Minor can't consent to sex: Calcutta HC upholds POCSO conviction of man who disowned pregnancy after "love affair"

A minor would not know the consequences of sexual relations and is incapable of giving consent for the same, reiterated the Calcutta High Court recently while upholding the conviction of a man under the Protection of Children against Sexual Offences Act, 2012 (POCSO Act).

A Division Bench comprising Justice Rajasekhar Mantha and Justice Ajay Kumar Gupta made the observation in a case concerning an alleged romantic relationship between a girl who was 12 years old when the 23-year-old accused began the relationship with her.

Sexual relations began later and persisted under the pretence of a long-term "love affair."

Although she objected to the sexual activities, she was repeatedly persuaded by the accused that he would marry her, because of which she allegedly acquiesced to continuing such relations.

The victim (through her family) filed a POCSO complaint when she was 15 years old in 2017, after she became pregnant, and the accused and his family did not accept responsibility.

The accused denied the allegations against him, and questioned why the victim had filed the complaint with a delay of over two years since the first time that they allegedly had sexual relations.

The High Court rejected the delay argument, explaining that the victim’s psychological state can reasonably account for a late complaint. The Court said,

"The delay in lodging the complaint was thus based on the love of the victim for the appellant, and further on the hope that the sexual relationship which started on the wrong and illegal side would be regularised by the passage of time and conduct of the appellant. A child may not know the consequences of sexual relation. The victim in this case discovered her pregnancy and only then confronted the appellant. Thus, it is inconsequential as to when the complaint was filed in view of the clear evidence of aggravated penetrative sexual assault by the appellant on the victim."

The Court noted that the girl had candidly testified that she had "loved" the appellant, leading to a relationship between them that eventually lead to sexual activities.

The Court, however, pointed out that the being a minor, the girl was not in a position to consent to such sexual relations.

"The victim was a minor and incapable of giving valid and legally enforceable consent. She still however believed and relied upon the appellant that he would marry her. The complaint was lodged after the victim discovered that she was pregnant and the appellant ignored the victim after being informed as such." the December 9 ruling said.

The Court, therefore, upheld a Sealdah trial court's decision to convict the accused and sentence him to life imprisonment and a ₹2 lakh fine in the POCSO case. The judgment was passed on an appeal filed by the accused against the trial court verdict.

The High Court held that since the victim was below the statutory age of consent, the accused man's acts constituted aggravated penetrative sexual assault under Sections 5(j)(ii) and 5(l) of the POCSO Act, punishable under Section 6 with rigorous imprisonment.

The defence had argued that the victim’s age was not conclusively established. The defence counsel added that a DNA report was inconclusive as it only stated that the accused “cannot be excluded" as the biological father of the victim's child. It was, therefore, argued that the accused should be given the benefit of doubt and acquitted.

On the question of the victim's age, the Court noted that the victim’s birth certificate was properly placed on record, and the defence did not object to it at the appropriate stage. The Court, therefore, concluded that she was a minor at the time of the incident.

The Court also rejected the claim that the DNA evidence was inconclusive. It ruled that the finding that the accused “cannot be excluded” as the biological father strongly supported the prosecution's case, and that it supported the victim’s testimony.

"The DNA report in the instant case, therefore, has not given a clean chit to the appellant. The expression 'cannot be excluded' clearly indicates that the appellant could very well be the father of the child of the victim. The said DNA report instead corroborates and enhances the reliability of the oral evidence on record," it held.

The Bench said that, taken together, the DNA report and oral evidence formed a complete chain of proof, leaving no room for the accused to claim the benefit of doubt.

The Court also issued directions to guarantee that the victim receives compensation which is entitled to right away.

The Court noted that the appellant may never actually pay the fine imposed by the trial court, and directed the State Legal Services Authority (SLSA) to pay ₹1,80,000 (90 per cent of the ₹2 lakh fine) within 15 days.

If the accused eventually pays the fine, the same amount will go to the SLSA, with the remaining ₹20,000 going to the State.

If he does not, the SLSA will cover the cost. The SLSA must also pay an additional ₹2 lakh to the victim from its own funds, with the trial court ensuring that all payments are made, the Court added.

Advocates Sabir Ahmed, Ayan Chakraborty, Sohini Mukherjee, and Saikat Mallick appeared for the appellant.

Advocates Rituparna Ghosh and Afreen Begum represented the State.

Advocate Shounak Mondal appeared for the victim.

[Read Order]