Facilitating the commission of a sexual offense can invoke liability under POCSO even without direct allegations of sexual assault against the accused.

JUDGMENT :

I.A. No. 4778 of 2024

1. The instant interlocutory application has been filed on behalf of appellant for suspension of sentence dated 20.03.2024 passed by the learned Special Judge (POCSO Act), Bokaro in Special POCSO Case No. 16 of 2023 whereby and whereunder, the appellant was directed to undergo R.I. for 7 years and fine of Rs.5,000/- and in default of payment of fine S.I. for 3 months and further R.I. for 20 years with fine of Rs.10,000/- and in default, to undergo S.I. for 6 months under sections 17/6 of POCSO Act.

2. It has been contended on behalf of the appellant that there is no allegation said to be direct in nature, so far as the offence said to be committed by the present appellant to attract the ingredient of section 6 of POCSO Act.

3. Learned counsel for the appellant has submitted that if the entire story as per the prosecution version even will be accepted then also there is no allegation of commission of sexual assault by the present appellant but even then the appellant has been convicted under section 17/6 of POCSO Act along with Sections 366A, 376(3) r/w 34 of the I.P.C.

4. Learned counsel for the appellant, on the aforesaid premise, has submitted that it is a fit case where the sentence is to be suspended.

5. While, on the other hand, learned Additional Public Prosecutor appearing for the State has vehemently opposed the prayer for suspension of sentence.

6. It has been contended that if the prosecution version will be taken into consideration along with testimony of the victim, who has been examined as P.W.1, it would be evident that the role of the appellant is of a facilitator, since, he is the person who has commuted the victim (P.W.1) and accompanied with the co-convict, namely, Touhid, thereafter she was subjected to sexual assault.

7. It has been submitted that since the active role of the present appellant is there, hence, it is incorrect on the part of the appellant that no ingredient of Section 17 /6 of POCSO Act is available. Therefore, it is not a case where the sentence is to be suspended.

8. We have heard learned counsel for the parties and gone through the findings recorded by the learned trial Court in the impugned judgment as also the material available in the Lower Court Record along with material exhibits therein.

9. This Court has found from the prosecution version that the victim was subjected to sexual assault. The allegation against the present appellant is that he has brought the victim for the purpose of accompanying with other co-convict Tauhid, who had committed rape.

10. The argument, which has been advanced on behalf of the appellant that there is no allegation said to attract section 17/6 of POCSO Act, which has been considered by this Court and this Court after going through the section 9(g) (explanation thereof) has found that involvement of any person who is involved in furtherance of a common intention to commit rape will also be implicated in the commission of crime of sexual assault.

11. The fact about the conduct of the present appellant to facilitate the commission of sexual assault, even has not been disputed by learned counsel for the appellant on the basis of material came against the appellant in course of the trial.

12. The age of the child has conclusively been proved to be 15 years, which has been proved on the basis of that attendance registered, which has been proved by the Principal of said school, where the victim was studying.

13. This Court, considering the aforesaid fact, is of the view that it is not a case where the sentence is to be suspended.

14. Accordingly, the instant interlocutory application stands dismissed.