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~By Kunal Rao

The Delhi High Court last week acquitted two persons convicted by a lower court of raping a minor girl. The high court  said it was a case of her being a “consenting party throughout”, but also directed those convicted to pay compensations for the child born to the victim.

A bench of Justices S P Garg and C Hari Shankar held that the two accused had been wrongly convicted by the trial court as the incident had taken place before the POCSO Act was notified. The court was hearing the appeal filed by the two convicts Tejinder Singh and Vikram Singh, challenging the judgment given by trial court in 2013 whereby they were convicted of repeatedly raping a 13-year-old girl over a period of 4-5 months.

The trial court had held that though the penal provisions of this later legislation (POCSO) cannot be applied retrospectively, yet the intent of the special legislation and its charter has to be interpreted liberally and in compatibility with human rights and the rights of the citizens so sought to be protected by the beneficial legislation.

However, the Delhi High Court bench held that since the crime had taken place before the act was notified, it cannot be applied in the present case.

No law, however, can be interpreted so as to frustrate the very basic rule of law. It is a settled principle of interpretation of criminal jurisprudence that the provisions have to be strictly construed and cannot be given a retrospective effect unless legislative intent and expression are clear beyond ambiguity.

“Since the alleged crime was committed before January, 2012 and the POCSO Act came into force in the year 2012, the findings of the learned trial court to take the age of the ‘prosecutrix’ as 18 years under POCSO Act cannot be sustained. The provisions of such a serious nature impinging upon the valuable rights of the accused, cannot take retrospective effect,” the court said.

It held that “since the victim was more than 16 years of age at the time of commission of the offence and physical relations (if any) were with her consent, the appellants cannot be held guilty for commission of offence punishable under Section 376 IPC and the findings of the trial court on that score cannot be sustained and are set aside.”

The court also questioned the conduct of the victim in not revealing the alleged incident to her parents. According to the prosecution, the alleged incidents of gang-rape by the two accused on the victim came to their knowledge when the victim was taken to the doctor.

It was revealed that the victim was eight months pregnant after the incident which took place in January 2012. The POCSO Act was notified in November 2012.

The court, on these lines, held that the victim was a consenting party throughout.

“From the circumstances described above, it can safely be inferred that the prosecutrix was a consenting party throughout. Physical relationship (if any) was with her free consent.

“It is not the case of the prosecution that the victim was unable to understand the consequence of her act of having physical relations with others due to her low I.Q.; no credible evidence has emerged to substantiate this. The prosecutrix was regularly performing her duties at the shop in the absence of her father; she was regular to attend her school classes,” the bench said.

The bench, however, agreed to the fact that the victim’s testimony was truthful and the minor had gone through a lot of trouble due to the act of the accused

It directed them to pay Rs 5 and Rs 8 lakh respectively as ex-gratia to the victim in the form of FDRs for the child which will remain in force till the infant turns a major.

Read the judgement here.

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