Consent of a child below 18 years to indulge in sexual intercourse is not lawful consent: Madras High Court

Crl.A.No.6719IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 25.02.2021 Delivered on : 19.04.2021CORAM :THE HONOURABLE MR. JUSTICE P. VELMURUGANCrl.A.No. 6719 Parthiban ... AppellantVs.State byThe Inspector of Police W 24 All Women Police Station Teynampet Chennai.... RespondentCriminal Appeal filed under Section 374(2) Cr.P.C. praying to set aside the judgment of conviction and sentence dated 22.11.2018 in S.C.No.2516 on the file of the Special Court for cases under POCSO Act 2012Chennai. For Appellant : Mr.T.Muruganantham for Mr.K.S.Arumugam For Respondent : Mr.R.Suryaprakash Government AdvocateChennai.2.Originally a case was registered by the E 3 Teynampet Police in Crime No.15 for “Girl Missing”. Subsequently a case was registered by the respondent policein Crime No.15 for the offences punishable under Sections 366 A IPC r w. Section 4 of the Protection of Children from Sexual Offences Act 2012Chennai since the offences are against women particularly a child under POCSO Act and the learned Special Judge had taken the case on file in S.C.No.2516. https: www.mhc.tn.gov.in judis Crl.A.No.67193.After completing the formalities the learned Special Judge framed the charges for the offences punishable under Sections 366 IPC and Section 6 of the POCSO Act against the appellant. 4.After framing the charges in order to prove the case of the prosecution on the side of the prosecution during trial as many as 9 witnesses were examined as P.W.1 to P.W.9 and 12 documents were marked as Exs.P1 to P12. Three Court documents were marked as Exs.C1 to C3. 5.After completing the examination of the prosecution witnesses the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant and he denied the same as false. On the side of the defence no witness was examined however two documents were marked as Exs.D1 and D2. One Material Object was exhibited as D.M.O.1.https: www.mhc.tn.gov.in judis Crl.A.No.67196.After completing the trial and hearing of the arguments advanced on either side considering the facts and circumstances the trial Court found the appellant guilty of the offences punishable under Sections 366 IPC and Section 6 of the POCSO Act and convicted and sentenced him as follows :Provision under which convictedSentenceSection 366 IPCRigorous Imprisonment for five years and a fine of Rs.5 000 in default to undergo Rigorous Imprisonment for six monthsSection 6 of POCSO ActRigorous Imprisonment for ten years and a fine of Rs.10 000 in default to undergo Rigorous Imprisonment for six monthsThe sentences shall run concurrently. The victim girl is entitled for compensation of Rs.6 00 000 and Rs.1 50 000 is fixed as interim compensation.7.Challenging the said conviction and sentence the appellant accused has filed the present appeal before this Court.8.The learned counsel appearing for the appellant accused would submit that the prosecution has failed to prove its case beyond reasonable doubt. The victim girlhas not disclosed the facts correctly and the evidence of the victim girlis not trustworthy. The trial Court convicted the appellant only based on the evidence of the https: www.mhc.tn.gov.in judis Crl.A.No.6719victim girlwas produced before the learned Judicial Magistrate for recording the statement under Section 164 Cr.P.C. on 27.11.2015 and the said statement was marked as Ex.C3 in which she has clearly stated that she came out of her house as she got angry with her parents and went to Tirupathi and after she knew that her parents had given a complaint she came back. The trial Court failed to see that the victim girl appeared before the Police on 21.11.2015 however she made her statement only on 27.11.2015 before the learned Judicial Magistrate which itself highly suspicious in the case of the prosecution. 9.The learned counsel appearing for the appellant would further submit that the prosecution has failed to produce any material document to prove that the appellant and the victim girl were staying at lodge either in Tirupathi or in Velankanni as per the prosecution case. The statement recorded from the victim girl under Section 161 Cr.P.C. reached the Court only on 30.11.2015 and there was a delay in sending the records to the Court which is also fatal to the case of the prosecution. The prosecution has not examined any witness to prove where the victim girl and the appellant have stated to have stayed. The age of the victim girl was not https: www.mhc.tn.gov.in judis Crl.A.No.6719proved. Once the age of the victim girl was not proved she is not a child under the POCSO Act and therefore the case registered under POCSO Act is not maintainable. The victim girl has not stated that on 15th night when they were staying at Tirupathi the appellant had sexual intercourse with her. Though the prosecution has stated that the victim girl was taken to Tirupathi and subsequently to Velankanni and made to stay with the appellant and the appellant had sexual intercourse with her during that period neither any witness was examined nor any document was produced to prove that they were staying there at a lodge and the prosecution has not enquired the place where they have stated to have stayed. 