No Illegality & Irregularity In Findings Of Special Judge: Chhattisgarh HC Upholds Conviction Of 5 Persons In POCSO Case
|The Chhattisgarh High Court upheld the conviction of five persons in a case under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
The accused persons filed four criminal appeals before the Court against the judgment of the Special Judge by which they were convicted.
A Division Bench of Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru said, “… we are of the considered opinion that the learned Special Judge has rightly convicted appellants- appellants-Wasim Bhathi, Devnath @ Furru Sahu, Sonal Pal and Jeevanlal Tandon for offence under Section 363/34, 366-A/34 of the IPC, Section 6 of the POCSO Act and Section 506 Part-II/34 of the IPC. We do not find any illegality and irregularity in the findings recorded by the Special Judge.”
Advocates Pragalbha Sharma, J.K. Saxena, and Bharat Rajput appeared on behalf of the appellants/accused while Additional Advocate General (AAG) R.S. Marhas appeared on behalf of the respondent/State.
Factual Background -
As per the prosecution story, the victim’s father made a report at Police Station, stating that his daughter left home to go to the shop but did not return. Despite searching, her whereabouts could not be found. The complainant’s minor daughter was allegedly lured and taken away by an unknown person. Based on the report of the victim’s father, an FIR was registered for the offence under Section 363 of the Indian Penal Code (IPC). During the investigation, the victim was recovered from the possessions of one of the accused persons being female.
The victim’s statement was recorded under Section 164 of the Criminal Procedure Code (CrPC) and thereafter, Sections 376 and 34 of IPC and Sections 4 and 6 of the POCSO Act were added. Test Identification Parade (TIP) was conducted in which the victim identified the appellants (accused). Accordingly, they were arrested and thereafter, the Trial Court convicted them and sentenced them. Challenging their conviction, thee accused appellants filed appeals before the High Court.
The High Court after hearing the contentions of the counsel, remarked, “From perusal of Section 34 of the IPC, it appears that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone. Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34 IPC come into play.”
The Court enunciated that, to attract Section 34 IPC, it is not necessary that there must be a prior conspiracy or premeditated mind and that the common intention can be formed even in the course of the incident i.e., during the occurrence of the crime.
“The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense”, it observed.
Moreover, the Court noted that there may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention have adequate connectivity.
“When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid. … The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC”, it said.
The Court also added that, a mere common intention per se may not attract Section 34 IPC, sans an action in furtherance and the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved.
“Test identification parade was conducted by the Executive Magistrate / Naib Tahsildar, in which the prosecutrix has identified appellants Devnath Sahu, Sonal Pal and Wasim Bhathi vide Ex.P-22. … In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against appellants-Wasim Bhathi, Devnath @ Furru Sahu, Sonal Pal and Jeevanlal Tandon. The conviction and sentences as awarded by the Special Judge to them is hereby upheld”, it concluded.
Accordingly, the High Court dismissed the appeals and upheld the conviction of all the accused persons.
Cause Title- Wasim Bhathi v. State of Chhattisgarh (Neutral Citation: 2024:CGHC:35571-DB)