Under POCSO, abettor of rape is equally liable to be punished as the actual offender: Bombay High Court

The Bombay High Court recently noted that under Protection of Children from Sexual Offences Act, 2012 (POCSO Act), an abettor in an offence of rape is equally liable to be punished as the actual offender. .An imprisonment term so imposed was upheld on a reading of Section 16 (abetment of an offence) of the POCSO Act and Section 109 of the Indian Penal Code (IPC).. Section 109 of the IPC provides that the punishment for abetment of an offence would be the same as the punishment for the offence itself, unless there is a specific penalty imposed otherwise for the offence of abetment.."Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment: Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.”Section 109 (IPC).In view of this, Justice VM Deshpande of the Bombay High Court found no error in the sentence served by the Extra Joint Additional Sessions Judge Nagpur in the case before it and directed for the jailed appellant/convict to undergo the remainder of his imprisonment sentence..Facts of the Case.The appellant, Sumit Ramteke had caught hold of the victim, a minor girl who was 13 years old and taken her to the house of co-accused, Golu Barsagade. Thereafter, she was pushed by the appellant inside the house of Golu. Further Ramteke latched the room from outside. During that time the co-accused, Golu committed rape on her..The victim was later rescued from the house by her sister after her best friend alerted her. Since the victim and her sister were threatened by the accused persons, the victim did not disclose about the incident immediately..However, owing to severe pain, the victim had narrated the incident to her grandmother. Subsequently a complaint of the crime was registered with the police. The victim was sent for physical examination and her birth certificate was also obtained..Following trial, the lower court convicted the appellant for the offences punishable under Sections 354, 354A, 506 and 109 read with Section 376(2)(i)(j) of the Indian Penal Code and Section 16 read with Section 3, 4 of the POCSO Act. The co-accused Rohit Golu was also convicted for the offences punishable under Sections 376(2)(i)(j), 506 and 342 read with Section 34 of the Indian Penal Code and under other sections of the POCSO Act..Aggrieved by the lower Court order, an appeal has been filed before the High Court by the Sumit, the appellant in the matter..What the Bombay High Court found.The counsel for the appellant, Advocate AS Band, contended that the appellant had been falsely implicated in the crime. Advocate Band further submitted that there was a delay in lodging the FIR..Moreover, it was argued that that the victim girl appeared to be a consenting party. Therefore, the lower Court ought not to have ordered the conviction, the appellant submitted..This apart, it was also pointed out that an independent witness in the case had turned hostile, thus weakening the case of the prosecution. Further, the appellant had had not committed the rape, it has highlighted..Whereas, the Court agreed that there had been a delay of 5 days in lodging the FIR, it found that there were reasons to justify the delay in the present case. ."In my view, for the said the prosecution case cannot be thrown in the dust bin inasmuch as not only the victim, but PW5 Kajal has offered explanation for the delay, which is plausible one...the threat was extended to the victim and her sister Kajal (PW6) not to disclose said fact to the parents or grandmother or police, in my view, cannot be taken exception and it is, in my view, most natural", the Court observed..Based on the birth certificate provided, the Court held that it is clear that on the date of the incident the age of the victim was about 13 years and she was a “child” within the meaning of Clause (d) of Section 2(1) of the POCSO Act..While, this the case, the Court also junked the contention made by the appellant that the victim appeared to have consented to the encounter with the co-accused.."In my view, the submission of the learned counsel for the appellant that the victim was a consenting party has to be shown the exit door outrightly in view of the fact that the victim was minor and was “child” within the meaning of the provisions of the POCSO Act."Bombay High Court.The Court proceeded to find that the appellant was clearly guilty of having abetted the rape, and further that the sentence imposed on him by the lower court was liable to be upheld in view of Section 16 of the POCSO Act and Section 109 of the IPC.."The acts committed by the appellant which are duly proved by the victim and other prosecution witnesses, in my view, proves that the appellant was abetor and he abeted co-accused Golu to commit rape on the victim, a minor girl."Bombay High Court.In view of these findings, the High Court affirmed the lower court conviction and sentence, and dismissed the appeal. .[Read the Judgment here]