Case Note & Summary
This criminal miscellaneous petition arose from a conviction under the Protection of Children from Sexual Offences Act, 2012. The petitioner, a man from the Irular community, was convicted by the Special Court for Exclusive Trial of Cases Under POCSO Act, Cuddalore, for offences under Sections 5(1), 5(j)(ii), and 6 of the POCSO Act and sentenced to life imprisonment with fine. The case stemmed from an incident on 22.08.2021, where the petitioner allegedly had penetrative sexual intercourse with a minor girl aged about 13 years, after persuading her father to send her to his home to care for his blind wife and child during the Corona pandemic. The victim girl became pregnant. The trial court convicted the petitioner based on the evidence of the complainant, the victim girl, and corroborative witnesses. Challenging the conviction, the petitioner filed a criminal appeal and sought suspension of sentence pending its disposal. Before the High Court, the petitioner argued that there were discrepancies in the victim's age—citing school records showing 13 years, the mother's varying statements of 14 and 19 years, and the victim's own claim of 15 years—and that the Irular community custom permitted second marriages, which the relationship followed. The victim had also denied the sexual intercourse in cross-examination and stated she had a love affair with the accused. The prosecution countered that the victim was a child under Section 2(d) of the POCSO Act as per school records and mother's evidence, and that consent was therefore immaterial. The High Court, after perusing the materials, found that the victim's age was firmly established as 13 years through the school certificate and admission register. It held that community customs could not override the statutory protection afforded to children. The court further noted that the victim’s testimony about sexual intercourse was unequivocal, and her denial during cross-examination did not weaken the prosecution case. It emphasized that under Sections 29 and 30 of the POCSO Act, the court must presume the culpable mental state and the commission of the offence unless rebutted, which the accused had not done. Consequently, the court found no ground to suspend the sentence and dismissed the petition.
Headnote
A) Criminal Procedure - Suspension of Sentence - Section 389(1) of the Code of Criminal Procedure, 1973 - In an appeal under the Protection of Children from Sexual Offences Act, 2012, suspension of sentence is not granted when the victim is a child as defined under Section 2(d) and the conviction is supported by evidence - The petitioner sought suspension of life sentence on the ground of alleged discrepancies in age of the victim and community custom of second marriages; however, the court found that the victim's age was established as 13 years through school records and medical report, and the consent of a child is immaterial under the POCSO Act - Held that there is no reason to suspend the sentence. (Paras 11-13) B) Protection of Children from Sexual Offences Act, 2012 - Definition of Child - Section 2(d) - A person below 18 years is a child; consent of such child is irrelevant for offences under the Act - The victim's age was conclusively proven to be 13 years as per school certificate and admission register; the defence's claim of age discrepancy and custom of second wife did not vitiate the finding - Held that once the victim is a child, the provisions of the Act apply strictly, and the consent of the child cannot be a defence. (Paras 12,13) C) Evidence - Presumptions under POCSO Act - Sections 29 and 30, Protection of Children from Sexual Offences Act, 2012 - The court is statutorily bound to presume the culpable mental state of the accused and that the child was subjected to penetrative sexual assault unless rebutted - The accused failed to rebut the prosecution evidence; the victim's testimony regarding sexual intercourse was unequivocal - Held that in the absence of rebuttal, the presumptions stand, and conviction is justified, warranting no suspension of sentence. (Para 13)
Issue of Consideration
Whether the sentence imposed on the petitioner under the POCSO Act should be suspended pending appeal.
Final Decision
The criminal miscellaneous petition was dismissed.
Law Points
- Legal points not extracted
- Consent of a child is immaterial under POCSO Act
- definition of child under Section 2(d) of POCSO Act
- presumptions under Sections 29 and 30 of POCSO Act are applicable
- community customs cannot override statutory protections for children
