READ ORDER | Charging Boyfriend With Rape After Refusal Of Marriage Would Frustrate Purpose Of POCSO Act

The Calcutta high court on Tuesday acquitted a young man, who had been imprisoned on the charge of raping and cheating a 17-year-old girl. The court observed that just being male wasn’t enough to presume that sex between two sufficiently mature persons was forced, and not consensual.

Case:

In November 2015, a youth, who is a resident of Krishnagore, had been accused of raping a 17-year-old girl, with whom he was in a consensual relationship for two-and-a-half years. The minor girl accused him of serious allegations such as rape and penetrative sexual assault.

The age of the accused was 22-years and that of the victim was 16 ½ at the time of the First Information Report (FIR). It is argued that the time lapse of two days between the date of the incident (August 12, 2017) and lodging the FIR (August 14, 2017) also gave rise to a suspicion as regards the involvement of the accused.

It was further argued by learned counsel for the appellant that the two Doctors’ reports did not corroborate the prosecution case. For this purpose, apart from the said reports, learned counsel also placed reliance on relevant portions of the depositions of the doctors.

Calcutta High Court

Justice Sabyasachi Bhattacharyya observed that rather than automatically charging an accused under POCSO (Protection of Children from Sexual Offences Act) , it was essential to ascertain,

Whether the act was unilateral or participatory, along with the level of maturity and psyche of the victim as well as the accused, before convicting the accused under such serious allegations of rape and penetrative sexual assault, which might ruin an otherwise bright career.

The judge added how legal definitions of rape or sexual abuse of children “has to be construed as a unilateral act on the part of the accused.”

Justice Bhattacharyya said,

It would be wrong to assume, just because the accused was male, that any sexual union between two sufficiently mature persons was a unilateral act of the accused and not participatory, otherwise it would lead to an absurd presumption that, even if the sexual union between two persons of sufficient maturity was participatory in nature, only the male should be held guilty of such offence.

Trial Court Presumed Age of Girl – Not on Evidences

Justice Bhattacharyya also remarked that the trial court’s judgment, which suggested that the girl was born on May 30, 1998, was not borne out by evidence, either documents or medical tests. The court said,

The age of 17 and above, based on assumptions and bereft of supporting documents, gives rise to sufficient doubt as to whether the victim had already attained majority at the relevant juncture.

The judge held that the accuser was over 17-years and the accused was 22. He added that the evidence produced in court and testimony of witnesses bear out that they had a romantic affair, which had led to physical relations. This negated negates the presumption that the sexual union was “a unilateral act, for which the accused should be held guilty.”

Rape Complain Backlash By Girl

The court noted,

The meeting of the victim’s family with the accused on the same evening, not for a confrontation but with a proposal of marriage, is not compatible with the allegation of rape or penetrative sexual assault. 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.

The court also held,

It was evident from the depositions of the mother of the victim as well as the victim herself, as corroborated by the father of the victim, that the complaint was mere backlash due to the altercation regarding the conditions of marriage.

Thus, mere refusal to marry, that too at a stage subsequent to the alleged incident, cannot be a handle to incriminate the appellant on the charges clamped against him, particularly keeping in view the antecedents of the accused and admitted previous physical and romantic relationship between the alleged victim and the accused.

This would frustrate the purpose of the POCSO Act as well as the jurisprudence behind the IPC and lead to unscrupulous abuse of the said statutes at the drop of a hat.

POCSO Charges

The judge also remarked,

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.

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