Jharkhand High Court
Sitaram Murmu Aged About 26 Years vs The State Of Jharkhand on 5 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.533 of 2024
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Sitaram Murmu aged about 26 years, S/o Barsa Murmu, R/o Village-
Domunda, PO-Lodharia & PS-Tundi, District-Dhanbad, Jharkhand
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Mahesh Tewari, Advocate
For the Respondent : Mrs. Priya Shrestha, Spl.PP
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th
Order No.10/Dated: 5 March, 2025
I.A. No. 11809 of 2024
1. The instant interlocutory application has been filed under Section 430(1)
of the BNSS, 2023 for keeping the sentence in abeyance in connection
with the judgment of conviction dated 02.04.2024 and order of sentence
dated 03.04.2024 passed by the learned Special Judge (POCSO) Act,
Dhanbad in connection with Special POSCO Case No.110 of 2023 arising
out of Tundi PS Case No.48 of 2023, whereby and whereunder, the
appellant has been convicted under section 376(2)(n) of the IPC and under
Section 6 of POCSO Act and sentenced to undergo RI for 20 years for the
offence under Section 6 of POCSO Act and a fine of Rs.10,000/- for the
said offence and in default of payment of fine, further directed to undergo
additional imprisonment of one month.
2. It has been contended on behalf of the applicant that it is a case where the
marriage of the victim has been solemnized with the appellant with the
consent of both the parties and thereafter physical relationship has been
established. Out of the said physical relationship, the victim has given
birth to a female child even prior to their marriage, however, subsequently
the marriage has been solemnized and now the appellant in consequence
of the conviction in the present case under the aforesaid offences is
languishing in judicial custody in order to serve the sentence and, hence,
the applicant is also facing difficulty in managing the female child.
3. It has also been contended that it is a case where the physical relationship
has been established with the consent of the victim and, as such, no offence
under section 376(2)(n) of the IPC and under Section 6 of POCSO Act can
be said to be attracted against the applicant, particularly, the applicant and
the victim belong to the tribal community of Santhal Pargana in the State
of Jharkhand. It has also been contended that the case has been lodged
after lapse of four years.
4. The submission has been made by making reference of the judgment
passed by the Madras High Court in the case of "Vijayalakshmi & Anr.
V. State represented by Inspector of Police, All Women Police Station"
in Crl. O.P No.232 of 2021, for ready reference, the relevant paragraph
of the said judgment is being quoted herein as under:
".........Punishing an adolescent boy who enters into a
relationship with a minor girl by treating him as an
offender, was never the objective of the POCSO Act. An
adolescent boy and girl who are in the grips of their
hormones and biological changes and whose decision-
making ability is yet to fully develop, should essentially
receive the support and guidance of their parents and the
society at large................"
5. The learned counsel, based upon the aforesaid ground, has submitted that
it is a fit case for suspension of sentence.
6. While, on the other hand, Mrs. Priya Shrestha, learned Spl.PP appearing
for the respondent-State of Jharkhand has vehemently opposed the prayer
for suspension of sentence.
7. It has been contended by the learned APP that in the matter of POCSO
there is no meaning of any consent reason being that the POCSO Act is
only to take care of the child being a general neutral act. The fact of sexual
assault as per the submission made by the learned counsel for the applicant
is admitted one, and, hence, it is not a fit case for suspension of sentence.
8. We have heard the learned counsel for the parties and gone across the
findings recorded by the learned trial Court in the impugned judgment as
well as the testimony available in the lower Court records, as also the
materials exhibit as available therein.
9. The victim is child within the meaning of section 2(1)(d) of the POCSO
Act, 2012. She was subjected to sexual assault at the age of 13 years
approximately. She has given birth to a female child at the age of 15 years
and 5 months. The appellant thereafter has kept the present victim with
him as a wife.
10. The aforesaid fact has been taken as a ground for suspension of sentence
by making submission that since the victim was living with the present
appellant as a wife, hence, no offence is made out against the appellant
under section 376(2)(n) of the IPC and under Section 6 of the POCSO Act.
11. This Court is not in agreement with such submission as has been advanced
on behalf of the applicant merely due to the preamble of the POCSO Act,
2012 wherein it has been provided that to deal with the sexual offences of
the child as per the meaning of child as defined under section 2(1)(d) of
the POCSO Act, 2012, the consent is also having no meaning as has been
held by Hon'ble Apex Court in the case of "X Vs. Principal Secretary,
Health and Family Welfare Department, Government of NCT of Delhi
and Another" reported in (2023) 9 SCC 433.
12. Herein, the admitted fact is as per the submission and material available
on record that the victim was subjected to sexual assault and in
consequence thereof a female child has also been given birth by the victim.
The age of the victim has also been assessed to be the age of 13 years and
the age of the victim at the time of delivery of the female child was as 15
years 5 months. The victim being a child within the meaning of section
2(1)(d) of the POCSO Act, 2012 and, as such, the consent is having no
meaning.
13. So far as the customary ground has been taken, this Court is of the view
that when the Central Legislation is there to deal with the predicament of
the child within the meaning of Section 2(1)(d), then irrespective of the
customary tradition in the tribal community of the concerned region the
Act will prevail and not the tradition. If the tradition will be allowed to
prevail, then the question would be that how the social evils like such type
of incident can be taken care of.
