Presence at the crime scene can establish complicity under the POCSO Act, irrespective of whether physical acts are established.

JUDGMENT :

I.A. No. 11930 of 2024

1. The instant interlocutory application has been filed under Section 430 (1) of the BNSS for suspension of sentence dated 30.04.2024 passed by learned Special Judge (POCSO), Jamshedpur, in connection with Special Pocso Case No. 65 of 2020 arising out of Bagbera P.S. Case No. 162 of 2020 whereby and whereunder, the appellant has been convicted for the offence under Sections 376DA, 323/34, 341/34, 506/34 of the INDIAN PENAL CODE and Section 6 and Section 10 read with 16/17 of the POCSO Act and sentenced to undergo R.I. for twenty years with fine of Rs. 10,000/- and in default of payment of fine, further R.I. for one year for the offence under Section 6 of the POCSO Act and further sentenced to undergo R.I. for five years with fine of Rs. 5,000/- and in default of payment of fine, further R.I. for one year for the offence under Section 10 of the POCSO Act and sentenced to undergo R.I. for one year with fine of Rs.1,000/- and in default of payment of fine, further R.I. for three months for the offence under Sections 323 /34 of the INDIAN PENAL CODE and sentenced to undergo S.I. for one month with fine of Rs. 500/- and in default of payment of fine, further S.I. for ten days for the offence under Sections 34 1/34 of the INDIAN PENAL CODE and sentenced to undergo R.I. for two years with fine of Rs. 1,000/- and in default of payment of fine, further R.I. for three months for the offence under Sections 506 /34 of the INDIAN PENAL CODE . In the light of provision contained in Section 42 of the POCSO Act there is no need to impose any further sentence separately for the offence under Section 376 DA of the INDIAN PENAL CODE . All the sentences have been directed to run concurrently.

2. It has been contended on behalf of the appellant that it is a case where the appellant has been falsely implicated in the present case since the version of the victim has considerably been improved from the written complaint made before the police, if it will be compared to the testimony as recorded of the victim in course of the trial.

3. It has been contended that even accepting the testimony of P.W.-3, the victim, she herself has deposed that the appellant has not established physical relationship.

4. It has further been submitted that when as per the version of P.W.-3, victim, no physical relationship has been established and as such, it cannot be said to attract the ingredient of Section 6 of the POCSO Act.

5. The submission has been made that merely because, the appellant was present at the place of occurrence, it cannot be established that there was any common intention in furtherance to commit the rape with the victim.

6. Learned counsel for the appellant, based on the aforesaid ground has submitted that it is, therefore, a fit case where the sentence is to be suspended.

7. While on the other hand, Mr. Manoj Kumar Mishra, learned Additional Public Prosecutor, has vehemently opposed the prayer for suspension of sentence.

8. We have heard learned counsel for the parties, gone across the finding recorded by the learned trial court in the impugned judgment as also the testimony of witnesses available in the lower court record and the material exhibits available therein.

9. This Court, for better appreciation of the argument advanced on behalf of the parties, has gone through the First Informant Report, the statement recorded under Section 164 Cr. P. C. and testimony of PW-3 as was recorded in course of the trial.

10. It is evident from the written report based upon that First Information Report was instituted, the commission of rape has been narrated therein, based upon that the criminal case has been set on motion and thereafter investigation was carried ou