Meghalaya High Court
Shri. Shembhalang Rynghang & Anr. vs . State Of Meghalaya on 23 March, 2022
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 04
Supplementary
List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.Petn. No. 64 of 2021
Date of Decision: 23.03.2022
Shri. Shembhalang Rynghang & Anr. Vs. State of Meghalaya
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. K. Ch. Gautam, Adv.
For the Respondent(s) : Mr. K. Khan, Sr. PP. with
Mr. S. Sengupta, Addl. Sr. GA.
Mr. H. Kharmih, Addl. Sr. GA.
Mr. A. H. Kharwanlang, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER
1. This is an application under Section 482 Cr.P.C invoking the inherent power of this Court to be applied to the facts and circumstances of the case of the petitioners.
2. The background of the matter relates to an FIR dated 29.11.2017 which was lodged by the mother of petitioner No. 2, alleging inter alia that on 29.11.2017 she had gone to Ganesh Das Hospital, Shillong for medical treatment of her daughter who was then 16 years of age as she was complaining of stomach ache and after being medically examined by the 1 doctor, it was found out that she was two months' pregnant. On enquiry, the daughter revealed that she is having a relationship with the petitioner No. 1 herein for the last 10(ten) months.
3. On acknowledgement of the FIR, the police registered a case being, Umiam P.S Case No. 94(11)2017 under Section 376(2)(n) IPC r/w Section 4 POCSO Act, 2012 and investigation was launched. The Investigating Officer then filed the charge sheet holding that a prima facie case is found well established against the accused/petitioner No. 1 and he was accordingly forwarded to the Court for trial.
4. The learned Special Judge (POCSO), Ri-Bhoi District, Nongpoh took cognizance of the case and a Special POCSO Case No. 57 of 2018 under Section 376(2)(n) IPC r/w Sections 3 and 5(j)(ii) of the POCSO Act, 2012 was registered and trial commenced. In course of trial, the prosecution examined three witnesses namely, the victim/petitioner No. 2, complainant who is the mother of petitioner No. 2 and one Dr. (Ms.) Berity Sangma. On conclusion of the evidence, the statement of the accused/petitioner No. 1 was recorded under Section 313 Cr.P.C. The Court after hearing the argument of the parties, then passed the judgment dated 23.04.2021, holding that the accused/petitioner No.1 is found guilty for an offence under Section 5(j)(ii) of the POCSO Act, however no case can be made out under Section 376(2) (n) IPC and under Section 6 of the POCSO Act, was convicted. Consequently, vide order dated 28.04.2021 he was sentenced to undergo rigorous imprisonment for 10(ten) years with fine of ₹ 10,000/- (Rupees ten thousand) only and in default thereof, to undergo another month of imprisonment. The said judgment and sentence was accordingly impugned herein.
5. Learned counsel for the petitioners, Mr. K.Ch. Gautam while appearing before this Court has submitted that the petitioner No. 2 had challenged the order of conviction and sentence by way of an appeal before this Court and the same is pending adjudication. However, there is no bar for preferring this 2 petition before this Court.
6. Mr. Gautam has further submitted that the said FIR was lodged by the complainant under pressure from the members of the Child Welfare Committee and the police and the offence under Section 6 of the POCSO Act, 2012 was added only on the basis of the positive pregnancy test of the victim/petitioner No. 2. However, throughout the proceedings, the petitioner No. 2 has maintained that she was having a love relationship with the petitioner No. 1 and there has been two occasions in which they had sexual physical contact, which resulted in the pregnancy. It is reiterated that even at the outset, the complainant as well as the victim/petitioner No. 2 are not desirous of filing the said FIR.
7. It is also submitted that the petitioners are now living together as husband and wife and they also had a male child who was born on 20.06.2018. Upon the petitioner No. 2 attaining majority, the petitioners have accordingly solemnized their marriage on 12.12.2019 and the same was duly registered before the Marriage Registrar, Nongpoh on 19.11.2020.
8. In the peculiar facts and circumstances of the case of the petitioners where they are now living together as a happy family, the order of conviction of petitioner No. 1 has caused considerable hardship and inconvenience and cannot be comprehended.
9. It is again submitted that the love relationship between the petitioners and their cohabitation is but natural to them since the society they are living in, particularly in a rural set-up and the customs and traditions followed by the community where young people are allowed to have a relationship and to get married even at an age below the legal stipulation and moreover, on being ignorant of the legal aspect (though not an excuse), it seems, but natural, for the petitioners herein to cohabit without any regard to the consequences.
10. Mr. Gautam has also submitted that the fact that the petitioners are 3 living together as husband and wife even at the time of the alleged offence as per customary law, therefore they should be considered husband and wife at the relevant time. In such a scenario, the provision of exception 2 to Section 375 IPC should be applicable to the petitioner No. 1 as he could not have been convicted for sexual intercourse with his wife who was above the age of 15 years at that relevant time. The case of Independent Thought v. Union of India: (2017) 10 SCC 800 was cited by the learned counsel in this regard.
