The Bombay High Court granted bail to a rape suspect on April 6, 2022, in the case of R.S.S. vs. The State of Maharashtra & Anr., noting that the 16-year-old victim was aware of the implications of her acts and that the accused had used a condom during sexual intercourse with her.

Facts leading to the case:

In September 2019, a complaint was lodged by the victim’s father against the accused, who was the brother of the victim’s friend, alleging that the accused had called her behind her house and had forcible sexual intercourse with her in May 2019 under the pretence that he loved her and wanted to marry her.

After investigation, charges were imposed against the accused under Sections 376 (Punishment for rape), 323 (Punishment for voluntarily causing hurt), and 506 (Punishment for criminal intimidation) of the Indian Penal Code [IPC] and Sections 4 (Punishment for penetrative sexual assault), 8 (Punishment for sexual assault), and 12 (Punishment for sexual harassment) of the Protection of Children from Sexual Offences Act [POCSO], 2012, and Section 3(2) (va) (Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1984.  Thereafter, the accused was arrested and kept in custody since then.

Aggrieved by this, a bail application was filed in the High Court.

Counsels Arguments:

The counsel for the applicant (accused) contended that the victim although a minor, but had attained the age of understanding the nature and consequences of the act. Further, it had been evident from the medical history and the victim’s testimony that the relationship was consensual between the accused and the victim.

The APP assisted by the respondent’s (victim’s) counsel argued that the victim was a child within the meaning of the POCSO Act, and so her consent was irrelevant. The applicant has taken advantage of being an acquaintance and has sexually abused the victim which aspect is supported by the medical evidence.

Observation of the Court:

• The Court stated that the victim was under the age of 18 and thus falls under the definition of “child” as defined by the POCSO Act and that she was 16 years and 5 months old at the time of the assault, indicating that she was cognizant of the consequences of her actions.
• The Court found that the Applicant had used protection (condom) during the relationship, as evidenced by the medical report in Clause 15(F) which suggests that the Applicant was not engaged in physical intercourse with the victim under force or coercion.

Since the accused had been in custody for more than two years, he was granted bail in exchange for a 25,000 surety.

Vaishali Jain, Advocate & Associate – Child Safety at Work & Surbhi Singh.