Karnataka High Court: While deciding a criminal petition filed under Section 439 of CrPC, a Single Judge Bench of Budihal R.B., J. held that the consent of a girl aged 14 years, for sexual intercourse, is immaterial and the POCSO Act classifies it as a rape.
The petitioner-accused was charged for offences punishable under Sections 363, 366 (A), 376(2) of IPC and also under Section 6 of POCSO Act. Learned counsel for the petitioner submitted that the statement of the victim girl recorded under Section 164 of CrPC itself says that she was in love with the petitioner, her family members were not supporting her so she herself left the house and went with the petitioner, and she had sexual intercourse with the petitioner out of her own free will and volition. In view of her statement, the counsel submitted that, there was no prima facie material against the petitioner and hence he may be enlarged on bail.
The Court perused the submissions made on behalf of the parties and the statement of the victim recorded under Section 164 CrPC, and found that the victim girl was 14 years old. She went along and stayed with the petitioner for one week and had sexual intercourse with him. The High Court was of the opinion that even if the girl aged 14 years consented to sexual intercourse, the consent was immaterial. It was a rape. There was a prima facie case against the petitioner. Accordingly, the Court declined to exercise discretion in favor of the petitioner and the petition was rejected. [Premkumar H.M @ Swamy v. State of Karnataka, 2017 SCC OnLine Kar 2447, dated October 9, 2017]