Calcutta HC Says Voluntary Sexual Act Between Minor, Adult Male Does Not Attract POCSO Case

The Calcutta High Court acquitted a man accused in Protection of Children from Sexual Offences POCSO case. The court said that it is not right to indict only the man in the case where the minor had willfully participated in the sexual union between the two.

Justice Sabyasachi Bhattacharya ruled, "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 court that the level of maturity of the alleged survivor should be factored in to determine if the sexual act was voluntary or a unilateral act by the accused man. The judgement came during the hearing of an alleged sexual assault case on a 16-year-old girl by a 22-year-old man.

The court observed the expression of 'penetration' in the POCSO Act and said that it means something done by the accused without in agreement in the other person. Whereas consensual intercourse between two people does not mean the same thing when it comes to penetration. The court said that the expression 'penetration' 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.

The court added that in order to put charges of rape on the accused, it needs to be established that the offence was committed against will of the survivor/complainant.

Any other interpretation 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", the Court said, in its September 21 judgment.

In a hearing on September 17, the court was informed about the delay in lodging of the FIR in the said case. It was said that the survivor's family was persuading the accused to marry her. The minor and the adult were also said to be in a consensual physical relationship on several occasions, the court observed.

"Thus, sufficient doubt, as regards any offence having been committed under Section 376(1), IPC, is raised, although a minor’s consent is of no significance", the Court said. There were no external injuries found on the survivor. This ruled out the possibility of any force being applied during the sexual act. The Court also found that the lodging of the FIR in the case was merely an "afterthought" after the negotiations on marriage fell through. There were also discrepancies in the age of the survivor.

"There is no evidence on record at all to show that the accused had unilaterally perpetrated the offences alleged, with the deliberate intention to deceive the alleged victim, at the relevant point of time when the alleged offence took place. Hence, the conviction of the accused under Section 417 of the IPC also fails", the Court said.