Victim Girl & Man In Love & Living Together For 4 Years Won't Make POCSO Offence Compoundable Even If Girl Agrees To It: Madras High Court

Underlining that any offence committed under the POCSO Act is not compoundable offence, the Bench of Justice P. Velmurugan observed,

"The scope of the (POCOS) Act is very clear, mere falling in love is not an offence but a person who is above 18 and who had sexual assault intentionally against a child who is under 18 years is an offence."

The matter before the Court

A case was registered against the Petitioner for the offence u/s.5(l) read with 6 of the POCSO Act and after trial, the petitioner was convicted and sentenced to undergo 10 years R.I.

Challenging the said judgment, the appellant/petitioner moved Madras High Court and during the pendency of the appeal, he filed the instant application under Section 482 and 391 Cr.P.C.

While Section 482 of CrPC deals with inherent powers of the High Court, Section 391 relates to the Appellate Court's power to take further evidence or direct it to be taken.

The instant application sought taking of additional evidence of the victim by recording her deposition before the court and marking the affidavit filed by the victim.

In the said affidavit, it was stated by the Girl that both the appellant and the victim girl are living together for the past four years and they are living and they settled the matter and therefore, prayed to allow the appeal and to set aside the order of the trial court and let them live peacefully.

The Counsel for the petitioner stated before the Court that he filed the petition before the trial court along with the affidavit filed by the victim girl even during the trial, but the same was rejected.

It was also submitted that even during the trial, the victim had filed the petition praying to further examine herself as she intended to untold the truth before the trial court u/s.311 Cr.P.C., however, the said petition was dismissed.

State's submission

The Government Advocate (Criminal Side) submitted that despite having sufficient opportunities, the appellant had not let in any evidence or produced any documents before the Trial Court.

It was further submitted that after trial, in order to escape from the clutches of law, he filed the petition before the trial court, the same was rightly dismissed as it was not maintainable under law.

Now the petition had been filed before the court.

Court's observations

At the outset, the Court noted that before the trial court, the victim girl had deposed and further her statement was also recorded u/s.164 Cr.P.C. before the Magistrate, wherein she had clearly stated that the appellant had committed the offence.

Significantly, noting that at the time of the commission of offence, the victim child was aged under 18 and hence, the victim is a child under Section 2(1)(d) of the POCSO Act, the Court observed,

"The evidence of the victim girl is very clear that she was at the age of 17 years on the day of occurrence and the appellant had made a false promise that he would marry her and against her will, he had forceful penetrated sexual intercourse repeatedly with her, subsequently, he refused to marry her."

Further, the Court noted that after the completion of examination of prosecution witnesses, the appellant convinced the victim girl and filed an affidavit and even in the affidavit, the victim girl had not stated that no such occurrence occurred, but, she had only stated that for four years they had been living together.

Significantly, the Court ruled,

"Even assuming that victim girl had fallen in love with the appellant and admitted that they are living for four years, even on the date of commission of the offence, provisions of POCSO Act attract. It is not a compoundable offence. Subsequently, she cannot turn it to compound the offence."

Lastly, underlining that in order to protract the case and escape from the clutches of law, the petitioner had filed the petition, the Court found no merit in the petition and thus, the petition was dismissed.

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