The Himachal Pradesh High Court observed while rejecting a bail application filed by a man accused of raping a thirteen-year-old girl, just because the girl sent a friend request to the defendant does not grant his the right and freedom to develop sexual ties with her.
Justice Anoop Chitkara noted that social media is used by people for networking, information, and entertainment and not to be stalked or sexually and psychologically abused.
On such social media sites, most of the young people are involved. Thus, it is not uncommon for young people to make new social links by themselves. This does not mean that children who build social media profiles do so to look for romantic partners, “The Court added, “or they expect to accept those invitations.
The defendant’s argument was that since the girl had established a Facebook account on her behalf, he believed that she was over 18 years of age and therefore had consensual sex with her. The court noted that a Facebook account can be created by any person aged 13 years and above, and therefore this argument does not merit acceptance. The court found that merely because she sent the friend request to the accused on Facebook could not lead to the presumption that she did it to encourage the accused to create coitus. Observed the judge:
Even otherwise, individuals join social networking sites such as Facebook, Twitter, etc. to communicate with friends and family and expand a form the safety of one is four walls, the current social network is ready. According to an analysis by ‘Social Media for Youth and Civil Engagement, in India 290 million registered Facebook users in all age groups, as published by UNDP. Of all, 190 million users are young people in the age group of 15-29 years. Interestingly, in the 15-29 year of age, millennials make up 66 % of the total Facebook users, even though they make up just 27% of the total population. Therefore, on those social media sites, most young people are present and engaged. Therefore, by submitting friend invites, it is not uncommon for youths to make new social contacts. It does not mean that children who build social media profiles do so or wish to accept such an invitation to look for sexual partners. In modern days, the use of social media is a norm. People use social media for networking, information, and entertainment and, yes, not to be sexually and emotionally stalked or abused. Just because a friend request was sent to the accused by the accuser would not grant him the right and privilege to develop sexual ties with her.
The court has found that it is not uncommon for persons on social media to not share anything about their age and gender because it is a public platform. It does not become a gospel truth if a child discusses the wrong age on Facebook, and it definitely does not lead to a prima facie conclusion that such a person is not a child but a major of 18 years of age or above.’
The court added that, because the accused saw the victim in person, he would have found that as a female of 13 years and 3 months of age, the victim is a minor child and should not be believed to have the physical appearance of an adult. This prima facie amounts to statutory rape, the court said, because the girl was under 18 years of age and her consent is immaterial. On the question of whether a defense is an error of age, the court noted: In Raghunath Ramnath Zolekar v State of Maharashtra (Cr. Appeal No. 388 of 2010), Bombay High Court Division Bench video (Aurangabad Bench) The decision of 04.02.2013 discussed several concerns, one of which was an error of age as a defense. Under that case, the defense argued that mensrea is part of Sections 375 and 376 IPC when drawing on B (A Minor) v. Chief of Public Prosecutions (2002 Appeal Cases), and until and unless the perpetrator realizes that the prosecutor is below the age of 16 years, the criminal responsibility for that act will not be attracted. Nevertheless, the Hon’ble Bench rejected the above-mentioned argument and went on to note, we, therefore, rely on the judgment in the case of B (A Minor) v. Director of Public Prosecutions (2002 Appeal Cases), that the phrase “with the knowledge that prosecutrix is below 16 years of age” cannot be read as if it were in clause six of Section 376 of the Indian Penal Code. If any such attempt is made, it is equivalent to tinkering with the statutory scheme.
