'Age Gap Between Boy & Girl Significant Factor Which Law Didn't Address': P&H High Court Suspends Sentence Of Minor Convicted Under POCSO
The Punjab and Haryana High Court has suspended the sentence of a convict sentenced to 20 years' imprisonment under Section 4(2) of the POCSO Act, noting that both the accused and the victim were minors at the time of the incident, the age gap between them was minimal, and the appeal is not likely to be heard in the near future.A division bench of Justice Anoop Chitkara and Justice...
The Punjab and Haryana High Court has suspended the sentence of a convict sentenced to 20 years' imprisonment under Section 4(2) of the POCSO Act, noting that both the accused and the victim were minors at the time of the incident, the age gap between them was minimal, and the appeal is not likely to be heard in the near future.
A division bench of Justice Anoop Chitkara and Justice Sukhvinder Kaur said, "an analysis of the allegations indicates that the coitus, if any, was consensual; there is no allegation of him being cruel while doing the act, the absence of injuries on the victim, are circumstances which all need to be appreciated by analyzing the evidence in great detail. However, the fundamental legal obstacle for the boy is that the girl cannot consent to sexual intercourse unless she is aged eighteen, and even if she gives her consent to have sex, it shall amount to statutory rape as defined in §63 of BNS, 2023 and §§3 and/or 5 of POCSO Act, 2012. Probably, neither the boy nor the girl would be aware of the Sovereign's restrictions before they could go intimate."
The Court elucidated that ,"when the age gap between the boy and the girl is little, and all other tell-tale signs of coitus point towards consent, the gigantic scale of Justice would sway to strike a balance between the statutes and the ground realities."
Delay in Lodging FIR
The bench pointed that the FIR in the present case is dated in the second half of March 2023, the alleged coitus was in February 2023. Though according to the victim, the coitus had taken place between them back in February 2023 but it was not reported by the victim at that time. She chose not to report until her maternal uncle noticed the victim going with the applicant and the co-accused. After that, they dropped off the victim near her house, and there are allegations of some ruckus.
It means that if the victim's uncle had not spotted her along with the applicant, then in all probabilities no complaint would have been made to the police. FIR was registered much later in March, after the accused and the girl were caught together by her Maternal Uncle, it added.
Accused Also A Minor, Had Clean Antecedents
The Court highlighted that the accused was also a child1 being a minor for all purposes except for the definition §2(33)2'3 and §154 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
"...the applicant is a first offender and has undertaken through Counsel not to cause any harm to the victim. Needless to say, the present offense is also heinous, but this Court cannot rule out and ignore the fact that the applicant has clean antecedents," said the bench.
It also considered that the applicant is a young boy and is in the formative years of skill development, and given the preceding factors, he should not be restricted from acquiring employable education.
The Court passed the order on an application filed under Section 430 of the BNSS, seeking suspension of sentence pending appeal.
The applicant was convicted by the Sessions Court, Patiala, for offences under Sections 363, 366, 120B IPC and Section 4 of the POCSO Act, for sexually assaulting the minor girl. While the co-accused was sentenced to five years' imprisonment for conspiracy, the present applicant—who was 17 years and 5 months old at the time of the incident—was sentenced to 20 years' imprisonment under the POCSO Act.
The victim was approximately 13 years and 10 months old at the time of the alleged incident, resulting in an age gap of about four years. The applicant had remained in custody for nearly six months.
Parity With Co-Accused Rejected
The Court rejected the plea for suspension of sentence on the ground of parity, noting that the co-accused had been awarded a significantly lesser sentence of five years, whereas the applicant had been sentenced to 20 years. The Court held that parity could not be claimed when the nature and quantum of sentence were substantially different.
Consideration On Merits
While acknowledging that coitus with a minor amounts to statutory rape under the POCSO Act regardless of consent, the Court observed that several aspects
The Court also noted that the statutory presumption under Section 29 of the POCSO Act had not been expressly rebutted in the trial court judgment, but held that this alone could not foreclose suspension of sentence at the appellate stage.
Balancing Statutory Rigour With Ground Realities
Emphasising the need to balance the rigour of statutory provisions with ground realities, the Court observed that when the age gap between the boy and the girl is small and circumstances indicate consensual intimacy, the “gigantic scale of justice must strike a balance between statutes and lived realities”.
Delay In Commutation Ground For Commutation
The Court noted that it has "around 18 to 19 death references pending for final hearing, which have to be given priority, and every murder reference will take more time than any other case; delay in decisions might be a ground for commutation."
The bench said that there are a large number of appeals against conviction where more than one person was murdered, cases involving murder and dacoity are pending, and where some of the convicts are habitual offenders, this Court has to draw a priority list for the cases, and if such a list is made, the present case would certainly fall lower on the rung.
"Although this court has not used any algorithm-based tool to clearly point out how much time it would take for this present appeal to be finally heard, and also no artificial intelligence is being utilized to come to such a conclusion without referring to such scientific tools, in our raw assessment of the disposal of criminal appeals, the appeal is not likely to be taken up in the near future," it added.
In view of the peculiar facts and without commenting on merits, the Court suspended the execution of the sentence pending appeal, subject to the applicant furnishing bail bonds of ₹25,000 with one surety.
The suspension of sentence was made subject to stringent conditions, including complete non-interference with the victim and her family, disclosure and updating of residential address and contact details and surrender of all firearms, ammunition, and arms licence, if any.
The Court made it clear that there will be automatic cancellation of suspension in case of repeat offence or commission of a serious non-bailable offence.
Ms. Anju Rani, Advocate for the applicant-appellant.
Ms. Pooja Nayar Sharma, DAG, Punjab.
Title: XXXX v. XXX