Victim's Failure To Raise Alarm Not Indicative Of Consent: Uttarakhand High Court Upholds POCSO Conviction

The Uttarakhand High Court has held that the conduct of a minor victim, such as failure to raise alarm or attempt escape, cannot be treated as indicative of consent or voluntariness.

The Court further reiterated that once the minority of the victim is established, consent becomes legally irrelevant under the POCSO Act, and minor inconsistencies in the victim's testimony do not undermine an otherwise credible prosecution case.

On this basis, the Court upheld the conviction of the appellant for offences under the POCSO Act and IPC.

Justice Ashish Naithani dismissed a criminal appeal challenging the conviction of the appellant for aggravated penetrative sexual assault under Section 6 of the POCSO Act, along with offences under Sections 363 and 367 IPC.

The case arose from allegations that the appellant had enticed a minor girl and taken her away from the lawful guardianship of her parents, during which period he committed aggravated penetrative sexual assault upon her.

Following investigation, including recording of the victim's statement under Section 164 CrPC and medical examination, a charge-sheet was filed. The trial court, upon appreciation of oral and documentary evidence, convicted the appellant and sentenced him to 10 years' rigorous imprisonment under the POCSO Act, along with additional sentences under IPC provisions.

The appellant primarily challenged the conviction on the ground that the prosecution had failed to establish the minority of the victim in accordance with law, contending that reliance on school records without examining their author or source was insufficient.

It was further argued that the testimony of the victim suffered from material inconsistencies and improvements, and that her conduct suggested voluntary companionship. The appellant also questioned the medical evidence, submitting that it did not conclusively establish sexual assault or indicate use of force.

The State contended that the age of the victim had been duly established through documentary evidence, including school records, which had not been effectively challenged.

It was further submitted that the testimony of the victim was consistent on material particulars and that minor discrepancies did not affect the core of the prosecution case. The State also argued that under the POCSO Act, consent of a minor is immaterial, and absence of injuries does not discredit the allegation of sexual assault.

The Court first addressed the issue of age and held that school records, once exhibited and not discredited, carry evidentiary value for determining minority. In the absence of any cogent rebuttal, the finding of the trial court that the victim was a minor was upheld.

On this basis, the Court held that arguments regarding consent or voluntary companionship were of no consequence, as the consent of a minor is immaterial under the scheme of the POCSO Act.

“Once the minority of the victim stands established, the argument sought to be advanced on behalf of the Appellant regarding consent or voluntary companionship loses all significance. The scheme of the POCSO Act is clear and unambiguous in this regard, inasmuch as the consent of a minor is immaterial in the eyes of law. Therefore, even if the victim had accompanied the Appellant without resistance, the same would not dilute the criminal liability arising under the provisions of the Act”, the Court reiterated.

Examining the testimony of the victim, the Court found that the core of the prosecution case remained consistent throughout her statements. The discrepancies pointed out were held to be minor and not going to the root of the case. The Court reiterated that such variations are natural, particularly in the testimony of a young victim.

On medical evidence, the Court observed that it is corroborative in nature and absence of injuries or conclusive findings does not negate sexual assault where the victim's testimony is otherwise reliable.

The Court also rejected the argument based on the conduct of the victim, observing that failure to raise alarm or escape cannot be determinative, particularly in cases involving minors.

“The argument regarding the conduct of the victim has also been raised, suggesting that her failure to raise alarm or escape indicates voluntariness. This Court is not persuaded by the said submission. The conduct of a victim cannot be measured by rigid standards, and different individuals may react differently to similar situations. The mere fact that the victim did not raise alarm or attempt escape cannot be construed to mean that the incident did not occur or that she was a consenting party, particularly when her minority stands established”, the Court said.

Finding that the prosecution had established the guilt of the appellant beyond reasonable doubt and that the trial court's findings did not suffer from perversity or illegality, the High Court dismissed the appeal and affirmed the conviction and sentence.

The appellant, who was reported to be in custody, was directed to continue serving the sentence.

Case Name: Sagar Ray v State of Uttarakhand

Case No.: Criminal Appeal No. 391 of 2021

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