Maternal failure to protect minor children despite knowledge of sexual abuse constitutes abetment by illegal omission.

Accused Nos. 1 and 2 (A1 and A2) appealed under Section 415(2) BNSS, 2023 against the judgment dated 30.01.2025 and order on sentence dated 14.02.2025 of the ASJ (SC-POCSO), Karkardooma Courts, convicting A1 under Sections 376(2), 323, 506 IPC and Section 6 POCSO Act, and A2 under Section 6 r/w Section 17 POCSO Act and Section 376(2) r/w Section 109 IPC.

The prosecution case was that during the three years preceding 10.08.2018, A1 (victims' cousin, residing in their house) repeatedly committed penetrative sexual assault on three minor girls (PW1–PW3, aged 2–8 years), criminally intimidated and beat them; A2, their mother, abetted the offences.

PW1 disclosed the abuse to her class teacher (PW6) after a school awareness session on good and bad touch, leading to FIR No. 384/2018, PS Shakarpur.

PW1 stated she had repeatedly informed A2, who dismissed the complaints; PW1 also witnessed a sexual relationship between A1 and A2, with A2 stating she raised the children on A1's money.

Medical examination (Ext. PW1/A) revealed an old hymenal tear and tenderness in PW1; the FSL report (Ext. A7) detected no male DNA.

At the sentencing stage, PW1 retracted, alleging tutoring by her teacher.

1. Whether the conviction and sentence passed against A1 under Sections 376(2), 323, 506(1) IPC and Section 6 POCSO Act are sustainable on the evidence adduced.

2. Whether the conviction of A2 for abetment under Section 6 r/w Section 17 POCSO Act and Section 376(2) r/w Section 109 IPC is sustainable, i.e., whether her conduct constitutes "intentional aid by illegal omission" under Section 16 of the POCSO Act.

3. Whether non-compliance with Section 232 Cr.P.C. vitiates the trial.

The Court applied Sections 376(2), 323, 506(1) and 109 IPC, and Sections 6, 16 and 17 of the POCSO Act; Section 16 defines abetment to include intentional aiding "by any act or illegal omission," with Explanation II covering prior facilitation.

Relying on Ganesan v. State, (2020) 10 SCC 573 and State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575, the Court reiterated that conviction can rest on the sole testimony of the prosecutrix if clear, trustworthy and reliable, without insistence on corroboration.

Relying on Mange v. State of Haryana, (1979) 4 SCC 349, State of U.P. v. Krishna Gopal, AIR 1988 SC 2154 and allied decisions, the Court held that medical/expert opinion cannot displace credible ocular testimony unless it conclusively rules out the eyewitness version; suggestions admitted in cross-examination are not proof of fact.

Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263 was applied to hold that expert reports are merely corroborative and may be discarded if ocular evidence is trustworthy.

Moidu K. v. State of Kerala, 2009 (3) KHC 89 was applied to hold that non-compliance with Section 232 Cr.P.C. does not vitiate proceedings absent demonstrated prejudice.

The Court found the testimony of PW1 and PW2 clear, cogent, mutually corroborative, and consistent with their Section 164 statements on all material particulars; PW3's resiling did not dilute their evidentiary value, and the inconsistencies pressed by the defence (A1's place of residence; whether abuse began in the second standard or continued through the fourth) were natural for child witnesses deposing after lapse of time and did not strike at the root of the prosecution case.

The MLC showing an old hymenal tear with tenderness corroborated PW1, and the doctor's admission that a hymen can tear otherwise was a mere answer to a suggestion, insufficient to outweigh direct testimony; non-detection of male DNA was explained by possible degradation of samples and could not demolish credible ocular evidence.

The tutoring/retraction plea was rejected as an afterthought: no such suggestion was ever put to PW6 (the teacher) in cross-examination, it was not raised in the Section 313 examination, and a retraction at sentencing, unsupported by material, "would amount to making a mockery of the criminal justice system".

The Court noted the retraction was explicable by familial pressure — A2 being PW1's mother, her father deceased, and the children being in the care of grandmother and bua.

On A2's liability, the Court distinguished State v. XXX: there the mother had protested at every stage and was herself abused; here, A2 was the mother with a parental and legal duty to protect, who, despite repeated disclosures, dismissed the complaints, rebuked PW1 ("Koi nahi aise karte hain"), justified A1's conduct, and continued to permit A1 to reside in the house, thereby exposing the children to further abuse — a continued omission amounting to "intentional aid by illegal omission" under clause (iii) of Section 16 POCSO Act.

Both appeals were dismissed as devoid of merit, and pending applications stood closed.