IMPORTANT POINT
Bail – Courts have favoured release of young offenders on bail pending trial so that regressive influences of jail environment can be avoided and keeping in mind principle of best interest.

JUDGMENT

Milind N. Jadhav, J.—Heard Mr. Prem Kumar, learned Advocate for Applicant and Ms. Devkar, learned appointed Advocate for Respondent No.2.

2. Applicant - accused has filed the present Application for regular bail in connection with Crime No. 551 of 2019 registered with D.N. Nagar Police Station for the offences punishable under Sections 363, 376 of IPC (Indian Penal Code, 1860) r/w Sections 4 and 8 of the POCSO (Protection of Children from Sexual Offences Act, 2012). First Informant is the father of victim. Date of occurrence / incident is from 19.11.2019 to 25.11.2019. Applicant is arrested on 25.11.2019 and is incarceration for 5 years 2 months and 23 days.

3. It is stated in the FIR that victim who is daughter of first informant aged 14 years old informed the First Informant that she was visiting her married sister staying at Andheri. Victim at that time was residing in Malad. Since the First Informant did not hear anything from victim for the next 4 days he asked his younger daughter to enquire about her whereabouts at that time. Younger daughter came back and informed the First Informant that victim had on the first day visited her elder sister’s house but immediately after sometime left the said house and thereafter never returned there. First Informant states that he found the victim alongwith the applicant roaming near Juhu Chowpatti 4 days later and get her back home persuant to which FIR is lodged.

4. Statement of victim is appended at page No.60, reading of which prima facie it is seen that there is a clear variance with respect to the statement made in the FIR by victim’s father. That apart the statement given by the victim during her medical examination also throws light on the nexus of the victim with the Applicant though the victim was 14 years of age and Applicant was 19 years at that time.

4.1. According to victim both of them known to each other for the past 2 years prior to the incident and had developed a love relation with each other. Insofar as the incident is concerned all that is stated in the statements as per record is that for three days and three nights the victim wandered along with the Applicant and on the 3rd night Applicant ravished her modesty and committed assault on her. Prima facie the statement appears to be suspect.

4.2. The Medical report of the victim is appended at Page No.100 wherein the victim has given a detailed statement of her encounter in which she categorically narrates that she and Applicant in fact had a consensual relationship as also the incident in respect of which complaint has been filed.

4.3. It is seen that victim had also changed her statement with respect to the precise date of which the alleged incident took place. That apart it is seen that victim was clearly known to Applicant as the Applicant used to work in the same hotel where victim’s father was working and in fact on reading the statements of witnesses which have been recorded out of which one witness statement is of the hotel owner it is seen that he had also warned the Applicant during one of the three days during which the victim was missing by calling and informing him that if he continued with his relationship with the daughter of First Informant, he shall be fired from the job. Therefore on reading of the FIR it is prima facie seen is that the father of victim was aware about her love relationship with the Applicant.

5. Though Ms. Devkar, learned appointed Advocate on behalf of Respondent No.2 – victim would submit that the age of the victim being 14 years, her consent in any other way would not matter. However, from the victim’s own statement it is seen that she was quite aware about her actions and she has stayed with the Applicant for more than 3 days and 3 nights and most importantly has stated that they had a consensual encounter.

6. Assistance is drawn from the decision of the Supreme Court in the case of S. Varadarajan v. State of Madras, AIR 1965 942 wherein the Court in paragraph No.2 ha