The Telangana High Court in the case Vanka Rajesh Raju v. The State of Telangana observed and has reiterated that the defense that acts of physical relationship was consensual between the accused and victim girl cannot be considered where the age of the girl was below 18 years to attract POCSO Act.
A singe bench comprising of Justice K. Surender observed and dismissed an appeal challenging the conviction under the Protection of Children from Sexual Offences Act, 2012.
It was observed that the appellant was convicted for the offence under Section 5(1) r/w 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act and Section 506 (punishment for criminal intimidation) and 376 (punishment for rape) of Indian Penal Code, 1860.
In the present case, the case of the prosecution was that a complaint was lodged by P.W. 1 who was the mother of victim girl stating that the victim girl was studying in 9th Class and since a very long time, the school auto driver committed wrong actions with her. However, after examining the victim, it was confirmed that she was pregnant by 16 to 18 weeks. The foetus was aborted.
During the examination, the victim girl confirmed that since August, 2016, the accused or the appellant committed the rape on her regularly by taking her to open places in vacant quarters and he also threatened her to remain silent.
The counsel appearing for the appellant relied on the case Das v. State of West Bengal, 2022, wherein it was submitted that it cannot be said that she was less than 18 years to attract POCSO Act as the age of victim was not proved.
Further, it was contended that the evidence of the victim did not qualify as “Sterling witness” for the reason of several contradictions and omissions which were apparent from the record. The Counsel relied on the Supreme Court judgement in the case State of Assam v. Mafizuddin Ahmed (1983), wherein it was held by the court that evidence of child witness was always dangerous unless it was available immediately after the occurrence and before the possibility of tutoring.
It was observed by the Court that the evidence of victim girl cannot be disbelieved only for the reason of there being no independent corroboration. In the present case, the circumstances clearly showed that it was appellant who in fact had indulged in committing rape on victim girl.
The Court observed that the appellant being auto driver commuted victim to school every day was not disputed. The case of the accused was that victim was never forced to the abandoned quarters and the victim herself accompanied the accused on her own In the said background of defense taken, It was admitted by the accused that the accused used to take victim to the abandoned quarters. Therefore, in the case sole ground urged was that it was with consent of victim.
As claimed by the mother, principal of school and the victim, the date of birth of victim was 07.02.2003. However, she was not above the age of 18 and it was held by the court that the appellant cannot defense that victim’s age was above 18 as this defense was not taken by appellant during the course of trial, at the stage of appeal
The evidence of victim and it was held by her mother to be totally reliable and evidence qualified as Sterling witness in facts of the case and the defense was consensual that acts of physical relationship could not be considered for the reason of age of girl.
Accordingly, the court dismissed the Criminal Appeal.