Asha Sagar Rathi v. State ofMaharashtra
Legal Reasoning
wp1510.21-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 901 CRIMINAL WRIT PETITION NO. 1510 OF 2021Fakira S/o Namdeo VasuVERSUSThe State of Maharashtra...Advocate for the Petitioner : Mr. Rathi Swapnil S.APP for Respondent: Mrs. Pratibha J. Bharad Advocate to assist the A.P.P. : Mr. Usha N. Jadhao ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 10th MAY, 2024. PER COURT :- 1.This writ petition is directed against the order dated24.11.2021 passed by the learned Additional Sessions Judge, Hingolibelow Exh.1 in Special case No. 33 of 2020 thereby rejecting theprayer of the petitioner who was seeking for discharge from criminalcase and framing of charge against the petitioner who is accusedNo.5. Objection was raised on behalf of this petitioner that he has notabetted as alleged by the prosecution, therefore, he prayed fordischarge of the petitioner under Section 227 of the Code of CriminalProcedure, 1973.2.Learned advocate for the petitioner pointed out thestatements of witnesses particularly the informant and otherwitnesses that this petitioner has no such knowledge and criminalintention to abet accused No.1 for commission of the alleged crime wp1510.21-2- punishable under Sections 363, 366, 376(2)(n), 506, 34 of I.P.C. andunder Sections 4, 8 and 12 of the Protection of Children from SexualOffences Act, 2012.3.Learned advocate for the petitioner submits that admittedlythe victim was 17 years and 6 months old. Accused No.1, a marriedman, eloped and stayed with the victim child for more than 7 months.The report was immediately lodged against accused No.1. Learnedadvocate for the petitioner further submits that there is no evidence ofalleged illegal omission or instigation on the part of this petitioner.Learned trial court did not discuss the matter showing that illegalomission on the part of this petitioner. Learned advocate for thepetitioner is relying upon the authorities in the following cases:-I)Asha Patil @ Asha Sagar Rathi vs. State ofMaharashtra, 2020 (2) Mh.L.J. (Cri.) 75, in which it is held that“failure of mother of victim to report matter to police even though shehad knowledge of commission of offence by step father, would notamount to intentional aid or abetment. Mens rea is an essentialelement of offence of abetment. Her subsequent failure to takerecourse to law by lodging FIR does not aid commission of offenceby accused No.1 though it might aid concealment of an offencealready perpetrated. Mere negligence or carelessness on the part ofaccused cannot be termed as ‘abetment’. wp1510.21-3- ii) Gurcharan Singh vs. State of Punjab, AIR 2020 SC4714, in which in para 15 it is observed as under:- “15.As in all crimes, mens rea has to be established.To prove the offence of abetment, as specified underSection 107 of IPC, the state of mind to commit a particularcrime must be visible, to determine the culpability. In orderto prove mens rea, there has to be something on record toestablish or show that the appellant herein had a guilty mindand in furtherance of that state of mind, abetted the suicideof the deceased. The ingredient of mens rea cannot beassumed to be ostensibly present but has to be visible andconspicuous. However, what transpired in the presentmatter is that both the Trial Court as well as the High Courtnever examined whether appellant had the mens rea for thecrime, he is held to have committed. The conviction ofappellant by the trial court as well as the High court on thetheory that the woman with two young kids might havecommitted suicide, possibility because of the harassmentfaced by her in the matrimonial house, is not at all borne outby the evidence in the case. Testimonies of the PWs do notshow that the wife was unhappy because of the appellateand she was forced to take such step on his account.” Learned advocate for the petitioner lastly prayed to allowthe writ petition by setting aside the impugned order and dischargethe petitioner from the alleged offence. 4.Learned advocate for the respondent-State has stronglyobjected the writ petition and submitted that the petitioner is involvedin serious crime. Learned counsel for the respondent pointed out the wp1510.21-4- statements of victim child recorded on 12.2.2020 in which she hasstated that the petitioner was informed by making phone calls thataccused No.1 is proceeding with her and they will not come back.This is a sufficient evidence against this petitioner that he wasknowing the said fact but he did intimate the said fact either to thepolice or to the father of the victim child. Leaned advocate for therespondent further pointed out the statements of other witnesses andsubmitted that section 21 of the POCSO Act will have to be invokedagainst the petitioner by the prosecution which provides punishmentfor failure to report the commission of offence committed under thePOCSO Act.5.Learned advocate for the respondent further pointed outthat it is a case of abetment and the learned trial court has rightlyobserved in para 6 of the impugned order that this petitioner wasknowing that the victim is minor and this petitioner allowed accusedNo.1 to take the vehicle seized by police to elope the said victim. Thereasons given by the trial court are correct. Therefore, it is lastlyprayed to dismiss the writ petition.6.Perused the charge sheet, particularly the report and thestatements of the informant as well as the witnesses. Admittedly, thevehicle used for eloping the victim child bearing No. MH-38-7405 isregistered in the name of Gajanan @ Bandu Vasu i.e. accused No.1.There is no evidence to show that this petitioner handed over that wp1510.21-5- vehicle to accused No.1. Therefore, there is no substance in thecontentions and allegations that this petitioner allowed accused No.1to use his vehicle to elope with the victim child. From the statementsof witnesses and the entire charge sheet it is not pointed out thatthere is any illegality or omission on the part of this petitioner. Mereknowledge to the petitioner that victim was child and report waslodged against accused No.1 Bandu about eloping with child andaccordingly crime was registered which was not the duty of thepetitioner to report the commission of offences punishable underSections 363, 366, 376(2)(n), 506, 34 of I.P.C. and under Sections 4,8 and 12 of the Protection of Children from Sexual Offences Act,2012.7.The essential ingredients of the offences such as illegalomission or intention on the part of the petitioner is not establishedfrom the material placed on record, particularly from the chargesheet. Hence, the reasons given by the trial court are not legal andcorrect. Therefore, in view of the law laid down in the authority ofGurcharan Singh vs. State of Punjab (cited supra), about theingredient of mens rea cannot be assumed to be ostensibly presentbut has to be visible and conspicuous. The ratio laid down in the saidcase is helpful to this petitioner. There is absolutely no evidenceagainst this petitioner.8.The learned trial court failed to assign sufficient reasons of
Decision
wp1510.21-6- the prima facie evidence as to the abetment on the part of thispetitioner. Hence, there is no sufficient material to proceed againstthe petitioner as contemplated under Section 227 of Cr.P.C. The writpetition deserves to be allowed. The petitioner deserves to bedischarged under Section 227 of the Cr.P.C. for the offencespunishable under Sections 363, 366, 376(2)(n), 506, 34 of I.P.C. andunder Sections 4, 8 and 12 of the Protection of Children from SexualOffences Act, 2012.9.For the reasons stated above, the arguments of the learnedadvocate for the respondent are not accepted. The writ petition istherefore, allowed in terms of prayer clause “B” and “C” .10.The writ petition is accordingly disposed of. (SANJAY A. DESHMUKH, J.) rlj/