Child Can’t Give Consent For Sexual Relationship: Madras High Court Upholds Conviction Of Man Who Allegedly Impregnated Daughter’s Friend
The Madras High Court said the fact that the accused had sexual intercourse with a child, directly attracts Sections 5(l) and 6 of the POCSO Act.
Justice M.S. Ramesh, Justice V. Lakshminarayanan, Madras High Court
While upholding conviction of a man, the Madras High Court reiterated that a child cannot give consent to another for having sexual relationship with him or her.
A Criminal Appeal was filed by the accused seeking to set aside the Order of the Sessions Judge, Fastrack Mahila Court by which he was convicted and sentenced to life imprisonment.
A Division Bench comprising Justice M.S. Ramesh and Justice V. Lakshminarayanan observed, “The entire tenor of the cross examination appears to suggest that the sexual relationship between PW1 and appellant was a consensual one. It is too fundamental, however, for the purpose of this case, that we have to reiterate that a child cannot give consent to another, to have sexual relationship with her / him. This discussion leads us to the conclusion that the appellant had sexual intercourse with a child, which resulted in a birth of another child to her. In fact, she was 9 months pregnant with her 2nd child when she deposed before the Court.”
The Bench added that the fact that the accused had sexual intercourse with a child, directly attracts Sections 5(l) and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
Advocates T. Ravi and R. Dhineshkumar appeared on behalf of the Appellant, while Additional Public Prosecutor (APP) A. Damodaran, Advocate M. Arifa Thasneem, and Legal Aid Counsel/Advocate S. Sridevi appeared on behalf of the Respondents.
Brief Facts
As per the prosecution case, the victim (K) was the classmate of the daughter (V) of the Appellant-accused. In October 2015, since it was the Dussehra holidays, both had gone to the V’s residence. At about 11 p.m., when K was asleep, the accused against her wish allegedly had sexual intercourse with her. It was alleged that thereafter, he threatened her not to disclose the said incident to anyone. Subsequently, whenever K visited V’s house, the accused allegedly continued to have sexual intercourse with her against her wish. Eventually, K became pregnant and on coming to know about the same, the accused allegedly kidnapped her from her legal guardian and confined her in Coimbatore.
Consequently, K lodged a complaint and a case was registered. As K belonged to the Scheduled Caste (SC) community, on the directions of the Superintendent of Police, the investigation was transferred to the Deputy Superintendent of Police (DSP). The said officer took over the investigation, and examined the witnesses and he collected the documents and filed a charge sheet. The accused was convicted by the Trial Judge under Section 366 of the Indian Penal Code, 1860 (IPC), Section 5(l) r/w 6 of the POCSO Act, and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). Being aggrieved, the accused approached the High Court.
Reasoning
The High Court in view of the above facts, noted, “The question of getting consent from a child for having sexual relationship does not arise at all. The relationship between the appellant and the victim girl, the fact that they had intercourse on 22.10.2015 and on subsequent dates, and that they lived together as man and wife not only in Coimbatore, but also in Bangalore, is clear from the records. The sheet anchor of the case of the appellant is that the age of PW1 was not satisfactorily proved by the prosecution.”
The Court said that Sections 34(1) to 34(3) of the POCSO Act, 2012, leads to the conclusion that this provision applies only when the Court is called upon to decide whether a child, who is an accused under this Act, should be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), and not in a case where the accused is not a child.
“It is not in dispute that the accused in the present case was 35 years old. In our view, Section 34 of the POCSO Act will not apply in a case where the accused is not a child”, it added.
The Court further observed that as per Section 94(2)(i) of the JJ Act, the date of birth certificate from the school takes precedence over even a birth certificate issued by a municipal authority, or Corporation, or a Panchayat.
“Since the age of PW1 on 22.10.2015 has been established by Ex.P7 as 15 years 3 months and 2 days, she was obviously a “child” as provided under Section 2(d) of the POCSO Act, when the appellant indulged in penetrative sexual intercourse with her. The result of the intercourse was the birth of a child. PW1 was not even cross examined on the aspect as to whether she and the appellant did or did not indulge in any sexual intercourse”, it also noted.
Conclusion
Moreover, the Court said that the evidence shows that the victim was taken away from the lawful custody of her parents to Coimbatore, and was residing with the accused and hence, the act of the accused had rightly been held by the Trial Court of attracting the mentioned provisions.
“It is here we will rely upon Section 29 of the POCSO Act. Under the said Section, where a person is prosecuted for having committed an offence under Sections 3, 5, 7 & 9 of the POCSO Act, the Special Court is called upon to apply the “shall presume” test, that the accused had committed the offence, unless he proves to the contrary. “Shall presume” legally obligates the Court to accept a fact as proven unless disproved by the accused. We searched the evidence for such an evidence. It was all in vain”, it concluded.
Accordingly, the High Court dismissed the Criminal Appeal and upheld the conviction.
Cause Title- Murugesan @ Murugesh v. The State & Ors. (Neutral Citation: 2025:MHC:2357)
