The consent of a minor for sexual intercourse is of no consequence under POCSO Act and IPC 375, and the absence of enticement or inducement is crucial in determining the offence of kidnapping under IPC 361/363.

JUDGMENT

Swarana Kanta Sharma, J.

1. The present petition has been filed under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973, by the petitioner/State assailing the order dated 26.10.2017 passed by learned Additional Sessions Judge-01, East District, Karkardooma Courts, Delhi ('Trial Court') whereby respondent has been discharged for the offences punishable under Sections 363/376 of Indian Penal Code, 1860 ('IPC') and Section 4 of Prevention of Children from Sexual Offences, Act, 2012 ('POCSO Act'), in case FIR bearing no. 366/2017 registered at Police Station Mandawali, Delhi.

2. The prosecution case, in brief, is that the victim, aged about 14 years, had gone missing from her house on 16.08.2017. On the basis of missing complaint lodged by the victim's father, present FIR was initially registered under Section 363 of IPC on 17.08.2017. The victim, however, herself came to the police station on 20.08.2017 and informed the Investigating Officer (IO) that she had developed liking for the respondent/accused and on 16.08.2017, she had left with him on the pretext that she was going to her relative's house, but she had stayed with the accused in the house of his friend and both of them had planned to get married. It was further stated by victim that the accused had thereafter put sindoor on her forehead and both of them had consensual physical relationship thereafter. The statement of the victim was recorded under Section 164 of Cr.P.C. wherein it was stated that she had voluntarily gone with the accused on several occasions and that her relationship with the respondent was consensual. Charge-sheet was filed and the following order on charge was passed vide which the respondent has been discharged:

"The statement of the victim was also recorded u/s 164 Cr.P.C. in which she again repeated voluntarily going with the accused, performing of marriage and existence of physical relationship with him. The victim specifically stated that everything was done with her own consent and there was no pressure of any type from the side of the accused. She showed inclination to perform proper marriage with the accused after completion of her studies. This statement u/s 164 Cr. P.C. totally rule out the involvement of the accused in kidnapping or raping the victim. Infact, the victim has exonerated the accused.

From the facts of the prosecution case, it is clear that the victim herself left the house of her parents and gone with the accused as she was in love with him. Thereafter, victim had made sexual relationship with the accused after some marriage. Though the marriage took place only by putting a sindoor on the forehead of the victim and cannot be treated as a valid and legal marriage but both understood the same as completion of formalities of the marriage. It is not the case of the prosecution that accused intentionally performed a fake marriage only to sexually exploit the victim. Infact it was a case of running from the house and enjoying sex due to love affairs with intention to marry. The date of birth of the victim is 27.02.2003 which means that on the date of incident, she was aged about 14= years. Simple this fact that the victim was less than 18 years itself is not sufficient to hold that she was totally incapacitate to give consent.

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If the above law laid down by our own High court is taken into consideration and is applied to the present facts and circumstances, then no case of kidnapping, rape or penetrative sexual assault punishable under Section 363/376 IPC or Section 4 of the POCSO Act is made out especially when the age of the victim was about 14= years when she left her parental house voluntarily with the accused and was having sufficient maturity to understand the consequences because she was regularly meeting with the accused outside due to love affairs and had left with him by telling a lie in her house that she was going to meet some relative as per her statement u/s 161 Cr.P.C.

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