Bombay High Court
Nirmala Prakash Kale vs The State Of Maharashtra And Anr on 27 January, 2021
Bench: S. K. Shinde
Rane 1/7 IA-212-2020 (SR.9)
27.1.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 212 OF 2020
IN
CRIMINAL APPEAL NO. 20 OF 2020
Nirmala Prakash Kale ...Applicant
V/s.
The State of Maharashtra ....Respondent
****
Mr. Rajendra Bidkar, Advocate for the applicant.
Ms. Veera Shinde, APP for State.
PSI, Mr. Kapse, Marine Drive Police Station present.
CORAM : SANDEEP K. SHINDE, J.
Wednesday, 27.1.2021.
P.C. :
1. Heard.
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27.1.2021
2. Pending Appeal, accused no.2 in POCSO
Special Case No.314/2014 is seeking suspension of
sentence and her enlargement on bail. Applicant was
tried under Section 17 of the Protection of Children
from Sexual Offences Act, 2012 ("POCSO Act" for
short) and sentenced to suffer rigorous imprisonment
for 15 years and pay fine of Rs.15,000/-, in default, to
suffer further rigorous imprisonment for three months
in the subject sessions case by judgment and order
dated 7.11.2019 passed by the Special Judge,
POCSO. It may be stated that, pending trial, the
applicant was on bail.
3. Victim is daughter of the applicant born
from her first wedlock. She performed second
marriage with the co-accused, out of which two
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27.1.2021
children were born. Accused no.1 (second husband of
the applicant) is stepfather of the victim. At the
relevant time, the victim was 14 year old. She was
subjected to, "aggravated sexual assault" by her
stepfather in June 2013, July 2013 and August, 2013.
Her maternal grandmother when learnt this fact,
lodged the complaint.
4. I have perused the evidence of the victim;
she did not support the prosecution.
5. Be that as it may, the applicant, mother of
the victim has been convicted under Section 16 of the
POCSO Act and sentenced to suffer 15 years rigorous
imprisonment. Section 16 of the POCSO Act,
provides that a person abets an offence, if he
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27.1.2021
instigates any person to do that offence; or engages
with one or more other person or persons in
conspiracy for the doing that offence, if an Act or
illegal ommission takes place in pursuance of that
conspiracy, and in order to the doing of that offence;
or intentionally aids, by an act or illegal omission, the
doing of that offence.
6. Explanation-II appended to the third clause
of Section 16, clarifies that whoever, either prior to
or at the time of commisison of an act, does anything
in order to facilitate the commission of that Act and
thereby facilitates the commission thereof, is said to
aid the doing of that act.
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27.1.2021
7. Learned Prosecutor has relied on the third
clause of Section 16 to contend that, mother of the
victim was aware that the victim was subjected to
sexual assault by her stepfather, but she knowingly
and intentionally did not disclose the incident, nor
she prevented her husband from indulging into this
Act. It is therefore submitted that, it amounts to
"illegal omission".
8. The deposition of prosecution witnesses, do
not suggest that the applicant facilitated her husband
to commit the alleged sexual assault on the victim
and/or she instigated to that act. In order to
constitute abetment, the abettor must be shown to
have "intentionally" aided commission of crime.
Evidence is silent on this aspect. Infact, prosecution's
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case suggest, applicant was guilty of not reporting
the offence under the Act; and therefore committed
an offence punishable under Section 21 of the said
Act.
9. That even otherwise, the victim who was
examined as a witness no.1, did not support the
prosecution case at all. Infact, she stated that, she is
living with her stepfather.
10. Thus, taking into consideration the evidence
on record, in my view, the applicant has made out a
case for releasing her on bail during the pendency of
Appeal. For the reasons stated hereinabove, the
application is granted. Hence, the following order :
Rane 7/7 IA-212-2020 (SR.9)
27.1.2021
ORDER
(i) The applicant is directed to be released
on bail on the same terms and conditons, as
was granted pending trial, but with fresh
sureties. However, the learned trial Judge
shall ascertain and verify the permanent
address of the applicant.
11. The application is allowed and disposed off.
Digitally
signed by
Neeta Neeta S.
(SANDEEP K. SHINDE, J.)
Sawant
S. Date:
Sawant 2021.01.27
18:02:24
+0530