14. So far as the reference of the judgment in the case of "Vijayalakshmi"
(supra) as referred hereinabove is concerned, this Court is of the view that
we are bound by the judgment passed by the Hon'ble Apex Court on the
issue wherein the issue of consent has been taken into consideration by the
Hon'ble Apex Court while holding that in the matter of POCSO, the
consent is having no meaning.
15. At this juncture, this Court is of the considered view that the meaning of
consent so far as POCSO Act is concerned, is having no relevance. The
reason for such view is that if the consent would have any relevance, then
the question is that for what purpose the POCSO Act has been legislated
when the penal provision as under Section 376 IPC was already there
when the POCSO Act, 2012 has been notified.
16. It needs to refer herein that it is little more than a decade that the special
Act (POCSO Act) is in operation and pertinent to note that at the time of
introduction of the POCSO Act, "age of consent" for unmarried girl was
16 and it was presumed that any one below this age cannot lawfully
consent to sexual intercourse. The POCSO Act raised the "age of consent"
to 18 years and following the recommendations of Justice J.S. Verma
Committee, in the wake of a gruesome incident, which took place in NCT,
Section 375 of IPC was also amended by the Criminal Law (Amendment)
Act, 2013.
17. As a consequence of the aforesaid provisions, an act of sexual indulgence
with a girl below 18 years, would attract the rigors of the POCSO Act as
well as the offence under Section 376 of IPC, and it is being immaterial,
whether it is a consensual relationship, as the law presume that a girl below
18 years is not capable of consenting to sexual intercourse and in such a
scenario, even if a girl below 18, consent to a sexual intercourse, her
consent must be ignored and the other party Shall be guilty of committing
an offence under the POCSO Act.
18. The POCSO Act deals with number of situations in regard to sexual
offence against children. The relevant factor such as penetrated sexual
assault as well as aggravated penetrated sexual assault depends on nature
of sexual assault, therefore, the consent of minor, is immaterial.
19. The Hon'ble Apex Court in the case of Satish Kumar Jayanti Lal Dabgar
v. State of Gujarat, (2015) 7 SCC 359 has categorically held that if the
consent of minor is treated as a mitigating circumstance, it may lead to
disastrous consequences. For ready reference the relevant paragraph of the
aforesaid judgment is being quoted as under:
"16. Once we put the things in right perspective in the manner stated
above, we have to treat it as a case where the appellant has committed
rape of a minor girl which is regarded as a heinous crime. Such an act
of sexual assault has to be abhorred. If the consent of minor is treated
as a mitigating circumstance, it may lead to disastrous consequences.
This view of ours gets strengthened when we keep in mind the letter and
spirit behind the Protection of Children from Sexual Offences Act,
2012."
20. Further, in the case of X Vs. Principal Secretary" (supra), the Hon'ble
Apex Court has laid down that in the matter of POCSO Act, consent has
got no meaning. For ready reference the relevant paragraph is being
quoted as under:
"82. ----- The Protection of Children from Sexual Offences Act, 2012
("the Pocso Act") is gender neutral and criminalises sexual activity by
those below the age of eighteen. Under the Pocso Act, factual consent
in a relationship between minors is immaterial. -----"
21. The Hon'ble Supreme Court in a recent case of "X (Minor) Vs. The State
of Jharkhand and Anr". reported in 2022 SCC OnLine SC 2373 has dealt
with the issue of consent and has considered the averment in regard to
love-affair and relevant paragraph No.6 is reproduced hereinafter :-
"6. The High Court was manifestly in error in allowing the application
for bail. The reason that from the statement under Section 164 and the
averments in the FIR, it appears that "there was a love affair" between
the appellant and the second respondent and that the case was instituted
on the refusal of the second respondent to marry the appellant, is
specious. Once, prima facie, it appears from the material before the
Court that the appellant was barely thirteen years of age on the date
when the alleged offence took place, both the grounds, namely that
"there was a love affair" between the appellant and the second
respondent as well as the alleged refusal to marry, are circumstances
which will have no bearing on the grant of bail. Having regard to the
age of the prosecutrix and the nature and gravity of the crime, no case
for the grant of bail was established. The order of the High Court
granting bail has to be interfered with since the circumstances which
prevailed with the High Court are extraneous in view of the age of the
prosecutrix, having regard to the provisions of Section 376 of IPC and
Section 6 of POCSO."
22. On the basis of discussion made hereinabove, this Court is of the view that
since we are dealing with the case of minor, as such consent has got no
meaning in the instant case.
23. So far as the ground of delay in instituting the First Information Report is
concerned, the same has got no relevance when it is admitted case of the
appellant that the minor being the local tribal belonging to the Santhal
Tribes and, as such, on the pretext of promise of marriage if the victim on
acceptance of the aforesaid false promise has not instituted the First
Information Report, rather instituted the First Information Report after
delay, the same will not vitiate the entire prosecution version in a case
where the victim is minor.
24. This Court, in view thereof, is of the view that it is not a fit case where the
applicant is directed to be enlarged on bail by suspending his sentence.
25. Accordingly, I.A. No. 11809 of 2024 stands dismissed.
26. It is made clear that any observation made hereinabove will not prejudice
the case on merit, since, the criminal appeal is lying pending before this
Court for its consideration.
27. In view thereof, I.A. No.11809 of 2024 stands disposed of with the
aforesaid observation.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Sudhir
