The Bombay high court hearing a criminal appeal granted bail to the accused who was convicted for rape of his first cousin who was a 15-year-old minor at the time. The court stated that the “distinctive” facts of the case and other factors such as no forensic report and victim disowning contents of her statement cannot be overlooked.
Facts
One day the victim, who was 15 year old at the relevant time and resided at her paternal uncle’s home with her cousin, told her classmate that she was having stomach ache after her cousin had touched her inappropriately. The incident was then revealed to the class teacher of the victim to whom it was told that the cousin of the victim had sexually assaulted her. Thereupon, the FIR was registered against the accused. The medical examination of the victim revealed no signs of any forcible assault and the medical examiner opined that all findings must be subjected to forensic science lab. During the course of investigation the victim mentioned that the sexual act between her and the accused was consensual however the victim later on disowned this portion of her statement. The trial court convicted the accused under multiple sections of IPC and POSCO act and sentenced for rigorous imprisonment with fine. The accused filed an appeal in the high court seeking suspension of sentence and enlargement on bail.
Court’s Decision
The single judge bench of Justice Sandeep K. Shinde observed that the facts were distinctive in the case owing to multiple factors. The court minding the fact that the case involves a minor victim remarked on the POSCO enactment that “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.” However, after perusing the facts such as the relationship of the victim and the accused, victim disowning her statement and statement of the mother which weakened the prosecution side, the court opined that such factors cannot be overlooked. Regarding the consent of the minor the court said “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 court also pointed out the fact that the forensic report of the victim was also not obtained before the trial court’s conviction.
The court opined that other arguments of the prosecution regarding the culpable mental state of the accused would be considered in final appeal. Therefore, after considering the ‘evidence of victim’ and other factors, the court suspended the sentence of the accused and enlarged him on bail. The court directed the accused to furnish the bail bond of Rs.25,000 with one or two sureties and keep the trial court informed of his residence and contact information from time to time.
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