The possibility of consent cannot be countenanced in case of a 13-year-old rape survivor, the Bombay high court (HC) said while rejecting the bail plea of a rape convict during pendency of his appeal.
“The prosecutrix (survivor) at the time of the incident was 13 years of age, and therefore, the argument that it could be a consensual act cannot be accepted,” said justice CV Bhadang while rejecting the application of Sagar Sahi, a driver of a non-governmental organisation working for the welfare of children.
Sahi has been convicted last year for raping a 13-year-old in 2015 and was sentenced to 10 years’ rigorous imprisonment. He had moved a plea before HC seeking bail during pendency of his appeal against the conviction and the sentence.
It was argued on his behalf that the medical report would show that there were no external injuries on the survivor. Expressing possibility that the act could be a consensual one, the convict’s lawyer submitted that it was necessary to bring on record the call data record of the conversations between the convict and the survivor and added that the investigating officer had not done so.
Justice Bhadang, however, refused to accept the contention regarding consent and added that absence of external injuries cannot be, prima facie, considered material in favour of the accused in view of the definition of rape under section 375 of the Indian Penal Code (IPC).
The judge further said that it was an irony that a driver employed by an NGO working for the welfare of children has been charged and convicted for sexually assaulting a 13-year-old girl.