11. It is further submitted that the objective of the Protection of Children from Sexual Offences Act, 2012 is to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and wellbeing of the child at every stage of their judicial process, applied to the context of the case of the petitioners, it will be seen that the petitioners having voluntarily committed themselves to a relationship, even sexual in nature, there is no evidence that sexual assault or sexual harassment has been meted out to the petitioner No. 2 by the petitioner No. 1 and as such, the case of the petitioner No. 1 should fall without the purview of the POCSO Act.
12. In support of his contention, the learned counsel for the petitioner has relied on the following cases cited below:
(i) Ramgopal & Anr. v. State of Madhya Pradesh: 2021 SCC Online, SC 834, paragraph 13.
(ii) Ranjit Rajbanshi v. State of West Bengal & Ors: C.R.A. No. 458 of 2018, para 47, 48 & 49.
(iii) Vijayalakshmi & Anr. v. State Rep. By. Inspector of Police, All Women Police Station, Erode: Crl. O.P No. 232 of 2021 para 12 & 18.
13. Finally, Mr. Gautam has submitted that setting aside of the conviction will not affect any overriding public interest in this instant case, rather it will allow the petitioner No. 2 to continue with her life with dignity and respect by 4 living together with her husband (petitioner No.1) along with the minor son. It is therefore prayed that this petition may be allowed and the conviction to be set aside and quashed.
14. Per contra, Mr. K. Khan, learned Sr. Public Prosecutor responding on behalf of the State respondent has submitted that at the outset, the petitioner could not have approach this Court with this instant petition, inasmuch as, the fact that the petitioner No. 1 has been convicted, any compromise arrived at after the order of conviction has been passed cannot be entertained. The case of Sri. Bimal Chandra Ghosh v. The State of Tripura whereby the Hon'ble Supreme Court vide order dated 11.02.2022 in Special Leave Petition (Criminal) Dairy No. 2339/2022 has held that a case of compromise between the parties which has been entered into after the conviction has been confirmed by the High Court under the impugned judgment cannot be given credence to.
15. In reply, Mr. Gautam has submitted that the above case would not apply to the case of the petitioners as in the first place, the family members of the petitioner No. 2 had tried to convince the police not to register the case as the matter has been settled amongst them, but inspite of that, the police has registered the case.
16. The argument of the parties has been duly noted and as has been submitted, for its importance, the statement of objects and reasons of the POCSO Act may be reiterated herein. At the outset, since sexual offences against children are not adequately addressed by the existing laws, a special law was enacted to address this issue. The provisions of Article 15 and 39 of the Constitution of India has been referred, inasmuch as, the need to ensure that the tender age of children are not abused, but rather protected against exploitation, sexual assault, sexual harassment and pornography which are cited as some of the causes for exploitation for which protection ought to be given to the children. Hence the Act.
517. In Section 2 under the heading definitions at sub-Section 1 clause (d), "child" means any person below the age of 18 years. This is only with regard to the biological aspect of the matter; however the mental and psychological aspect has not been indicated, inasmuch as, a child born and brought up in a rural set-up may have a different mental faculty as compared to a child brought up in an urban setting. In the context of consensual or voluntary sexual intercourse, and more so if the girl is underage while the boy would be above the age of 18 and also if it is confirmed that they are living as husband and wife and the wife perhaps having given birth to a child, the issue becomes more complex.
18. Coming to the case in hand, the admitted fact is that there has been sexual physical contact and relationship between the petitioners herein, which has resulted in the petitioner No. 2 giving birth to a child. It is also admitted that the petitioner No. 2 at the relevant period was below the age of 18 years and therefore, is a 'child' as per Section 2(1)(d) of the POCSO Act. Being a child and not capable of giving consent, the sexual contact by the petitioner No. 1 is accordingly termed as "penetrative sexual assault" u/s 3 of the said POCSO Act and u/s 5(j)(ii) where as a consequence of sexual assault the female child became pregnant, the offence becomes "aggravated penetrative sexual assault" for which offence the punishment u/s 6 would be very severe to the extent that there could be an imprisonment for a period of not less than 10(ten) years or even life imprisonment.
19. According to Webster's dictionary, 'assault' means a threat or attempt to inflict offensive physical contact or bodily harm on a person (as by lifting a fist in a threatening manner) that puts the person in immediate danger of or in apprehension of such harm or contact.
20. Section 7 of the POCSO Act has explained the term 'sexual assault' which means - "whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or 6 breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault".
