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IN THE HIGH COURT AT CALCUTTA
CHITTA RANJAN DASH, PARTHA SARATHI SEN, JJ.
robhat Purkait @ Provat – Appellant
Versus
State of West Bengal – Respondent
CRA (DB) 14 OF 2023
For the Appellant : Mr. Malay Bhattacharyya, Adv. Mr. Subhrajyoti Ghosh, Adv. Mr. Dibakar Sardar, Adv.
For the State : Mr. P. K. Datta, ld. APP Mr. Ashok Das, Adv. Mr. S. D. Roy, Adv.
For the victim girl : Mr. Shibaji Kumar Das, Adv. Mr. Soumyajit Das Mahapatra,Adv. Ms. Rupsa Sreemani, Adv. Ms. Madhuraj Sinha, Adv.
The judgment highlights the need for legal reform to distinguish between consensual adolescent relationships and exploitative sexual offences under the POCSO Act.
Headnote:
POCSO - Sexual Offences - IPC Sections 363, 366 - The court set aside the conviction under POCSO Act and IPC sections, emphasizing the need for a humane approach in cases involving consensual relationships between adolescents, while recognizing the limitations of the current legal framework.
Fact of the Case:
The appellant was convicted under IPC Sections 363, 366 and Section 6 of the POCSO Act for allegedly kidnapping a minor girl who later married him voluntarily and had a child. The victim testified that she left home willingly and had a consensual relationship with the appellant.
Issues: Whether the appellant's actions constituted kidnapping or sexual offences under the POCSO Act and IPC, considering the victim's consent and the socio-economic context.
Ratio Decidendi: The court held that ignorance of the law is no excuse, but in this case, the relationship was consensual and non-exploitative, warranting a humane approach to justice.
Final Decision: The appeal is allowed, and the conviction is set aside.
CHITTA RANJAN DASH, J.
1. This appeal arises out of judgment dated 19.09.2022 and order of sentence dated 20.09.2022 passed by Additional Sessions Judge cum Special Judge (under POCSO Act), Baruipur, South 24 Parganas in Special Sessions Trial No. 03 of 2022 arising out of Special (CIS) No. 97 of 2018. The appellant has been convicted under Section(s) 363 and 366 IPC and Section 6 of the POCSO Act. The sentence awarded by learned Trial Court is rigorous imprisonment for 20 years and fine of Rs.10,000/- in default to suffer further rigorous imprisonment for 2 months under Section 6 of POCSO Act. Separate sentences have been awarded under Section(s) 363 and 366 IPC with an order for concurrent running of sentences so awarded.
2. Before proceeding to discuss the prosecution case and the evidence, we feel it prudent to mention here that we noticed a rustic lady with a rumpled saree and unkempt hair, looking more aged than her age standing in a corner of the Court with a baby in her arms. She would be present in the Court from the time of sitting of the Court at 10:30 A.M. and she would be there till the rising of the Court sometime even beyond the Court hours. We watched her for two days and on the third day we grew inquisitive about her meticulous presence in Court without fail. Before rising on the third day we asked the learned State Counsel to call her before us. She came, stood up before the microphone and on our query, said that she is in receipt of a notice from the Court and she does not know what is that notice and she has no means to engage a lawyer. On the same day (17.07.2023), we asked Mr. Shibaji Kumar Das present in the Court to assist her and on reading the notice, Mr. Das told us that she is a victim of offence under POCSO Act. We immediately engaged Mr. Das as Amicus Curiae and directed the State Counsel Ms. Z. N. Khan to be present on the next day. The case was adjourned to 24.07.2023. However the case was listed on 26.07.2023 with the LCR as the case had already been admitted vide order dated 19.01.2023. On that day it was submitted before us that the victim out of her own volition had married the accused (appellant) in the year 2019 and has given birth to a female child. On being asked by us the victim said that she had an affair with the accused by seeing him somewhere; she out of her own volition joined the accused (appellant) and married him and out of the wedlock, the female child in her arms took birth sometime in 2021. She further stated that her husband is in jail since the date of his arrest and her mother-in-law has suffered from cancer in the meantime; her parents have cut off all ties and relationship with her after her marriage with the accused (appellant); and it is difficult for her to maintain the family consisting of her ailing mother-in-law and the small child by earning herself. Taking into consideration the condition of destitution of the victim, on the same day, we granted bail to the appellant adjourning the appeal for final hearing to 23rd August, 2023. The victim further stated before us that she and her husband belongs to a rural area and they do not have knowledge that their relationship and marriage constitute an offence.
3. Prosecution case as found from the FIR lodged by the victim’s mother (P.W.-2) is to the effect that the victim, in the evening of 20.05.2018 was found missing from the house and she had left without informing anybody. On enquiry, she (P.W.-2) came to know that the accused Probhat Purkait (appellant) with the help of her sister, Anima Halder and Asha Lata Halder (Anima’s mother-in-law) have managed to take her minor daughter along with her Kanyashri award by enticing her for malicious purpose. The FIR was lodged on 29.05.2018. The investigation was taken up by 3 (three) Investigating Officers i.e. P.W. 5, P.W. 6 and P.W. 7 successively and ultimately P.W. 7 submitted charge-sheet against the appellant, Asha Lata Halder and Anima Halder for offence under Sections 363,
