Consensual Physical Acts Cannot Be Taken As Defense If Girl Is Below 18 Yrs Of Age: Telangana High Court Upholds POCSO Conviction

The Telangana High Court has reiterated that the defense that acts of physical relationship was consensual between the accused and victim girl cannot be considered where the age of the girl was below 18 years.Stating thus, a single bench of Justice K. Surender dismissed an appeal challenging conviction under the Protection of Children from Sexual Offences Act, 2012. The appellant was convicted for the offence under Section 5(1) r/w 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act and Section 506 (punishment for criminal intimidation) and 376 (punishment for rape) of IPC. The case of the prosecution was that P.W. 1 who was the mother of victim girl lodged a complaint stating that the victim girl was studying in 9th Class and the school auto driver committed wrong actions with her since a very long time. After examining the victim, it was confirmed that she was pregnant by 16 to 18 weeks. The foetus was aborted. The victim girl during examination confirmed that since August, 2016, the appellant/accused committed rape on her regularly by taking her to open places in vacant quarters. He also threatened her to remain silent.The counsel for appellant relying on Prasanta Das v. State of West Bengal, 2022 submitted that the age of victim was not proved and it cannot be said that she was less than 18 years to attract POCSO Act.Furthermore, it was contended that the evidence of victim did not qualify as "Sterling witness" for the reason of several contradictions and omissions which were apparent from the record. The counsel relied on SC judgment in State of Assam v. Mafizuddin Ahmed (1983) wherein it was held that evidence of child witness was always dangerous unless it was available immediately after the occurrence and before the possibility of tutoring.Finding of the courtThe court observed that the evidence of victim girl cannot be disbelieved only for the reason of there being no independent corroboration. The circumstances of the present case clearly showed that it was appellant who in fact had indulged in committing rape on victim girl.The appellant being auto driver commuted victim to school every day was not disputed. It was the case of the accused that victim was never forced to the abandoned quarters and the victim herself accompanied the accused on her own. In the said background of defense taken, the accused had admitted that he used to take victim to the abandoned quarters. However, sole ground urged was that it was with consent of victim. The date of birth of the victim was 07.02.2003 as claimed by the mother, principal of school and the victim. Therefore, she was not above the age of 18. The court held that the appellant cannot defense that victim's age was above 18 at the stage of appeal as this defense was not taken by appellant during the course of trial.Thus, evidence of victim and her mother was held to be totally reliable and evidence qualified as Sterling witness in facts of the case. The defense that acts of physical relationship was consensual could not be considered for the reason of age of girl. The Criminal Appeal was thus dismissed.Case Title: Vanka Rajesh Raju v. The State of TelanganaCitation: 2022 LiveLaw (Tel) 67 Click Here To Read/Download Judgment

Consensual Physical Acts Cannot Be Taken As Defense If Girl Is Below 18 Yrs Of Age: Telangana High Court Upholds POCSO Conviction

Jagriti Sanghi

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