The Gauhati High Court has held that even if a minor girl willingly accompanies an accused and engages in sexual intercourse with him, her consent is legally immaterial. The Court observed that a minor below 16 years is incapable of giving valid consent to sexual intercourse.

The High Court upheld the conviction of a 27 year old man under IPC and POCSO for taking away his 14 year old sister in law and engaging in sexual intercourse with her.

A Division Bench of Justice M. Zothankhuma and Justice Kuntal Datta dismissed the appeal challenging the conviction and sentence imposed by the Special Judge (POCSO), Lakhimpur.

The case was initiated after the accused allegedly took his wife's younger sister from her house around 2 AM in July 2022. The victim was then 14 years old. Her elder sister filed an FIR after discovering that her husband and younger sister were both missing.

The police then traced the accused and victim. During the investigation, victim mentioned that the accused had taken her to one house and raped her for four days.

The Trial Court convicted the accused under Section 366 IPC read with Section 6 of the POCSO Act. He was sentenced to five years' rigorous imprisonment under Section 366 IPC and 20 years' rigorous imprisonment under Section 6 of the POCSO Act.

Before the High Court, the accused challenged the conviction on the ground that there were discrepancies in the statements of the victim and other prosecution witnesses. He also questioned the victim age and argued that the medical evidence did not establish that he had committed aggravated penetrative sexual assault.

The State opposed the appeal, arguing that the victim's age had been established through her school admission register and that the medical evidence corroborated her testimony.

The High Court examined the school admission register and the certificate issued by the Headmaster which recorded the victim's date of birth as January 10 2009. It noted that the Headmaster had proved the relevant school records and that the entry in the admission register had also been corroborated by the victim's father.

The Court held that an ossification test was unnecessary when the victim's date of birth could be established through school records.

The High Court observed: "Thus, the entry in the admission register of the school, which is the basis for the birth certificate issued by the Headmaster of the school has been corroborated by the father of the victim. As such, the date of birth of the victim would have to be considered to be 10/01/2009."

Accordingly, the Court found that the victim was around 13 to 14 years old when the incident occurred.

The High Court next examined whether the victim had been subjected to sexual intercourse by the accused. It noted that her testimony regarding the sexual assault was corroborated by the medical evidence which recorded that her hymen was ruptured.

The Court also considered the evidence suggesting that the victim was in love with the accused and might have accompanied him willingly. However, it held that this would not affect the criminal liability of the accused as the victim was below 16 years of age.

The High court held that: "Consequently, even if the victim had gone willingly with the appellant from her house and had sex with the appellant, the victim being below 16 years of age, the taking away of the victim who was below 16 years of age from her house and from the guardianship of her parents, which culminated in having sexual intercourse with her, amounted to committing the offence of kidnapping under Section 366 IPC and aggravated penetrative sexual assault in terms of Section 5(l) of the POCSO Act."

Accordingly, the High Court dismissed the appeal and upheld the conviction and sentence.

Counsel for Appellant: A. Das, Amicus Curiae.

Counsel for Respondents: B. Bhuyan, Senior Counsel and Additional Public Prosecutor, assisted by R. Saloi, for the State; M.K. Brown, Legal Aid Counsel, for Respondent No. 2.