IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE RAJARSHI BHARADWAJ AND THE HON'BLE JUSTICE REETOBROTO KUMAR MITRA CRA(DB)/2/2026 (IA NO: CRAN/2/2022, CRAN/3/2026) SUBHAM MAZUMDER … APPELLANT VS. THE STATE AND ANOTHER … RESPONDENT For the appellant : Mr. Alokesh Sarkar For the State : Mr. Sumit Kumar Karmakar For the pvt. respondent : Ms. Nazneen Heard on : June 12, 2026, June 16, 2026, June 18, 2026 and June 19, 2026 Judgment on : August 25, 2026. REETOBROTO KUMAR MITRA, J. 1. This is a conundrum. A love affair resulting in a physical relationship, which is not recognized by law, and consequentially, the birth of a child. 2. The appeal arises from the impugned judgment dated 23rd April, 2021, by which the accused/appellant herein has been held guilty of a charge under Section 6 of the Protection of Children from Sexual Offences Act (hereinafter the POCSO Act) and has been 2 sentenced to imprisonment for life. In addition thereto, he has also been directed to pay a fine of Rs. 2 Lakhs out of which 90% would be paid to the victim as compensation. In default of such payment, it has been directed that the accused would undergo rigorous imprisonment for a period of one year. It is this judgment and sentence, which has been assailed in this appeal before us. 3. The short conspectus of facts are that the victim girl, at the material point of time aged about 17 years had a love affair with the appellant herein, over a period of time. 4. The love affair between the two; the victim girl and the appellant in the scheme of things, progressed to a physical relationship. Consequent to such physical relationship, the victim girl experienced physical discomfort including abdominal pain and went for a medical checkup along with her mother, whereupon it was found that she was pregnant. 5. In terms of the POCSO Act the Doctor who conducted the checkup of the victim girl filed a First Information Report (FIR) being FIR no. 32 of 2020 under Sections 5 and 6 of the said Act read with Section 376 of the Indian Penal Code, 1876 (hereinafter the said Code). 6. In terms of such FIR, the Investigating Officer caused an investigation and the concerned SHO of Diglipur submitted a charge sheet. The appellant was thereafter approached and his statement under Section 313 of the Code of Criminal Procedure was taken. In 3 his statement, the appellant pleaded innocence. Hence trial commenced. 7. At the trial, 16 witnesses were produced by the prosecution, which included the doctors, victim girl, her mother and several others, including the Constable in whose presence the victim girl (hereinafter VG) had been examined, the Investigating Officer and the SHO, Diglipur, who had filed the chargesheet. 8. From the entire tenor of facts and the evidence led, it is not in dispute that an incident had taken place which had caused the victim girl to be impregnated. Since the victim girl was a minor at the material time, her consent to such physical relationship with the appellant is immaterial and hence constitutes an act which can clearly be categorized as a crime under the said Act. 9. The Learned Special Judge under the POCSO Act proceeded to hold the appellant guilty of the crime and imposed the sentence of life imprisonment along with fine of Rs. 2 Lakhs. 10. It is this judgment of the Learned Special Judge under POCSO Act dated 23rd April, 2021 that has been assailed before us on several grounds and issues ranging from not considering material evidence, considering inadmissible materials and unreliable pieces as evidence to the fact that the VG had not lodged any complaint herself and the that the oral evidence of the witnesses were insufficient and inadequate to establish that the appellant was responsible for the act as complained, resulting in impregnation of the girl. 4 11. These facts as aforestated are undeniable. There are a few additional facts which had occurred post filing of this appeal. These additional facts are also on record and are extremely germane for deciding the present appeal. 12. The additional facts may be summarized as under : a) On September 19, 2022 this Hon’ble Court had given a direction for recording the statement of the victim girl. b) On 23rd September, 2022, pursuant to the aforestated direction of this Court, the victim girl appeared before the District and Sessions Judge when her statement was recorded in great details. c) On September 30, 2022, after a substantial hearing a Co- ordinate Bench of this Court held that in view of the fact that there is no past antecedent of the appellant and that the appellant was not absconding at any point of time and that he had not entered into a physical relationship with the victim with any criminal intent, the sentence of the appellant was suspended directing the appellant to be released on a personal bond of Rs. 10,000/-. This was done to give an opportunity to the appellant to establish himself as a dutiful husband and father. d) While the sentence was suspended by the aforestated order, the victim girl made an application before this Court seeking cancellation of his bail on the ground that the appellant had 5 indulged in further acts similar to the one for which he was implicated and had been charged under the POCSO Act, as well as one under Section 436, 233, 504 and 506 of the IPC. e) In view of the post bail misconduct of the appellant, this Hon’ble Court by its order dated April 08, 2024 recalled its earlier order of suspension of sentence and directed the appellant to immediately surrender in Court. f) At the time of hearing the appeal, an application has been filed by the victim girl once again seeking suspension of the sentence passed by the Learned Special Judge, POCSO Court on 23rd April, 2021. 