VISHAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This first bail application under Section 439 of the Code of Criminal Procedure has been filed by the applicant for grant of bail in connection with Crime No.216/2020, registered at Police Station Parvati District Sehore, for the offence punishable under Section 363, 366-A, 376(2)(n) of IPC and Section 5/6, 16/17 of POCSO Act. Applicant is in arrest since 15/01/2021.

(2.) Counsel for the applicant submits that in view of the statement of the prosecutrix recorded under Section 164 of Cr.P.C she has very categorically stated that she had gone with the applicant voluntarily, got married with him and he made physical relation with her consent. He further submits that as per the case of prosecution at the time of the incident, the age of the prosecutrix was 16 years and one month and as such considering the Exception 2 of Section 375 of IPC sexual intercourse by a man with his own wife, not being under 15 years of age, is not rape. He submits that considering the said explanation and the case of the prosecution as prosecutrix herself has admitted that she got married with the applicant and was aged about 16 years one month, no case of rape is made out and the applicant is accordingly entitled to be released on bail.

(3.) Per contra, Shri Tiwari appearing on behalf of the State has opposed the bail application and submits that the consent of a girl below 18 years of age is no consent in the eye of law and if any physical relation is made to a girl who is below 18 years of age even with her consent amounts to a rape and as such application deserves to be dismissed.