MANISH R. MISHRA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard learned Counsel for the applicant and learned APP for State.

(2.) It is an application under Section 439 of Criminal Procedure Code, 1973. Applicant is seeking enlargement on bail in Crime No. 503/2018 registered with Malad Police Station for the alleged offences punishable under Section 376(2)(n) of the Indian Penal Code read with Section 6 of the Protection of Children from Sexual Offences Act ("POCSO Act" for short). Applicant came to be arrested on 27th September, 2018. Victim at the relevant time was 17 years and 8 months old, a student, studying in Prakash College in Kandivali. Investigation is over and the chargesheet has been filed. I have perused the final report and in particular, the statement of victim dated 26th September, 2018 and report of the Medical Officer of the same date. In the narration to the Medical Officer, victim told that she had sexual contact for multiple times with the applicant voluntarily. It appears that, she did not disclose the incident of alleged "sexual assault" till her pregnancy was detected on 24th September, 2018. Though victim has alleged that, applicant had promised to marry her and therefore she had succumbed to his desires, it may be stated that efforts were made by this Court to settle the marriage of victim with the applicant. On 21st February, 2020 when victim was interviewed, she flatly denied to marry the applicant.

(3.) Be that as it may, as on the date of the incident, survivor was 17 years and 8 years old, a college going student. In these circumstances, it would be unreasonable to hold that, victim did not possess mental capacity to actively understand the nature/circumstances and consequences of the act as to which she had consented. Her statement to Medical Officer also reinforces the fact that she was in love with the applicant and voluntarily submitted to the physical desires of the applicant.