13. It is in this factual matrix that the parties have made their submissions. 14. The issues raised by the appellant may be summarized as under: (i) The Learned Judge while adjudicating the matter proceeded to rely upon irrelevant evidence and also relied upon evidence which were in admissible in law. (ii) The Learned Judge had not considered the fact that there were no independent witnesses in the case nor was there any direct evidence to implicate the appellant. 6 (iii) The evidence tendered by the victim girl is contradictory and brings no clarity to the case made out by the prosecution. (iv) The victim girl has also in no uncertain terms while leading oral evidence stated that she was in love with the appellant and they had an affair/relationship out of their free volition and consent. (v) The Learned Judge was oblivious to the fact that the victim girl had not lodged any complaint personally at the Police Station and that the same had been done by the Medical Officer. This clearly reveals that the victim girl was not averse to the physical relationship with the appellant and was not affected by the same. (vi) The prosecution had been unable to prove that there was any aggravated form of penetrative sexual assault by the appellant on the victim girl. (vii) The mother of the victim girl has deposed that she had no personal knowledge about the incident. (viii) No DNA test had been done to establish whether the appellant is the biological father of the child borne by the victim girl. (ix) Thus, there is a reasonable doubt that the appellant is the biological father of the child and nothing to prove that he was responsible for the impregnation of the VG. 7 (x) The appellant has also placed reliance on a decision by a Co-ordinate Bench of this Hon’ble Court in CRA/4/2024 (Shri Roshan Lakra – versus – The State and Another). 15. The arguments of the prosecution/State may be summarized as under : a) The evidence led by the victim girl has been substantially corroborated by the other prosecution witnesses and the statement of the victim girl under Section 164 of the Code of Criminal Procedure, 1973. b) There is a statutory provision in POCSO Act, 2012 by which there is a presumption in favour of the victim girl as contained in Section 29 thereof. Thus the presumption herein has not been rebutted by the appellant in any manner. c) In fact, the statement under Section 313 of the Code by the appellant is corroborated by the evidence of the victim girl. 16. The arguments on behalf of the victim girl are similar to the prosecution except on the following issues: (i) The victim and the appellant got married on December 12, 2019 in a Kali Mandir in Diglipur and the victim girl had conceived in the month of January, 2020 and it was only in March, 2020 that she fell sick and went to the hospital, 8 wherefrom the Medical Practitioner asked her to go to the Police Station and only thereafter did she give a statement to the Police Officers against her husband as the police officials had asked her to do so. (ii) The appellant had been arrested thereafter and was released on bail upon suspension of the sentence by this Hon’ble Court. (iii) The victim girl along with the appellant (who has been repeatedly described as the husband) in her written submission along with their daughter lived a peaceful life in her matrimonial home. (iv) In fact, the victim girl had applied for cancellation of the bail of the appellant due to some differences in their matrimonial life and she presently believes that he has changed and will take good care of the victim girl and her daughter on account whereof the appellant should be acquitted from all charges. 17. We have heard the Learned Advocates at great length and considered the decisions relied upon by them. We have also perused the documents and the lower Court records pertaining to this instant case. 9 18. Before we embark on the journey to disentangle the facts and interpret the law, a few admitted or at least indisputable facts need to be enumerated : (i) The victim girl and the appellant were in a relationship. The aftermath of this relation was physical intimacy. The victim girl has admitted in no uncertain terms in the statement recorded under directions of this Hon’ble Court before the Learned District and Sessions Judge on 23rd September, 2022 that the victim girl and the appellant had married on 12th December, 2019 at a temple in Sitanagar, Diglipur. (ii) It was only upon finding that she was pregnant, on the advice of the Medical Practitioner who had caused her medical checkup, that she went to the Police Station and gave a statement on the complaint of the doctors. Thus, admittedly, the victim girl herself had not lodged any complaint. The victim girl gave birth to a young girl child. (iii) At the time when the pregnancy occurred, the victim girl was clearly a minor. The Date of Birth of the victim girl being October 25, 2003 as is evident from the concerned Exhibit, her Birth Certificate. 