bail.
Counsel for the applicant accused argued that the applicant and the victim had a consensual connection, as evidenced by their mobile communication chat, which clearly reveals that they had an intimate relationship.
Counsel for the State claimed that the victim’s consent could not be considered because she was a minor at the time of the incident.
OBSERVATIONS OF THE COURT
- The Court observed that since the victim has not disclosed past sexual assault to anybody, it is evident that there was no force used for the alleged act. Moreover, the medical report does not suggest any use of force with the victim.
“No doubt, minor’s consent assumes no significance. However, prima facie, it is evident that it is not a case of force or use of compulsion for the alleged act. The medical report nowhere suggests that any force was used.”
- The Court found the pictures of the victim which were photographed by the accused which was known after 15 days from the lodgement of FIR and observed that the victim was a college-going girl and was at the verge of majority. Therefore, she has sufficient ken of understanding of consequences of her conduct and held that they had an intimate relationship.
- Considering the fact that the applicant had served three years in jail and to date, no charges have been framed against him, the Court granted bail to the accused.
– Vaishali Jain, Advocate & Associate – POSH at Work & Hamda Arfeen