Consensual, Voluntary, Participative Sexual Intercourse defeats accusation under POCSO Act, 2012, Accused Acquitted: Calcutta High Court

A 22-year-old man was convicted by the Trial Court under Section 376 (1) of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 to suffer rigorous imprisonment of seven years with a fine of Rs. 50,000 for the alleged sexual assault of a girl of 16 and a half years at 02:00 P.M. on August 12, 2017, allegedly in an area between a pharmacy and a sweet shop, next to a burial ground and a busy bus stop. Mr. Pratip K. Chatterjee and Ms. Aiswarjya Gupta, appearing for the appellant in the present case held the following contentions:

  1. The lapse of two days between the allegedly day of the incidence and the date of filing the First Information Report (FIR) on August 14, 2017, gives rise to suspicion on part of the victim.
  2. The medical report produced by Dr. Anuva Dey failed to mention any signs of rape upon the victim even though the report mentioned an old and healed scar on the hymen, wherein the counsel contended that the prosecution had no evidence to connect the appellant to the said scar. The lack of any external signs shows that no external force was used by the appellant on the victim.
  3. Dr Avik Das, the medical examiner, stated that there were no injury marks on the body of the victim (including her private parts) and that there were no signs of rape and sexual offence on the body of the victim.

The counsel for the state held that the delay in lodging an FIR cannot be grounds for doubting and discarding the case of the prosecution, wherein the court is tasked with finding a satisfactory explanation for the said delay; however, if the prosecution fails to provide a satisfactory explanation for the delay to the court of law, then the said delay can prove fatal for the prosecution’s case.

It is worth noting that the Supreme Court in the case of State of Himachal Pradesh v. Gyanchand (2001) AIR SC 2075 held that the conviction under Section 376 of the Indian Penal Code, 1860 can be founded solely on the testimony of the prosecutrix, corroborated by pieces of evidence, including the medical evidence, medical examination, provided the said testimony and the pieces of evidence are found to be natural, trustworthy, unblemished and reliable by the court of law, wherein the invocation of confidence of the court of law to the testimony of the prosecutrix is enough for convictions under Section 376.

The counsel for the state held that the delay in lodging the complaint occurred because the brother and father of the victim approached the appellant (the accused) to ask him to marry her at approximately 07:30 P.M. on the day of the incident since it was known that the victim (student of class XII) and the appellant (student in year II of graduation) were in a consensual, physical relationship.

The victim satisfies the definition of “child” under Section 2, Clause D of the POCSO Act, 2012 by being sixteen and a half at the time of the incidence. Justice Sabyasachi Bhattacharya of the Calcutta High Court in the present case held that the victim was not naive to not understand the implications of sexual intercourse, especially when the victim and the appellant had multiple instances of sexual intercourse prior to the date of the incident owing to their physical relationship. The judge held that the meaning of “penetration” under Section 3 of the act refers to a positive, unilateral penetration and not consensual participatory intercourse between two persons out of their own volition. The court added that the peculiarity in the wording of Section 3 of the act talks about the penetration of a penis, wherein the peculiar nature of the anatomy of the sexual organs of the male indicts the male on the onset of an accusation; consequently, the bench added that the psyche of the parties and the maturity level of the victim is tantamount in deciding the nature of the sexual intercourse between the victim and the accused.

The court held that the consensual relationship and the voluntary sexual union between the appellant and the victim defeats the case of it being a unilateral penetrative sexual intercourse on part of the accused (the appellant). The credibility of the victim’s testimony was questioned by the court as different versions were told by the family members of the victim and the medical examiners. The judge held that the union between the victim and the appellant was participatory and consensual, wherein incriminating the male for the consensual union (with a history of a physical relationship between the two) is unlawful per the court. In terms of maturity, the court added that an individual of age 17 years and 364 days would qualify as a child under the POCSO Act, 2012; however, the maturity of the said individual would be no different from another person who is just one day older than the said person.

The judge called the conviction by the Trial Court, Murshidabad to be an error in law and fact since it was based on an erroneous interpretation of the provisions of the act. The judge acquitted and discharged the appellant from the orders of conviction and sentence dated July 25-26, 2018 by the Additional Sessions Judge, Kandi, Murshidabad.

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