10 19. At this juncture it is important to advert to the legal implications of such admitted facts. The legal implications are as follows : a) The victim girl was a minor at the material time, there is no question of any consensual intercourse. Hence, the said act has to be considered as an act of physical assault under POCSO Act, 2012. b) If the act qualifies as such as statutorily stipulated, the consequences thereof should follow as stipulated under the POCSO Act. c) The consequence is the sentence that has been imposed by the Learned Special Judge, POCSO Court on 23rd April, 2021. 20. Inspite of all these admitted facts, the one issue which goes abegging is that whether the appellant engaged in a physical relation with the victim girl and is the father of the girl child delivered by the victim girl? 21. That there was a love affair which resulted in physical intimacy with the victim girl and the appellant is not in dispute. The appellant has in no uncertain terms in his statement under Section 313 of the Code of Criminal Procedure, 1973 maintained that he is innocent. 11 Pleading innocence to the charge, does not mean he is denying the incident. 22. This is precisely where the conundrum arises. The conundrum arises in view of the fact that the victim girl herself had asked for release of the appellant upon suspension of sentence, which was granted. The conundrum also arises at this juncture of final hearing, the victim girl insisted that the appellant be acquitted of all charges against him in so far as this matter is concerned. 23. The tenor of evidence led by the prosecution can be categorized into 04 broad heads. These broad heads are as follows: a) Direct evidence : Led by PW-2 (the VG). b) Medical evidence : Led by PW-1 (Doctor), PW-12 (Constable in whose presence the VG was examined) and PW-15 (Examining Doctor who found VG to be pregnant). c) Corroborative evidence : PW-3 (VG’s mother), PW-4 (VG’s mother’s friend), PW-5 (VG’s mother’s friend), PW-6 (VG’s grandfather), PW-7 to PW-10 (neighbours mother’s friend), PW-11 (Photographer who developed 03 photographs). d) Investigation/Investigating Officers : PW-14 (SHO, Diglipur) – Consulted case diary and filed charge sheet. PW-16 (IO) Investigation done by him and also arranged for statement under Section 164 of the Code of Criminal Procedure, 1973 and recorded statement under Section 161 of the Code of Criminal Procedure, 1973. 12 24. None of the aforestated witnesses have made a single statement regarding the factum of the appellant being responsible for the VG’s pregnancy. Infact PW-4, 5, 6, 7, 8, 9 and 10 have said that they have no knowledge with regard to the incident and that they do not know the appellant at all. 25. The evidence tendered by the prosecution witnesses is not very convincing nor can it be said that the entire tenor of the evidence leads to the inevitable conclusion that there is no other person who could have been responsible other than the appellant. This issue is sufficiently addressed by the acts of commission by both parties i.e. the appellant and the victim girl, in view of the fact that they had already been married on December 12, 2019, which has not been disputed by either of them and has indeed been admitted in no uncertain terms and in fact in an unequivocal manner. 26. It is only the statement of the VG, a minor at the material time, born on 25th October, 2003 which has to be relied upon as the clinching evidence to hold that it was the appellant who was responsible for her pregnancy. 27. This alone would have been a difficult task for the Court, without any corroborative evidence to establish the fact that the appellant was the person responsible for the pregnancy of the VG. 28. This onerous task has been somewhat eased by the appellant admitting the fact that he and the VG were in a relationship, the 13 aftermath whereof is the pregnancy of the VG. Infact, the factum of marriage has also not been denied by the appellant, nor has the appellant made out any case that the VG was involved with any other person other than him at the material time. Thus, the chain of events commencing from the relation between the appellant and the VG till the pregnancy and consequential delivery by the VG, clearly establishes the one and only one conclusion that the appellant is indeed the biological father of the VG’s child. 29. In view of the aforestated discussion, the following conclusions are unavoidable: a) There was a love affair between the victim girl and the appellant. This affair finally turned in a love story with the consequence of physical intimacy. b) The intimacy resulted in intercourse whereby the VG was impregnated by the appellant and gave birth to a girl child. This portion (impregnation by the appellant) is unsubstantiated by any evidence, except for the admission of the appellant. c) There was no aggravated physical assault nor any sign of any violence as appears from the medical report. It can therefore be safely assured that intercourse between the VG and the appellant was consensual. d) The appellant and the VG got married in December, 2019. 