Victim Sending Friend Request On Facebook Does Not Mean She Intended To Have Sexual Relationship: Himachal Pradesh High Court

Just because the victim sent a friend request to the accused does not give him the right and liberty to establish sexual relations with her, the Himachal Pradesh High Court observed while dismissing a bail application filed by a man accused of raping a thirteen year old child.

Justice Anoop Chitkara observed that People use social media for networking, knowledge, and entertainment and not to get stalked or be exploited sexually and mentally.

"Most of the youth are present and active on such social media platforms. Hence, it is not unusual for youngsters to make new social connections by sending friend requests. It no way implies that children who create social media accounts do so to search for sexual partners, or they intend to receive such invitations.", the Court added.

The accused's contention was that since the girl had created a Facebook account in her name, he believed that she is aged above 18 years and therefore had consensual sex with her.  The court noted that any person aged 13 years and above can create a Facebook account and therefore this contention does not merit acceptance. The court observed that merely because she sent the friend request on Facebook to the accused cannot lead to the presumption that she did it with intent to allure the accused to establish coitus. The judge observed:

Even otherwise, people join social networking platforms like Facebook, Twitter, etc., intending to connect with friends and family and to expand the already existing social network from the comfort of one's four walls. According to a report titled 'Social Media for Youth and Civil Engagement in India' published by UNDP, India has 290 million registered users of Facebook in all age groups. Out of this, 190 million users are youth in the age group 15-29 years. Interestingly, the millennials in the age group 15-29 years constitute 66% of total Facebook users, although they constitute only 27% of the total population. Therefore, most of the youth are present and active on such social media platforms. Hence, it is not unusual for youngsters to make new social connections by sending friend requests. It no way implies that children who create social media accounts do so to search for sexual partners, or they intend to receive such invitations. The use of social media in present times is a norm. People use social media for networking, knowledge, and entertainment and indeed not to get stalked or be exploited sexually and mentally. Just because the victim sent a friend request to the accused does not give him the right and liberty to establish sexual relations with her.

The court also observed that it is not unusual for people to not reveal everything about their age and identity on social media as it is a public platform.

"If a child mentions the wrong age on Facebook, it does not become a gospel truth, and it certainly does not lead to a prima facie presumption that such person is not a child but a major of 18 years of age or above."

The court added that, as the accused saw the victim in person, he must have gathered that the victim is a child as a girl of 13 years and 3 months of age cannot be presumed and believed to have an adult's physical appearance. Since the victim was under 18 years of age and her consent is immaterial, this prima facie amounts to statutory rape, the court said. On the issue whether mistake of age is a defence, the court observed:

In Ragunath Ramnath Zolekar v State of Maharashtra (Cr. Appeal No. 388 of 2010), the Division Bench of Bombay High Court (Aurangabad Bench) vide judgment dated 04.02.2013 dealt with many issues, and mistake of age as a defence was one of them. In the said case, the defence while relying upon B (A Minor) v. Director of Public Prosecutions (2002 Appeal Cases), argued that mensrea is a part of Section 375 and 376 IPC and unless and until the knowledge of the accused that the prosecutrix being below the age of 16 years is proved, the penal liability for the said act will not be attracted. However, the Hon'ble Bench rejected the said argument and went onto observe, We, therefore, hold relying on the judgment in case of B (A Minor) v. Director of Public Prosecutions (2002 Appeal Cases), that the phrase "with knowledge that prosecutrix is below 16 years of age" cannot be read as if present in clause sixth of Section 376 of the Indian Penal Code. If any such attempt is made, it shall amount to tinkering with the scheme of statute.

Case:  Rajeev vs. State of H.P. [ Cr.MP(M) No. 113 of 2021  ]

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