Offenses under POCSO are not Compoundable even if the victim agrees: Madras HC

The Madras High Court on 16th March 2021 ruled that offenses under the POCSO act cannot be compounded even if the Victim is ready to swear in. The HC while deciding on a Criminal Miscellaneous Petition filed under sections 482 and 391 of Cr.P.C., seeking to take additional evidence of the victim also defined the scope of the POCSO act.

Background of the case:

A case was registered against the petitioner for the offense u/s.5 (l) read with 6 of POCSO Act and after trial; the petitioner was convicted and sentenced to undergo 10 years rigorous imprisonment. The victim was 17 years old on the day of occurrence and the appellant had made a false promise that he would marry her and against her will, he had forceful penetrated sexual intercourse repeatedly with her, subsequently, he refused to marry her. Before the trial began statement of the victim was recorded before the magistrate and the victim had also deposed during the prosecution witness. Both the times’ victim had clearly stated that the offense was committed by the accused against her.

After conviction order of the trial court accused convinced the victim to compromise the case and subsequently, the victim filed the petition praying to further examine herself as she intends to untold the truth before the trial court, however, the said petition was dismissed.

Further in 2019, the accused filed a miscellaneous petition before the HC for suspension of his sentence and the Hon’ble HC was gracious enough to grant him relief.

In 2021, the accused again filed the present petition before the HC u/s.391 Cr.P.C. seeking that the victim girl has to be reexamined before the court and to support his contention a sworn in affidavit of the victim was also filed. In the affidavit, the victim stated that “I fell in love with the accused and we were living for 4 together. They both intended to marry each other but couldn’t due to some family issues. But now after the suspension of sentence order, we are willing to stay together forever but the imminent threat of arrest of Maruthupandi (accused) would ruin our lives. Hence it is just and necessary to allow the above appeal.”

Court’s Observation:   

After hearing both parties and perusing the records the court observed that evidence of the victim girl is very clear that she was at the age of 17 years on the day of occurrence and the appellant had made a false promise that he would marry her and against her will, he had forceful penetrated sexual intercourse repeatedly with her, subsequently, he refused to marry her. So, after the completion of the examination of prosecution witnesses, the appellant convinced the victim girl and filed an affidavit. 

In the affidavit nowhere the victim has categorically declined that act of forceful sexual intercourse had not been committed against her; thus it is true to say that such act has been done against her. Also, it is evident that she was below 18 years of age. The scope of the Act is very clear, a person who is above 18 who has sexual assault intentionally against a child who is under 18 years is an offense. Thus provisions of the POCSO act are attracted and offenses under the said act are non-compoundable. The Victim cannot turn it to compound the offense. Once the victim girl gave a complaint that the appellant has committed the offense and the case has been registered, it is an offense against State. Therefore subsequent compromise will not take away the offense.

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Regarding the re-examination of the victim, the court observed that the victim girl already gave a statement u/s.164 Cr.P.C., before the Magistrate and also deposed before the trial court even in the year 2016. So subsequently, the appellant filed the petition. The appellant convinced the victim and filed M.P., before the trial court in the year 2019 in Crl.M.P.No.171 of 2019, but the same was dismissed and not challenged. Therefore, she cannot once again be examined by invoking Section 391 Cr.P.C. Also, it is not mentioned in the affidavit or in the appeal that the victim was under threat or coercion and while giving the statement before Magistrate or giving evidence before the trial court. Thus now at the time of the final hearing of the appeal, seeking additional evidence is against the scope of the POCSO Act.

Decision:

Considering the circumstances, Hon’ble Justice P.VELMURUGAN ruled that there is no merit in the petition. In order to protract the case and escape from the clutches of law, the petitioner has filed the petition and thus it is liable to be dismissed.

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Story by Harshwardhan Pawar-Intern

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