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Consensual sex with girl below 18 years no offence

IN THE COURT OF SH. DHARMESH SHARMA,
ASJ­01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI.

Date of filing of charge sheet : 14.05.2013
Date of framing of charge : 22.05.2013
Date of final arguments : 05.08.2013
Date of judgment : 17.08.2013

SC No. 66/13
FIR NO. 63/13

PS : Vasant Kunj (N) U/s 363/366/376 of IPC & u/s 4 of POCSO ACT

STATE

Vs.

SUMAN DASS
S/O SH. DHIRENDER DASS
R/O VILLAGE­ AAMKULA, PS GAYA GHAT,DISTT. NORTH 24, WEST BENGAL.
PRESENTLY RESIDING AT :C/O PAVVE, 33/B­9, VILLAGE­ KISHANGARH,NEW DELHI.

APPEARANCES
Present : Mr. Salim Khan, Ld. Addl. PP for the State
Mr. Ravi Qazi, Ld. counsel for the accused from Legal Aid.

17.08. 2013
JUDGMENT

1. Accused Suman Dass S/o Sh. Dhirender Dass has been arraigned for trial on the allegations that he kidnapped a minor girl child/prosecutrix aged about 15 years with the intention to compel her to marry him and thereafter committed penetrative sexual assault upon her.

FACTS

2. The case of the prosecution is that on 05.03.2013 DD No. 24 A was recorded at 5:40p.m Ex. PW 3/B at PS Vasant Kunj (North) New Delhi by complainant/mother of the girl child (PW­2) reporting that her daughter aged about 15 years and four months old went missing from her house after 8:30 p.m on 26.02.2013 on the basis of which the present FIR Ex. PW 3/A was initially recorded u/s 363 of IPC; that investigation was marked to ASI Rajbir Singh (PW3) who during investigation took standard measures to spread the missing message; that on 06.03.2013, ASI Rajbir received a secret information that girl would be arriving at Delhi along with accused; that on the said information, the accused Suman Dass was arrested from whose custody the girl child(PW1) was recovered and the girl child was placed under the supervision of Ct. Poonam and sent for medical examination to Safdarjung Hospital where girl child refused to allow her internal examination; that accused was also subjected to medical examination who was found potent enough to have sexual intercourse.

3. It is further the case of the prosecution that during the investigation, the girl child was produced before the Ld. MM and her statement u/s 164 of Cr.PC was recorded in which interalia she stated that she had gone away with accused to her native place where they got married in a temple at Chandipur near Kolkata and since then they have been together; that the girl child was produced before the Child Welfare Committee Bench of Magistrate GNCT, Delhi and after her examination, she was given to the custody of her mother. After completion of investigation, the present police report was filed. CHARGE

4. Needless to state that accused initially was charged u/s 363/366 of IPC to which he pleaded not guilty and claimed trial and the charge was later suo moto amended by this Court putting charge u/s 4 of Protection of Children from Sexual Offences (POCSO) Act to which the accused pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

5. The prosecution in order to prove its case examined the prosecutrix / girl child as PW­1 aged about 16 years of age and I shall dwell on her evidence later on in this judgment. PW­2 was mother of the prosecutrix on whose evidence too I shall FIR No. 63/13 State v. Suman Dass Page no. 3 of 13 dwell later on in this judgment.

6. It would bear repetition that PW­3 was ASI Rajbir Singh who was the Investigating Officer while PW­4 was W/ASI Kailash Kain who was associated during the investigation of this case.

7. It is pertinent to mention here that Mr. Ravi Qazi, Ld.

counsel for the accused did not dispute the correctness of the MLC of the prosecutrix/ girl child which on admission was marked A­1 while the medical examination report of the accused was also admitted that was marked as A­2. Mr. Qazi, Ld. counsel from Legal Aid also did not dispute the correctness and legality of the statement of the prosecutrix recorded u/s 164 of Cr.PC by Sh. Jay Thareja, Ld. MM u/s 164 of Cr. P.C and that dispensed with the requirement to examine the ld MM.

