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

 10.Cri. Appeal 332 20 aw IA 1129 2020.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 332 2020 Interim Application No. 1129 2020 Arhant Janardan Sunatkari Age : 19 years Occ: Student R a. F 18 02 02 Vrundavan Society Sector No.4 Sanpada Navi Mumbai Appellant The State of Maharashtra Through Sanpada Police Station Respondent Mr. M.S. Mohite Sr. Advocate i by Mr. Shantanu R. Phanse Advocate for the Appellant Mr. R.M. Pethe APP for State Respondent CORAM : SANDEEP K. SHINDE J RESERVED ON : 3rd FEBRUARY 2021 PRONOUNCED ON 4th FEBRUARY 2021 1 8 10.Cri. Appeal 332 20 aw IA 1129 2020.doc JUDGMENT : Appellanta student of 19 year old has been convicted for committing rape repeatedly on same woman an ofence under Section 376(n) of the Indian Penal Code and sentenced to sufer rigorous imprisonment for ten years and fne of Rs. 5000 with default stipulation The victim being minor appellant has been convicted also under Section 3(c) an ofence punishable under Section 4 of Protection of Children from Sexual Ofence Act 2012and sentenced to sufer rigorous imprisonment for seven years and fne of Rs. 5000 with default stipulation Also has been convicted for the ofences punishable under Sections 5(n) 6 of POCSO and sentenced to sufer rigorous imprisonment for ten years and fne of Rs. 5000 with default stipulation Also convicted under Section 354 of the IPC and sentenced to sufer rigorous imprisonment for fve years and fne of Rs. 5000 with default stipulation 2 8 10.Cri. Appeal 332 20 aw IA 1129 2020.doc All sentences were directed to run concurrently Pending trial appellant was enlarged on bail which he had Appellant in these proceedings seeks suspension of impugned sentence and enlargement on bail Facts of this case are distinctive. That to say victim is frst 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 Victim’s friend classmate was examined as prosecution witness no.6. Her evidence leads to belief that in September 2017 victim told that her frst cousin brother had touched her inappropriately and had stomach pain. This witness apparently found and had noticed the victim was depressed. She told this fact to her class teacher. Whereupon class teacher enquired with the victim. Evidence of Class Teacherreveals that victim told her about sexual harassment meted out to her by cousin brother 3 8 10.Cri. Appeal 332 20 aw IA 1129 2020.doc Apparently that victim told to the Class Teacher that she was residing in the house of her uncle with his two cousins and also disclosed as to when how and where she was subjected to penetrative assault by one of the cousins. His ordeal was informed to Principal of the School and thereafter the F.I.R. was registered by teacher on 3rd March 2018 against the appellant. On the same day Medical Ofcer examined victim His evidence indicates that victim told him that she was sexually assaulted in September October 2017 and again in February 2018 However on general examination doctor did not notice any external injury on her person suggesting forible assault. Her urine pregnancy test was turned negative. Medical Ofcer opined over all clinical fndings were consistent with the sexual assault subject to fnal report of Forensic Science Labas well the evidence of Medical Ofcer 5 8 10.Cri. Appeal 332 20 aw IA 1129 2020.doc I am conscious of the fact that the passing of POCSO has been signifcant 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 defnes a child as anyone less than 18 years of age is to protect children from sexual 12. 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 In the case at hand facts are distinctive in the sense victim is frst 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 Even her mother was unfriendly to prosecution. 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 6 8 10.Cri. Appeal 332 20 aw IA 1129 2020.doc the trial. Victim said her statement to the police and narrative in statement under Section 164 was at the instance of Class teacher Therefore in the proceedings wherein suspension of sentence is sought this Court cannot ignore the ‘evidence of victim’ and ‘her mother’. At the same time the age of the victim and of appellant their relations also cannot be overlooked. Though the prosecution vehemently argued and relied on Section 29 and 30 which provides for presumption of culpable mental state as to certain ofences in my considered opinion this submission and argument of the prosecution is to be gone into when appeal is to heard fnally. Thus in consideration of the distinctive facts of the case evidence on record the impugned sentence is suspended and appellant is directed to be released on bail on the following The appellant be released on bail on executing P.R. Bond of Rs. 25 000 with one or two sureties in the like amount The appellant shall report to the trial Court as and when 7 8 10.Cri. Appeal 332 20 aw IA 1129 2020.doc called till his appeal is fnally disposed of iii) The appellant shall keep the trial Court informed of his current address and mobile contact number and or change of residence or mobile details if any from time to time The application is allowed in the aforesaid terms and is accordingly disposed of (SANDEEP K. SHINDE J N A J E E B 8 8

Summary: 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 &amp; 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”.