The Bombay High Court has clarified that passive presence at the scene of a sexual offense against a child, without any active role in its commission, cannot justify conviction under Section 376-DA of the Indian Penal Code. In a significant ruling, the Court granted bail to an accused who was present but did not participate in the act, while upholding the life sentence for those who directly committed the offense.
Background & Facts
The Dispute
The case arose from the gang rape of a 13-year-old girl in Dhule, Maharashtra, on June 3, 2023. The prosecution alleged that five accused individuals, including the victim’s relatives, lured her into a field under the pretext of helping her attend to nature’s call. Two of the accused - Chhotu @ Prasad and Chetan - forcibly raped her, while the others allegedly held her limbs or facilitated the act. The fifth accused, Jayesh Neharu Suryawanshi, was alleged to have been present but left without intervening.
Procedural History
- June 3, 2023: Incident occurred; FIR registered on June 4, 2023.
- June 5, 2023: Victim examined by Medical Officer; no external injuries found; hymen integrity questioned.
- June 26, 2025: Special Judge (POCSO), Dhule, convicted all five accused under Section 376-DA IPC, Section 363 IPC, Section 366 IPC, and Sections 4 and 6 of the POCSO Act.
- July 2025: Accused Nos. 1 - 4 filed Criminal Application No. 3628 of 2025 seeking suspension of sentence.
- July 2025: Accused No. 5 filed Criminal Application No. 2973 of 2025 seeking bail.
- March 9, 2026: Bombay High Court heard both applications jointly.
Relief Sought
The applicants sought suspension of their substantive sentences and release on bail during the pendency of appeals. Accused Nos. 1 - 4 argued lack of medical corroboration and flawed appreciation of evidence. Accused No. 5 claimed no active role, relying on the victim’s initial statement to the informant and absence of direct testimony against him.
The Legal Issue
The central question was whether mere presence at the scene of a gang rape, without any overt act of assistance, coercion, or participation, is sufficient to convict an accused under Section 376-DA IPC, which requires active involvement in the commission of the offense.
Arguments Presented
For the Appellant/Petitioner
Counsel for Accused Nos. 1 - 4 contended that the absence of external injuries and the Medical Officer’s admission that hymen tearing could have occurred prior to the incident undermined the prosecution’s claim of forcible penetration. They argued that the victim’s delayed medical examination (two days post-incident) rendered the evidence unreliable. Counsel for Accused No. 5 emphasized that the FIR and victim’s deposition did not attribute any physical act to him; she only mentioned his presence and later retracted any suggestion of his involvement during the actual assault.
For the Respondent/State
The Additional Public Prosecutor and the victim’s counsel argued that the DNA report conclusively linked the accused to the crime and that the victim’s testimony was consistent and credible. They maintained that the accused acted in concert under Section 34 IPC, and that even facilitative roles - such as holding limbs or preventing escape - constituted active participation. They further contended that the gravity of the offense and societal impact warranted denial of bail.
The Court's Analysis
The Court undertook a meticulous review of the victim’s testimony, the FIR, and the medical evidence. It noted that while the victim consistently identified Accused Nos. 1 - 4 as actively involved - holding her, dragging her, and participating in the assault - her account of Accused No. 5 was materially different. She stated he was present, but did not describe him engaging in any physical act. Crucially, she did not mention him lifting her or assisting in the rape during her testimony on the core incident.
"The victim’s deposition, while detailed regarding the acts of accused Nos. 1 to 4, remains silent on any overt act by accused No. 5 during the commission of the rape. Her initial statement to the informant also does not impute any active role to him."
The Court distinguished between facilitation and passive presence. It held that Section 376-DA IPC requires proof of active participation in the act of gang rape, not mere association or presence. While Section 34 IPC permits joint liability for acts done in furtherance of common intention, the Court found no evidence that Accused No. 5 shared the common intention to commit rape. His presence, without more, could not be equated with criminal intent or participation.
The Court also acknowledged the DNA evidence corroborated the prosecution’s case against Accused Nos. 1 - 4, but found no such link to Accused No. 5. The absence of medical injuries, while not dispositive, was noted as a factor that, when combined with the lack of active testimony, raised reasonable doubt regarding his involvement.
The Verdict
The petitioner, Jayesh Neharu Suryawanshi (Accused No. 5), won. The Court held that mere presence without active participation cannot sustain conviction under Section 376-DA IPC. His substantive sentence was suspended, and he was released on bail. The convictions and life sentences of the other four accused were upheld.
What This Means For Similar Cases
Presence Alone Is Not Enough
- Practitioners must now rigorously distinguish between active facilitation and passive presence in POCSO cases.
- Prosecutors must establish specific acts of assistance, coercion, or control to invoke Section 376-DA IPC against non-penetrative participants.
- Defense counsel can challenge convictions where the accused’s role is limited to being present, especially if the victim’s testimony lacks consistency on their involvement.
DNA Evidence Must Be Tied to Specific Acts
- While DNA evidence strengthens the prosecution’s case, it must be linked to the accused’s specific conduct.
- If DNA is found on the victim but no testimony or circumstantial evidence ties the accused to the act, acquittal or bail may be warranted.
- Practitioners should request forensic reports that specify the nature and context of biological material recovered.
Victim Testimony Requires Consistency on Role
- Courts will scrutinize whether the victim’s account remains consistent across FIR, medical examination, and trial testimony regarding each accused’s role.
- Inconsistencies or omissions regarding a particular accused’s involvement create reasonable doubt under Section 101 IPC.
- Defense should highlight discrepancies in the victim’s narrative as grounds for bail or acquittal, even in heinous cases.