10.The learned counsel appearing for the appellant would further submit that the Doctorone who conducted the medical examination of the victim girl deposed that on examination no external injury was found on her body of the victim girl which falsifies the case of the prosecution that the appellant had forcible sexual intercourse with the victim girl. The trial Judge failed to appreciate the evidence produced on the side of the defence and convicted the appellant only based on assumptions and conjectures and on sympathetic grounds and not based on https: www.mhc.tn.gov.in judis Crl.A.No.6719the material evidence. Therefore the judgment of conviction and sentence passed by the trial Court is liable to be set aside. 11.The learned Government Advocateappearing on behalf of the respondent police would submit that at the time of occurrence the age of the victim girl was only 17 years and she had not completed 18 years of age. The victim girlhas clearly stated that since her mother scolded her she left the house and at that time the victim girl met the appellant the appellant misguided her and also forced her to come with him and also took a gold chain from the victim girl and arranged money and left to Tirupathi and stayed there subsequently they went to Velankanni and stayed there at a lodge during that period the appellant committed sexual assault on her when she refused and denied he threatened her and had forcible sexual intercourse with her. The appellant forcibly took the victim girl to Tirupathi and subsequently to Velankanni and several other places without the consent of either the victim girl or her parents who are the lawful guardians of the victim girl. Since the victim girl had not completed 18 years of age she was a minor at the time of occurrence. Therefore since the victim girl was forcibly https: www.mhc.tn.gov.in judis Crl.A.No.6719removed from the custody of the lawful guardians without their consent the appellant has committed the offence under Section 366 IPC. Since the the appellant had sexual intercourse with the victim girl who was a child under the definition of POCSO Act he has committed the offence punishable under Section 6 of the POCSO Act. 12.The learned Government Advocatewould further submit that though the victim girl in her statement under Section 164 Cr.P.C. before the learned Judicial Magistrate has not stated that when they were staying in Tirupathi at a lodge she was subjected to penetrative sexual assault however she has clearly stated in that statement itself that while they were staying at Velankanni on 18.11.2015 to 19.11.2015 the appellant had forcible sexual intercourse with her. The evidence of the Doctoralso corroborates with the same that the hymen of the victim girl was not intact. Though the Doctorhas stated that there was no external injury on the victim girl the opinion of the Doctor was that the victim girl was subjected to penetrative sexual assault. https: www.mhc.tn.gov.in judis Crl.A.No.671913.Therefore the learned Government Advocatewould submit that once the prosecution has proved that the victim girl was a child and she was removed from the custody of her lawful guardians without their consent the appellant has committed the offence under Section 366 IPC and since the prosecution has proved that the victim girl who was a child under the POCSO Act was subjected to penetrative sexual assault by the appellant the appellant has committed the offence punishable under Section 6 of the POCSO Act. Therefore the trial Court rightly appreciated the oral and documentary evidence and has convicted the appellant and there is no merit in the appeal and the appeal is liable to be dismissed.14.Heard the learned counsel on either side and perused the materials available on record.15.The case of the prosecution is that the victim girl was a minor aged about 17 years. On 12.11.2015 at about 05.00 p.m. the appellant made the victim girl to come to Kattupakkam in Two Wheeler bearing Registration No.TN 01 AW 8002 and they went to Kattupakkam at about https: www.mhc.tn.gov.in judis Crl.A.No.671906.45 p.m. There the appellant got one sovereign of gold from the victim girl on compulsion and raised money by pledging the same and thereafter he left the Two Wheeler in Koyambedu and took the victim girl to Tirupathi. He took a room on 13.11.2015 at 08.00 a.m. and stayed there for three days i.e. till 15.11.2015. Subsequently on 15.11.2015 at 10.00 p.m. the appellant took the victim girl to