Mandip Gyan Singh v. The State of Maharashtra and Anr.

1. Heard Mr. Shaikh, learned Advocate for Applicant, Ms. Newton, learned APP for Respondent No. 1 – State and Mr. Kadam, learned Advocate for Respondent No. 2.

2. This is an Application under Section 439 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking Regular Bail in connection with C.R.No. 208 of 2022 registered with N.R.I. Costal Police Station, Navi Mumbai for offences punishable under Sections 363, 376 (2) (j) (n) of the Indian Penal Code, 1860 (for short ‘IPC’) and Section 4,[8] and 12 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO’). Applicant is incarcerated for the past 1 year 6 months and 11 days. 1 of 13

3. Gist of prosecution case is that First Informant i.e. father of the prosecutrix lodged a missing complaint on the intervening night of 17.08.2022 and 18.08.2022. Prosecutrix went missing on 17.08.2022, family of the prosecutrix learnt about this when she did not return home on 17.08.2022. Mother of prosecutrix found that cash amount of Rs. 20,000/- from the house kept in the cupboard was missing. Prosecutrix returned back on 01.09.2022. She was dropped by the Applicant outside Panvel Police Station on the morning of 01.09.2022. She recorded her statement and was brought home. Prosecutrix aged 14 years states in her statement states that she was acquainted with Applicant since long and had a relationship with him. Applicant is 25 years old on the date of FIR. She states that she left her house and reached Mumbai to meet Applicant without informing her parents. She met Applicant and both travelled to Ekvira Devi Temple Karla, Lonavala, Pune where they stayed in a hotel room for 2 nights and then on 19.08.2022 Applicant took her to his friend’s house at Panvel, Raigad and both of them stayed there upto 30.08.2022. Two days thereafter Applicant’s friend returned back to Punjab (village of Applicant). On 30.08.2022 Applicant’s friend informed him on phone that police were investigating the missing complaint of prosecutrix and in that regard had apprehended his friend's brother in Punjab. When Applicant heard this, he immediately on the next day dropped the prosecutrix outside Panvel Police Station and left. She went to the 2 of 13 Police Station and recorded her statement. It is stated in her statement that during their stay together, Applicant forcibly committed sexual intercourse on multiple occasions. It is admitted by prosecutrix that both of them had a love relationship.

4. Mr. Shaikh, learned Advocate for Applicant would submit that prosecutrix and Applicant were acquainted with each other since long as Applicant used to live in the neighboring building and eventually both of them had a love relationship with each other as stated by her in her statement to the police and in her further statement to the Medical Doctor during her medical examination. He would submit that prosecutrix willingly accompanied Applicant and travelled with him to Pune and stayed with him for about 15 days. He would submit that she infact took money from her house before meeting Applicant which itself shows no sign of force and she being clearly aware of her own actions.

4.1. He would submit that there is a clear dichotomy in the statement recorded on 01.09.2022 appended at page No. 89 and her Section 164 statement recorded on 06.09.2022 appended at page NO. 103 of the Application. He would submit that prosecutrix has not made any allegation regarding any forceful act or coercion by Applicant. He would submit that prosecutrix clearly accepted her relationship with Applicant and this clearly shows and reflects that she was well aware 3 of 13 of her actions and their relationship was consensual in nature. He would submit that Medical Report appended at page No. 75 when read at page Nos. 77 and 78 dispels any such suspicion as there is no contrary evidence. Hence the prosecution story falls to the ground.

5. He would submit that Applicant does not have any criminal antecedents. He would submit that Applicant is not named in the FIR however FIR was initially lodged against an unknown person. He would submit that Applicant is arrested on 02.08.2023 and has been incarcerated for the past 1 year 6 months and 11 days. He would submit that investigation has been completed, charge-sheet has been filed, however trial has not yet commenced. Hence he would urge the Court to allow the present Application.

6. Ms. Newton, learned APP would persuade me to consider the age of prosecutrix since she was a minor at the time of incident and therefore her consent would not matter. She would submit that prosecutrix was 14 years old at the time of incident. She would fairly argue that in so far as maturity of the person is concerned, it would be directly proportional to the age of the person in today’s times. She would submit that facts of the case as delineated will have to be examined by the Court for consideration as placed on record in the present case. She would submit that there is every likelihood of the Applicant exploiting the vulnerability of the prosecutrix in the facts of 4 of 13 the present case and inducing her to elope with him without the consent of her parents. Hence she would submit that the Application be rejected.

7. Mr. Kadam, learned Advocate appointed for Respondent NO. 2 through the legal aid would persuade me to consider the minor age of the prosecutrix and argue that considering that facet it would be possible that prosecutrix was lured into a relationship by Applicant considering her immature age of understanding. He would submit that Applicant being a 25 years old adult took a chance and may have induced her into leaving her house alongwith the money without informing her parents. He would draw my attention to the statements of the prosecutrix appended to the medical examination report at page No. 75 and read at page No.76 of the Application and submit that Applicant assaulted her against her wish during their stay together on multiple occasions. He would therefore request that the Application be rejected.

8. I have perused the record with the able assistance of the learned Advocates at the bar.

9. It is prima facie seen that admittedly prosecutrix and Applicant were both known to each other well and infact prosecutrix’s own statement given to the Medical Officer and before the Magistrate under Section 164 confirms and endorses that they both were in a 5 of 13 consensual relationship despite she being below the age of 18. Further the fact that prosecutrix took an amount of Rs. 20,000/- from her house without informing anyone in her house and on her own volition travelled with the Applicant to Pune and also stayed with him for 15 days itself shows that she was aware about her actions and decisions as also consequences of the same.

10. It is prima facie seen that there is a clear dichotomy in the statements of the prosecutrix recorded on 01.09.2022 at page No. 89 and 06.09.2022 at page No. 103. Medical examination report at page No.75 prima facie shows no evidence of injury on the body of the prosecutrix. In view of the statements of the prosecutrix herself both before the police and Magistrate coupled with her medical examination report, prima facie it is seen that no overt act as alleged can be attributable to the Applicant. Prosecutrix on her own volition eloped with the Applicant as admitted by her.

11. Assistance is drawn from the decision of the Supreme Court in the case of S. Varadarajan v. State of Madras[1] wherein the Court in paragraph No.2 has held thus:-

12. In so far as the offences punishable under Sections 4,6, and 8 of POCSO Act (special law) are concerned, it may be stated that the provisions of this law are, though, stringent in nature, would not deter the Court to grant or refuse bail in order to secure the ends of justice. The conduct of the prosecution in this case is indicative of the fact that she left her home without informing her parents by her own will and also took Rs. 20,000/- from her house without informing anybody and surrendered to the physical desires of the Applicant out of her love and affection for him for 15 days when both of them stayed together. No doubt that the prosecutrix under the purview of POCSO Act is a minor, however the facts of the present case indicate that she had sufficient knowledge and capacity to know the full import of her actions and what she was doing and had only thereafter voluntarily joined and stayed with the Applicant for 15 days.