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The Bombay High Court on Thursday observed that passing of POCSO Act has been significant and progressive step in securing children’s rights but at the same time the consensual sex between minors has been a grey area under the law as minor's consent is not valid in the eyes of law.

The single judge bench of Justice Sandeep K. Shinde granted bail and observed that the Appellant (Original Accused), a student (19 year old), has been convicted for committing rape repeatedly on the same woman (minor), under Section 376 (2) (n)  and Section 354 of the Indian Penal Code and also under Section 4 and Section 6 of POCSO Act.

The facts of the case state that, “The victim is first cousin sister of the appellant. At the relevant time i.e. in September, 2017 she was 15 year old, 8th Standard Student and was living in the house of her paternal uncle, since two years.”

The Bench noted that the victim had earlier stated in her statement that "it was a consensual act, not once but at least 4-5 times." This was made during the course of investigation under section 164 Code of Criminal Procedure, 1973.

“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," observed the court.

“In the case at hand, facts are distinctive in the sense, victim is first cousin sister of the appellant. At the relevant time, she was 15 year old and appellant was 19 year old. Both were students and living in one house. A fact cannot be overlooked that the victim had resiled from her statement and further disowned the contents of portion marked B of her statement recorded under Section 164.”

Furthermore, the bench also observed that the,

“Opinions of doctor that victim was subjected to sexual assault was subject to FSL report. The FSL report was not obtained till the conclusion of the trial.”

In view of this, the Court granted bail to the accused by observing that since the victim resiled from her statement and further disowned the contents the contents of her sec. 164 statements, the accused is thus entitled to be granted bail and also directed execute a personal bond of Rs. 25,000 with one or two sureties of like amount.

Case title: Arhant Janardan Sunatkari v.State of Maharashtra, 2021

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