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Consensual Sex between minors does not come under the ambit of POCSO: Bombay High Court

POCSO Act has always been a progressive step in securing children’s rights and also for protecting them from sexual abuse but in certain cases of consensual sex between minors, the accused cannot be held under the offences of the POCSO Act and even if it does, bail can be granted depending upon the circumstances of the case. Such decisions can vary according to different circumstances and facts of the cases. Bombay High Court gave the judgment in the case of Arhant Janardan Sunatakari vs. The State of Maharashtra [Criminal appeal no. 332/2020] presided over by the bench of Hon’ble Justice Sanjeev.K. Shinde.

In the instant case, an appeal was made by the appellant, 19-year-old, who was convicted for committing rape repeatedly on a 15-year-old minor girl, u/s 376 (2) (n) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and fine of Rs. 5000/- with default stipulation. Appellant had also been convicted u/s 3 (a) (c) and section 5 (1) (n); an offence punishable u/s 4 of Protection of Children from Sexual Offence Act, 2012 (POCSO). And therefore, the appellant made an appeal for a grant of bail.

In the present case, the victim & accused were first cousins and living together for two years. In 2017, the victim told her teacher about being sexually abused by her cousin and that’s when the teacher lodged an FIR against the appellant.

The victim was medically examined where it was found that she was being sexually assaulted more than once but the doctor did not notice any external injury on her, suggesting forcible assault. Thereafter, the victim had given the statement u/s 164 of CrPC, where she had agreed to the fact that it was a consensual act and her cousin had not forced her into it.

But in the evidence, the victim did not support the statement said above and instead told the court that her narrative under Section 164 of Cr.P.C was at the instance of a class teacher.

Observing all the evidence in the case, HC stated 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”.

Hence, HC came to the conclusion that the relation and age of the victim and the accused cannot be overlooked. Since the victim had changed her statements twice u/s 164, the accused is entitled to bail. The FSL report was also not obtained from the doctor with the opinion. Therefore, because of the distinctive nature of the case, bail was granted to the accused/appellant.

Click here to read the Judgement

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