Consent of a minor is immaterial in cases of rape; a child's marital status does not absolve the accused of legal liability for sexual offenses.

JUDGMENT :

CHANDRASEKHARAN SUDHA, J.

1. This appeal under Section 374 (2) read with Section 383 of the Code of Criminal Procedure, 1973 (the Cr.P.C.) has been filed by accused no. 1(A1) in Sessions Case No. 1653/2016 (Old Case No. 169/2013) on the file of Additional Session Judge-01, (POCSO), South-East District, Saket Courts, New Delhi, assailing the judgment dated 04.10.2019 and order on sentence dated 18.10.2019 as per which he has been convicted and sentenced for the offences punishable under Section 376 of the Indian Penal Code, 1860 (the IPC ) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (the PoCSO Act).

2. The prosecution case is that on 24.07.2013 at about 04:00 pm, A1 and accused no. 2 (A2), in furtherance of their common intention, kidnapped PW5 and PW9 from their lawful guardianship and took them to Suratgarh, Rajasthan, where A1 committed penetrative sexual assault on PW5. It is also alleged that accused no. 3 (A3) wrongfully confined PW5 and PW9 at his house and abetted the commission of the penetrative sexual assault. Hence, the accused persons are alleged to have committed the offences punishable under Sections 363 , 366A, 368, 376 read with 34 IPC and Sections 4 and 17 of the PoCSO Act.

3. On the basis of Ext. PW1/A FIS of PW1, given on 25.07.2013, Crime No. 244 of 2013, Badarpur Police Station, that is, Ext. PW16/A FIR was registered by PW16, Assistant Sub Inspector. PW17 conducted investigation into the crime and on completion of the same, filed the charge-sheet/final report before the court, alleging the commission of the offences punishable under the aforementioned Sections.

4. When the accused persons were produced before the trial court, all the copies of the prosecution records were furnished to them as contemplated under Section 207 Cr.P.C. After hearing both sides, the trial court as per two separate orders dated 21.11.2013, framed a Charge under Sections 363 , 366A, 376 read with 34 IPC and Sections 4 and 17 of the PoCSO Act against A1; , 366A read with 34 and Section 17 of the PoCSO Act against A2 and Section 368 and Section 17 of the PoCSO Act against A3, which was read over and explained to the accused persons, to which they pleaded not guilty.

5. On behalf of the prosecution, PWs. 1 to 17 were examined and Exts. PW1/A-B, PW1/DA, PW2/A, PW3/A, PW4/A, PW5/A, Mark X, PW7/A, PW8/A-B, PW9/A-B, Mark A, PW12/A, PW13/A, PW14/A, PW15/A-D, PW17/A-I and Mark 17A were marked.

6. After the close of the prosecution evidence, the accused persons were questioned under Section 313 (1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. They denied all those circumstances and maintained their innocence.

7. After questioning the accused persons under Section 313 (1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the case on hand, no hearing as contemplated under Cr.P.C. is seen done by the trial court. However, non- compliance of the said provision does not ipso facto vitiate the proceedings unless omission to comply with the same is shown to have resulted in serious and substantial prejudice to the accused persons (SeeMoidu K. vs. State of Kerala, 2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888). In the case on hand, the accused persons have no case that non-compliance of Cr.P.C. has caused any prejudice to them.

8. No oral and documentary evidence was adduced by the accused persons.

9. Upon consideration of the oral and documentary evidence and after hearing both sides, the trial court, vide the impugned judgment dated 04.10.2019, held A1 guilty of the offences punishable under Section 376 IPC and Section 4 of the PoCSO Act. A1 to A3 have