Criminal Appeal No. 1924 of 20 v. State of Chhattisgarh, through Station House Officer, Police

(4) On the basis of aforesaid report, FIR (Ex.P/06) was registered by the police against the appellant and wheels of investigation started running, in which, Nazari Naksha and panchnama were prepared vide Ex.P/17 & Ex.P/18 respectively. After obtaining consent from the victim (PW-05) as also from her mother and father, namely, Ramla Bai (PW-06) and Nityanand (PW-07) vide Ex.P/08 to Ex.P/10, the victim (PW-05) was subjected to medical examination, which was conducted by Dr. Lalilta Gajnala (PW-12) and, as per MLC report Ex.P/13, it has clearly been opined that sexual intercourse has been tried with the victim (PW-05) and further victim’s vaginal slides were also seized and handed over to the police constable, which was seized vide Ex.P/12. Further, at the instant of the mother of the victim (PW-05), her undergarment was also seized vide Ex.P/07. The IN (Criminal Appeal No.1924 of 2017) accused-appellant was arrested vide Ex.P/20 and sent for medical examination and his MLC report is (Ex.P/15) and further his undergarment was also seized vide Ex.P/11. Thereafter, the vaginal slides and undergarments of the victim (PW-05) and that of the appellant were sent for chemical examination and, as per FSL report (Ex.P/24), though no stains of human sperm/semen were found on the vaginal slides of the victim as also on the undergarments of the victim and the appellant, but stains of blood were found on the undergarment of the victim (PW-05). In order to ascertain correct age of the victim, copies of relevant pages of Dakhila Kharij Register of the victim (PW-05) was seized vide Ex.P/07, wherein her date of birth has been recorded as

25.03.2006 and, as such, the victim (PW-05) was minor aged about less than 10 years on the date of offence. Thereafter, statement of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (5) The prosecution in order to prove its case examined as many as 18 witnesses and exhibited 25 documents apart from IN (Criminal Appeal No.1924 of 2017) final report and connected documents, whereas the appellant in support of his defence has examined 01 witness and exhibited 02 documents. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Sections 376(2)(i) as also under Section 06 of the POCSO Act, 2012 and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Sudhir Kumar Bajpai, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. In view of questions framed and answers given by the victim (PW- 05) in her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for offences in question. He would also submit that even if the date when the offence in question is said to have been committed (i.e.

27.02.2016) is considered, the un-amended provision of Section 06 of the POCSO Act, 2012 will come into play, wherein the minimum punishment for offence punishable under Section 06 of the POCSO Act, 2012 was 10 years’ RI and the same was subsequently amended w.e.f. 16.08.2019. Therefore, the present IN (Criminal Appeal No.1924 of 2017) appellant be also sentenced for a period of 10 years’ RI by reducing it from life imprisonment, as awarded by the learned trial Court. He would rely upon the decision of the Supreme Court in the matter of State of Uttar Pradesh v. Sonu Kushwaha 1 to buttress his submission. Hence, the present appellant be allowed in full or in part. (8) Per-contra, learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW-05), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question, coupled with other evidence available on record i.e. MLC report of the victim (Ex.P/13) and FSL report (Ex.P/24), the trial Court has rightly convicted the appellant for the offences mentioned hereinabove and, therefore, the appeal is liable to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (10) In the instant case, considering the statement of the victim (PW-05), wherein she has clearly narrated the incident in 1 (2023) 7 SCC 475 IN (Criminal Appeal No.1924 of 2017) question and implicated the appellant herein to be the author of the crime by stating that on the date and time of the offence when she used to study in Class-IV, the appellant herein, threatened her to commit marpeet and, on that pretext committed sexual intercourse with her coupled with other evidence available on record i.e. (i) copy of Dakhila Kharij Register of the victim (Ex.P/02), wherein the date of birth of the victim (PW-05) has been recorded as 25.03.2006, meaning thereby, she was minor aged about less than 10 years on the date of offence; (ii) MLC report of the victim (Ex.P/13), wherein it has clearly been stated that the victim (PW-05) has been subjected to sexual assault, which is duly supported by the statement of Dr. Lalita Gajnala (PW-12), who has medically examined the victim (PW-05) and (iii) as per FSL report (Ex.P/24) it has clearly been opined that stains of blood were found on the underwear of the victim (PW-05), the finding recorded by the learned trial Court that the appellant is guilty of having committed aggravated penetrative sexual assault/sexual intercourse on the minor victim (PW-05), is strictly in accordance with law. We do not find any illegality or perversity in findings recorded by the learned trial Court. Accordingly, we hereby affirm the said finding. (11) Now the question would be whether the learned trial Court is justified in awarding sentence for imprisonment for life to the IN (Criminal Appeal No.1924 of 2017) appellant for having committed offence under Section 06 of the POCSO Act, 2012 or same can be reduced, as contended by learned counsel for the appellant by placing reliance on a recent decision of the Supreme Court in the matter of Sonu Kushwaha (supra). (12) In the matter of Sonu Kushwaha (supra) their Lordships of the Supreme Court finding the accused therein to be guilty of having committed aggravated penetrative sexual assault punishable under Section 06 of the POCSO Act, 2012 proceeded to convict him for the said offence and upon further finding that the minimum punishment prescribed for offence punishable under Section 06 of the POCSO Act, 2012 at the time when offence was committed i.e. prior to 16.08.2019, was 10 years’ RI, awarded him sentence for 10 years’ RI with fine of Rs.5,000/- and held in Para-11 to 15 as under: “11. Section 6, as applicable before its substitution on 16-08-2019, read thus: "6. Punishment for aggravated penetrative sexual assault. Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine." On the date of the commission of the offence, rigorous imprisonment for ten years was the minimum sentence prescribed for the offence of aggravated penetrative sexual assault. From 16th August 2019, the minimum IN (Criminal Appeal No.1924 of 2017) sentence has been enhanced to twenty years. However, the amended provision will not apply to this case as the incident has taken place prior to 16th August 2019.

