Jharkhand High Court

Navdeep Mahato vs State Of Jharkhand on 25 March, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr. Appeal (DB) No. 187 of 2024
                                   ---------

Navdeep Mahato, S/o Kamdev Mahato, R/o village Neto, P.O + P.S.- Rajnagar, District- Seraikella- Kharsawan (Jharkhand).

                                                         ... ... Appellant
                                       Versus
State of Jharkhand                                       ... ... Respondent
                                       ---------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant       : Mr. Gautam Kumar, Advocate
                           Mr. Rajesh Kumar Mishra, Advocate
For the State            : Mr. Sanjay Kumar Srivastava, A.P.P.
                           -----------
07/Dated: 25 March, 2025
              th


I.A. No. 3612 of 2025
Prayer

1. The instant interlocutory application has been filed under Section 430(1)

of the Bharatiya Nagarik Suraksha Sanhita, 2023 for suspension of

sentence vide judgment of conviction dated 12.01.2024 and sentence dated

19.01.2024/22.01.2024 passed by the learned Special Judge, POCSO Act,

Seraikella in connection with POCSO Case No. 08 of 2020 (arising out of

Rajnagar P.S. Case No. 10 of 2020), whereby and whereunder, the

appellant has been sentenced to undergo R.I. for 15 years along with fine

of Rs.15,000/- for the offence under Section 4(1) of the POCSO Act and

Section 376(1) of I.P.C. and in default of payment of fine, he shall further

undergo simple imprisonment for two years.

Submission of the learned counsel for the appellant/applicant:

2. It is contended by learned counsel for the appellant that if the testimony of

the witnesses will be taken in to entirety, it would be evident that due to

the consensual relationship between the victim and the appellant, physical

relationship was established. The further submission has been made that

the age of appellant at the time of occurrence was of 19 years whereas the

age of the victim was of 16 years [Plus Minus One year] as has been

determined by the doctor.

3. Learned counsel for the appellant has contended that since it is consensual

relationship between the appellant and the victim, as such, the ingredient

of Section 4 of the POCSO Act, 2012 will not be attracted herein.

4. Learned counsel for the appellant, based upon the aforesaid grounds, has

submitted that it is, therefore, a fit case for suspension of sentence.

Submission of the learned APP for the state:

5. While on the other hand, Mr. Sanjay Kumar Srivastava, learned APP

appearing for the respondent-State has vehemently opposed the prayer for

suspension of sentence.

6. The learned Additional Public Prosecutor has contended that in the matter

of POCSO, there is no meaning of any consent as reason being that the

POCSO Act is only to take care of the child being a gender-neutral act and,

hence, it is not a fit case for suspension of sentence

Analysis

7. 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.

8. The sole ground has been taken by the learned counsel for the

applicant/appellant while assailing the impugned judgment that there was

consensual physical relationship between the applicant/appellant and the

victim.

9. 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.

10.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 have 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.

11.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 have 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.

12.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.

13. 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."

14.Further, 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, 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. -----"

15.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."

16. 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.

17.In the background of the aforesaid settled legal position, this Court is

reverting to the factual aspects of instant case.

18. Admittedly herein, the victim was child within the meaning of 2(d) of the

POCSO Act, 2012 and appellant was major having age of 19 years

therefore, in view of aforesaid settled connotation of law as laid down by

the Hon'ble Apex Court where the consent of the victim is having no

meaning, this Court is of view that contention of the learned counsel for

the applicant/appellant that there was consensual relationship between the

victim and the appellant is having no relevance.