Nagapattinam by Bus and from there he took her to Velankanni where they stayed in a room at Sankarapani Lodge till 18.11.2015 and during that period the appellant had forcible sexual intercourse with the victim girl several times on compulsion. Thereafter he vacated the said room and they stayed in another lodge by name MJN Lodge from 18.11.2015 @ 07.30 p.m. to 20.11.2015 @ 07.30 p.m. Since the appellant had removed the victim girl who is a minor aged about 17 years from the custody of her parents who are her lawful guardians and had forcible sexual intercourse with her who is a child under POCSO Act the appellant has committed the offences punishable under Sections 366 IPC and Section 6 of the POCSO Act. 16.After completing the investigation the respondent police laid a charge sheet before the Special Court for the offences under POCSO https: www.mhc.tn.gov.in judis Crl.A.No.6719Act 2012Chennai and the learned Special Judge had taken the case on file in S.C.No.2516.17.The trial Court framed the charges against the appellant as stated supra. When questioned the appellant pleaded “not guilty”.18.In order to prove the case of the prosecution on the side of the prosecution during trial 9 witnesses were examined and 12 documents were marked. Three Court documents were marked. On the side of the defence no witness was examined however two documents were marked. One Material Object was exhibited as D.M.O.1.19.After hearing the arguments advanced on either side and considering the evidence on record the trial Court by judgment dated 22.11.2018 in S.C.No.2516 convicted and sentenced the appellant for the offences punishable under Section 366 IPC and Section 6 of the POCSO Act as above. https: www.mhc.tn.gov.in judis Crl.A.No.671920.Challenging the said judgment of conviction and sentence the accused appellant has preferred the appeal before this Court.21.This Court being an Appellate Court is a fact finding Court and it has to give its finding independently after appreciating the entire evidence. Accordingly this Court has re appreciated the entire evidence.22.The victim girl was examined as P.W.3. On a careful reading of the evidence of the victim girlit is seen that she has narrated the entire events. There is no eye witness in this case. P.W.5 is the owner of the house in which the victim girl along with her parents were residing. Shehas stated that the victim girl was missing during the relevant point of time the parents of the victim girl filed a complaint before the Police for “Girl Missing” and subsequently came to know that the appellant only took the victim girl. The Doctor one who conducted the medical examination of the victim girl was examined as P.W.6. The evidence of the Doctorclearly shows that though there was no external injury on the body of the victim girl but the hymen was not intact. https: www.mhc.tn.gov.in judis Crl.A.No.671923.The victim girl was produced before the learned Judicial Magistrate for recording statement under Section 164 Cr.P.C. The said statement was marked as Ex.P3. Though in the said statement the victim girl has stated that the appellant took the victim girl to Tirupathi and they stayed in a lodge where he has not committed any penetrative sexual assault however she has stated that subsequently they went to Velankanni and stayed at Sankarapani Lodge and MJN Lodge on 18.11.2015 and 19.11.2015 and during that period the appellant had forcible sexual intercourse with her. Though the statement recorded under Section 164 Cr.P.C. is not a substantive evidence subsequently the victim girl was examined before the Court as P.W.3 during trial and she has deposed that she was subjected to forcible penetrative sexual assault by the appellant. Therefore the statement under Section 164 Cr.P.C. corroborates with the evidence of the victim girlalso corroborates with the same. The Accident Register of the victim girl was marked as Ex.P6 which also clearly shows that the victim girl was subjected to penetrative sexual assault. https: www.mhc.tn.gov.in judis Crl.A.No.671924.At the time of occurrence the victim girl had not completed 18 years of age and therefore she is a “child” under Section 2(1)(d) of the POCSO Act. In order to prove the age of the victim girl the Birth Certificate of the victim girl was marked as Ex.P2. As per Ex.P2 the Date of Birth of the victim girl is 06.11.1998. The date of occurrence is between 12.11.2015 and 19.11.2015 and therefore at the time of occurrence the age of the victim girl was only 17 years and she had not completed 18 years. Even as per Ex.P7the age of the victim girl was 17 years and the defence has not disputed the age of the victim girl. Therefore it is clear that at the time of occurrence the age of the victim girl was only 17 years and therefore she is a “child” under Section 2(1)(d) of the POCSO Act. The appellant was aged about 26 