The Karnataka High Court has denied bail to an accused in a case under the POCSO Act, who claimed that the victim minor girl was a consenting party and the element of force was missing.
In this case, the Prosecution has said that the accused “cajoled” the victim girl and took her with him on 14th February 2022, in the guise of Valentine’s Day. After that, the accused took a victim girl near Nandi Hills and tried to have forcible sexual intercourse with her.
And on 2nd April 2022, he allegedly took a victim girl to his relative’s house and made them believe that she is not a minor and obtained permission to reside there with her on rent.
On 3rd April 2022, he(the accused) again took the girl to the Anjaneya Temple and got married to her. On 11th May 2022, the accused had sexual intercourse with the victim girl.
Then, the police fled a chargesheet against the accused for the offenses on the complaint fled by the victim’s mother.
The accused then applied for bail before the special court which came to be rejected.
Therefore he approached High Court where he contended that the main element “force” was not there in the case and therefore the ingredient to attract the offenses punishable under Sections 4 and Section 6 of the POCSO Act is prima facie missing.
The Victim girl said before the Magistrate that the accused tied the “Mangala Sutra” outside the temple and thereafter they lived like husband and wife and used to have sexual intercourse with each other on regular basis.
The accused heavily relied upon the statement said by the victim girl. And the counsel representing the accused said that the court ought to have a liberal view and that the petitioner cannot be penalized for having sexual relations with a grown-up victim girl.
The prosecution opposed the same and said that the victim girl is a minor and her consent is not consent in the eye of the law.
The bench referred to Section 3 and Section 6 of the POCSO Act and said that ” In the case on hand, admittedly the victim girl is under the age of 18 years. Maybe in the case on hand, the aggravated penetrative sexual assault may not get attracted prima facie given the statement made by the victim girl stated that she had the company of the accused happily and she is aged 16 years”
The court also said that since the victim has already stated that she had sexual intercourse with the accused on regular basis and she also participated in the act voluntarily.
The Bench said that ” On a bare reading of Section 3 of POCSO Act, the provision never contemplate anything about the consent in as much as the intention of the legislature is abundantly clear that a child cannot be a “Consenting Party”.
Justice V Shrishnanda said that “consent if any of the victim girls for the penetrative sexual assault said to have taken place between the accused and the victim girl is immaterial while considering the scope of Section 3 of POCSO Act which is punishable under Section 4 of POCSO Act.”
In this case, the accused Bujji @Babu G has been charged under Section 4 and Section 6 of the POCSO Act and Section 9 and Section 10 of the Prohibition of Child Marriage Act,2006, and Section 363, 372(2)(n) and Section 344 of IPC.
Name: Varsha Sukhwal, College: Parul University, Semester: 4th Semester (BALLB)
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