Noting that merely because accused married the victim and there exists a child from the wedlock, the offence the rape doesn't get mitigated in itself, the Delhi High Court denied bail to a man charged in a POCSO case.
The single-judge bench of Justice Anoop Kumnar Mendiratta noted that the victim aged just 14 years when she was allegedly kidnapped by the accused and that consent by the minor victim cannot be recognized in law.
The FIR against the petitioner was registered under Sections 363/366/376 I.P.C. and Sections 4/6 of POCSO Act on the complaint of victim's mother.
After long investigation and search, the victim was recovered but when found she was married with a child. The prosecution's case is that she was lured into marrying the accused when she was waiting for her boyfriend. The petitioner allegedly took her with him and persuaded her to stay and bear the child.
The contention of petitioner's counsel was that his client has been in jail for long. Submitting that relations between the parties were voluntary, he averred that the victim as now recognized as his wife is suffering too on account of incarceration of the petitioner.
Stating that the petitioner is responsible for taking care of victim as well as the minor child, the Counsel placed reliance of a number of precedents for his release. These included Mohd.Chaman Vs. State (N.C.T.Of Delhi), 2000 Latest Caselaw 632 SC, Monu Vs. State of Uttar Pradesh, 2019 Latest Caselaw 10 SC, State of Bihar & ANR Vs. Kundan Singh & ANR, 1963 Latest Caselaw 96 SC, State of U.P. & Ors Vs. Maharaja Dharmander Prasad Singh, 1989 Latest Caselaw 12 SC
On the other hand, learned APP for the State vehemently opposed the bail application and submitted that victim was merely 14 years and 06 months of age, at the time she was lured and kidnapped by the petitioner. It was urged that entire machinery was kept in the dark by the petitioner who deliberately concealed the particulars of the victim and led the investigating agency on the wrong path despite filing of the Habeas Corpus petition by the mother of the victim.
It was also urged that the petitioner who is aged about 27 years is more than 10 years older than the age of the victim and the consent by the minor victim cannot be recognized in law. It was also pointed out that alleged marriage with a minor as claimed by the petitioner is in violation of the provisions of The Prohibition of Child Marriage Act, 2006.
Placing reliance on Independent Thought Vs. Union of India and ANR., 2017 Latest Caselaw 742 SC, it was being submitted that sexual intercourse or sexual act by a man, even with his own wife under 15 years of age, has been classified as rape
The Court referred to observations made in Satish Kumar Jayanti Lal Dabgar Vs. State of Gujarat, 2015 Latest Caselaw 176 SC to note that sexual relationship with minor is prohibited and the law clearly treats them as offences even if the same is based upon alleged consent of a minor.
It further stated that child marriage is prohibited under the Prohibition of Child Marriage Act, 2006 and that if the woman is under the age of 18 years then sexual intercourse with her, with or without consent is “rape.”
Even a sexual intercourse with wife under 18 years of age regardless of her willingness or consent is rape, the Court reiterated citing.
Noting that the consent, if any, given by the victim girl for the alleged physical relationship being a minor cannot be treated as a consent in the eyes of law, the Court commented:
"It may also be observed that sexual exploitation and sexual abuse of children are heinous crimes which need to be effectively addressed. Merely because such sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law."
The Court opined that the sexual assault perpetrated on the victim clearly falls within aggravated penetrated assault as defined in Section 5 of POCSO Act punishable under Section 6 of POCSO Act, even if it is claimed that the "act‟ was consensual.
Such incidents of luring a minor and entering into physical relationship, accused thereafter claiming consent of the minor, cannot be treated in a routine manner, since rape is not only a crime against the minor victim but is a crime against the entire society which leaves little option for the minor child but to toe the line of the petitioner/accused, the Court said.
It thus refused to neglect the crime on account of marriage of the parties noting that the same cannot sanctify the offence.
Referring to Anversinh @ Kiransinh Fatesinh Zala Vs. State of Gujarat, 2021 Latest Caselaw 18 SC, the Court also observed that even the minor girl's infatuation with the alleged kidnapper cannot be permitted as a valid defence as it would amount to undermining the essence of legislative intent under Section 361 of IPC.
The bail was thus denied in the backdrop of the above.
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