"No Reason To Indict Male Only": Calcutta High Court Holds That 'Voluntary Sexual Union' Will Not Attract POCSO, Acquits Accused

The Calcutta High Court held that voluntary joint act of sexual union will not attract offence under Protection of Children from Sexual Offences Act, 2012.

If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders, Justice Sabyasachi Bhattacharyya observed.

To convict a person for penetrative sexual assault, according to the Court, the psyche, maturity and previous conduct of the victim vis-à-vis the accused is also relevant. It added that the provisions of the POCSO Act should be given an appropriate construction, for the protection of children and not as a tool of abuse to compel a person to marry another.

In this case, the age of the accused was 22 years and that of the victim was 16 ½ years. The accused was convicted by the Trial Court under Section 376(1) of the Indian Penal Code, and under Section 4 of the POCSO Act. In appeal before the High Court, the accused highlighted that the victim had admitted her prior relationship with him. The state contended that the victim was proved to be a minor at the time of the offence and, even if the victim had consented to the offence, the same is not material at all.

Referring to Section 3 of the POCSO Act, the court made the following observations:

Interpretation of a statute cannot be with eyes closed to practical realities 

46. The court's interpretation of a statute cannot be with eyes closed to practical realities and have to be construed in proper perspective, keeping in view the objects and reasons of the Act. The stated object of the Act is to protect children from offences of sexual assault, sexual harassment and pornography and to provide for establishment of Special Courts for trial of such offences for matters connected therewith or incidental thereto. As such, while construing the expression 'child' in appropriate perspective, the age, maturity and other circumstances also becomes relevant to clinch a case on the ground of penetrative sexual assault.

"Keeping in view the definition of 'child' in Section 2(d) of the said Act, even a person who is aged 17 years and 364 days would qualify as a child, but her maturity would not be much different from another person, who was just one day older than her, that is, 18 years old", the Court observed.

The expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused.

47. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim

Cannot incriminate the accused for a voluntary joint act of sexual union.

49. Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union.

Psyche, maturity and previous conduct of the victim vis-à-vis the accused relevant

55. The POCSO Act defines anyone under eighteen years of age as a 'child', but to convict a person for penetrative sexual assault, the psyche, maturity and previous conduct of the victim vis-à-vis the accused also acquires relevance. In the present case, the previous relation between the victim and the accused and their physical union on several occasions raise a strong presumption of the alleged incriminating act being participatory at both ends, not a unilateral act of the accused.

The court said that, in this case, no unilateral forcible act of penetration, solely on the part of the accused, was established on the basis of the evidence on record. On the contrary, a prior relationship between the two comparatively mature persons has been admitted in the present case, leading to the alleged incident, it noted. The court also noticed that only on refusal to marry the victim, the complaint was lodged four days later as a back-lash.

"In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident...  Merely taking advantage of the literal definition of the term 'child', the accused/appellant cannot be proved to be guilty of an offence under Section 3 of the POCSO Act or Section 376(1) of the IPC, sufficient to convict and sentence the petitioner on such counts.", the court said while acquitting the accused.

The Court also noted that the accused as well as the victim are at present leading marital lives with strangers to the case separately. "As such, the Court ought to be doubly cautious in putting a stigma on either the accused or the victim", it added.

Case: Ranjit Rajbanshi Vs. State of West Bengal [CrA 458 of 2018]

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