Indian Penal Code, 1860
Sections 363 & 376 and Section 4 of the POCSO Act—Discharge of accused/respondent—Revision—Victim was aged about 14½ years on the date of incident—Since the victim is a ‘child’ within the meaning of Section 2(d) of POCSO Act, the consent of the victim for physical relationship is of no consequence and cannot be of any help to the respondent/accused—Victim had clearly stated the factum of there being sexual intercourse between her and the respondent, though with her consent, but since consent of a minor under the age of 18 years is considered no consent, the acts of sexual intercourse or penetration would prima facie fall under the purview of POCSO Act and Section 375 of IPC for the purpose of framing charge—Sine qua non of an act being covered as offence punishable under Section 361/363 IPC is that the minor should have been ‘enticed’ or ‘taken away’ from the custody of lawful guardian of the minor—No evidence on record or any sort of allegation from victim that it was accused, who had enticed, allured or induced the victim to leave her house or had taken her out of her lawful guardianship—Victim in her statement under Section 161 as well as 164 Cr.P.C. had stated herself that she had, on her own, gone to the accused—Essential ingredient of act of enticing or taking away is absent—Offence punishable under Section 363 IPC is not made out against accused/respondent—Charges ordered to be framed against respondent/accused for offences punishable under Section 376 of IPC and Section 4 of the POCSO Act—Petition allowed in part.
[Paras 8, 9, 13 to 16]
Decision : Petition allowed in part