“Just because the victim sent a friend request to the accused does not give him the right and liberty to establish sexual relations with her,” observed the Himachal Pradesh High Court.
By: Anish Khondo, 5th Year law Student at Christ (Deemed to be) University, Bangalore.
The prosecutrix, in this case, was a 13-year-old girl who had signed up on Facebook as being 18 years old. The victim had sent a friend request to a 19-year-old man who here is the accused.
Later when their friendship had developed, the accused took her to the hotel where the accused committed coitus. When the victim’s father found out that her daughter was missing, he filed an FIR, and consequently, then the victim and the accused were found at Lachhi Colony at Theog.
Then, the Police took the victim to Civil Hospital, Theog, for medical examination, where the Doctor gave a positive report of DNA matching the bedding of the hotel.
The Investigator recorded her statement under Section 161 CrPC, which led to Sections 366-A (Procuration of minor girl) and 376 IPC (insertion).
The petitioner argues that the accused believed the victim to be of 18 years of age and committed the sexual act with her consent.
It was said that “since the victim was under 18 years of age and her consent is immaterial, prima facie amounts to statutory rape. The legislature has been clear regarding the said clause and states that a person will be held liable if he commits sexual intercourse with a girl less than 18 years of age, with or without her consent.”
The Court stated that the argument of the accused doesn’t hold any weight because when the petitioner saw the victim in person, he must have gathered that the victim is a child. After all, a girl of 13 years and 3 months of age cannot be presumed and believed to have an adult’s physical appearance.
Further Justice Anoop Chitkara relied on the judgment given in Raghunath Ramnath Zolekar v State of Maharashtra where it said that “the defense while relying upon B (A Minor) v. Director of Public Prosecutions (2002 Appeal Cases), argued that mensrea is a part of Section 375 and 376 IPC and unless and until the knowledge of the accused that the prosecutrix being below the age of 16 years is proved, the penal liability for the said act will not be attracted.”
Lastly, the court after observing the facts and circumstances of the case denied granting bail to the accused.
Raghunath Ramnath Zolekar v State of Maharashtra, (Cr. Appeal No. 388 of 2010), (pp- 2) https://www.casemine.com/judgement/in/56b493ee607dba348f008c49