Relationship Seems Out Of Attraction, Not Assault Out Of Lust: Bombay HC Grants Bail To Man Accused Of Kidnapping, Raping 13-Yr-Old Girl

The Bombay High Court has granted bail to a man accused of raping a 13-year-old child observing that they had a love affair, and the alleged sexual relationship appears to be out of attraction and not lust.

Justice Urmila Joshi-Phalke of the Nagpur Bench observed that the girl stated that she voluntarily left her house and stayed with the accused who is also of a 'tender' age of 26 years.

“Thus it is apparent that, out of the love affair, she joined the company of the present applicant. The applicant is also of a tender age of 26 years and out of love affair they come together. It seems that, the alleged incident of sexual relationship is out of the attraction between the two young persons and it is not the case that applicant has subjected the victim for a sexual assault out of lust”, the court observed.

The bail applicant Nitin Damodar Dhaberao is booked under Sections 363, 376, 376(2)(n), 376(3) along with Section 34 of the IPC, and Sections 4, 6, and 17 of the Protection of Children from Sexual Offences Act, 2012.

The victim's father reported his 13-year-old daughter missing on August 23, 2020. According to him, she left her home on the pretext of retrieving a book but did not return, and he could not trace her.

After the police traced her, she stated that she and the accused, her neighbour, had a romantic relationship, and he asked her to come along with him on the promise of marriage. She took ornaments and cash from her house and joined the applicant and they stayed at various places.

On August 29, 2020, she disclosed that she is in Bangalore in a call with her grandmother. The crime was registered at the Police Station, Anjangaon Surji, District Amravati and the applicant was arrested on August 30, 2020. The charge-sheet was filed on October 26, 2020.

Advocate SS Jadhav for Dhaberao argued that the victim, despite being underage, had voluntarily left her parents' house due to a love affair with the accused and there was no intention to breach any promise. He emphasized that the victim made no claims of forceful sexual intercourse, and there was no evidence of external injuries according to medical certificates. Further, there was no physical relationship between them, he said.

APP AR Chutke for the State argued that the victim's age rendered her consent irrelevant. Though she left her house on her own, the accused is a mature person and knowing the consequence of his act subjected her to forceful sexual intercourse, he argued. Advocate Deepali P Shahare for the victim supported his contentions.

The court noted the lack of progress in the trial since the filing of the charge-sheet. While recognizing that the victim's consent is irrelevant due to her age, the court noted that the statements recorded by the investigating officer indicated her voluntary departure from her home. The court concluded that the alleged incident appeared to result from a consensual relationship between two young individuals rather than a case of forceful assault.

Consequently, the court allowed Dhaberao's bail application upon executing a PR bond of Rs. 25,000 with one solvent surety of a similar amount.

Case no. – Criminal Application (BA) No. 718 of 2023

Case Title – Nitin Damodar Dhaberao v. State of Maharashtra