Bombay High Court has suspended the sentence of a 19-year old man who was convicted of raping his minor cousin under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and granted him bail.
The sentence was suspended while noting that the girl had resiled from her statement in the FIR and also the Forensic Science Lab (FSL) was not available till the conclusion of the trial. The man was convicted of raping his 15-year old cousin in September 2017.
A single-judge bench of Justice Sandeep K Shinde announced the order while hearing an interim application in criminal appeal filed by the rape convict under Section 376 (2) (n), along with provisions of the POCSO Act.
Senior counsel Manoj S Mohite appearing for the rape convict submitted that the victim had retracted her statement and therefore the sentence should be suspended until the appeal against the conviction is heard by the court.
According to the prosecution, the victim’s friend told the teacher about the incident, and then, the teacher informed the principal about the same. He also registered a complaint against the man in March 2018. During that period of time, the girl was staying at her cousin’s home.
The medical officer came on the same day for a general examination and didn’t find any external injury as per the sexual assault claims. The medical officer also found that the overall clinical findings were consistent, subject to the FSL report.
“Indisputably, the FSL report was not received till the conclusion of trial. Thus, to be stated that the opinion of the doctor was provisional/indefinite and not final,” noted the bench.
The court also considered the fact that the victim girl had disowned a portion of her statement given under Section 164 of the Criminal Procedure Code (CrPC), wherein she had disclosed “it was a consensual act, not once but at least 4-5 times” and the other portion of statement which narrates forceful sexual assault was at the instance of teacher.
“A fact cannot be overlooked that the victim had resiled from her statement and even her mother was unfriendly to the prosecution. At the same time, the age of the victim and of appellant, their relations also cannot be overlooked,” said Justice Shinde.
The court noted, “I am conscious of the fact that the passing of POCSO has been significant and progressive step in securing children’s rights and furthering the cause of protecting children against sexual abuse. The letter and spirit of the law, which defines a child as anyone less than 18 years of age, is to protect children from sexual abuse.”
The court further observed, “I am also conscious of the fact that consensual sex between minors has been in a legal grey area because the consent given by minor is not considered to be a valid consent in eyes of law.”
The bench suspended his sentence and granted him bail on certain conditions.
