Village Rakse, Police Station Sahaspur Lohara, District v. Lohara, District Kabirdham, Chhattisgarh

:- Mr. Manoj Mishra, Advocate, through video conferencing :- Mr. Animesh Tiwari, Addl. Advocate General. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay S. Agrawal Judgment On Board (24.11.2023) Sanjay K. Agrawal, J

1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 16.08.2016 passed by the Special Judge, Protection 2 CRA No. 1426 of 2016 of Children from Sexual Offences Act, 2012, Fast Track Court, Kabirdham, Chhattisgarh, in Special Sessions Trial No. 77/2016 by which appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Section 6 of the POCSO Act, 2012 ₹ Imprisonment for life and to pay fine of 2,000/-; in default of payment of fine amount 1 year additional rigorous imprisonment

2. Case of the prosecution, in nutshell, is that on 04.05.2016 at about 11:00 pm at village Rakse, Police Station Sahaspur Lohara, District Kabirdham, Chhattisgarh, appellant committed sexual intercourse with his minor daughter (victim), aged about 15 years on the date of offence, against her wishes and thereby committed the aforesaid offence. It is further case of the prosecution that on the date of offence i.e. 04.05.2016, when victim was sleeping alone in her room, appellant came there and committed sexual intercourse with her against her wishes. Thereafter, victim informed the said incident to her grandmother (PW-2), who was sleeping nearby and on the next day FIR (Ex.P/1) was registered. Spot map was prepared vide Ex.P/8. As per Dakhil Khariz Register (Ex.P/6C) & date of birth register (Ex.P/7C), at the time of 3 CRA No. 1426 of 2016 offence, age of the victim was 14 years 11 months. As per X-Ray report (radiologist report) (Ex.P/24), age of the victim was 16 years at the time of offence. Minor victim was medically examined by Dr. Usha Suryavanshi (PW-6) and medical report was prepared vide Ex.P/9. In the medical report (Ex.P/9), redness and swelling have been found on the private part of the victim.

3. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. Statement of the appellant was taken under Section 313 of CrPC wherein, appellant / accused abjured his guilt and entered into defence stating that he has not committed the offence.

4. In order to bring home the offence, prosecution has examined as many as 8 witnesses and exhibited 24 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document.

5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening 4 CRA No. 1426 of 2016 paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

6. Mr. Manoj Mishra, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence by recording a finding which is perverse to the record as there is no evidence on record upon which his conviction could have been based and even otherwise, at the time when the offence was committed, in Section 6 of the POCSO Act, 2012, minimum sentence prescribed was 10 years which has been enhanced to 20 years by amendment and which has been made effective from 16.08.2019, therefore, at the most, 10 years be awarded to the appellant for the offence under Section 6 of the POCSO Act, 2012. 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.

7. Per contra, Mr. Animesh Tiwari, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would further submit that 1 (2023) 7 SCC 475 5 CRA No. 1426 of 2016 considering the age of minor victim, who was below 18 years at the time of offence as per Dakhil Kariz Register (Ex.P/6C) & as per X-Ray report (Ex.P/24), in medical report redness and swelling have been found on the private part of the victim and grandmother of the victim (PW-2) has clearly supported the case of the prosecution, therefore, the conviction of the appellant is well merited and the instant appeal deserves to be dismissed.

8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

9. Considering the statements of victim (PW-1) & her grandmother (PW-2) and further considering the medical report of the victim (Ex.P/9), who was minor, proved by Dr. Usha Suryavanshi (PW-6), in which redness and swelling have been found on private part of the victim and also considering the age of the victim who was minor on the date of offence as per Dakhil Kariz Register (Ex.P/6C) & as per X-Ray report (Ex.P/24), we are of the considered opinion that the trial Court has rightly convicted the appellant for offence under Section 6 of the POCSO Act,

2012. 6 CRA No. 1426 of 2016

10. Now, the question would be whether, the learned trial Court is justified in awarding sentence for imprisonment of life to the appellant for having committed offence under Section 6 of the POCSO Act, 2012 or the same is on higher side and 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).

11. 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 16.08.2009, was 10 years’ RI, awarded him sentence for 10 years’ RI with fine of Rs.5,000/- and held in Para-11, 12 & 13 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 7 CRA No. 1426 of 2016 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 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 8 CRA No. 1426 of 2016 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 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/-.”

12. 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), while affirming the conviction of the appellant for offence under Section 06 of the POCSO Act, 2012, we award him sentence for a period of 10 years’ rigorous imprisonment by reducing it from imprisonment for life as the principles of law laid down by the Supreme Court in the matter of Sonu Kushwaha (supra) would squarely apply in the instant 9 CRA No. 1426 of 2016 case as in the instant case date of offence is 04.05.2016, which is prior to the date of amendment of Section 6 of the POCSO Act, 2012, i.e. 16.08.2019. However, the fine amount imposed by the trial Court shall remain intact.

13. This criminal appeal is party allowed to the extent indicated hereinabove.

14. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any. Sd/- (Sanjay K. Agrawal) Judge Ankit Sd/- (Sanjay S. Agrawal) Judge