It is worth paying singular attention that while ruling on a most significant legal point pertaining to consent of minor in sex, the Calcutta High Court in S S vs State of West Bengal & Anr in C.R.A. 207 of 2018 that was heard and finally pronounced on 09.12.2025 in the exercise of its criminal appellate jurisdiction has minced absolutely just no words to hold in no uncertain terms that a minor would not know the consequences of sexual relations and is incapable of giving consent for the same. This was held so most explicitly while upholding the conviction of a man under the Protection of Children against Sexual Offences Act, 2012 (POCSO Act). We need to note that a Division Bench of Calcutta High Court comprising of Hon’ble Mr Justice Rajsekhar Mantha and Hon’ble Mr Justice Ajay Kumar Gupta made the key observation in a case that pertained to an alleged romantic relationship between a girl who was 12 years old when the 23-year-old accused began the relationship with her.
We thus see that the Calcutta High Court upheld a Sealdah Trial Court’s decision to convict the accused and sentenced him to life imprisonment and a Rs 2 lakh fine in this POCSO case. It would be worthwhile to mention that this leading judgment was passed by the Calcutta High Court on an appeal that had been filed by the accused against the Trial Court’s verdict. It must be also taken into account that the Calcutta High Court held explicitly that since the victim was below the statutory age of consent, the accused man’s acts constituted aggravated penetrative sexual assault under Sections 5(j)(ii) and 5(l) of the POCSO Act, punishable under Section 6 with rigorous imprisonment. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Rajsekhar Mantha for a Division Bench of the Calcutta High Court comprising of himself and Hon’ble Mr Justice Ajay Kumar Gupta sets the ball in motion by first and foremost putting forth in para 1 that:
The subject appeal is directed against judgment and order of conviction dated 14.03.2018 passed by the learned Additional District and Sessions Judge, First Court at Sealdah, South 24 Parganas-cum-Special Judge under POCSO Act, 2012 in Special Case No. 12 of 2017. The appellant was convicted under Section 376 of the IPC and 6 of the POCSO Act.
As we see, the Division Bench then points out in para 2 that:
The appellant was sentenced to life imprisonment and was directed to pay a fine of Rs 2,00,000 (two lakhs). 90% of the said amount was directed to be paid to the victim as compensation in terms of section 357 of the CRPC. Upon the default thereof, the appellant was directed to further undergo a rigorous imprisonment for one year. The detention period already suffered by the appellant was directed to set off in terms of Section 428, CRPC.
To put things in perspective, the Division Bench envisages in para 3 while dwelling on the prosecution case stating that:
The victim and the appellant were allegedly having a love affair for more than three years prior to the date of lodging of the complaint with the police i.e. 16th March 2017. In course of such love affair, the appellant on several occasions entered into sexual intercourse with the victim. The victim initially protested against the said intercourse. However, she acquiesced when the appellant assured her that he would marry her. The victim was a minor aged 15 years 4 months on the date of the lodging of the police complaint. The victim, therefore, was about 12 years at the inception of the love affair with the appellant.
As it turned out, the Division Bench enunciates in para 4 observing that:
The complaint of the victim resulted in FIR No. 60 dated 16.03.2017 under Section 6 of the POCSO Act, 2015 and 376 of the IPC of the Narkeldanga Police Station against the appellant. The complaint was filed when the victim became pregnant and the family members of the victim confronted the appellant and his family with the fact that the appellant had impregnated the victim minor girl. However, the family of the appellant denied his involvement.
Simply put, the Division Bench then discloses in para 5 mentioning that:
As per the complaint, the appellant had sexual intercourse for the first time with the victim around 8:30 PM in November, 2016 in his house. The family members of the appellant were not in the house on that day. The victim at that time aged about 14 odd years of age. Hence the same amounted to an aggravated penetrative sexual assault, defined under the 5(j)/(ii) and 5(l) of the POSCO Act; the punishment whereof is prescribed under section 6 of the POSCO Act read Section 376 of the IPC.
Do note, the Division Bench notes in para 6 that:
The Statement of the victim under Section 164 CRPC indicates that the appellant used to buy her food from time to time and accordingly won her over. After November 2016 the appellant had sexual intercourse with the victim many times thereafter.
Do also note, the Division Bench then notes in para 7 that:
Admittedly the victim’s father was a rickshaw van puller and her mother worked as a housemaid. The victim came from a poor family. The appellant was slightly better off than the victim’s family.