STATEMENT OF ACCUSED U/S 313 Cr.P.C

8. On the close of the prosecution evidence, the accused was examined in terms of Section 313 of Cr. PC. On putting the incriminating facts and circumstances on the record, accused stated that the prosecutrix / girl child accompanied on her own will with her to Kolkata where they performed marriage on 28.02.2013 at Village Chandipur but he denied that he had sexual intercourse with the prosecutrix / girl child.

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9. I have heard Ld. APP for the State and Ld. counsel for the accused. I have also perused the relevant record of the case including the trial court record.

LEGAL PROVISIONS IN QUESTION

10. Before we proceed to appreciate the evidence led by the prosecution on the record, it would be expedient to point out that the offence of kidnapping is defined u/s 361 of IPC that contemplates taking or enticing away any minor girl under 18 years of age out of the keeping of the lawful guardians which is made punishable u/s 363 of IPC. Section 366 of IPC is an offence about kidnapping of a woman with the intention that the woman shall be compelled or likely to be compelled to marry to any person against her will or forced or seduced to illicit sexual intercourse.

11. Now Section 3 of POCSO Act is quite a stringent and exhaustive provision that provides as under:

3. Penetrative sexual assault­ A person is said to commit “penetrative sexual assault” if­
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
12. It may be seen that the word “assault” is not defined under the POCSO Act but it is defined u/s 351 of IPC to mean “any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person”.

13. Offence of “criminal force” is defined u/s 350 of IPC to mean “intentional use of force to any person, without that person’s consent, in order to committing of any offence, or intending by the use of such force to cause or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance”. Thus, bare perusal of the said provision provides that sexual intercourse with a child is punishable u/s 4 of the POCSO Act provided it is in the nature of an assault.

APPRECIAITON OF EVIDENCE

14. Coming to the instant case, first thing first, there is no challenge to the evidence on record that the Date of Birth of PW­1 girl child was 27.10.1997 and therefore, during the relevant time, she was about 15 years and four months old making the provisions of the POCSO Act applicable. Secondly, evidence of PW­1 girl child is categorical that she was having friendly relationship with accused who was residing near her house and she testified that on 26.02.2013 she went to her native place Chandipur near Kolkata along with the accused where they got married. She testified that after 10­12 days they came back to Delhi and stayed at the house of the accused when accused was arrested on 06.03.2013.

15. Thirdly, it is also in evidence that she made a statement before the Ld. MM u/s 164 of Cr.P.C which is Ex. PW 1/A, perusal of which would show that she stated ditto facts before the Ld. Judge. However, there is a twist in the tale in as much as while in her statement u/s 164 Cr.P.C Ex. PW 1/A she stated that when they were at Chandipur, she and accused resided separately and no harm was caused to her, in her testimony before the Court, she stated that after marriage she had sexual relationship with the accused. In fact, when PW­1 was produced before the doctor concerned, as per MLC Ex. A­1 on 06.03.2013 she did reveal to the doctor that she had sexual relationship with a boy Suman Dass after marriage.

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16. Fourth factor that comes in the evidence of PW­2 mother of the prosecutrix is that her daughter went missing on 26.02.2013 and she lodged a report on 05.03.2013 and her daughter was recovered on 06.03.2013. But PW­2 in her evidence stated that the marriage between the accused and her daughter was acceptable to her besides her community and she was certain that accused would take good care of her daughter. The question is where does the said evidence lead us to in view of the penal provision quoted above particularly the stringent one in POCSO Act?

17. In so far as the offence of kidnapping is concerned, there is no iota of evidence that accused enticed or took away the prosecutrix from her lawful guardian. Testimony of PW­1 girl child is that she left the house of her own and accompanied with the accused to her native place. Further, as the evidence indicates, they got married voluntarily with their free consent, hence no case is made out u/s 363 and 366 of the I.P.C. Reference can be had to decision in Varadarajan v. State of Madras, 1965 (2) CRI. L. J. 33 (Vol. 71, C. N. 7), wherein the law on kidnapping was explained in somewhat similar contextual circumstances as under:

The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father’s house or even of telling her not to accompany him. (Para 7) There is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same tiling for the purposes of S. 361. Where the minor leaves her father’s protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him. In the formation of the intention of the minor to leave the house of the guardian. (Para 8)

18. Much was urged by Ld. APP for the State that the mandate of the POCSO Act is that no one including a married man can have sexual intercourse with a child below 18 years of age. I am afraid I am not impressed. The words “penetrative sexual assault” used in Section 3 of the POCSO Act goes to suggest that where physical relationship or sexual intercourse had taken place with consent of a girl child which is not derived by coercion or not in the nature of an assault or use of criminal force, or which is not resulting in exploitation, or where the consent is not obtained for unlawful purpose, no offence within the ambit of Section 3 of POCSO Act can be said to have been committed.

