Since charge proved against appellant is of an abettor, this Court is of the view that if sentence is reduced to period already undergone that would meet the ends of justice. This was said in the case of Nagina Choudhary vs The State Of Bihar [CRIMINAL APPEAL (SJ) No.2060 of 2017] by Mr. Justice Birendra Kumar in the High Court of Judicature at Patna
The facts of the case date back to 13.06.2017 and 15.06.2017 when the judgment of conviction and order of sentence was passed by the learned Special Judge where the appellants were sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25000/- for offence under Section 4 of the POCSO Act. Three months further imprisonment was ordered in default of payment of fine. The appellants were acquitted of the charge under Section 376 (D) of the Indian Penal Code. Assailing the judgment of the Trial Court, an appeal was filed.
The appellant contends that in the statement under Section 164 Cr.P.C., the victim stated that both the appellants had ravished her, however before the Court as PW-3, she stated that only appellant Lalu (since deceased) had ravished her. This one is material contradiction. Since the victim girl was not confronted with her earlier statement under Section 164 Cr.P.C., the aforesaid argument has no leg to stand and the proved charge against the appellant Nagina Chaudhary is that he was abettor of the offence, as per definition of abetment under Section 16 of the POCSO Act.
It was further contended that the informant has stated in the F.I.R. that the neighbour informed about kidnapping of the victim girl, but that neighbour has not been produced as prosecution witness. The occurrence allegedly took place on 20.12.2014 and the F.I.R. was lodged on 27.12.2014, however there is no explanation for such delayed information to the police.
Regarding the delay in filing the FIR the Court opined that “The aforesaid minor contradiction is possible when the F.I.R. was lodged by an illiterate lady and the same was written by some other person. Aforesaid infirmity would be of no consequence when the victim is consistent in the matter of place of occurrence, manner of occurrence and identity of the perpetrators of the crime. It is highly unbelievable and unacceptable that the prosecutrix would make a self-humiliating statement for the alleged dispute between the parties which is itself of shaky nature and cannot take place of strong motive for making false allegation”.
Furthermore, the Court said that “The prosecutrix is consistent that appellant Nagina Chaudhary and Lalu, both had lifted her from the house and both were present at the time of occurrence of rape, hence appellant Nagina Chaudhary cannot be absolved of his criminal liability as an abettor”.
After analyzing the facts of the case and the settled position of law in the case, the Court said that “Since charge proved against appellant is of an abettor, this Court is of the view that if sentence is reduced to period already undergone that would meet the ends of justice”. Hence, the appellant was set free.