'Sexual Assault' Under POCSO Act Can't Be Attributed Where There Is Mutual Affection Between Young Boyfriend & Girlfriend: Meghalaya HC
The Meghalaya High Court has held that the term 'sexual assault' under the Protection of Children from Sexual Offences Act cannot be attributed to an act where there is mutual love and affection between young boyfriend and girlfriend.
The bench of Justice W. Diengdoh while quashing a POCSO Case against the accused observed thus "…in a case where there is mutual love and affection between a child and a person which might even lead to a physical relationship, though the consent of the child under the law is immaterial as far as prosecution for an alleged offence of sexual assault is concerned, but considering the peculiar facts and circumstances of a particular case, such as in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term 'sexual assault' as could be understood under the POCSO Act cannot be attributed to an act where, there is, as pointed above, mutual love and affection between them."
Advocate K. Ch. Gautam appeared for the Petitioners whereas Additional PP S. Sengupta & H. Kharmih appeared for the Respondents.
In this case, an FIR was lodged by the mother of a minor girl complaining that her minor daughter was sexually assaulted by the accused on two occasions.
A case was registered against the accused under Section 5(l)/6 of the POCSO Act and the accused was accordingly arrested.
It was submitted that the instant application was filed by the accused and the mother of the minor girl on mutual understanding.
The counsel for the petitioners submitted that this is a case where two teenagers are involved in a romantic relationship and being unaware of the legal restrictions, had indulged in a physical relationship out of their own free will and consent, therefore it is not a case of sexual assault as could be understood from the provisions of the POCSO Act.
The Court observed that "In a case of rape or sexual assault, the act not only affects the physical well being of the victim but would also leave a very deep emotional scar which would require prolonged counselling for the experience and the image to be erased from the mind of the victim. Such an act would have a more profound effect on a child. Therefore, the makers of the law have thought it fit to bring out very stringent provisions in the Protection of Children from Sexual Offences (POCSO) Act to arrest and to deter any inclination in this regard by a perpetrator."
However, the Court also noted that the pitfall to the above proposition is that in a case where there is mutual love and affection between a child and a person which might even lead to a physical relationship such as in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term 'sexual assault' as could be understood under the POCSO Act cannot be attributed to an act where, there is, mutual love and affection between them.
Therefore the Court noted that it would be for ends of justice that the FIR is quashed.
Accordingly, the Court directed the accused to be set at liberty from any liability in the aforementioned criminal case.
Cause Title- Silvestar Khonglah & Anr. v. State of Meghalaya & Anr