Madhya Pradesh High Court: Vijay Kumar Shukla, J., allowed the bail application filed by the applicant-accused in connection with the FIR registered for offence punishable under Sections 376(2)(j), 376(2)(i), 376(2)(n) of the Penal Code, 1860 and Sections 5/6 of POCSO Act.
The alleged facts of the case are such that the applicant has been charged with rape when he sexually exploited the victim aged between 13-15 and who happens to be mentally challenged. The applicant has been in custody for the past nine months.
Counsel for the respondent, Jagat Singh reiterated the victim’s mother’s statement and mentions that the present case is made out of the same.
It was contended by Vikas Mishra, counsel for the applicant that the offence could not be attributed to the applicant because of the sole reason that the applicant is physically incapable of performing the act of sexual intercourse. As per the MLC diagnosis of the applicant, it is not humanly possible for him to commit the crime he’s been charged with as he is physically incapable of performing sexual intercourse.
The Court while pronouncing the judgment, took his medical condition into consideration.
Hence, the Court upon perusal of the facts, circumstances and arguments observed that it has been established that the applicant is not medically fit and competent to perform the act of sexual intercourse. Further, considering that the applicant has been in jail since 11-11-2019, the present application has been allowed.
In view of the above, the applicant has been granted bail. [Vanshdhari Kol v. State of Madhya Pradesh, 2020 SCC OnLine MP 1844, decided on 28-08-2020]
This order is terrible and devastating, the victim is a minor girl, the Law for offence of rape doesnot require the accused sexual profile or condition. The discretion for bail has its limitation, I think the Court has gone too far here.