india

Updated: Sep 24, 2019 16:01 IST

The Bombay High Court has in a significant ruling let off a woman convicted by a special POCSO court in 2015 for abetting the sexual and physical assault on her five-year-old daughter by the child’s step-father.

Justice AM Badar struck down conviction of the 28-year-old woman last week, saying the failure on her part to lodge a police complaint would not amount to intentionally aiding her husband in the crime under the provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

Justice Badar also observed that being a silent spectator to a crime does not amount to abetment under the act.

The special POCSO court in Nashik had convicted the woman for abetting her husband and sentenced her to 10 years imprisonment on March 23, 2015, almost three years after the police lodged a complaint filed by their neighbour.

The neighbour had seen the injury marks on the girl’s body and reported the matter to local police. Apart from beating her badly, her step-father had put chilli powder on her private parts, the neighbour had said. Sarkarwada Police in Nashik registered a case on October 15, 2013.

The special court held the step-father guilty under relevant sections of the POCSO Act.

It had also accepted the prosecution’s argument that though the child informed about her step-father’s assault to her mother, the woman intentionally did not report it to the police and therefore she was guilty of abetting her husband’s crimes.

Justice Badar, while striking down the woman’s conviction on September 18, said clause three of Section 16 of the POCSO Act makes it clear that a person abets by aiding when by any act done either prior to or at the time of the crime he intends to facilitate and does, in fact, facilitate it.

The intention should be to aid the commission of a crime, the judge said, adding that just helping will not make the act an abetment of an offence if that person did not know that the offence was being committed or contemplated.

The judge added that in order to convict a person of abetment by illegal omission, it is necessary to show that the accused intentionally omitted to perform a legal obligation.

Abetment by omission would only be punishable if the omission were an illegal omission i.e. breach of a legal obligation, said the court.

“Failure of the accused in not reporting the matter to police as such does not amount to intentionally aiding the commission of the offence by her husband,” the judge said as he acquitted the woman.