The Calcutta High Court on Wednesday absolved a man booked under the Protection of Children against Sexual Offences Act (POCSO) Act, noting that a male alone cannot be indicted for an act of consensual sex between two sufficiently mature persons.
The court observed that the 16-year-old girl who voluntarily participated in the sexual act and she was not naive to not know about its implications.
“If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders,” a single-judge bench of Justice Sabyasachi Bhattacharyya observed.
The court also declared that in order to convict a person of penetrative sexual assault, the psyche, maturity, and past conduct of the accused with respect to the victim were germane to determining whether it was a unilateral or a participatory act.
For the safety of children, the court said, the provisions of the POCSO Act should be given an appropriate construction so that it is not misused as a tool to force a person to marry another.
The case pertains to an accused aged 22 and the victim who is 16 and a half years old. The accused was convicted by the Trial Court under Section 376(1) of the Indian Penal Code and under Section 4 of the POCSO Act. The accused filed a petition in Calcutta HC highlighting the victim’s admission of her past relationship with him. The prosecution argued that the victim was a minor at the time of the offence and, even if the victim had granted her consent, the same is not material at all.
However, the court said that even if POCSO Act considers the victim’s consent for sex immaterial, penetration out of one’s own free will cannot always be interpreted as an offence under the said law.
“Although the consent of a minor is not a good consent in law, and cannot be taken into account as ‘consent’ as such, the expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression ‘penetrates’, in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders,” the court said.
It further added, “Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union.”
“If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim”, the Judge said.