The Bomaby High Court has granted bail to a man accused of raping his minor cousin noting that it will give a 'realistic chance' to to reform himself.

The Court was considering a Bail Application filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail to Applicant jailed for offences punishable under Sections 363, 376(2) (f) (j) (n) and 376(3) of the Indian Penal Code, 1860 and under Sections 4, 6, 8 of the Protection of Children from Sexual Offences Act, 2012.

The single-bench of Justice Milind N. Jadhav observed, "if a chance is given to the Applicant because of his young age by enlarging him on bail, there is a possibility that he will be remorseful and repent in retrospect. This is a chance required to be taken by the Court because punishment has to be believed to be inflicted for a reformative result rather than being punitive in nature. Undoubtedly the trial will determine the punishment for the offence. While considering Bail Application in such facts, Court feels that reform and rehabilitation of the under trial accused needs to be considered especially when age of the accused is young so that the accused gets an opportunity / or is given an opportunity to reform, rehabilitate and earn his livelihood honorably from the perspective of social integration."

The Petitioner was represented by Advocate Rahul A. Siddiqui while the Respondent was represented by Additional Public Prosecutor Shilpa K. Gajare.

Facts of the Case

Prosecutrix, the 14 years old orphan minor girl alleged three incidents. Three years prior to the incidents in question, she and her younger sister came to live with the family of the Applicant for Applicant’s father and Prosecutrix’s father are brothers. Prosecutrix, Applicant, Applicant’s two elder brothers, younger sister of prosecutrix, Applicant’s parents all resided together.

Prosecution's case was that some time in the month of April 2023 on one afternoon at 3:00 p.m. when prosecutrix was sleeping in the hall and mother of Applicant was sleeping in the bedroom, Applicant was present in the house. He at that time bolted the latch from the outside of the bedroom and slept near the prosecutrix and started touching her inappropriately. According to prosecutrix, he removed her jeans and clothes but because she was in deep sleep she did not realise anything. Thereafter Applicant ravished her modesty forcibly against her wish despite her protest and questioning and when she attempted to shout he forcefully shut her mouth with his hand and after committing the act left the house. In the FIR, the prosecutrix further stated that after 10 days thereafter in the month of May 2023 on two occasions, on finding the prosecutrix alone at home in the afternoon, Applicant had forcible sexual intercourse with her against her wish. According to prosecutrix, she kept quiet about the three incidents since she was scared and at the mercy of the Applicant’s parents living in the house. Hence she did not reveal the incidents to anyone. Record shows that until July 2023, prosecutrix attended her 10th standard tuition classes regularly but thereafter stopped attending the classes. Resultantly one of her friend whose statement is recorded visited her house inquired about the reason for her long absence she confided in her that she was pregnant and asked her help. According to prosecution case, her friend narrated her ordeal to her mother and father whose statements have also been recorded. Eventually, an FIR was lodged into the incident.

The APP argued that act of Applicant is heinous in nature. She would submit that Applicant has taken advantage of the vulnerability of his own cousin sister and committed a horrendous act of a serious nature which qualifies as an act against the Society at large and one having the potential to shock the conscience of the society and erode trust in a sacred relationship. She submitted that Applicant would be a potential threat to influence witnesses in the case and tamper with evidence if released on bail. Hence she submitted that the Application be rejected.

Reasoning By Court

The Court at the outset observed that considering the spot panchanama of the place of incident, the discrepancy noted in the statements of the prosecutrix, the statement given to the Medical Counselor and the age of the Applicant, it is inclined to consider Applicant’s case for grant of bail.

It questioned the silence of the prosecutrix, calling it 'deafening'.

"The question before the Court that remains unanswered is why did the prosecutrix keep silent from April 2023 upto August 2023. It is seen that prosecutrix was a student of 10th Standard she was regularly attending her tuition classes upto 20.07.2023 according to her own statement. The only reason stated is that she was scared to reveal about the incidents," the Court observed.

"From the record though there is some discrepancy observed in the statements of the prosecutrix regarding the happening of the incidents / multiple incidents, what intrigues the Court is whether further incarceration of the Applicant is required and if not then why? On one hand is the case of the prosecution and on the other hand is the age of the Applicant. Considering the age of prosecutrix and the difference in age between the prosecutrix and Applicant being 4 years only at the time of the incidents, there is every possibility that the nubile age of the parties may have led to multiple incidents. Silence at the time of incidents and immediately thereafter is somewhat deafening. However, silence of the prosecutrix until August 2023 when she was otherwise behaving normal is what intrigues the Court," the Court further observed.

Noting that although delay in filing FIR is not fatal to the prosecution case as there may be a cogent reason for the same, the Court was however impelled to consider the Applicant’s case for further incarceration because of his young age.

"In view of my above prima facie observations borne out from the record, silence of Applicant and discrepancy noted herein above coupled with and considering the age of the Applicant, I am of the opinion that in the above facts further incarceration of the Applicant in prison would amount to giving him punishment before conviction. The Applicant’s family is residing in Mumbai since the year 2007 at the said address in Wadala. Considering Applicant’s age and if he is enlarged on bail Court is hopeful that Applicant’s family will undoubtedly do their duty to make every effort and attempt to reform and aid the Applicant in leading a reformed life while on bail rather than keep him in prison and expose him to criminal outlook and life in prison. It is prima facie seen that the disadvantaged background of the prosecutrix being an orphan has exposed her to the vagaries of the situation in the present case," the Court observed.

It opined that the incarceration of the Applicant in prison considering his young age is likely to worsen his likelihood ofsuccess in every sphere of society and it will expose him to abuse and thereby granted bail to him.

The Application was accordingly allowed.

Cause Title:

Appearances:

Applicant- Advocate Rahul A. Siddiqui

Respondent- Additional Public Prosecutor Shilpa K. Gajare, Advocate Huma Akhtar Shaikh, PSI Atmaram T. Kadam

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Bombay High CourtJustice Milind Jhadav

Sheetal Joon