The Bombay High Court has suspended the sentence of a 19-year-old man who was convicted for sexually assaulting his 15-year-old cousin, and allowed him bail after observing that the victim has retracted from her FIR statement and because the forensic lab report that could prove the sexual assault was not available till the conclusion of the trial.
The man was earlier convicted of 10 years’ rigorous imprisonment for raping his minor cousin living with him. However, Bombay HC observed that a minor’s consent is a legal grey area.
According to an India Today report, the girl was a student of Class 8 and lived in the house of her paternal uncle for two years. In September, 2017, the victim told her friend that her cousin brother had touched her inappropriately. The friend informed the class teacher who, after speaking with the with the victim, told the principal about the incident.
Consequently, an FIR was registered against the boy. When the matter reached the court, the victim said she was sexually assaulted in September, October 2017 and again in February, 2018. However, the medical examination report of the victim claimed there were external injuries on her on the date of the FIR registration.
In the statement recorded under recorded under Section 164, the victim said the act between her and the cousin – which took place at least for 4-5 times — was consensual. She also told the magistrate that the FIR before the police was made “at the insistence of the class teacher”.
The boy after being convicted by the lower court had filed an appeal and also sought bail in the high court. After going through all the evidence, Justice Shinde 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 HC observed that consensual sex with a minor “has been in a legal grey area because the consent given by a minor is not considered to be valid in the eyes of law.” It also observed that “in the case at hand, facts are distinctive” and “the accused and victim live under the same roof. They are students A fact cannot be overlooked that the victim had resiled from her statement”.
The court noted that “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,” reported India today.
Taking a note of all these aspects, the court suspended the sentence of the boy and allowed him to be released on bail.
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