12. Surprisingly, the High Court has observed that Section 5 was not applicable, and the offence committed by the respondent falls under the category of a lesser offence of penetrative sexual assault, which is punishable under Section 4 of the POCSO Act. Thus, the High Court committed an obvious error by holding that the act committed by the respondent was not an aggravated penetrative sexual assault. In fact, the Special Court was right in punishing the respondent under Section 6 and sentencing him to undergo rigorous imprisonment for ten years with a fine of Rs.5,000/.

13. The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, on its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court. When a penal provision uses the phraseology "shall not be less than.", the Courts cannot do offence to the Section and impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence. However, we find no such provision in the POCSO Act.

14. Therefore, notwithstanding the fact that the respondent may have moved ahead in life after undergoing the sentence as modified by the High Court, there is no question of showing any leniency to him. Apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment. The impact of the obnoxious act on the mind of the victim- child will be life-long. The impact is bound to adversely affect the healthy growth of the victim. There is no dispute that the age of the victim was less than twelve years at the time of the incident. Therefore, we have no IN (Criminal Appeal No.1924 of 2017) option but to set aside the impugned judgment of the High Court and restore the judgment of the Trial Court.

15. Accordingly, the appeal is allowed. The impugned judgment and order dated 18th November 2021 passed by the High Court of Judicature at Allahabad in Criminal Appeal No.5415 of 2018 is quashed and set aside and the judgment and order dated 24th August 2018 passed by the learned 8th Additional Sessions Judge, Special Judge POCSO Act, Jhansi in Special Session Trial No.134 of 2016 is restored. Accordingly, Criminal Appeal No.5415 of 2018 filed before the High Court stands dismissed. The respondent shall undergo rigorous imprisonment for ten years for the offence punishable under Section 6 of the POCSO Act and shall pay a fine of Rs.5,000/-.” (13) In that view of the matter and considering the principles of law laid down by their Lordships of the Supreme Court in the matter of Sonu Kushwaha (supra) and further considering the age of the victim at the time of the offence i.e. less than 10 years and the medical evidence available on record in the shape of MLC report (Ex.P/13) and FSL report (Ex.P/24), while affirming the conviction of the appellant for offence under Section 376(2)(i) of IPC as also under under Section 06 of the POCSO Act, 2012, we deem it appropriate to sentenced him only for a period of 10 years’ rigorous imprisonment by reducing it from imprisonment for life. However, the fine sentence and default stipulation, as imposed upon the appellant by the learned trial Court, shall remain intact. Accordingly, in view of provisions contained under Section 42 of the POCSO Act, 2012, the appellant shall have to undergo 10 years’ rigorous imprisonment for having committed IN (Criminal Appeal No.1924 of 2017) offence under Section 06 of the POCSO Act, as the same is higher is decree. (14) Before parting with the record, the issue of victim’s compensation needs to be addressed by us. The learned trial Court in Para-47 of the impugned judgment has only recommended for compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) for the victim (PW-05), which is totally inadequate and contrary to Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018 formulated by the State of Chhattisgarh w.e.f. 2-10-2018 pursuant to the direction given by the Supreme Court in the matter of Nipun Saxena and another v. Union of India and others2. (15) The Supreme Court in the matter of Nipun Saxena (supra), in Para-9, held on 05.09.2018 that till the Scheme is framed, the NALSA’s Compensation Scheme should function as a guideline to the Special Court for the award of compensation to victims of child sexual abuse under Rule 7 of the POCSO Rules of 2012. Paragraphs 2, 9, 10 and 11 to 15 of the report state as under :- “2. It has been brought to our notice that as far as children are concerned, no Scheme of this nature has been framed with regard to the victims of sexual abuse under the provisions of the Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”). 2 (2019) 13 SCC 715 IN (Criminal Appeal No.1924 of 2017)

9. Keeping this hiatus in mind, we are of the opinion, after hearing learned counsel for the parties as well as learned Additional Solicitor General, that NALSA’s Compensation Scheme should function as a guideline to the Special Court for the award of compensation to victims of child sexual abuse under Rule 7 until the Rules are finalised by the Central Government.

10. The Special Judge will, of course, take the provisions of the POCSO Act into consideration as well as any circumstances that are special to the victim while passing an appropriate order.