years at the time of occurrence.25.From the evidence of the victim childP.W.1P.W.2Ex.P11and Ex.P12it is clear that the appellant has removed the custody of https: www.mhc.tn.gov.in judis Crl.A.No.6719the victim girl from her parents who are the lawful guardians without their consent and therefore he has committed the offence punishable under Section 366 IPC and since the minor victim girl who was a child under POCSO Act was subjected to aggravated penetrative sexual assault the appellant has also committed the offence punishable under Section 6 of the POCSO Act. 26.Though there is no independent witness in cases like this conviction can be made solely based on the evidence of the prosecutrix. In this case the victim is a child and her custody was removed from her lawful guardians without their consent. Even assuming that the appellant took the victim girl with her consent since the victim child had not completed the age of 18 years her consent cannot be taken as a lawful consent. Further from the evidence of the Doctorit is seen that there were no external injuries on the victim girl. Even assuming that the victim child had not objected to the sexual intercourse and had given her consent such a consent of a child is not legally valid. Once the victim is a child falling under Section 2(1)(d) of the POCSO Act her consent is immaterial. https: www.mhc.tn.gov.in judis Crl.A.No.671927.From the oral and documentary evidence the prosecution has proved that the appellant removed the custody of the victim child from her parents who are the lawful guardians without their consent and subsequently had forcible penetrative sexual intercourse with her and therefore the appellant has committed the offences punishable under Section 366 IPC and Section 6 of the POCSO Act. Though there are contradictions from the evidence of the prosecution witnesses the contradictions are not material contradictions which will go to the root of the case of the prosecution. This Court does not find any reason to discard the evidence of the victim childChennai. 2.The Inspector of Police W 24 All Women Police Station Teynampet Chennai.3.The Inspector of Police E 3 Teynampet Police Station Chennai. 4.The Public Prosecutor High Court Madras.5.The Deputy Registrar|with a direction to send back the |original records to the trial Court High Court Madras. |if any immediatelyhttps: www.mhc.tn.gov.in judis Crl.A.No.6719P. VELMURUGAN J.mknPre delivery JudgmentinCrl.A.No.6719 19.04.2021

Summary: If the victim of sexual assault is a child and she falls under Section 2(1)(d) of the POCSO Act, her consent or her lack of objection to indulge in sexual intercourse is not legally valid. A single judge bench of Justice P Velmurugan while adjudicating the matter in Pathiban v. The State; [Crl.A.No.67 1 of 2019], dealt with the issue of sexual assault upon a minor. A case was filed against the accused for sexual assault under the POCSO Act. The learned counsel appearing for the appellant/accused would submit that the prosecution has failed to prove its case beyond reasonable doubt. The victim girl has not disclosed the facts correctly and the evidence of the victim girl is not trustworthy. The trial Court convicted the appellant only based on the evidence of the victim girl. The victim girl was produced before the learned Judicial Magistrate for recording the statement under Section 164 Cr.P.C in which, she has clearly stated that she came out of her house as she got angry with her parents and went to Tirupathi, and after she knew that her parents had given a complaint, she came back. The learned Government Advocate (Crl. Side), appearing on behalf of the respondent police, would submit that, at the time of occurrence, the age of the victim girl was only 17 years and she had not completed 18 years of age. The victim girl has clearly stated that, since her mother scolded her, she left the house, and at that time, the victim girl met the appellant; the appellant misguided her and also forced her to come with him and also took a gold chain from the victim girl and arranged money and left to Tirupathi and stayed there; subsequently, they went to Velankanni and stayed there at a lodge; during that period, the appellant committed sexual assault on her; when she refused and denied, he threatened her and had forcible sexual intercourse with her. The appellant forcibly took the victim girl to Tirupathi, and subsequently to Velankanni and several other places without the consent of either the victim girl or her parents, who are the lawful guardians of the victim girl. Since the victim girl had not completed 18 years of age, she was a minor at the time of occurrence. Therefore, since the appellant had sexual intercourse with the victim girl, who was a child under the definition of POCSO Act, he has committed the offence punishable under Section 6 of the POCSO Act.