19. It is pertinent to mention here that u/s 375 (sixthly) r/w Explanation Clause provides that sexual intercourse by a man with his own wife, wife being not under 15 years of age, is not a rape. It is also significant to note that the issue of consent occurring in section 375 of IPC has been deliberately omitted in the entire scheme of the POCSO Act and instead the emphasis is on the act of “assault”. The genesis of the present enactment lies in India being signatory to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations dated 11th December, 1992 whereby it was resolved that the State Parties to the Convention are required to undertake all appropriate national, bilateral and multilateral measures to prevent ­

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a) the inducement or coercion of a child to engage in any unlawful sexual activity;

b) the exploitative use of children in prostitution or other unlawful sexual practices;

c) the exploitative use of children in pornographic performances and materials;

20. Further, a meaning perusal of the objects and reasons of the POCSO Act would show that the present enactment aims to curb such acts of sexual assault or harassment that are likely to bring an irreparable impact on the mental, physical and psychological health , freedom and dignity of a child.

21. In the instant case, the girl child PW­1 has married with the girl child and they are residing peacefully. The accused happens to be a young boy of 22 years. At the cost of repetition, the marriage is acceptable to the widowed mother of the prosecutrix/ girl child as well as her community. In my opinion, it would neither serve the object of the present enactment nor the purpose of criminal laws to hold the accused guilty on the ground that he had sexual intercourse with the girl child below 18 years of age. As the prosecution has not disputed the factum of marriage, it would not be conducive to mental, psychological, physical health of the prosecutrix that her lawfully married husband be sent to the Jail. If they are happy about it, why put obstacles on their path.

22. I am not oblivious of the fact that performing marriage at such tender age is fraught with several complications. It is said that “Love is blind” and in such blindness they are not able to realize the kind of responsibilities that would fall ultimately on their shoulders after this marriage so early in their life. Law can not and should not prohibit teens from experimentation of such nature.

23. It has been urged by Ms. Kalpana, Ld. Counsel from Delhi Commission for Women that the present enactment mandates that there must be total prohibition upon teenagers or adolescents from having any kind of sexual relationship. I am afraid, if that interpretation is allowed, it would mean that the human body of every individual under 18 years of age is the property of State and no individual below 18 years of age can be allowed to have the pleasures associated with once body. But their lies a greater responsibility on all of us, the State including police in spreading and creating public awareness about the impact of girl or boy marrying at a tender age or indulging in unsafe sexual activities. It is high time that the State authorities, its machineries and/or public spirited NGOs/Societies/ Women groups to make a determined and sustained endeavour to reach out to all in schools and colleges, residential colonies, re­ settlement colonies and other public places thereby create public awareness on various aspects of life in case of marriage at a tender age or unsafe sex that might result in unwanted pregnancies, hindrances in getting education due to family responsibilities or economic conditions besides creating awareness amongst adolescents and young adults about the serious mental, psychological, physical health issues that such relation entails in case of marriage at a tender age.

FINAL ORDER

24. Anyhow, coming to the instant case again, the boy at the age of 22 years and the girl at the age of 15 years and four months were friendly with one another and there is nothing to indicate that she was enticed or taken away by the accused since the girl child knew what she was doing and got married voluntarily and physical relation with the child was not in the nature of assault or consequent to use of any criminal force upon the girl child.

25. In the said view of the discussion, I find that the prosecution fails to prove its case against the accused on law and facts. Therefore, accused Suman Dass S/o Sh. Dhirender Dass is hereby acquitted. His Personal Bonds and Surety Bonds are cancelled. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
(DHARMESH SHARMA)
TODAY i.e 17.08.2013
ASJ­01/PHC/NEW DELHI 17.08.2013

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