Upholding Conviction In POCSO Case, Madras High Court Says It 'Eagerly Awaits' Amendment In Law For Cases Involving Teenage Relationships

Justice P Velmurugan made the comment while upholding the conviction and sentence of one Ravi who was accused of kidnapping and forcibly marrying a 17 year old girl in May 2014. He was convicted by the trial court under Sections 366 of IPC, Section 5(l) of the POCSO Act and Section 3(1)(w)(i) r/w 3(2)(Va) of SC/ST Act and sentenced to rigorous imprisonment for a period of ten years.

Ravi's counsel in his arguments in appeal had referred to a ruling of a coordinate bench in Vijayalakshmi & Anr. v. State by Inspector wherein the court had observed that the legislature must take into consideration the cases of adolescents involved in relationships and should swiftly bring in necessary amendments under the POCSO Act.

His argument was that the victim, who was between 16-18 years of age, cannot be treated as a minor or a child. "The teenage persons, who fall in love and develop any physical relationship due to infatuation, may not be punished under POCSO Act," the counsel submitted.

Dealing with the argument, Justice Velmurugan observed:

"….though this Court has expressed the view that the teenage persons who have completed 17 years and not completed 18 years may not be punished under the POCSO Act, with great respect to the learned brother Judges, that it is the opinion of the particular Judge and it may not be a finding in all cases."

It further said:

"Whereas, the law defines that the person who has not completed the age of 18 years, is a child. This Court, being an Appellate Court, is a final fact finding Court cannot traverse beyond the statute. This Court also eagerly is waiting for the amendment in the Legislature as expressed by my learned brothers."

The court refused to grant any relief to the convict on the basis of this argument. It said the victim was minor and the appellant Ravi took her custody without knowledge or consent of her natural guardians and then committed penetrative sexual assault on her. The court said the offence committed by Ravi falls under Section 5(l) which is punishable under Section 6 of the POCSO Act.

"This Court, being an Appellate Court, as a final Court of fact finding and re-appreciated the entire evidence supra and found that the appellant has committed the offences under Section 366 IPC, Section 5(l) which is punishable under Section 6 of the POCSO Act and Section 3(1)(w)(i) r/w 3(2)(Va) of SC/ST Act and the trial Court has rightly convicted and sentenced the appellant," the court observed.

In appeal before the High Court, Ravi's counsel had contended that the prosecution failed to prove the age of the victim at the time of the alleged offence. It was also argued that the school certificate was obtained much later. The doctor who examined the victim girl had advised the prosecution to send the victim for a radiology test to ascertain her age but the same was not done, the court was told.

It was also contended that since the prosecution could not prove their case beyond doubt, the benefit of doubt should be given to Ravi.

Rejecting the plea, the court noted that though the presumption of genuinity of the school certificate was rebuttable, "there was a burden on the defence to rebut the presumption in a manner known to law."

"However, in the case on hand, the defence has not even put any suggestion before P.W.1/father of the victim, P.W.2/victim, P.W.7/Head Mistress and P.W.13/Investigation Officer regarding the date of birth mentioned in the School Certificate issued by the School Authority that the date of birth mentioned in the School Certificate is not a correct date of birth of victim and the same was as an after-thought," it said.

The court also said that even assuming that the victim voluntarily went along with Ravi and gave her consent, such a consent cannot be said to be valid. It added that the accused cannot take advantage of the minor's teenage years.

"Once the Court declared that the victim was a child and she comes under the definition of the POCSO Act, consent is immaterial," the court said.