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Synopsis

The Bombay High Court has held that a mere minority of the girl by a few months cannot turn an act of consensual sexual intercourse into an offence of rape or sexual assault – if a young boy is castigated for being guilty of committing the rape on a minor girl, merely because she is below 18, but an equal participant in the act, he would suffer a severe dent, which he will have to carry lifelong, Court said. It was also pointed out that the ‘age of consent’ has to be distinguished from the ‘age of marriage’ as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must also take note of this important aspect.

The High Court made these observations while allowing the appeal of a convict, Ashik Ansari under Ss. 4 (Punishment for penetrative sexual assault) and 6 (Punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) read with S. 376 (Punishment for rape) of the Penal Code, 1860 and acquitting him of all charges. 

Justice Bharati Dangre, while allowing the appeal, observed, “This is a peculiar case, where the evidence on record has clearly made out a case for consensual sex, as nowhere in the examination-in-chief or her cross-examination, the prosecutrix has alleged that sexual intercourse was forcible and without her consent and throughout her deposition, she is consistent on the said stand though state that she was informed that the accused was already married to some other woman. In the wake of the clear case of consensual sex, emerging from the prosecution case, between a girl aged 17 years and 5 months and a man aged 25, merely because the statute provides punishment for an act of sexual indulgence, as the girl has not attained the age of maturity i.e. 18, when it can be specifically inferred from her conduct that she was capable of understanding the consequences of her act, I am of the opinion that the learned Special Judge has erred in convicting the appellant for committing the offence of rape under Section 376 of IPC as well as the offences under Sections 4 and 6 of the POCSO Act and awarded him the sentence in the impugned judgment.”

Recognizing the right to choice of adolescents and the penal action provided against non-consensual sexual acts, Court added that while all children have the right to be protected against sexual abuse, that protection should also allow them to push their boundaries and take necessary risks, without putting them in danger or exposing them to unwarranted reactions.

Life of teenagers have been damaged by the punitive attitude to sexuality, making it more difficult for them to get sexual and reproductive health care, Court said.

“The criminalization of romantic relationships has overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system and ultimately when the victim turns hostile by not supporting the charge against the accused, in the wake of the romantic relationship she shared with him, it can only result in an acquittal. Though the POCSO Act cannot stop the natural feelings towards the opposite sex, particularly in the age which accounts for biological and psychological changes, punishing a minor boy, who entered into a relationship with a minor girl, who were in the grip of their hormones and biological changes would be against the best interest of the child and though it is the duty of the State to safeguard the ability to take decisions and to protect the autonomy of the individual, the adolescents cannot be deprived of this right”, the Court also observed.

Brief Background

The appellant on being tried for offences under Ss. 363, 376, 107 and 109 of the Penal Code, 1860 read with Ss. 4, 6, 17 of the POCSO Act, 2012 stood convicted by judgment dated 21.02.2019 for offences under Ss. 4 and 6 of the POCSO Act r/w S. 376 of the Penal Code.

As per the brother of the prosecutrix, on 30.01.2016 when he was away for the last rituals of his grandmother, he received a call informing that his sister was missing.

An FIR came to be lodged on 01.02.2016, where the brother of the prosecutrix expressed his suspicion and an offence under Section 363 IPC was registered.

Both the prosecutrix and the appellant were traced on 18.03.2016 at Hadgood, District Anand, State of Gujarat and were brought to Byculla Police Station.

Before the Court, the girl deposed that she knew the accused since the last two years, as he was the friend of her brother and was on visiting terms at their house. The accused expressed his willingness to marry her and took her to one lodge, where he established sexual relationship. In January 2015, on suggestion of the accused, the girl decided to flee away from her home since their relationship was not accepted by the family.

As per the version of the prosecutrix, her date of birth was 05.08.1998.

Case Title: Ashik Ramjan Ansari v. State of Maharashtra | CRIMINAL APPEAL NO. 1184 of 2019