Consensual sexual activity with a minor constitutes rape under the POCSO Act and IPC, regardless of the minor's consent.

JUDGMENT :

BHARATI DANGRE, J.

1. The Appellant, on being tried by the Special Judge at Gr. Bombay in POCSO Spl. Case No. 203 of 2016 for the offences punishable under Sections 363, 376, 107 and 109 of the Indian Penal Code (for short, “IPC”) and under Sections 4, 6 and 17 of the Protection of Children from Sexual Offences Act, 2012 (for short, “the POCSO Act”), stand convicted by judgment and order dated 21/02/2019. He is handed over a sentence of R.I. for 10 years, on being convicted under Section 6 of the POCSO Act and to pay fine of Rs.2,000/-, in default to undergo R.I. for one month. Though found guilty, for committing the offence under Section 376 of IPC as well as under Sections 4 and 6 of the POCSO Act, no separate punishment is awarded to him.

2. The prosecution case was unfolded before the learned Special Judge through PW1, brother of the prosecutrix as well as the prosecutrix (PW 4) herself and can be culled out as below:

(a) PW 1 deposed that his sister was going in Madarasa and when their grandmother, residing in Jharkhand, expired on 29/01/2016, all members of the family except his sister (the prosecutrix), his wife and their children, went for her last rituals.

On 30/01/2016, he received a phone call from his wife, informing that his sister was missing from the house and, therefore, he immediately reached Mumbai and took a frantic search for his sister. Before one month of the incident, he had become aware that his sister was having affair with the accused and suspecting that he might have some role to play in the incident, he lodged a complaint expressing his suspicion upon the accused. He mentioned the age of his sister as 17 years.

The FIR came to be lodged on 01/02/2016, where he expressed his suspicion and the offence under Section 363 of IPC was registered.

(b) The prosecutrix was traced out alongwith the accused at Hadgood, District Anand, State of Gujarat on 18/03/2016.

Both the prosecutrix and the accused were brought to Byculla Police Station and her statement came to be recorded under Section 164 of Cr.P.C. The birth Certificate of the prosecutrix was collected during investigation, which in fact is a School Leaving Certificate, revealed her date of birth as 05/09/1998. Since, she being a minor, the offences under Section 376 of IPC and Sections 4 and 6 of the POCSO Act came to be added.

(c) The prosecutrix was forwarded for medical examination to Grant Government Medical Collage and Sir J.J.Hospital, Mumbai, where she gave a history of love relationship with a known person, named Ashik, since one year. She admit of having penovaginal sexual intercourse multiple times, without force, with her consent and narrated that the person had promised her of marriage, but later on he denied.

The medical examination recorded presence of old healed hymenal tears at 4 & 8 O’clock position. However, since the victim was examined after 7 days of the incident, no fresh injuries were noticed on her genitals.

(d) The prosecutrix was carrying a pregnancy of 14.6 weeks, she aborted the pregnancy on 22/03/2016 by consent of her father.

The sample from the right femur bone from abort us was compared with maternal blood and cord blood and it was sent for comparison with the DNA of the accused and the report placed in the investigation papers conclusively record that foetus, which was aborted, had the prosecutrix and the accused, as his biological parents.

3. The accused, thus, faced the charge of kidnapping the prosecutrix from Mumbai and carrying her to Gujarat and U.P. and for committing rape on her from 30/01/2016 to 18/03/2016. He is also accused of committing the offences under Sections 3 and 4 of the POCSO Act.

Alongwith the present Appellant, two other persons were charge-sheeted for abetting the offence committed by the Appellant/Accused No. 1 and they came to be charged under Section 109 read with Section 34 of IPC as well as Section 17 of the POCSO Act.

4. Since the accused pleaded not guilty, the prosecution proceeded to prove