Do further note, the Division Bench then also notes in para 8 that:
The last of such penetrative sexual assault occurred by the appellant with the victim occurred in February, 2017 in a hotel at central Kolkata. When the victim discovered that she became pregnant, she told the appellant who ignored the same. When she fell sick at home, she informed her parents. Her pregnancy was confirmed after a medical test performed at home.
Be it noted, the Division Bench notes in para 9 that:
The appellant was taken into custody and charges were framed by the trial Court on 31.08.2017 under Section 6 of the POCSO Act and Section 376 of the Indian Penal Code. The charge under Section 6 was based on the fact that the appellant committed the offence of aggravating penetrating sexual assault on the victim who was 12 years at that point of time, and on several occasions thereafter is stated to have impregnated her. Consequently, the victim gave birth to a girl child.
It must be taken into account that the Division Bench points out in para 10 that:
The first offence under Section 6 of the POCSO Act was committed by the appellant when the victim was neither in a position to consent to marry nor understood the consequences of her actions nor was legally capable thereof.
Quite significantly, the Division Bench points out in para 34 that:
In the present case, the evidence of the prosecution witnesses coupled with the medical report confirming that the victim was pregnant, supported by the DNA report that the appellant could not be excluded from being the father of the girl child of the victim, clearly establishes that the appellant has entered into a several acts of penetrative sexual assault with the victim who was a minor.
It is worth noting that the Division Bench notes in para 37 that:
In the present case, the victim has been candid and truthful since she stated that she loved the appellant. They shared a friendly and intimate relationship. The same, however, was turned into a sexual relationship at the behest of the appellant, who was a major of 23 years in the relationship.
Most significantly, the Division Bench encapsulates in para 42 what constitutes the cornerstone of this notable judgment postulating precisely that:
The victim was a minor and incapable of giving valid and legally enforceable consent. She still however believed and relied upon the appellant that he would marry her. The complaint was lodged after the victim discovered that she was pregnant and the appellant ignored the victim after being informed as such.
It would be instructive to note that the Division Bench notes in para 45 that, “In the facts and circumstances of the case, this Court is of the view that the delay in lodging the FIR and the complaint is not relevant in the context of a conviction under Section 6 of the POCSO Act, 2012. There is a presumption under Section 29 of the POCSO Act, 2012 as regards the commission of the offence unless contrary is proved. The evidence on record has clearly established that the appellant has on several occasions entered into physical relations with the victim. The offence committed by the appellant was a continuous one.
Needless to say, the Division Bench states in para 47 that:
It is now well-settled that even if there are some loopholes in the investigation, the main crux of the offence having been established against the appellant, the same cannot stand in the way of conviction, particularly in respect of the offence under Section 6 of the POCSO Act, 2012 and Section 376 of the Indian Penal Code. The evidence of the PWs has remained uncontroverted.
Resultantly, the Division Bench holds in para 48 that:
Having regard to the above discussions, this Court is of the clear and unequivocal view that the conviction of the appellant under Section 6 of the POCSO Act and Section 376 of the Indian Penal Code, calls for no interference at all. C.R.A. 207 of 2018 shall stand dismissed.
What’s more, the Division Bench then directs and holds in para 49 that:
This Court is of the view that the fine imposed by the trial Court on the appellant may not in fact be paid by the appellant. Let 90% of the fine of Rs. 2 lakhs i.e. Rs. 1,80,000/- be paid by the State Legal Services Authority (SLSA) within 15 days of receipt of this judgment. If the appellant pays the fine of Rs. 2 lakhs, Rs. 1,80,000/- shall go to the SLSA. The balance shall be paid to the State. If the appellant does not pay the same, the SLSA shall bear the expense.
Adding more to it, the Division Bench then hastens to add in para 50 directing and holding in para 50 that:
In addition to the aforesaid, the SLSA shall pay a further sum of Rs. 2 lakhs to the victim from its own funds.
Further, the Division Bench directs in para 51 holding that:
The payments to the victim as ordered hereinabove shall be enforced by the Trial Court.
It merits mentioning that the Division Bench then directs and holds in para 53 that:
The trial court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. The appellant shall suffer the punishment as imposed by the Trial Court.
For sake of clarity, the Division Bench then clarifies in para 54 holding that, “The appellant if on bail, shall forthwith surrender before the jurisdictional court or shall be forthwith be taken into custody and made to serve the sentence.
Finally, the Division Bench then concludes by directing and holding briefly in para 55 that:
Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