14 e) However, since the VG at the material time was a minor the consent was immaterial and is to be construed as no consent at all. f) The appellant engaged in a physical intercourse with the VG without any consent. This under the POCSO Act, 2012 is a punishable offence. g) Inspite of the aforestated, the VG repeatedly and even at the time of hearing has prayed for acquittal of the appellant and is discharged from all accusations to enable him to live a marital life as a dutiful husband and wife. 30. The sum and substance therefore is that though the incident of intercourse resulting in the birth of a girl child between the VG and the appellant at the material point of time, by operation of law is a criminal act, it was not one committed with any intent of causing harm or injury to the VG by the appellant out of lust or carnal desire. It was an act of love and affection between the two. 31. In this circumstance it is appropriate that substantial justice be done in this matter to ensure that the VG is not subjected to any social stigma as a rape victim as well as to ensure that the child is not deprived of her paternal identity. 32. It cannot be said in the facts of this case that the victim girl was a prey of the appellant’s malafide intentions, rather a physical relationship without any violence, force or aggression. Infact, the 15 medical report relied upon also suggests that there was no violence which caused any harm or injury to the victim girl. 33. In fact, the victim girl’s repeated applications seeking that the sentence to be kept in abeyance and releasing the appellant on bail is a clear testimony that she intends to cohabit with the appellant. In fact, the minor child presently resides with the mother of the appellant, her paternal grandmother. 34. It is in this factual conspectus that we are to decide whether to affirm or set aside the order of the Learned Trial Judge and allow or dismiss the appeal. 35. In order to decide this issue, we have to consider the well-being of, primarily the victim girl and her daughter who is merely 06 years of age. 36. It would be appropriate on a strict construction of law to uphold the sentence and ensure that the appellant remains in jail for the rest of his life, but whether that would subserve the cause of justice is rather a tricky issue. On the other hand, the appellant could be released to undertake his responsibilities towards his wife and the daughter which would also spare them the social stigma, with which they will be foisted. 37. No doubt the intent and object of the POCSO Act is clear and unequivocal. Equally clear is the fact that the POCSO Act seeks to protect the interests, rights and indeed the life of the girl child and is 16 extremely laudable. One cannot lose sight of the fact that the Act is extremely rigid. 38. In this factual matrix we are unable to find any criminal intent of the appellant. In fact, the Hon’ble Supreme Court of India in State of Uttar Pradesh – versus – Anurudh and another reported in 2026 INSC 47 has in no uncertain terms, while approving the judgment in Satish alias Chand – versus – State of U.P. (Criminal Misc. Bail Application No. 18596 of 2024) laid down the bench mark parameters to be considered by a Court while deciding the prosecution under the POCSO Act : “A. Assess the Context: Each case should be evaluated on its individual facts and circumstances. The nature of the relationship and the intention of both parties should be carefully examined. B. Consider Victim’s Statement: The statement of the alleged victim should be given due consideration. If the relationship is consensual and based on mutual affection, this should be factored into decisions regarding bail and prosecution. C. Avoid Perversity of Justice: Ignoring the consensual nature of a relationship can lead to unjust outcomes, such as wrongful imprisonment. The judicial system should aim to balance the protection of minors with the recognition of their autonomy in certain contexts. Here the age comes out to be an important factor. 17 D. Judicial Discretion: Courts should use their discretion wisely, ensuring that the application of POCSO does not inadvertently harm the very individuals it is meant to protect.” 39. The Hon’ble Supreme Court of India in the aforestated decision has also called upon the Secretary, Department of Law and Justice, Government of India to consider introduction of a “Romeo-Juliet” clause to exclude genuine adolescent relationships from the rigid parameters of the POCSO ACT. However, no such amendment to include such a clause in the POCSO Act has yet been made. 40. It is equally important and relevant that the right to marry a person has been interpreted as a right as envisaged under Article 21 of the Constitution of India, by the Hon’ble Supreme Court of India in Shafin Jahan – versus – Asokan K.M. reported in AIR 2018 SC 1933 clearly the right to marry a person of his or her own choice is a integral part of Article 21 of the Constitution of India which has been duly protected by the law. 41. 