Consent is irrelevant for minors under POCSO; conviction upheld where evidence indicates forcible sexual assault and intimidation.

JUDGMENT :

P.Velmurugan, J.

Challenging the judgment dated 03.08.2018 passed in Spl.S.C.No.66 of 2017 on the file of the Fast Track Mahila Court, (Sessions Court), Vellore, Vellore District, the appellant has preferred the above appeal.

2. The brief case of the prosecution is as follows:

2.1 During the village festival in the year 2016, the appellant is said to have developed friendship with the victim girl “X” (PW1), who was aged about 15 years. While so, on 09.10.2016 around 10.00 a.m., the appellant, on the promise of marriage, has forcible sexual intercourse with “X” (PW1), due to which, “X” (PW1) got pregnant. On 02.04.2017, “X” (PW1) along with her father (PW2) and grandmother went to the appellant’s house and informed above the pregnancy of “X” (PW1) and asked the appellant to marry her, for which, the appellant said that he will not marry “X” (PW1) and if they demand for the same, he will kill “X” (PW1). Subsequently, “X” (PW1) gave birth to a female child on 11.07.2017.

2.2 On the complaint (Ex.P1) dated 03.04.2017 given by “X” (PW1), the respondent/police registered a case in Crime No.3 of 2017 for the offences under Sections 376 , 506(II) IPC and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (for brevity “the Act”).

2.3 After completing the investigation and based on the evidence collected, the respondent/police filed the chart sheet against the appellant for the offences under Sections 417 and 506(II) IPC and Section 6 r/w 5(j)(ii) of the POCSO Act before the Fast Track Mahila Court, (Sessions Court), Vellore District and the same was taken on file in S.C.No.66 of 2017, for trial.

2.4 On appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in Spl.S.C.No.66 of 2017 and was made over to the Fast Track Mahila Court, (Sessions Court), Vellore, Vellore District, for trial.

2.5 The trial Court framed the charges under Sections 366 and 506(II) IPC and Section 5 (j)(ii) r/w 6 of the POCSO Act against the appellant herein. When questioned, the appellant pleaded 'not guilty'.

2.6 To prove the guilt of the appellant, the prosecution examined ten witnesses and marked sixteen exhibits.

2.7 After completion of prosecution side evidence, when the appellant were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. No witness was examined on the side of the appellant nor any document marked.

2.8 After considering the oral and documentary evidence and upon hearing either side, the trial Court, by judgment dated 03.08.2018 in Spl.S.C.No.66 of 2017, has convicted and sentenced the appellant as under:

2.9 Aggrieved over the same, the appellant has preferred the above appeal.

3. The learned counsel appearing for the appellant would submit that the appellant only with the consent of “X (PW1) had sexual intercourse with her and therefore, it cannot be stated that the appellant has committed forcible penetrative assault on “X” (PW1). He would further submit that since “X” (PW1) was minor at the time of occurrence, the appellant did not marry her, but, subsequently, after she attained majority, the appellant married “X” (PW1). Further, he would submit that the appellant never kidnapped “X” (PW