In CRA 186 of 2021-CAL HC- Voluntariness or consensually eloping of victim girl with accused cannot dilute case of prosecution as consent of minor is no consent at all: Calcutta HC upholds conviction of POCSO accused
Justices Debangsu Basak & Md. Shabbar Rashidi [02-12-2022]

Read Order: MANISH GUPTA V. THE STATE OF WEST BENGAL

LE Correspondent

Kolkata, December 7, 2022: While upholding the conviction of a POCSO accused, the Calcutta High Court has held that consent even by the victim below eighteen years is not at all consent in the eyes of law.

The Division Bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi dismissed the instant appeal directed against the judgment passed by First Additional District and Sessions Judge,  arising out of special case convicting the appellant under Section 363 of the Indian Penal Code together with section 6 of Prevention Of Children from Sexual Offences Act. 

The Division bench was of the view that it was  in total agreement with the observations of the  trial court that the appellant was not able to rebut the presumption appended to section 29 of the POCSO Act, so far as the present case was  concerned.

The fact giving rise to the instant case was that on June 30, 2020 one Sitaram Agarwal lodged a complaint stating, inter alia, that his daughter i.e. the victim girl aged about seventeen years and eight months went missing.

 It was stated that the complainant on the next morning found the gate of his flat open and the victim was not there in the house. The complainant and his family had a doubt that the said Manish Gupta (appellant) again had misled his daughter and taken her from the house. Her personal belongings like own clothes, rings etc. were also missing. The police took up the investigation and on completion of investigation submitted a charge sheet under Section 363/366A/376(2)(n), 120(B) of the Indian Penal Code read with section 6 of POCSO Act.

Subsequently, the Trial Court convicted the accused which was under challenge in the present appeal.

The appellant assailed the judgment and order of conviction and sentence on the ground that at the time of incident, the victim was aged seventeen years and eight months i.e. on the threshold of attaining maturity. Moreover, the appellant relied upon the evidence adduced on behalf of the prosecution to the effect that the victim was in a relationship with the convict for a pretty long time. In fact, the victim had earlier eloped with the convict in the year 2018 as well, the appellant stated. 

After considering the submissions, the Court noted that in the instant case, the evidence established that the victim was 17 years and 8 months as evident from the oral testimony of the parents and that of the brother of the victim as well as from the testimony of Exhibit 4 which was  the Birth Certificate of the victim.

 “Kidnapping from lawful guardianship as defined under Section 361 of the Indian Penal Code explicitly lays down that whoever takes or entices any minor under 16 years of age if a male, or 18 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian is said to have such minor or person kidnapped from lawful guardianship”, the Court stated. 

“Therefore, voluntariness or consensually eloping of the victim girl with the appellant cannot be taken to dilute the case of the prosecution. The consent of a minor is no consent at all”, the Court further remarked. 

In furtherance of the same, the Court noted that in the instant case, the victim was examined as the sixth prosecution witness.  She appeared to have supported the case of the prosecution. In fact, in her cross examination also, the victim stood by her statement regarding her physical relations with the appellant. Nothing appeared to have been extracted on the part of the defense in her cross-examination to call out the trustworthiness of the sixth prosecution witness. 

 Not only that, other witnesses also supported the case made out by the prosecution and the defense appears to have miserably failed in shaking the credibility of such witnesses including the sixth prosecution witness, the Court noted. 

The story set out by the prosecution, disclosed that the victim was enticed away by the  appellant from the house of her parents without their consent. The appellant  tried to avail the shelter that the victim was in a relationship with him and that she left her house out of the aforesaid relationship, on her own volition, the Court further noted. 

The Court was thus of the view that the appellant was charged with the offence of kidnapping from the lawful guardianship. There was evidence on record to prove that at the relevant point of time the victim was below 18 years of age as contemplated under section 362 of the Indian Penal Code, the appellant couldnot be extended with the benefit of minor leaving her house on own volition. The guardians of the victim were surely not a consenting party. 

They promptly lodged a GDE regarding the incident and took all other legal steps, the guardian of a minor is expected to, in the circumstances. As such, on the basis of evidence on record, a case punishable under section 363 of the Indiana Penal Code appeared to have been well established against the appellant, the Court observed. 

As regards the offence punishable under section 6 of the POCSO Act, the Court encountered evidence to the effect that the victim, after eloping, was living with the appellant in a house at Dumdum and was rescued from there with the intervention of police. The evidence also goes to show that the victim had physical relations with the appellant in the said house.  It was further stated by the Court that the scope of physical relations in the facts and circumstances of the case suggesting the acts of the appellant definitely came under the ambit of aggravated penetrative assault defined under section 5 of the POCSO Act punishable under section 6 of the said Act.

The Court thus observed that the evidence on record, especially the oral testimony of the witnesses coupled with the Birth Certificate sufficiently established that the victim was a child as defined in section 2 (1) (d) of the POCSO Act. 

Thus, upholding the conviction and sentence imposed upon the appellant, the Bench dismissed the appeal.