Mumbai HC finds ‘mitigating circumstances’ in rape case, accused gets bail

“If the girl is a minor between the ages of 15 and 18 years, and if it can be safely inferred that her consent was obvious, then it has to be looked as mitigating circumstance.”

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The order by Justice Mridula Bhatka reads, “The offence of rape can be distinguished on the basis of intention of the accused. There are incidents of rapes committed by a gang like the case of Nirbhaya or Maya Thagi or Mathura, which cannot be forgotten by Indian society. So also rape committed in a savage manner or repeatedly by a single accused…” before distinguishing rape between two individuals in love.

The High Court observed that the trial court took a strict approach and denied bail to the accused, especially after the Nirbhaya case, on the ground that the victim being minor, her consent was immaterial. “This is a matter of concern.” the court said.

It said that while the law was clear on the age of the minor, and the age of consent, a decision on bail or quantum of sentence cannot be taken in isolation without looking into the circumstances under which the offence was committed by the accused.

Pointing out that courts are now coming across such cases every day, where a boy and girl fall in love and elope, the high court noted that teenagers today are exposed to sex-related issues and have a good understanding of sexual relationships.

“Girls and boys both may tend to get provoked and there can be a curious and very compelling demand of the body to get into such kind of relationship… The nature of response depends on the upbringing, peer pressure, how civilized the environment is. Some sects, to regularize sexual behaviour of the community, have acknowledged this biological factor and therefore, early age marriages are performed in some religions or communities. Taking into consideration these social and biological factors, law makers have considered the age of 15 as an age of consent when the marriage is performed,” reads the order by Justice Mridula Bhatkar.

On November 25, 2014, the girl had told her father that she was going to meet her teacher. A missing report was filed on November 27, 2014, when she did not return. The police found the couple on December 9, 2014. The accused, a 20-year-old, was arrested that day and jailed. The trial court rejected his bail on March 31, 2015, on the ground that the girl was 15 years old and if marriage was performed between the accused and the minor, it was against the provisions of Child Marriage Restraint Act.

The court, pointing to the case as a “usual case of a boy and a girl having an affair, eloped and then married”, observed that the law needs to protect a minor girl from sexual abuse. Stating the reasons behind the enactment of special legislation of POCSO 2012, the order said the judiciary takes “very serious note of sexual offences against women.”

The order adds that regarding bail, the court has to consider prima facie under what circumstances the offence is committed by the accused. Granting bail to the 20-year-old, Justice Bhatkar said that in such appeals, “where a boy and a minor girl are in love and choose to live together without consent of their parents, then various factors are to be considered while deciding such applications, including “what is the age of the minor, whether the act is violent or not, whether there are antecedents, whether the offender is capable of repeating the act or not”.

The court took into account the temple marriage and the minor staying with the boy’s relatives as mitigating factors.
ruhi.bhasin@expressindia.com