Though Minor, She Understood Consequences Of Her Act & Voluntarily Accompanied Him: Bombay High Court While Granting Bail To POCSO Accused

"It appears that the applicant though minor, was capable of understanding the consequences of her act and she voluntarily accompanied the applicant to her aunt's place," Justice Bharati Dangre noted in her order.

On April 29, 2021 the prosecutrix disclosed the incident to her family after her sister found her chatting with the applicant on WhatsApp. Her mother filed a criminal complaint against the accused.

The applicant was arrested last year for offences under Sections 363, 376, and 506 of IPC and sections 4, 8 and 12 of the POCSO Act.

In her statement, the prosecutrix said that she and the applicant were in a relationship. According to her statement, on April 6, 2021, she went with the applicant to his aunt's house in Govandi where he committed sexual intercourse with her without her consent and threatened her not to disclose the incident to anyone.

After going through the charge sheet, the court said that while minor's consent is immaterial, she was capable of understanding the consequences of her act and she voluntarily accompanied the applicant to his aunt's place.

"In a case like this, where she voluntarily joined the company of the applicant, and she had categorically admitted that she was in love with the applicant, whether that she consented for the sexual intercourse or not, is the matter of evidence," the court said.

Continuing, the court said, "Till what point of time, she accompanied the applicant and whether she resisted the actual physical indulgence, when according to her, the applicant forcibly committed sexual intercourse with her against her wishes, will have to be determined".

The court further noted that she kept quiet about the alleged incident until her family objected to her WhatsApp chat with the applicant.

"The time gap between these two events is also crucial as it was always open for the prosecutrix to disclose the aunt about the forcible act if it was committed in her house, but she continued to remain silent and disclosed the incident only when an objection was taken for she establishing contact with the applicant," the court said.

The court added that the applicant is a young boy and it cannot rule out "the possibility of him being smitten by infatuation". It further observed that the trial may take considerable time and he doesn't need to be further incarcerated "though he may take the consequences of the accusations levelled against him".

Therefore, the court granted bail to the applicant on the condition that he will not contact or attempt to contact the prosecutrix either physically or virtually, and move away from the area where the prosecutrix resides.

Case no. – Bail Application No. 3372 of 2021

Case Title – Faizan Wahid Baig v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 452