Continued Omission Cannot Be Viewed As Mere Passive Knowledge: Delhi High Court Upholds Mother's Conviction Under POCSO Act
The Court held that absence of male DNA in FSL report and victim's partial retraction at sentencing stage do not dislodge trustworthy, consistent testimony of child witnesses corroborated by medical evidence.
The Delhi High Court has held that a mother's persistent failure to act despite repeated disclosures by her three minor daughters aged between 02 to 08 years of penetrative sexual assault by a relative cannot be treated as mere passive knowledge, and squarely falls within the expression "intentionally aids by illegal omission" under clause (iii) of Section 16 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), thereby sustaining her conviction for abetment.
The Court further held that the non-detection of male DNA in the forensic report, admissions extracted from a medical witness regarding alternative causes for a torn hymen, and a subsequent retraction by the prosecutrix recorded during sentencing proceedings, did not, either individually or cumulatively, dislodge the credibility of consistent and corroborated testimony rendered by child victims during trial.
A Single Bench of Justice Chandrasekharan Sudha observed, “…Instead of protecting her minor daughters or taking any preventive or remedial steps, A2 dismissed the complaints, told PW1 not to make such allegations against A1 and continued permitting A1 to continue residing in the house, thus exposing the minor children to further abuse. PW1 has further deposed that A2 justified the conduct of A1 and did not intervene despite being repeatedly informed. The continued omission of A2 cannot be viewed as mere passive knowledge but would certainly come within the expression ‘intentionally aids by illegal omission’ coming in clause (iii) of Section 16 of the PoCSO Act”.
“…A2 is not a stranger, acquaintance or any family member, but the mother of the victims who had the parental and legal duty to protect her children. According to PW1, the repeated acts of penetrative sexual assault were committed by A1 while he was residing in their house. PW1 deposed that she had informed her mother (A2), about the acts committed by A1”, the Bench further said.
Advocate Amitej Kumar Nagar appeared for the appellant and Advocate Sanjana Gupta appeared for the respondent, while Advocate Manish Sangwan appeared for the victim.
The Bench was hearing two appeals arising from a judgment of the Additional Sessions Judge (SC-POCSO), East District, Karkardooma Courts, convicting the accused father-figure (A1) under Sections 376(2), 323 and 506(1) IPC and Section 6 of the POCSO Act, and the mother (A2) under Section 6 read with Section 17 of the POCSO Act and Section 376(2) read with Section 109 IPC.
The prosecution's case was that A1, residing in the household, repeatedly committed penetrative sexual assault on three minor sisters over three years, while A2, their mother, despite repeated disclosures, dismissed the complaints and continued to allow A1 to reside in the house.
The trial court convicted both accused vide judgment dated January 30, 2025 and sentenced them vide order dated February 14, 2025, following which A1 and A2 preferred separate appeals under Section 415(2) of the BNSS.
Rejecting the appeals, the Court held that the Section 164 CrPC statements and trial testimony of the two elder victims were consistent and mutually corroborative, and that non-support by the youngest victim did not dilute their evidentiary value. It held that medical opinion admitting alternative possibilities cannot override credible ocular testimony unless wholly irreconcilable with it, and that absence of DNA detection, explainable by degradation of samples, could not demolish the prosecution case. The Court also found the victim's retraction during sentencing to be an unsupported afterthought, never put to the concerned teacher-witness during trial.
“…This is not an unnatural circumstance, considering that the victims were of tender age and may not have fully understood the nature of the acts committed upon them or that such acts constituted offences. This is especially so in the case on hand because PW1 and PW2 despite informing A2, who is none other than their own mother, as well as their dadi of the sexual assaults, the latter dismissed the complaints of the young girls as a joke. Infact, according to PW1, her mother (A2) responded by saying that it was okay and that people do such things. PW1, a girl of tender age at the time of the incident seemed to have had the misfortune of seeing the intimate scenes between her mother (A2) and A1, the person who abused her…”, the Bench said.
“…The girls never realised that they were being abused by A1 until PW1 attended the awareness classes. They must have thought that the acts were normal when their own mother responded by saying – ‘Koi nahi aise karte hain’. The contention that the victims were tutored, having never been put to PW6 during trial, appears to be a clear afterthought. Such a case is not put forward even when A1 and A2 were questioned under Section 313(1)(b) Cr.P.C. Further, a subsequent retraction at the stage of sentencing, unsupported by any materials on record, cannot demolish the substantive evidence recorded during trial”, the Bench further noted.
Distinguishing a Madras High Court precedent where the mother had protested and been abused herself, the Court held A2's conduct constituted active, intentional aid by omission, given her parental duty and repeated justification of the accused's conduct.
Accordingly, both appeals were dismissed, and the convictions and sentences were upheld.
Cause Title: Akeel Azhar @ Rinku v. State (NCT of Delhi) (Neutral Citation: 2026:DHC:6009)
Appearances:
Appellant: Amitej Kumar Nagar, Advocate.
Respondent: Sanjana Gupta, Rakesh Tanwar, Utkarsh, APP with SI Kevendra Singh, Manish Sangwan (DHCLSC) for the Victim.