11. We need not emphasise that the legislation is gender neutral and, therefore, the guidelines will be applicable to all children.

12. The Special Judge will also pass appropriate orders regarding actual physical payment of the compensation or the interim compensation so that it is not misused or misutilised and is actually available for the benefit of the child victim. If the Special Judge deems it appropriate, an order of depositing the amount in an interest-bearing account may be passed.

13. A copy of NALSA’s Compensation Scheme as well as a copy of this order should be sent by the Registry to the Registrar General of every High Court with a direction that the Registrar General will circulate them to all the District Judges concerned for circulation to the Special Judges and the State, District and Taluka Legal Services Committees.

14. A copy of the Scheme and a copy of the order passed by this Court will also be sent by the Registry to all the Judicial Academies for information.

15. We also direct that the publicity should be given to the Scheme as well as the order passed by us on regular basis until the Rules re finalized by the Central Government. The learned Additional Solicitor General assures us that the needful will be done on a regular basis through all forms of media. Needless to say that the Scheme and the Guidelines will be IN (Criminal Appeal No.1924 of 2017) operational from 02.10.2018.” (16) It would be appropriate to mention here that the National Legal Services Authority (NALSA) setup a committee and finalised the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes and submitted before the Supreme Court on 24-4-2018 and on 21-5-2018, the said Scheme was accepted by the Supreme Court and called as “the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes”. In the said Scheme, minimum limit of compensation provided to rape victim is Rs. 4 lakhs and upper limit of compensation is Rs. 7 lakhs and thereafter in exercise of the powers conferred by Section 357A of the Code, the State of Chhattisgarh has framed a scheme known as the “Compensation Scheme for Women victims/Survivors of Sexual Assault/other Crimes, 2018” with effect from 2-10-2018, explanation appended to the Scheme provides that in case of Minor Victims under POCSO, it would be applicable. The Schedule attached to the said Scheme provides that in case of rape, minimum limit of compensation would be Rs. 4 lakhs and upper limit of compensation would be Rs. 7 lakhs. Serial No.3 of the said Schedule reads as under: - SCHEDULE APPLICABLE TO WOMEN VICTIM OF CRIMES S.No. Particulars of Minimum Limit of Upper Limit of IN (Criminal Appeal No.1924 of 2017) loss or injury Compensation Compensation

3. Rape Rs. 4 Lakh Rs. 7 Lakh (17) Now, the question is, whether the rape victim is entitled for compensation as per the Scheme of 2018 framed by the State Government which came into force with effect from 2nd October, 2018 as per the notification dated 4th February, 2019 by which date the Scheme has been brought into force or under the old scheme which was in force with effect from 3-8-2011 as offence in present case is said to have been committed 3-4 days prior to 19- 2-2013. (18) Reverting to the facts of the present case in the light of the above-stated statutory provisions and in the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in aforesaid judgment, it is quite vivid that since the victim (PW-05) was minor aged about 10 years on the date of offence and the appellant has been convicted for offence under Section 376(2)(i) of the IPC as also under Section 06 of the POCSO Act, 2012, the rape victim and her family members were required to be rehabilitated/protected. Consequently, recommendation ought to have been made by the learned trial Court to the DLSA or the SLSA under Section 357A(2) of the Code, but that has not been done despite the clear cut mandate in that regard. Taking into IN (Criminal Appeal No.1924 of 2017) consideration that the victim (PW-05) was minor aged about less than 10 years on the date of offence and she has been sexually assaulted when the offence took place and she has suffered not only physically but mentally also, and considering the gravity of offence and that she is required to be rehabilitated and further taking into consideration the provisions contained in the Scheme of 2018 and victim (PW-05) has been traumatized heavily, the victim (PW-05) is entitled for total compensation of Rs.7 lakhs (Rupees Seven Lakhs only) under the Scheme of 2018 and not under the Scheme of 2011. (19) Accordingly, the direction of the learned trial Court for paying compensation of Rs.25,000/- to the victim (PW-05) is hereby set aside and, instead thereof, it is held that the victim (PW-05) will be entitled for compensation of Rs.7 lakhs (Rupees Seven Lakhs only) from the State Government along with 6% interest from today till the date of payment. The District Magistrate, Raigarh shall deposit the above-stated amount before the concerned trial Court within 30 days from today. The concerned trial Court shall disburse the said amount to the victim (PW-05) in accordance with the directions given by the Supreme Court in the matter of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susamma Thomas and others3 (Para-17) read with Para-12 in Nipun 3 AIR 1994 SC 1631 IN (Criminal Appeal No.1924 of 2017) Saxena (supra). It is needless to mention that if compensation to the tune of Rs.25,000/-, as per the direction of the learned trial Court, has already been paid to the victim (PW-05), same shall be adjusted from Rs.7 lakh to be paid to the victim as per our direction. (20) Consequently, with aforesaid direction and modifications, this criminal appeal stands partly allowed. (21) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action. A copy of this judgment be sent to District Magistrate, Raigarh and also sent to the Secretary, DLSA, Raigarh to ensure deposition of the amount of compensation in favour of the victim (PW-05), as per the directions contained in this judgment, expeditiously. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if