Having friend of opposite sex does not mean she is available for satisfying sexual desire: POCSO Court

Friendship cannot be misunderstood for love and having a friend of the opposite sex does not mean that she is available for satisfying his sexual desire, a Mumbai court recently observed while convicting an 18-year-old boy for rape of a 13-year-old girl [State of Maharashtra vs. Satish Jalindar Shinde]..The observations were made by Special Judge under the Protection of Children from Sexual Offences Act (POCSO Act), Priti Kumar in response to an argument by the accused showing a photograph of him standing with the victim on the day of Holi to claim that he and the victim were in love. "Girls and boys of vicinity do play Holi together, talk to each other. This friendliness is common but accused exceed his limit by thrusting himself sexually on the victim. The accused is young boy of 18 years. He is adult has understanding that a friend is not available for sexual intercourse. Friendliness do not mean right to engage in sexual intercourse against the desire of other person," the Court said.Friendship cannot be misunderstood for love to rape a woman and having a friend of opposite sex does not mean that she is available for satisfying his sexual desire, the Court added..Having a friend of opposite sex does not mean that she is available for satisfying his sexual desire.POCSO court.By way of background, a day prior to the rape, the victim was told by the accused that he loved her. The victim informed her mother of the same. The very next day, the accused entered her house when she was alone and committed rape on her. The accused threatened to kill her if she disclosed the incident to anyone.On the very same day, the victim’s mother filed a First Information Report (FIR).He was charged for the offences under Sections 376 (rape) and 354D (stalking) of the Indian Penal Code (IPC) and Sections 4 (penetrative sexual assault), 8 (sexual assault) and 12 (sexual harassment) of POCSO Act..During trial, the accused denied the claims and stated that he and the victim were in love. It was submitted that this was known to the mother of the victim as well.The defence submitted that the victim sent him messages and they had photographs together. Photographs of the parties were submitted to the Court from the festival of Holi, where accused is without shirt and the victim is standing beside him..The accused also relied on a judgment of the Supreme Court in Radhu vs. State of Madhya Pradesh, where it was observed that courts should bear in mind that false charge of rape are not uncommon. It was also contended that there have been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability..However, the Court was unconvinced with the position of the accused. The judgment of the Supreme Court in Radhu vs. State of Madhya Pradesh was discussed in which it was held that if the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated..Judge Priti Kumar stated that it was clear that the girl was not willing to have sexual intercourse which is why she did not hide it from her mother.“The victim girl was not consenting party is clear. It is not necessary that the protest has to be shown by marks of struggle,” the judgment said..Further, it was observed that the complainant and victim approaching the police on the same day showed promptness on their part.In fact, the judge was of the opinion that in an offence of sexual assault the victim is not an accomplice. Her testimony alone is sufficient and is very much corroborated by evidence of other witnesses and medical report..Therefore, it was stated that the evidence of the victim inspired the Court’s confidence especially since the cross-examination could also not shake her credence and she was firm that this was forcible sexual intercourse.“As per the settled position of law if the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated,” the Court said..While responding to the contention of the accused that there existed a relationship between the accused and the victim, the Court stated that friendliness was common but the accused exceed his limit by thrusting himself sexually on the victim.“The accused has, as of right in the guise of being friend, forced himself because of his one sided love and committed this grievous offence. The victim girl's life is devastated by this act of accused and accused also has caused a dent to his life at the every early phase of youth,” the Court held.Importantly, the Court noted that the victim being a minor, her consent would be irrelevant under the law."It is settled position of law that consent of minor is no consent," the judgment said.Though the Court noted that there was some discrepancy regarding the victim being 13 years old, it said that she was definitely below 18 years. "The oral and documentary evidence establishes that the prosecutrix was below 18 year old at the time of incident. In my view, even if the date of birth is considered as inaccurate as the parents are illiterate, still she is not above 18 year is visible to eyes. Accused is 18 year and the prosecutrix is below 18 year can be seen from her appearance, photograph at Ex21 produced by defence. Even if it is taken that 13 years of age is not accurate, she will be not be elder to accused is clear. She will still come in age group of above 13 year but age group of 16 below," the Court concluded.Moreover, in present case testimony of prosecutrix do not show any consent, irrespective whether she is minor or major, the Court added..Hence, it convicted the accused for offence of rape under IPC and for sexual harassment, sexual assault and penetrative sexual assault under POCSO. On the point of sentencing, the Court stated that a sentence must be commensurate with the gravity of offence, however, the object of criminal justice system is to rehabilitate the transgressor and the criminals..The judge was of the opinion that the accused will not repeat the offence in future and had understood the consequences of his act. It was also stated that the sentence would send message to youth of today who are in the age group of accused, that uncontrollable desire for satisfaction of lust can spoil their future, career and golden period of progress..Therefore, the accused was sentenced to 8 years of rigorous imprisonment and fine of ₹20,000 for the offence of rape under IPC and penetrative sexual assault under POCSO.Separate sentences were handed down for sexual assault and sexual harassment under POCSO. All the sentences would run concurrently, the Court clarified. The victim was also awarded compensation by the District Legal Services Authority, Mumbai under the various compensation schemes..Special Public Prosecutor VD More appeared for the State. Advocate Gawli represented the Accused..[Read Judgment]