Consensual Sex of Minors is a grey area, admits High Court

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While granting bail, pending appeal, to a nineteen-year-old convicted in a Protection of Children from Sexual Offences (Pocso) Act case, the High Court of Bombay said it is “conscious of the fact that consensual sex between minors has been in a legal grey area” because their consent is not considered valid in the eyes of the law.

The teenager was convicted of having repeatedly raped and assaulted his minor cousin who lived in the same house as him. In her statement recorded before a magistrate, the girl, 15 at the time, said it was a “consensual act”. He was 19 then, said High Court.

The boy appealed against the conviction & sought suspension of the concurrent sentence of ten years’ rigorous imprisonment for rape & aggravated penetrative assault. The crime allegedly occurred first in Sept 2017. It was the minor’s class teacher who registered the FIR in March 2018 after being informed of it by the girl’s classmate. The minor alleged she was sexually assaulted again in Oct 2017 & February 2018. The boy was on bail during the trial.

High Court gives 19-year-old bail, says girl resiled from rape charge

On Thursday, the High Court of Bombay granted bail, pending appeal, to a 19-year-old convicted in a Pocso Act case.

HC’s Justice S K Shinde said the medical officer who examined the girl said he did not notice any external injury on her person suggesting forcible assault. The doctor said, “Overall clinical findings were consistent with sexual assault, subject to the final report of the Forensic Science Lab (FSL).”

The FSL report, though, was not received till the trial concluded. HC said, “Thus…the opinion of the doctor was…not final.” The girl also deposed that her statement to the police was at her teacher’s instance.

“I am conscious of the fact that the passing of Pocso has been a significant & progressive step in securing children’s rights & furthering the cause of protecting children against sexual abuse. The letter & spirit of the law, which defines a child as anyone less than 18 years of age, is to protect children from sexual abuse,” said Justice Shinde.

HC said the case was distinctive as the teenagers were first cousins. “A fact that cannot be overlooked,” said HC, is that “the victim had resiled from her statement” & even her mother was “unfriendly to the prosecution”.

HC heard the boy’s counsel, Manoj Mohite, who sought suspension of the sentence.

The prosecutor, R M Pethe, opposed the boy’s plea pointing to sections 29 & 30 of Pocso Act, which call for presumption of culpability of the accused & his mental state.

HC said it could be gone into during the hearing of his appeal. At this stage to suspend the sentence, HC said, it “cannot ignore the evidence of the victim & her mother.’’ HC thus granted bail for Rs 25,000 & has directed the trial court be kept informed of his address & contact details. HC said the girl had disowned part of her statement & this was something that cannot be lost sight of. It said, “Thus, in consideration of the distinctive facts of the case, the evidence on record, the impugned sentence is suspended & the appellant is directed to be released on bail on certain conditions.”

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