Bombay High Court: A.M. Badar, J. addressed the present appeal challenging the Judgment and order of the trial court by setting aside and quashing the same, by observing that,
“Mere negligence or carelessness on the part of the accused cannot be termed as ‘abetment’.”
The accused 2 who has challenged the judgment and order of the trial court was convicted under Section 17 of Protection of Children from Sexual Offences Act, 2012.
The facts of the case are that the victim of the crime was about 5 years of age at the time of the crime and accused 2 is the biological mother of the victim child. Accused 1 is the step-father. PW 2 had lodged the report for the crime who used to reside in the neighbourhood of accused persons and victim child used to visit her house for playing with her daughter.
At the Dashera festival, accused 2 accompanied by victim child visited PW 2 who noticed injuries on the person of the victim female child. Victim female child disclosed to PW 2 that she was beaten by her step father, on hearing this, PW 2 asked accused 2 to accompany her in order to lodge the report of the offence being committed by accused 1 but the same was declined by accused 2. Further, while the female child victim was being bathed by PW 2, she noticed some injuries on the person of the victim, which were caused by her step-father. Victim informed PW 2 that accused 1 used to insert something in her vagina and also put chilly powder in her vagina. She even disclosed that she is beaten by him after tying her hands with wire of the mobile charger.
So far as accused 2 is concerned, the trial court had framed the charge for the offence punishable under Section 17 of the POCSO Act. Charge for the offence punishable under Sections 4 and 10 of the POCSO Act was framed against accused 1. Both accused persons were accordingly tried.
Trial Court’s conclusion was that the victim female child informed her mother i.e. accused 2 regarding the assault by accused 1 but accused 2 ignored this fact. Further, it added that though PW 2 disclosed accused 2 maintained silence and not interfered with the act of accused 1. This amounted to abetment by “illegal omission as well as intentional aid”. Thus, with the stated finding, Court had convicted accused 2 of the offence punishable under Section 17 of the POCSO Act accordingly.
High Court’s Finding
On hearing the submissions of the parties and in view of the facts and circumstances of the case, Court reproduced Section 16 of the POCSO Act, which defines the term ‘abetment’ of offence under POCSO Act.
“Trial Court held that the case of the prosecution is covered by Clause Thirdly of Section 16 of POCSO Act which deals with intentional aid by an act or illegal omission. At the cost of repetition it needs to mention here that trial court was alive to the legal position that in case of abetment by illegal omission, it is required to be proved b the prosecution that the accused was present at the time of commission of an act and at place of occurrence, but had failed to interfere in it which amounts to illegal omission.
Second explanation to Section 16 of the POCSO Act deals with the situation as to what amounts to intentionally aiding the offender. For making an accused liable for abetment by intentional aiding by an act or illegal omission, it is required to be established by the prosecution that either prior to or at the time of commission of act of offence, such Abettor does anything in order to facilitate the commission of the act of offence and facilitate the commission of offence. Thus the presence of the Abettor either before the commission of the offence for facilitating the commission of the offence or at the time of the commission of an act constituting the offence is necessary; for making out the offence of abetment.”
High Court stated that the evidence of child female victim makes it clear that accused 2 was not present either before or at the time of the commission of the act.
Court held that “mere giving aid will not make the act of abetment of an offence if the person who gave the aid did not know that the offence was being committed or contemplated.
In order to convict a person of abetment by illegal omission, it is necessary to show that the accused intentionally aided the commission of offence by his non-interference and that the omission involved a breach of legal obligation.”
Subsequent failure on the part of accused 2 in non-reporting the matter to police, as such, does not amount to intentionally aiding the commission of offence by co-accused 1.
Mens rea is an essential element of the offence of abetment.
Thus, in view of the above, Court set aside the impugned Judgment and Order of the trial court and quashed the same by setting accused 2 at liberty if not required in any other case. [Asha Patil v. State of Maharashtra, 2019 SCC OnLine Bom 2056, decided on 18-09-2019]
