Updated: February 6, 2021 8:23:30 am
The Bombay High Court on Thursday suspended the sentence of a 19-year-old convicted under the Protection of Children from Sexual Offences (POCSO) Act, 2012 for sexually assaulting his 15-year-old cousin in September 2017 and granted him bail, observing that the minor girl had resiled from her statement in the FIR and the Forensic Science Lab (FSL) report was not available till the conclusion of trial.
A single-judge bench of Justice Sandeep K Shinde on February 4 passed the judgment on an interim application in criminal appeal filed by the 19-year-old, convicted under Section 376 (2) (n), along with provisions of POCSO Act.
Senior counsel Manoj S Mohite for the appellant submitted that the statement by the victim had been retracted and hence sought suspension of the sentence until the appeal against the conviction is heard by the court.
As per the prosecution, the victim’s friend came to know about the incident and told the class teacher. The teacher, who later informed the school principal, in March 2018 registered a complaint against the man. The girl was then staying at the home of her cousin.
On the same day, the medical officer on general examination did not notice any external injury on her person suggesting forcible assault and opined that overall clinical findings were consistent, subject to FSL report.
After perusing material on record, the bench observed, “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.”
The bench went on to note that the victim 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”. The court also noted that as per victim, her narrative of forceful sexual assault as per another portion of her statement, was “at the instance of the teacher”.
The HC said, “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.”
Justice Shinde stated in the order, “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.”
“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 judge added. The court suspended the sentence and pending hearing on his appeal, granted the man bail on conditions including appearance before the trial court as and when required.
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