Case Note & Summary
The appellant, Asha Patil, was convicted under Section 17 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for abetting the sexual assault of her five-year-old daughter by her husband (accused No.1). The prosecution case was that the appellant, being the mother, failed to protect the child and allegedly facilitated the abuse. The trial court convicted her based on the testimony of the victim (PW1) and the informant (PW2), and sentenced her to ten years' rigorous imprisonment. On appeal, the High Court examined the evidence and found that the victim's testimony did not implicate the appellant in any overt act of abetment; she only stated that her mother was present during some incidents but did not describe any aiding or instigation. The informant's testimony was hearsay and did not provide direct evidence of abetment. The court held that Section 17 requires intentional aiding or active participation with mens rea, and mere presence or failure to protect does not constitute abetment. The presumption under Section 29 of the POCSO Act applies only to the commission of offences, not to abetment. Consequently, the court allowed the appeal, set aside the conviction, and acquitted the appellant.
Headnote
A) Criminal Law - Abetment under POCSO Act - Section 17 Protection of Children from Sexual Offences Act, 2012 - Abetment requires intentional aiding or active participation with mens rea; mere presence or failure to protect child does not constitute abetment - Held that the evidence of the victim and informant did not show any overt act or intentional aiding by the appellant, and the presumption under Section 29 POCSO Act does not apply to abetment - Conviction set aside (Paras 10-14).
Issue of Consideration
Whether the conviction of the appellant under Section 17 of the POCSO Act for abetment of sexual assault by her husband on her daughter is sustainable based on the evidence on record.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted of the offence under Section 17 of the POCSO Act. Fine, if paid, to be refunded. Appellant to be released forthwith unless required in any other case.
Law Points
- Section 17 POCSO Act requires mens rea and an overt act of abetment
- mere failure to protect child not sufficient
- conviction cannot be based on presumption under Section 29 POCSO Act for abetment
- evidence of victim and informant must be corroborated for abetment charge
Case Details
2019 LawText (BOM) (09) 76
Criminal Appeal No.118 of 2016
Mr. Vikas Singh (for Appellant), Mr. A.R. Kapadnis (APP for Respondent/State)
Asha Patil @ Asha Sagar Rathi
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Nature of Litigation
Criminal appeal against conviction under Section 17 of POCSO Act for abetment of sexual assault.
Remedy Sought
Appellant sought acquittal by challenging the judgment and order of conviction dated 23rd March 2015 passed by the Additional Sessions Judge, Nashik.
Filing Reason
Appellant was convicted for abetting the sexual assault of her daughter by her husband.
Previous Decisions
Trial court convicted appellant under Section 17 POCSO Act and sentenced to 10 years RI and fine of Rs.10,000/-.
Issues
Whether the evidence on record proves that the appellant abetted the sexual assault of the victim child under Section 17 POCSO Act.
Whether the presumption under Section 29 POCSO Act can be invoked for the offence of abetment.
Submissions/Arguments
Appellant argued that there is no evidence of her abetting the offence; she was merely present and did not actively participate.
Respondent/State argued that the appellant, being the mother, failed to protect the child and thus abetted the crime.
Ratio Decidendi
For conviction under Section 17 of the POCSO Act for abetment, the prosecution must prove that the accused intentionally aided or actively participated in the commission of the offence with mens rea. Mere presence or failure to protect the child does not constitute abetment. The presumption under Section 29 of the POCSO Act applies only to the commission of offences, not to abetment.
Judgment Excerpts
The evidence of the victim does not show any overt act on the part of the appellant/accused No.2 of abetting the co-accused in committing the offence.
Mere presence of the appellant/accused No.2 at the place of incident, even if she had failed to protect the victim, does not amount to abetment within the meaning of Section 17 of the POCSO Act.
The presumption under Section 29 of the POCSO Act is available only for the commission of the offence and not for abetment.
Procedural History
FIR registered on 15/10/2013 at Sarkarwada Police Station, Nashik (Crime No.3157/2013). Trial in Sessions Case No.306/2013 before Additional Sessions Judge, Nashik. Conviction and sentence on 23/03/2015. Appeal filed on 18/09/2019.
Acts & Sections
- Protection of Children from Sexual Offences Act, 2012: 17, 29
