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While quashing a case under POCSO Act against the accused, the bench of Justice W. Diengdoh observed that – “…..in a case where there is mutual love and affection between a child and a person which might even lead to a physical relationship, though the consent of the child under the law is immaterial as far as prosecution for an alleged offence of sexual assault is concerned, considering the peculiar facts and circumstances of a particular case, such as in a case of a boyfriend and girlfriend particularly, if both of them are still very young, the term ‘sexual assault’ as could be understood under the POCSO Act cannot be attributed to an act where, there is, as pointed above, mutual love and affection between them.”
Delivering the judgment of the case on October 27, Justice W. Diengdoh said in his judgment that – “…..this court is of the considered opinion that it would be for ends of justice that the FIR dated 18-12-2020 and the proceedings in Spl. POCSO Case No. 10 of 2021 under Section 5(1)/6 of the POCSO Act pending trial before the court of the learned Special Judge (POCSO), Shillong be quashed, which is accordingly done so here. Resultantly, this petition succeeds and petitioner No. 1 is set at liberty from any liability in the aforementioned criminal case. Bail bond executed if any hereby stands discharged.”
In this case, an FIR was lodged by the mother of a minor girl before the Officer-in-Charge, Pynursla police station, East Khasi Hills on December 18, 2020, complaining that her minor daughter was sexually assaulted by the accused on two occasions that are December 11, 2020, and December 16, 2020, as was narrated by her minor daughter who was found absent from her room by the teacher of the school where she was studying and who had accordingly reported the matter to the accused.
A case was registered at Pynursla police station under Section 5(1)/6 of the POCSO Act. The accused was arrested by the police and he got bail after he was in custody for about 10 months.
It was submitted that the instant application was filed by the accused and the minor girl’s mother on mutual understanding.
The counsel for the petitioners submitted that this is a case where two teenagers are involved in a romantic relationship and being unaware of the legal restrictions, had indulged in a physical relationship out of their own free will and consent. This is therefore not a case of sexual assault as could be understood from the provisions of the POCSO Act since, this is not a case in which extreme depravity, perversity or cruelty was found present and as such the petitioner/accused may not be subjected to face the rigors of law and to be penalized for the same for no fault of his taking into account that there is no ill-motive or mens rea on his part, added the petitioners (ANI)
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