Victim Accompanying Accused To Crowded Place Without Raising Alarm, No Injury On Body- Denotes Consensual Relationship: Punjab & Haryana HC
The Punjab and Haryana High Court has acquitted a man convicted for committing aggravated sexual penetrative assault under Protection of Children from Sexual Offences Act (POCSO), observing that the prosecutrix sat as a pillion rider with accused in a crowded place and did not raise alarm- which denotes that the relationship was "entirely consensual".
Justice Sureshwar Thakur and Justice Kuldeep Tiwari also noted that "there were no internal or external injury marks on any part of the body of the prosecutrix."
"Since she had occupied the pillion of the motorcycle driven at the relevant time by the accused, thereupon when the motorcycle traversed through crowded places, yet even if she was purportedly coerced to occupy the pillion of the motorcycle, rather with the prosecutrix omitting to through raising shrieks and cries, thus invite the attention of the passerby," observed the Court.
Drawing inference from the above observation, the division bench further said that, "the prosecutrix had voluntarily joined the company of the accused, besides reiteratedly when there are no internal or external injury marks on any part of the body of the prosecutrix, therebys the incident, if any, which occurred amongst the victim and the accused, thus was entirely consensual."
The case pertains to Section 6 (aggravated penetrative sexual assault) and Section 363, 366 of IPC. The accused was sentenced to 20 years of rigorous imprisonment under POCSO and 7 and 10 years under provisions of IPC.
According to prosecution the alleged victim was minor at the time of incident and was raped by the accused on pretext of marriage.
After examining the submissions and material available on record, the division bench found that the age of the victim is "doubtful" hence it cannot be accepted that she was a minor and incapable of giving consent.
The Court noted that in Prosecution evidence the principal of the School where alleged victim studied stated that the entries in the register were made on the basis of report prepared by the chowkidar of village and that she has not seen the original report.
It highlighted that since the report of Chowkidar is not proved, hence the record is not reliable and hence it cannot be proved that the alleged victim was a minor at the time of incident.
Perusing the medical report, the bench found that "the victim was used to sexual intercourse" and the vaginal sample drawn from the alleged victim did not match with the accused.
In light of the above, the Court opined that "benefit of doubt is assigned to the accused."
Consequently, the court set aside the conviction order.
Mr. Rajiv Joshi, Advocate and Mr. Viren Sibal, Advocate (Legal Aid Counsel)
Mr. Harshit Singla, Advocate and Mr. Nikhil Chopra, Advocate for the appellant
Mr. Maninder Singh, Sr. DAG, Punjab.
Title: XXX v. XXX