41. In a criminal appeal the question would arise whether the High Court could exercise its inherent powers under Section 482 of the Code of Criminal Procedure. This issue has been answered sufficiently and affirmatively by the Hon’ble Supreme Court of India in Popular Muthiah – versus – State, represented by Inspector of Police reported in 2006 7 SCC 296. 18 42. The purpose of law is the welfare of the society. Law has to be interpreted and applied in a manner which would result in a greater social benefit rather than in a manner which would derail such a benefit. 43. The Hon’ble Supreme Court of India in several cases has in no uncertain terms followed this principle and even in matters relating to POCSO Act, when the victim girl has had an affair, permitted the sentence to be quashed and directed the parties to engage in a marital life without any further harassment. 44. The only method available to this Court to enforce the welfare of the VG and the appellant is to invoke the inherent powers exercisable under Section 482 of the Code of Criminal Procedure, 1973 which are of wide and of significant import. However, the inherent power has to be exercised cautiously and only under very limited circumstances. First, to give effect to any order under the Code of Criminal Procedure. Second, to prevent the abuse of the process of the court and third, otherwise to secure the ends of justice. 45. The power of the Hon’ble High Court under Section 482 of the Code is of the widest amplitude and has been decided by the Hon’ble Supreme Court of India in Gian Singh – versus – State of Punjab and Another reported in 2012 10 SCC 303 as well as in Ramgopal – versus – State of Madhya Pradesh reported in 2022 14 SCC 531. In fact Ramgopal (Supra) has followed the parameters laid down by the 19 Larger Bench of Hon’ble Supreme Court of India in Gian Singh (Supra). 46. The facts of the present case are such that it would lead to specious justice since the offence of the appellant with which he has been charged is non-compoundable in nature, inspite whereof there was no grievance against him by the VG. On the contrary, the VG coming from a very humble financial background, is struggling to make ends meet. 47. The VG is presently working in Port Blair, all by herself and has sought for bail of the appellant and indeed dropping all charges against him. Clearly quashing the proceeding against the appellant will not have any adverse or deprave fact on the society at large, but, will enure to the benefit of the VG and her daughter. 48. In the present case, it appears that none of the parties, except for the prosecution, has any grievance against the appellant. 49. The prosecution is discharging its duty. In the facts and circumstances which have been elaborately discussed hereinbefore, it would subserve the cause of justice, if the appellant is permitted to resume his normal life with the victim girl, who has now attained majority and is discharging her duties as a mother and is the sole bread earner of the family. Thus, in order to uphold the cause of justice and the welfare of society, rather than permitting the victim girl to continue in her duties alone, it would be more appropriate that the appellant is permitted to resume his duty as a father and 20 husband and discharge the same to the best of his abilities. This is also in line with the decision of this Hon’ble Court rendered by a coordinate bench of this Hon’ble Court in CRA 4 of 2024 in Shri Roshan Lakra vs. The State and Another. 50. In the aforesaid facts and circumstances, to secure the ends of justice we quash the entire proceeding in Special Case No. 12 of 2020 leading to Special POCSO Trial No. 18 of 2020 of the appeals. The judgment and the sentence dated 23rd April, 2021 are set aside and the bail bond stands discharged. 51. Before parting we cannot help but comment on the issue that there is one other POCSO case pending against the appellant. This charge was brought against him when he was enlarged on bail, pursuant to suspension of the sentence, by an order of this Hon’ble Court dated September 30, 2022. 52. We make it absolutely clear that the POCSO Case No. 22/2023, S.T. No.22/2023, FIR being No.66/2023 will proceed in its own way without being influenced by the decision of this case in any manner whatsoever. 53. The instant case has been decided largely because the VG and the appellant were married and can start a marital life afresh with their daughter. It is also of primary importance that the well being of the VG and the minor daughter are given absolute predominance. 21 54. This cannot be the issue in the pending POCSO matter against the appellant and if found guilty in that matter, the appellant will face all necessary consequences thereof. 55. Thus, the CRA(DB)/2/2026 is allowed and disposed of accordingly. 56. Pending applications, if any, are consequently disposed of. 57. Let the trial court records be transmitted forthwith. 58. Department is directed to forward a copy of the judgment to the learned Trial Court and also the Superintendent of Correctional Home immediately. 59. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. 60. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on priority basis on compliance of all legal formalities. I agree (Reetobroto Kumar Mitra, J.) (Rajarshi Bharadwaj, J.)