IMPORTANT POINT
Consensual sex between minors has been in a legal grey area because consent given by minor is not considered to be a valid consent in eyes of law.

JUDGMENT

Sandeep K. Shinde J.—Appellant (Original Accused), a student of 19 year old, has been convicted for committing rape repeatedly on same woman, an offence under Section 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;

• The victim being minor, appellant has been convicted also under Section 3 (a) (c) an offence punishable under Section 4 of Protection of Children from Sexual Offence Act, 2012 (POCSO) and sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 5000/- with default stipulation;

• Also has been convicted for the offences punishable under Sections 5 (1) (n), 6 of POCSO and sentenced to suffer rigorous imprisonment for ten years and fine of Rs. 5000/- with default stipulation;

• Also convicted under Section 354 of the IPC and sentenced to suffer rigorous imprisonment for five years and fine of Rs. 5000/- with default stipulation.

2. All sentences were directed to run concurrently.

3. Pending trial, appellant was enlarged on bail, which he had not misused.

4. Appellant in these proceedings, seeks suspension of impugned sentence and enlargement on bail.

5. Facts of this case are distinctive. That to say 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.

Victim’s friend / classmate was examined as prosecution witness no.6. Her evidence leads to belief, that in September, 2017, victim told that her first 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 Teacher (PW-7) reveals, that victim told her about sexual harassment, meted out to her by cousin brother. 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.

6. On the same day, Medical Officer (PW-5) 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 forcible assault. Her urine pregnancy test was turned negative. Medical Officer opined, over all clinical findings were consistent with the sexual assault, subject, to final report of Forensic Science Lab (FSL).

7. Indisputably, the FSL report was not received till the conclusion of trial. Thus to be stated that opinion of the doctor was provisional / indefinite and not final.

8. In the course of investigation, statement of victim was recorded under Section 164 of the Code of Criminal Procedure, 1973, wherein the victim would disclose and say, that it was a consensual act; not once but at least for 4-5 times.

9. Be that as it may, victim in her evidence did not support the prosecution and would say that her narrative under Section 164 of Cr.P.C., was at the instance of Class Teacher. She disowned the contents of portion marked ‘B’ of her statement recorded under 164. In the cross-examination, the victim would say that “It is true to say that I had given my statement to police at the instance of Class Teacher. It is true to say that portion marked ‘A’ in statement recorded under Section 164 of Cr.P.C. is stated by me at the instance of Class Teacher.”

10. I have perused the impugned judgment; evidence of victim, mother of victim and of PW-6 (Classmate of the victim) as well the evidence of Medical Officer.

11. I am conscious of