MP High Court Sets Aside POCSO Conviction After Finding Alleged Victim Was Consenting Adult, Seeks Response From Judge & Prosecutor

The Madhya Pradesh High Court has set aside the conviction of a man under the Protection of Children from Sexual Offences Act (POCSO Act), observing that the Special Judge overlooked the fact that the victim was a consulting adult. With these observations, the division bench of Justice Vivek Agarwal and Justice Ramkumar Choubey issued a show cause notice to the Special Judge as well as the public prosecutor, seeking an explanation. It directed; "We propose to issue a show cause notice to the concerned Special Judge as well as the Public Prosecutor for such a major lapse in doing injustice to the accused and putting him behind bar for over three years overlooking the fact that victim was a consulting adult, therefore, conviction could not have been made. This is a sign of intellectual dishonesty on the part of the Special Judge. Registry is requested to issue a show cause notice to the concerned Special Judge and the Public Prosecutor calling for their explanation". A man convicted of kidnapping (Section 366 of IPC), for aggravated sexual assault (Section 5 and 6 of POCSO Act), filed an appeal challenging this judgment. Per the prosecution, the mother of the victim lodged a complaint alleging that her daughter had gone missing on January 31, 2022. The victim was thereafter recovered on April 23, 2022, and her statement from Section 164 of CrPC was recorded. The victim was also subjected to a medical examination. The counsel for the appellant/accused referred to the examination in chief of the doctor, contending that recommendations were made for an X-ray of the victim to determine her age. From the X-ray report, the age of the victim was determined to be more than 18 years. Additionally, it was contended that neither the public prosecutor exhibited this X-ray report nor the Trial Court took into consideration the same. It was also asserted that the Special Judge failed to exercise its authority under Section 311 of the CrPC, which grants the court the power to summon material witnesses or examine the present person. In the present case, the court noted that the victim was above 18 years of age and therefore, the only issue that ought to have been considered was whether the victim was a consenting party or not. The court also referred to the judgment in the case of Lallusingh S/o Jagdishsingh Samgar Vs. State of M.P., 1996 MPLJ 452, wherein it was held that when a document is available on record, then the accused can take advantage of the said documents even without proof of the same in his defence. The court referred to the examination in chief of the victim, noting that the accused and victim knew each other. It was also noted that they had performed a marriage at the temple and stayed together for 2 months, during which they established a physical relationship. The bench held, "When these facts are taken into consideration, then a consensual relationship between two consenting adults is not an offence. Thus, the impugned judgment deserves to be set aside. Trial Court has committed a grave error in conducting the trial". The bench further allowed the criminal appeal and set aside the impugned judgment with directions to the concerned Special Judge and Pubic Prosecutor to submit their explanation. Case Title: RK v State of Madhya Pradesh [CRA-3578-2024]For Appellant: Advocate Vijit SahuFor State: Public Prosecutor Nitin GuptaClick here to read/download the Order

MP High Court Sets Aside POCSO Conviction After Finding Alleged Victim Was Consenting Adult, Seeks Response From Judge & Prosecutor

Jayanti Pahwa

"This is a sign of intellectual dishonesty on the part of the Special Judge," the court said.

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