21. Again, a look at the scenario of what happened between the petitioner No. 1 and petitioner No. 2, granted, there has been a physical sexual contact and intercourse between an adult and a child, although the alleged victim girl was about 16 or 17 years of age at that time. However, as is evident, the act committed under the circumstances cannot be called or termed in any logical or rational sense as a case of assault since no threat or attempt to inflict offensive physical contact or bodily harm on the petitioner No. 2 has been made out. As stated by the petitioner No. 2, the act was voluntary and with consent premises on the fact that the two are in love and are living together as husband and wife. Infact, the petitioner No. 1 is now about 21 years of age and the petitioner No. 2 is about 19 years and they have also been legally married in the year 2020 as is evident from the copy of the marriage certificate annexed with the petition.
22. The decisions cited by the learned counsel for the petitioners in this regard appears to be relevant, in the case of Ranjit Rajbanshi (supra) at paragraphs 47, 48 & 49, the Hon'ble Calcutta High Court has held as under:
"47. In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. 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. If the union is participatory in nature, there is no reason to indict only 7 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.
48. As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as an unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused.
49. 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."
23. Echoing the same sentiment, the Hon'ble Madras High Court in the case of Vijayalakshmi (supra) at paragraphs 12 & 18 has held as follows:
"12. As rightly recognized by the Learned Single Judge of this Court in Sabari's Case (cited supra), incidences where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the implication of the severity of the enactment is an issue that brings much concern to the conscience of this Court. A reading of the Statement of Objects and Reasons of the POCSO Act would show that the Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child. However, a large array of cases filed under the POCSO Act seems to be those arising on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other. The scheme of the Act clearly shows that it did not intend to bring within its scope or ambit, cases of the nature where adolescents or teenagers involved in romantic relationships are concerned.
18. In the present case, the 2nd Petitioner who was in a relationship with the 2nd Respondent who is also in his early twenties, has clearly 8 stated that she was the one who insisted that the 2nd Respondent take her away from her home and marry her, due to the pressure exerted by her parents. The 2nd Respondent, who was placed in a very precarious situation decided to concede to the demand of the 2nd Petitioner. Thereafter, they eloped from their respective homes, got married and consummated the marriage. Incidents of this nature keep occurring regularly even now in villages and towns and occasionally in cities. After the parents or family lodge a complaint, the police register FIRs for offences of kidnapping and various offences under the POCSO Act. Several criminal cases booked under the POCSO Act fall under this category. As a consequence of such a FIR being registered, invariably the boy gets arrested and thereafter, his youthful life comes to a grinding halt. The provisions of the POCSO Act, as it stands today, will surely make the acts of the boy an offence due to its stringent nature. An adolescent boy caught in a situation like this will surely have no defense if the criminal case is taken to its logical end. Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act. An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult's point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life. It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act. The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act."
24. In a recent judgment, the Hon'ble High Court of Delhi in the case of Kundan & Anr. v. State & Ors, vide order dated 21.02.2022 in CRL.M.C. 27/2022 dealing with a similar case in which the alleged victim girl who had gone missing and was found in the company of the accused therein, had stated that she has married the said accused and a child out of the said wedlock was born to them with the parents of both the parties having accepted the marriage, an application u/s 482 Cr.P.C for quashing of the related FIR, on being preferred was allowed. Elaborating on the power of the High Court u/s 482 Cr.P.C, the court has quoted the decision in the case of Gian Singh v. State of Punjab: (2012) 10 SCC 303 at paragraphs 55 & 56 therein which are also 9 reproduced herein for better elucidation: -
"55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.
56. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided."
25. The reference by the learned counsel for the petitioners to the case of Independent Thought (supra) would not be applicable here as the petitioners were legally married only in the year 2020.
26. The reliance of the learned Sr. Public Prosecutor in the case of Sri. Bimal Chandra Ghosh (supra) would also not be applicable in the case in hand as this petition is not one in which reliance was placed on a compromise deed or that the conviction by the Trial Court has been upheld by the High Court.
27. The case of Ramgopal (supra) cited by the learned counsel for the petitioners would be relevant, inasmuch as, the Hon'ble Supreme Court at paragraph 13 has held that "...Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions..." and again, it was said that "...the touchstone for exercising the extra-ordinary power under section 482 Cr.P.C. would be to 10 secure the ends of justice...".
This has been precisely the endeavor of this court in this matter.
28. This Court is in respectful agreement with the judgments of the respective High Courts cited above to the extent they favour the case of the petitioners.
29. In view of the observations made above, this Court is of the considered opinion that the petitioners have been able to make out a case for exercise of inherent powers of the Court for ends of justice and resultantly, the conviction of the petitioner No. 1 in Special POCSO Case No. 57 of 2018 is hereby reversed and the sentence and fine imposed are hereby set aside. The petitioner No. 1 is hereby acquitted of all charges therein. Bail bond executed stands discharged.
30. With the above, this petition is hereby disposed of.
Judge Meghalaya 23.03.2022 "D. Nary, PS"
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