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Consent immaterial under POCSO Act when complainant is a minor: Himachal Pradesh High Court

While hearing a bail application for offences under the Indian Penal code and the Prevention of Children from Sexual Offences Act (POCSO Act), the High Court observed that consent would be immaterial when the complainant is a minor. This judgment was passed in the case of Lekh Ram @Suneel Kumar vs. State of Himachal Pradesh [Cr.MP(M) No.743/2021], by a Single Bench consisting of Hon’ble Justice Vivek Singh Thakur.

The petitioner approached seeking bail under the offences of section 363 and 376 Indian Penal code, Section 4 of the Prevention of Children from Sexual Offences Act (POCSO Act). The main grounds for seeking bail were that there was a 6-month delay in lodging the FIR, after the incident the victim had attended the marriage of petitioner and petitioner’s sister after 2 to 3 months of the alleged date of offence.  Further during examination in chief the complainant had stated that at about 9 PM petitioner had taken her in his car from Nalwar fair towards Mahamaya temple and violated her forcibly in the car, whereas, in cross-examination, she has stated that she remained in Mela ground on that day from 7 PM to 9.30 PM and thereafter, she had stayed in the house of sister of petitioner. The status report showed that she was 16 years of age and being a minor was not competent to exercise discretion. On medical examination she was found pregnant and matter was reported to the Police station. The DNA report indicated that the petitioner was the father and the petitioner had also promised the complainant about marriage when the pregnancy test came.

The high court observed that the allegation of violence against the victim is corroborated with DNA profiling. Further the delay in filing FIR is immaterial since the victim was minor during the commission of offence and while lodging the report. The report was filed as soon as it come to the knowledge of the parents. The High Court held that the delay in lodging FIR, at the most, could be taken as the consent of victim with respect to act committed by petitioner, but, on account of age of victim, consent is immaterial.

Furthermore, it was held it was not a case “where” victim had disclosed the commission of offence, but a case where commission of offence had come in the light when she was found pregnant during medical checkup and whereafter, during inquiry, she disclosed the incident and on verification on the basis of scientific evidence, her version was found to be true. The contradictions should be taken into account by the trial court while conclusion of trial along with other evidences on record.

The High Court concluded by holding, “application stands dismissed. Any observation made in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of this bail application filed.”

Click here for the judgment.

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