Case Note & Summary
The appellant, Prashant Ramchandra Kasarkar, was convicted by the Additional Sessions Judge-3, Yavatmal in Special (POCSO) Case 63/2017 for offences under Section 376(2)(i)(n) of the Indian Penal Code (IPC) and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act). He was sentenced to rigorous imprisonment for ten years and a fine of Rs.10,000/-. The co-accused, the mother of the prosecutrix, was acquitted of the charge under Section 316 IPC. The prosecution case was that the accused continuously and dishonestly induced the prosecutrix to have sexual relationship by promising marriage, and repeatedly committed rape on her when she was aged less than 16 years. Additionally, on 16-6-2017, the accused allegedly caused the prosecutrix to abort the fetus by inserting a stick in her vagina. The accused was also charged under Section 417 IPC (cheating) and Section 316 IPC (causing death of quick unborn child). The trial court convicted the accused under Section 376(2)(i)(n) IPC and Section 5(l) read with Section 6 POCSO Act, but acquitted him under Section 417 IPC and the co-accused under Section 316 IPC. The accused appealed against his conviction. The High Court noted that the sexual relationship between the accused and the prosecutrix was not in dispute, as DNA profiling confirmed the accused as the biological father of the aborted child. The sole argument of the appellant's counsel was that the relationship was consensual and that the prosecutrix was aware of the consequences. The court examined the evidence and found that the prosecutrix, in her testimony, admitted that she had sexual relations with the accused voluntarily and that she loved him. She stated that the accused did not force her and that she was aware that sexual intercourse could lead to pregnancy. The court also noted that the prosecutrix's age was not conclusively proved; the ossification test indicated an age between 15-17 years, and the school record was not properly exhibited. The court held that the prosecution failed to prove that the consent was obtained by a false promise of marriage. The accused had not made any promise at the inception of the relationship; rather, the relationship developed out of love. The court distinguished between a false promise made at the inception and a subsequent failure to fulfill a promise. Since the prosecutrix was a consenting partner and the accused did not induce her by a false promise, the conviction under Section 376 IPC and POCSO Act was not sustainable. The court allowed the appeal, set aside the conviction, and acquitted the accused.
Headnote
A) Criminal Law - Rape - Consent - Section 375 Exception 2, Section 376 IPC - Consensual sexual intercourse with a minor below 16 years is rape irrespective of consent, but if the minor is above 16 years and consent is given without any misconception, it may not be rape. In this case, the prosecutrix was below 16 years, but the court held that the prosecution failed to prove that the consent was obtained by a false promise of marriage. The relationship was consensual and the accused did not make any false promise at the inception. (Paras 5-8) B) Evidence - Age Determination - Ossification Test - Medical evidence of age is not conclusive; the court must consider all evidence including school records. In this case, the prosecutrix's age was not conclusively proved as the ossification test gave a range of 15-17 years and the school record was not properly exhibited. (Paras 6-7) C) Criminal Law - Aggravated Penetrative Sexual Assault - Section 5(l) read with Section 6 POCSO Act - For conviction under this section, the prosecution must prove that the accused committed penetrative sexual assault on a child below 16 years. Since the age of the prosecutrix was not proved beyond doubt and the relationship was consensual, the conviction was set aside. (Paras 7-8)
Issue of Consideration
Whether the conviction of the appellant under Section 376(2)(i)(n) IPC and Section 5(l) read with Section 6 of POCSO Act is sustainable when the sexual relationship was consensual and the prosecutrix was a minor but the promise of marriage was not proved to be false at inception.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted of all charges. Fine, if paid, to be refunded.
Law Points
- Consent of minor below 16 years is irrelevant for rape
- but if sexual intercourse is consensual and not induced by false promise of marriage
- conviction under Section 376 IPC may not be sustainable
- Burden of proof on prosecution to establish that consent was obtained by misconception of fact
- Age of prosecutrix must be proved beyond reasonable doubt
