Subsequent Marriage Between Accused & Victim Won’t Take Away Sexual Offence When Victim Girl Is Child: Madras High Court
The Madras High Court said that in such cases, the Court cannot take evidence of the witness in an absolute manner here and there.
Justice P. Velmurugan, Madras High Court
The Madras High Court held that the subsequent marriage between the accused and the victim will not take away the sexual offence when the victim girl is a child.
The Court held thus in a Criminal Appeal filed by the accused seeking to set aside the Judgment of conviction and sentence passed by the Sessions Judge for the offence under Sections 363 and 343 of the Indian Penal Code, 1860 (IPC).
A Single Bench of Justice P. Velmurugan observed, “… the offence under the POCSO Act is not against individual and it is against the Society. Hence, the subsequent marriage between the accused and the victim, will not take away the offence committed by the accused when the victim girl was a child. If the defence of subsequent marriage or the elopement is accepted, then the purpose of enactment of the POCSO Act would get defeated. In case this proposition is accepted, in my opinion, it will lead to disastrous consequences.”
The Bench said that in such cases, the Court cannot take evidence of the witness in an absolute manner here and there.
Advocate T. Shanmugam appeared for the Appellant/Accused while Additional Public Prosecutor (APP) G.V. Kasthuri appeared for the Respondent/State.
Case Background
As per the prosecution case, based on a Complaint preferred by the victim girl’s father, a case was registered by the Police “for girl missing”. Subsequently, the victim was secured and based on her statement, the Police altered the offence into Sections 363 IPC and 5(1) read with 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The Trial Court convicted the accused under Sections 363 and 343 IPC and acquitted him under Section 5(1) read with 6 of the POCSO Act. Being aggrieved by this, the accused filed the Appeal before the High Court.
As per the counsel for the accused, the victim and the accused were neighbours who fell in love with each other. After coming to know about the same, there was allegedly a quarrel between the victim’s parents and the accused, due to which the accused shifted his house to other place. It was further submitted that when the victim’s parents made arrangements for her marriage with some other person, she left her home and approached the accused. The accused with no other option, allegedly took her to the relative’s house and stayed there for some time but after coming to know that the victim’s parents have given complaint to the police, he brought her back to her native.
Reasoning
The High Court in view of the facts and circumstances of the case, noted, “Even assuming that the victim only voluntarily left her home and approached the accused due to fear that her parents would give her into marriage with some other person, the accused ought to have informed the same either to the police or any other competent authority or Social Welfare Officer. Now a days, the youngsters very well aware that when two adult persons who were in love with each other and if their parents arranges marriage against their wish, they can approach either police or they can seek help from the concerned authorities through social media.”
The Court remarked that if at all the intention of the accused was to safe guard the victim from the alleged marriage, as soon as the victim approached him, he ought to have intimated the same to the competent authority to stop the marriage whereas, the accused without intimating to any of the competent authority, took the victim to many places and finally to his relative’s house in Mysore wherein they lived together for few days.
“Once the victim was a child at the time of occurrence, there is no question of elopement and consent. Since the victim had not completed the age of 18 years at the time of occurrence, she was a child under the definition of POCSO Act, the offence under Sections 363 and 343 of IPC is made out. Therefore, the trial Court rightly convicted the accused for the offence under Section 363 and 343 of IPC. The grounds taken by the accused is not sustainable and there is no merits in the appeal filed by the accused and the same is liable to be dismissed”, it added.
Furthermore, the Court said that it is clear that the accused removed the victim from the lawful custody of her parental home and they both stayed in his relative’s house and during their stay, they had physical relationship and the medical evidence also confirmed the same.
“Therefore, the act committed by the accused, falls under Section 3 punishable under Section 4(1) of POCSO Act. … A reading of the materials right from the top to end, it is seen that it is not as if the accused and the victim are strangers. Even the defence itself stated that the accused and the victim fell in love with each other and they went to Mysore and stayed together in their relative's house”, it observed.
The Court enunciated that prior to POCSO came into force, the accused taking advantage of the innocence of the victim girl committed the offence and took a defence of consent or elopement but POCSO Act is very clear and there is no question of consent or elopement before the age of 18 years.
“… the accused is convicted for the offence under Section 3 punishable under Section 4(1) of POCSO Act. … Since the accused was acquitted by the Special Court from the offence under Section 5(l) punishable under Section 6 of POCSO Act and now this Court reverses the judgement of the trial Court and convicting the accused for the offence under Section 3 of POCSO Act which is punishable under Section 4(1) of the POCSO Act, the accused has to be heard for question of sentence before awarding punishment”, it also ordered.
The Court, therefore, sentenced the accused to undergo the simple imprisonment of 10 years along with a fine of Rs. 1,000/-. The Court further denied to order any compensation to the victim since the accused himself married her.
Accordingly, the High Court dismissed the Appeal and convicted the accused under the POCSO Act.
Cause Title- Vijayakuamr v. State (Case Number: Crl.A.Nos.56 of 2023 and 368 of 2025)
