The punishment awarded to the accused by the trial court for the offence of rape has been upheld by the Calcutta High Court. Because the age of the victim was less than 16 years at the time of the incident and victim was a minor Therefore the consent of the minor victim is unimportant The defence had argued that the accused and the victim had love affair and the alleged sexual intercourse was consensus.
According to the case, a Complaint of kidnapping of the victim was lodged against the appellant (accused)at the police station on 3 November 2010. Police officers arrested the appellant (accused)on 20 April 2011. and the victim was recovered.On 12 January 2017 , the trial court had convicted the appellant ( accused) for an offence punishable under sections 376,366 and 366a of the Indian Penal code. The appellant (accused) challenged the order of the trial court in the High Court. The contention of the appellant (accused) was that there was a love affair going on between the victim and the appellant. The victim has not mentioned any incident of kidnapping in her statement recorded under section 164 of the criminal procedure code. Ossification test also show that the age of victim was more than 17 years to less than 19 years at the time of the incident. The appellant said that the victim had gone with him of her own free will. The charges leveled against the appellant were not proved beyond the doubt. The prosecution had argued that the offences were duly proved and the appeal was not eligible for hearing. After hearing the arguments of both sides, the court said, there are minor discrepancies in the statements of the witnesses but such discrepancies are not relevant and don't dilute the case of forcible abduction of the victim by the accused (petitioner). Considering the age of the victim, the court observed that the statement of the father of the victim and which is corroborated by the birth certificate. Establish the fact that the victim was less than 16 years of age at the time of commission of the offence. Ossification test can not be a conclusive proof of determination of a person's age Because ossification test does not yeild accurate results. It doesn't indicate the exact age of the person. The court, in its judgement, said that from the evidence of the victim, medical evidence and other relevant evidences.It is clear that after having kidnapping the victim, the appellant cohabited with the victim at different places. If it is also assumed that sexual intercourse with the victim was done with her consent. Then such consent is invalid as the age of victim was less than 16 years. The court acquitted the appellant of the charges of 366a . Because the prosecution don't allege that no one other than the appellant had intercourse with the victim.
A division bench of Justice Joymalaya Bagchi and Justice Bibhas Ranjan De observed that the prosecution has established that the victim was under 16 years of age at the time of incident and hence her consent is insignificant. The court further said that even if it is assumed that the sexual intercourse was done with the consent of the victim. We can not consider such consent to be valid as the age of the victim is less than 16 years. Hence the case of the offence of rape is proved beyond the doubt.
