Consent is irrelevant in POCSO cases when the victim is a minor, and retrospective imposition of harsher penalties is unconstitutional under Article 20(1).

JUDGMENT :

G.ARUL MURUGAN, J.

1. The appeal is filed challenging the judgment dated 08.10.2021 in S.C.No.71 of 2015 on the file of the Court of Sessions (Fast Track Mahila), Namakkal.

2. The appellant/1^st accused was convicted and sentenced by the trial Court as under:

The sentences were ordered to run concurrently.

3. It is the case of the prosecution that the victim (P.W.2) is a minor, who had discontinued 10^th standard. Victim’s father (P.W.1) belongs to Scheduled Caste community and the victim worked in a hospital viz., Santha Devi Nursing Home at Velur. In the year 2014, when the victim (P.W.2) came to the hospital to attend duty, the appellant/1^st accused, who belong to Vanniyar community, use to follow the victim. The 1^st accused is an auto driver in Velur Town. The 1^st accused, in some time, developed love affair with the victim and around April 2014, the 1^st accused had taken the victim to his house, on the pretext that there is a festival in the village. On going to the house, when the victim found no one was there, the 1^st accused immediately, locked the house and on promising her to marry, had forcible sexual intercourse. The 1^st accused had dropped the victim on the next day morning. Thereafter, the 1^st accused called the victim and by threatening her, had taken her to his house on several occasions and had forcible sexual relationship. Due to the sexual relationship had by the 1^st accused with the victim she became pregnant. Only when there was a bodily change, her parents noticed and when her father (P.W.1) enquired about the same, the love affair with the 1^st accused was disclosed by the victim and the sexual relationship had by him. Immediately, the victim’s father (P.W.1), along with his wife (P.W.3) and the victim (P.W.2), had gone to the house of the 1^st accused to enquire about the assault meted out by the 1^st accused. They were abused by mentioning their caste name and they were threatened for life and chased away. Thereafter, the victim’s father (P.W.1) had lodged a complaint (Ex.P1).

4. On receipt of the complaint (Ex.P1), the Inspector of Police (P.W.16) had registered an F.I.R. (Ex.P11) for the offences under Sections 3 read with 4 of the POCSO Act, 2012 and 506(i) of IPC and Section 3 (2)(v) of SC/ST (POA) Act, 1989.

5. Police Constable (P.W.8) had taken the victim (P.W.2) for medical examination before Doctor (P.W.12). The Doctor (P.W.12) examined the victim and issued the medical report (Ex.P6). The victim was taken to the learned Magistrate and the statement was recorded under Section 164 Cr.P.C. is Ex.P3. Deputy Superintendent of Police (P.W.17) took up the investigation and prepared the Observation Mahazar (Ex.P5) and Rough Sketch (Ex.P12). Community Certificates of the accused were collected under Ex.P9 series and the Community Certificates of the victim and her father (P.W.1) were collected under Ex.P10 series. Head Mistress (P.W.9), Government Girls Higher Secondary School, Paramathi, issued School Certificate of the victim (Ex.P4), certifying that the date of birth of the victim is 09.06.1998. The 1^st accused being arrested and was taken for medical examination before Doctor (P.W.13), who issued Potentiality Certificate (Ex.P8).

6. Upon completion of the investigation, the Deputy Superintendent of Police (P.W.17) filed the final report before the learned Judicial Magistrate, Paramathi and the same was taken on file as P.R.C.No.12 of 2015.

7. After complying with Section 207 Cr.P.C., the case was committed to the Court of Sessions (Fast Track Mahila) Judge, Namakkal. On committal, the trial Court framed charges against the 1^st accused for the offences under Sections