State of Chhattisgarh v. Santosh Sahu) by the
Case Details
Page No.1 of 17 IN CRA-1299-2019 SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.03.12 17:43:41 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:11787-DB NAFR Criminal Appeal No. 1299 of 2019 [Arising out of judgment dated 31.07.2019, passed in Special Sessions Case No.91 of 2018 (State of Chhattisgarh v. Santosh Sahu) by the 5th Additional Sessions Judge/Special Judge (POCSO Act), Durg (CG)] Santosh Sahu S/o Late Dharmu Sahu Aged About 50 Years R/o Birjhapur, Police Station Dhamdha, District - Durg, Chhattisgarh., District : Durg, Chhattisgarh ... Appellant Versus State of Chhattisgarh Through The Station House Officer, Police Station Dhamdha, District Durg, Chhattisgarh., District : Durg, Chhattisgarh ... Respondent [Cause-title taken from Case Information System (CIS)] -------------------------------------------------------------------------------------------- For Appellant : Mr. Manoj Kumar Jaiswal, Advocate For Respondent ------------------------------------------------------------------------------------------- Division Bench Mr. Amit Buxy, Panel Lawyer : Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (10.03.2025) Sanjay K. Agrawal, J (1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 31.07.2019, passed in Special Sessions Case No.91 of 2018 (State of Chhattisgarh v. Santosh Sahu) by the 5th Additional Sessions Judge/Special Judge, Page No.2 of 17 IN CRA-1299-2019 constituted under the provisions of the Protection of Children from Sexual Offences Act, 2012 (for brevity the “POCSO Act”), Durg (CG), whereby he has been convicted and sentenced as under: Conviction Sentence U/s. 376(3) of IPC [wrongly mentioned as 376(2) of IPC in the impugned judgment] Imprisonment for life with fine of Rs.5,000/- and, in default of payment of simple additional fine amount, imprisonment for 02 months. U/s. 377 of IPC U/s. 06 of the POCSO Act, 2012 Rigorous imprisonment for 10 years with fine of Rs.500/- and, in default of payment of fine amount, additional simple imprisonment for 02 months. Rigorous imprisonment for 10 years with fine of Rs.500/- and, in default of payment of fine amount, additional simple imprisonment for 02 months. [All the sentences are directed to run concurrently] (2) The case of the prosecution, in short, in that on 31.08.2018, at
Legal Reasoning
about 01:30 PM in the afternoon, at the place mentioned in the FIR (Ex.P/02), which comes within the ambit of Police Station Dhamdha, District Durg (CG), the accused-appellant herein firstly took the victim (PW-01), aged about 08-09 years, to his house on the pretext of giving empty bottle and, thereafter, by removing her clothes committed sexual assault with her, against her will and consent and, thereby, said to have committed the aforesaid offences in question. (3) The further case of the prosecution is that when mother of the victim (PW-02) reported the matter to the police by submitting written complaint (Ex.P/01), FIR (Ex.P/01) was registered against Page No.3 of 17 IN CRA-1299-2019 the appellant and wheels of investigation started running, in which, spot map was prepared vide Ex.P/04. After obtaining necessary consent vide Ex.P/05, the victim (PW-01) were subjected to medical examination, which was conducted by Dr. Rachna Agrawal (PW-05) and, as per her MLC report (Ex.P/15) it has been opined that intercourse has been tried with the victim (PW-01), but probably full penetration not achieved. Further, undergarment of the victim was seized vide Ex.P/08 upon production of the same by victim’s mother (PW-02). Thereafter, the accused-appellant was arrested vide Ex.P/25 and sent for medical examination. Appellant’s MLC report is Ex.P/18 and his clothes were also seized vide Ex.P/14. The aforesaid seized articles were sent for chemical examination and, as per FSL report (Ex.P/28), it has been mentioned that no stains of human sperm/semen were found on any of the seized articles. Further, in order to ascertain the correct age of the victim (PW-01), copy of her birth certificate and progress report (Ex.P/07) and her dakhila Kharij register (Ex.P-13C) were obtained/seized vide Ex.P/06 & Ex.P/14 respectively, wherein her date of birth has been mentioned as 15.10.2009, meaning thereby, the victim (PW-01) was minor aged about 08 years 10 months (i.e. below 12 years) of age 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 Page No.4 of 17 IN CRA-1299-2019 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. (4) The prosecution in order to prove its case examined as many as 08 witnesses and exhibited 30 documents apart from other documents, whereas the appellant in support of his defence, though not examined any witness but exhibited 01 document. (5) 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(3) (wrongly mentioned as 376(2) in the impugned judgment) & 377 of IPC as also under Section 06 of the POCSO Act and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.
