Mukesh Bhengra v. The State
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CRA(DB)/4/2022 IA No. CRAN/2/2022 Mukesh Bhengra Vs.
The State Mr. Rakesh Kumar ...for the petitioner Ms. A.S.Zinu ...for the State October 17, 2023 [SR] Item No.4 1.
The present criminal appeal is directed against the judgment passed on 24th March, 2021 by the learned Additional Sessions Judge, North and Middle Andaman, Mayabunder -cum- Special Judge under the POCSO Act, convicting the appellant for the offence punishable under section 6 of the POCSO Act and under the section 376 of the Indian Penal Code. The appellant was sentenced to imprisonment for life and pay fine of Rs.2,00,000/- out of which 90 per cent was to be paid to the victim as compensation under section 357 of the Code of Criminal Procedure, in default, rigorous imprisonment for another year.
2.
Learned counsel or the appellant submits that it has been the case of the victim all throughout that the victim had a love affair with the appellant and indulged in physical relationship with him voluntarily and without any force being imposed upon her. The victim has stated in no uncertain term that the accused-appellant is not guilty of the offence alleged and in fact, the victim has married the accused during pendency of the appeal and they are leading a happy conjugal life together with the child born to the victim.
3.
Learned counsel for the prosecution opposes the prayer. 4.
In the judgment under challenge, the accused-appellant has been held guilty of aggravated penetrative sexual assault upon the victim. 5.
The fact, as stated in the FIR, is that the victim went to the SubCentre of Karmatang on 09.09.2020 for a medical check-up as she was six months pregnant at that time following which she was called to the Police Station where her statement was recorded. She stated in the FIR that the appellant and herself were in love with each other for
about four years as a result of which they were involved in physical relationship leading to her pregnancy. She admitted that the appellant was responsible for her pregnancy.
6.
The victim has stated in her statement under section 164 of the Code that her date of birth is 15.06.2002 which indicates that at the time of alleged incident, she was little more than seventeen years of age for which allegation under the POCSO Act was slapped upon the appellant.
7.
The other witnesses examined by the prosecution have reiterated the contention of the victim as heard from the victim herself. The willingness of the victim to the approach made by the appellant is crystal clear from the material on record.
8.
It is a fact that since the victim was a minor at the time of the alleged incident, her consent to the alleged act cannot be taken into consideration by this Court. But at the same time, it is an admitted position that the victim was in love with the appellant and voluntarily indulged in physical relationship with him which resulted in her pregnancy. The present scenario is that the victim and the appellant are happily married and have a child.
9.
In the words of the Hon'ble Supreme Court in the authority in Gian Singh vs. State of Punjab and another reported in (2012) 10 SCC 303, "The Court is a vital and an extraordinary effective instrument to maintain and control social order. The courts play role of paramount importance in achieving peace, harmony and everlasting congeniality in society. Resolution of a dispute by way of a compromise between two warring groups, therefore, should attract the immediate and prompt attention of the court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery." 10.
Laws are not merely letters and are applicable to human beings. The judgment passed by the Trial Court should not be an impediment in the happy conjugal life of the victim and the appellant, more so, since they have been blessed with a child. There is also nothing on record to suggest that the appellant has any adverse antecedent.
11.
In view of the above, the judgment impugned dated 24th March, 2021 is required to be set aside.
12.
Accordingly, the judgment passed by the learned Additional Sessions Judge, North and Middle Andaman, Mayabunder-cumSpecial Judge under POCSO Act is set aside.
13.
The appellant Mukesh Bhengra is acquitted from the charge under section 6 of the POCSO Act and section 376 of the Indian Penal Code. The accused be discharged from his bail bond at once. 14.
The appeal, being CRA(DB)/4/2022, is disposed of and the connected application, being CRAN/2/2022, is also disposed of. 15.
The lower court records be sent down.
16.
Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities. ( Subhendu Samanta, J.) ( Suvra Ghosh, J.)