The Calcutta High Court has acquitted a man booked under the Protection of Children against Sexual Offences Act (POCSO) Act, observing that in case the act was participatory in nature and between two sufficiently mature persons, then a male cannot be indicted alone for the same.
A Single-Judge Bench of Justice Sabyasachi Bhattacharya held that the psyche of parties and the level of maturity of the victim were relevant to distinguish whether it was a unilateral act by the accused or whether it was participatory or voluntary in nature.
Allowing an appeal by the accused in a POCSO case involving a 16½-year old victim and a 22-year old accused, who were stated to have earlier been in a relationship, the Bench observed, “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 further opined,
“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 opined.