IMPORTANT POINT
The court reaffirmed that consent is not a defense in cases involving minors under the POCSO Act, emphasizing the importance of protecting children from sexual exploitation regardless of any perceived consent.

JUDGMENT/ORDER

1. Present Criminal Appeal is fled by the Appellant calling in question his conviction under Sec. 363, 366A, 376(2)(n) of the Indian Penal Code read with Sec. 4 and 6 of the Protection of Children from Sexual Offencs Act (POCSO) and the sentence imposed upon him, in Special Sessions Case No.371 of 2015.

In the CR which was registered against him on the complaint of the father of the victim with Chaturshrungi Police Station on 21/8/2015, he came to be arrested on 23/8/2015 and as on date, it is informed that he has undergone imprisonment for 8 years and 10 days out of the total sentence imposed on him under the impugned Judgment for a period of 10 years.

2. The Appeal fled by the Appellant was admitted on 10/2/2020. He moved an interim application seeking suspension of sentence and for release on bail, during the pendency of the Appeal. The Application was heard by J. Prakash Naik, who was on the Bench at the relevant time and on 26/4/2022 by considering the fact that the Applicant is in custody for a period of 6 years and 8 months and on consideration of the merits of the matter, to the effect that the victim had admitted in her evidence that there was friendship between her and the accused, which converted into love affair and though he maintained physical relationship with her against her will, it was recorded that the FIR was registered on realising that the victim had conceived. A further observation in the said order is of signifcance and the same reads as under :-

<WXY>"The prosecution is relying upon the birth certifcate produced by the victim girl while recording her evidence. According to defence source of said document is not established. No person from the offce from which the birth certifcate was obtained has been examined by the prosecution."</WXY>

However, considering the period of incarceration the Appellant was directed to be released on bail. He was also permitted to furnish cash bail with some other conditions being imposed on him.

3. The Appellant once again fled another Interim Application, securing his release as he was unable to comply with the conditions subject to which he was directed to be released on bail, and hence he continued to be incarcerated. In this background, I was taken to the order passed by the Apex Court in case of "In Re policy Strategy for grant of bail" to tackle with the situation when an accused is unable to furnish the sureties for any reason and particularly on account of poverty. I took note of the directions issued to the DLSA. The learned counsel for the Appellant submitted before me that if he is released on bail, he shall furnish the sureties and it is the discretion of the Court to grant him temporary bail for a specifc period, so that he can furnish fresh bail bond or sureties.

4. Before I could ponder upon the said argument, I asked the learned APP to take instructions whether the Appellant is entitled to his release by taking into account the remission to be awarded to him.

On 12/9/2023, the learned APP Mr. Agarkar placed before me a report from the Prison Offcer, Yerwada Central Prison and it was informed that the Appellant is entitled for remission of one year, 3 months and 13 days and by taking the same into account, he is stated to have undergone sentence of 9 years 3 months and 23 days as on 31/8/2023.

Upon such information being placed before the Court, the learned counsel for the Appellant made a request that since Record and Proceedings is received alongwith the paper book, let the Appeal itself be heard.

Accepting the said request, the Investigating Offcer was directed to serve notice upon Respondent No.2 about the matter being taken up for fnal hearing since Advocate Mr. Prosper D'souza was appointed to represent her. The Appeal was, therefore, directed to be listed for fnal hearing on 29/9/2023. It is in this background, the Appeal was taken up for fnal hearing.

5. I have heard Mr.Adwait Bhonde, learned counsel for the Appellant, Mr.Prosper D'souza, the