'Consent Was Immaterial': Calcutta High Court Upholds Conviction Of Man For Raping Girl Aged Below 16 Yrs

The Calcutta High Court on Friday upheld the conviction of a man for the offence of rape after observing that the consent of the minor victim is immaterial as she was below 16 years of age at the time of the alleged incident. It was alleged that there was an ongoing love affair between the accused and the victim and that the alleged sexual intercourse was consensual. 

It may be noted that pursuant to the Criminal Law Amendment of 2013, the age of consent in India has been increased from 16 years to 18 years. 

A Bench comprising Justices Joymalya Bagchi and Bibhas Ranjan De observed, 

"With regard to the issue whether the victim was a consenting party, I note such plea is of little consequence. As discussed above, the prosecutor has established she was below 16 years at the time of the incident and her consent was immaterial in view of 6th clause of section 375 IPC. In the backdrop, even if we assume that sexual intercourse was with the consent of the victim, we cannot consider such consent as a valid one as the age of the victim as below 16 years. Hence, the offence of rape is proved beyond doubt."

 Background 

In the instant case, the appellant had challenged the order dated January 12, 2017 issued by the 7th Additional Sessions Judge, Barasat, 24 Parganas (North) wherein he had been convicted for the offences punishable under Section 376 (rape), Section 363 (kidnapping) and Section 366A (procuration of minor girl)  of the Indian Penal Code, 1860 (IPC).

Accordingly, he had been sentenced to 7 years rigorous imprisonment for the offence offence Section 376 with fine of Rs. 20.000 and default rigorous imprisonment for 10 months. He was further sentenced to 5 years rigorous imprisonment for the offence under Section 363 with fine of Rs. 5000 and default rigorous imprisonment for 3 months. He was also sentenced to 8 years rigorous imprisonment for the offence under Section 366A of IPC with fine of RS. 20,000 and default rigorous imprisonment for 10 months. 

It was alleged that the appellant had allegedly kidnapped the minor victim while she had gone to answer nature's call at around 3 A.M. Thereafter, a complaint had been registered on November 3, 2010 at Deganga police station and on April 20, 2011 the police authorities arrested the the appellant and recovered the victim from Balagarh in the Hooghly district. 

Arguments 

The counsel appearing for the appellant contended that there was a love affair between the victim and the appellant and that the victim had not mentioned any incident of kidnapping in her statement under Section 164 CrPC. He further argued that the statement of the mother of the victim as well as the ossification test report show that the age of the victim was more than 17 years but less than 19 years. He thus submitted that the victim had voluntarily left her residence and the charges levelled against the appellant had not been proved beyond doubt.

On the other hand, the counsel for the State submitted that the offences have duly been proved and the appeal does not have any merit.

Observations 

The Court observed that although there may be minor discrepancies in the witness statements, such discrepancies are inconsequential and do not make any dent in the prosecution case of forcible kidnapping of the victim. 

"By no stretch of imagination I can come to conclusion that the appellant did not kidnap the victim. That apart nowwhere from the evidence I find that the appellant took away the victim either with her consent or that of her lawful guardian", the Court remarked further. 

With regards to the age of the victim, the Court noted that the father of the victim had deposed that at the time of occurrence of the crime the victim was aged about 15 years and a few months. Furthermore, reliance was also placed on the original birth certificate of the victim which stated that the date of birth of the victim was march 28, 1995. 

Furthermore, the Court observed that it can safely be inferred that it was a slip of tongue when the mother of the victim stated her daughter's age as 18 during examination-in-chief as she had promptly corrected herself duly in cross-examination by denying a similar suggestion put to her.

With regards to the evidentiary value of the ossification test, the Court underscored further, 

"Determination of the age of a person based on ossification test cannot be conclusive proof as the results are not accurate, and it does not indicate the exact age of the person concerned. It cannot be lost sight of that the opinion of the doctor regarding age determination is not conclusive, and has corroborative value only. In this case, I find the direct evidence of the father of the victim, PW1, regarding her age as 15 years is corroborated by the birth certificate which shows her date of birth as 28.03.1995. These pieces of evidence clearly establishes the fact that the victim was below 16 years at the time of commission of offence".

The Court further ruled that from the evidence of the victim, medical evidence and other attending circumstances, it is clear that after having kidnapped the victim, the appellant cohabited with the victim at different places. However, even if it is assumed that the sexual intercourse with the victim was consensual, such consent is invalid as the age of the victim was below 16 years, the Court ruled further. 

However, the Court held that the order of conviction under Section 366A of the IPC is not maintainable in the instant case. It was observed that if a person induced a minor girl to go along with him and have sexual intercourse with her, Section 366A cannot have any application.

"Here, in our case, this is not the prosecution case that any third person other than the appellant intercoursed with the victim far to speak of any evidence thereof", the Court elucidated further. 

Accordingly, partly allowing the appeal, the Court ruled, 

"In the aforesaid view of the matter, I am inclined to set aside the order of conviction and sentence u/s 366A I.P.C. However, conviction and sentence for the offences u/s 376 and u/s 363 I.P.C are hereby affirmed. Both the sentences shall run concurrently. It is further directed that the fine amount, if realized, be given to the victim, as compensation."

Case Title: Amirul Gazi v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 17. 

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