POCSO Offence Could Not Have Been Committed Without Interposition Of Alleged Abettor Not Enough, 'Intention' Of Abettor Must Be Shown: Kerala HC

Section 16 of the POCSO Act defines abetment and the punishment is provided under Section 17.

Justice P.G. Ajithkumar found that the petitioner aided the minor victim in availing a flat on rent in the presence of the accused and has intentionally facilitated the offence and could be charged under Section 17.

“In order to constitute abetment, the abettor must be shown to have "intentionally aided” the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 16 of the PoCSO Act. And, intention being a condition of mind locked in the bosom of the concerned, necessarily should be a matter for inference from the attending circumstances. The circumstance has to be assessed, discerned and understood with due regard to the usual human conduct.”

The petitioner was arrayed as the second accused in offences alleging the commission of kidnapping, rape and offences under the POCSO Act. The final report was filed against the petitioner arraying him as the second accused alleging the commission of offences punishable under Sections 363, 368 and 376(2)(n) read with Section 34 of the IPC and Sections 4 r/w 3 and 6 r/w 5(l) of the POCSO Act.

He approached the Court aggrieved by the dismissal of his discharge petition. The Special Judge even though noted that petitioner was not answerable for charges of kidnapping and rape but he has to be tried for abetment punishable under Section 17 of the POCSO Act.

The Petitioner contended that he was helping the victim who was his friend in finding a flat. He submitted that he dropped the victim and the first accused near the flat. It was thus argued that the petitioner cannot be made liable for abatement to commit kidnapping and penetrative sexual assault.

On the other hand, the Public Prosecutor submitted that the petitioner who knew that the victim was a child aided the crime. It was submitted that the petitioner facilitated the victim and the accused to find a flat and aided in the commission of sexual assault.

The Court found that the flat was taken on the initiative of the victim but the petitioner was also there to avail the flat.

The Court stated that Section 16 defines abetment in three clauses and the third clause reads thus: "A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing". Further, the Court also took note of explanation II of Section 16 which reads thus: "Whoever, either prior to or at the time of commission 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".

It noted that the provision does not define the term 'intentionally aids' but only explains aiding. The Court stated that aiding must have been committed with the intention of facilitating the offence.

Further, the Court stated that in POCSO cases, Section 29 of the Act creates a legal fiction of presumption when there is allegation of commission of offences like sexual assault.

The Court stated that the petitioner rendered aid to the victim to avail the flat on rent in the presence of the first accused.

It thus held that Trial Court was right in holding that a charge under Section 17 of the POCSO Act could be framed against the petitioner even if it final report does not mention it.

Counsel for Petitioner: Advocate Nandapgopal S Kurup

Counsel for Respondents: Public Prosecutor Sheeba Thomas

Citation: 2024 LiveLaw (Ker) 413

Case Title: Jeffin Kuriakose v State of Kerala

Case Number: CRL.REV.PET NO. 768 OF 2021

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