Legal Reasoning
(6) Mr. Manoj Kumar Jaiswal, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. He further submits that the testimony of the victim (PW-01) is not reliable and trustworthy. The medical evidence and forensic evidence also does not support the case of the prosecution, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. In alternative, learned counsel further submits that though the maximum Page No.5 of 17 IN CRA-1299-2019 sentence of imprisonment of life has been awarded to the appellant by the learned trial Court for offence under Section 376(3) of IPC, but neither any special reason nor any extra-ordinary circumstance has been recorded by the learned trial Court for awarding maximum punishment to the appellant. Furthermore, at the time of commission of the offence, the appellant was aged about 50 years and, except this case, he has no other criminal antecedents and he has also not committed any jail offence, which aspect has not at all been considered by the learned trial Court. As such, considering the aforesaid reasons coupled with the fact that the minimum punishment prescribed for offence under Section 376(3) of IPC is 20 years RI, the sentence of the appellant for the said offences be also reduced/modified accordingly. Learned counsel for the appellant by placing reliance on a decision of the Bombay High Court rendered in the matter of Manoj v. State of Maharashtra 1 would further submits that though the learned trial Court has convicted the appellant for offences under Sections 376(3) & 377 of IPC and Section 06 of POCSO Act, but in light of the provisions contained under Section 26 of the General Clauses Act, 1897 (for brevity the “GC Act”) as also under Section 71 of IPC (i.e. Section 09 of Bhartiya Nyaya Sanhita, 2023), the appellant cannot be punished thrice for the same offence and, therefore, the learned trial Court has committed grave legal error while doing so and imposed sentences 1 2023 SCC Online Bom 2339 Page No.6 of 17 IN CRA-1299-2019 for each of the offences separately. Hence, the present appeal be allowed in full or in part. (7) 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-01), 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 victims (Ex.P/15), the learned trial Court has rightly convicted the appellant for the offences mentioned herein- above and, therefore, the present appeal is liable to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) In the instant case, considering the statement of victim (PW- 01), wherein he has clearly narrated the incident and implicated the appellant herein to be the author of the crime by stating that on the date and time of the offence, firstly the appellant took her to his house on the pretext of giving empty bottle and money and, thereafter, committed sexual assault with her in different position and, ultimately, gave Rs.10/- to her and asked not to inform about the same to her mother. The said statement of the victim (PW-01) is also supported by her mother (PW-02), who reported the matter to Page No.7 of 17 IN CRA-1299-2019 the police and lodged FIR (Ex.P/02). Further, the victim (PW-01) was also subjected to lengthy cross-examination, but she remained consistent in her version and, therefore, her testimony inspires confidence and can be relied upon to hold the appellant herein guilty for the offence in question. Furthermore, the aforesaid stand of the victim No.3 (PW-01), mush less the prosecution, is also corroborated by medical evidence available on record in shape of MLC report (Ex.P/15) of the victim, wherein it has been opined that intercourse has been tried with the victim (PW-01) though full penetration not achieved, which is duly proved and supported by Dr. Rachna Agrawal (PW-05), who has medically examined the victim (PW-01). Moreover, according to birth certificate and progress report (Ex.P/07) and dakhila kharij (Ex.P/13C) of the victim, her date of birth has been recorded as 15.10.2009, meaning thereby, the victim (PW-01) was minor aged about 08 years 10 months (i.e. below 12 years) of age on the date of offence. As such, on the basis of aforesaid evidence available on record, we are of the considered opinion that the findings recorded by the learned trial Court that the appellant is guilty of committing sexual assault on the minor victim (PW-01), is strictly in accordance with law and, for which, he has rightly been convicted. We hereby affirm the said finding and hold accordingly. (10) Now the next question would be whether the learned trial Court is justified in awarding sentence for imprisonment for life to Page No.8 of 17 IN CRA-1299-2019 the appellant for having committed offence under Sections 376(3) (wrongly mentioned as 376(2) in the impugned judgment) of IPC or same can be modified/reduced otherwise, as contended by learned counsel for the appellant ? (11) In order to answer this plea, it would be relevant to notice Section 376(3) of IPC, which reads as under: “376. Punishment for rape- (1) xxx (2) xxx (3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub- section shall be paid to the victim” (12) In view of the above-stated provision since the minimum sentence prescribed for offence under Section 376(3) of IPC is 20 years and the maximum punishment is imprisonment for life, and further considering the facts and circumstances of the present case, where neither any special reason nor any extra-ordinary circumstance has been recorded by the learned trial Court for awarding maximum punishment to the appellant and, at the time of commission of the offence, the appellant was aged about 50 years Page No.9 of 17 IN CRA-1299-2019 and, no evidence has been brought on record to show that except this case, the appellant has any other criminal antecedent and or he has committed any jail offence post conviction, while affirming the conviction of the appellant for offences under Sections 376(3) (wrongly mentioned as 376(2) in the impugned judgment) of IPC, we deem it appropriate to sentence him for a period of 20 years’ rigorous imprisonment by modifying/reducing it from imprisonment for life. We hereby hold accordingly. (13) Now the argument raised on behalf of the appellant, which needs consideration is that though the learned trial Court has convicted and sentenced the appellant for offences under Section 376(3) (wrongly mentioned as 376(2) in the impugned judgment) & 377 of IPC and Section 06 of POCSO Act, but in light of Section 26 of the GC Act and under Section 71 of IPC (i.e. Section 09 of Bhartiya Nyaya Sanhita, 2023), the appellant cannot be punished thrice for the same offence and, in light of the decision of Manoj (supra), the learned trial Court has committed grave legal error while doing so and imposing sentences for each of the aforesaid offences separately. (14) In order to consider the plea raised at the bar, it would be first appropriate to notice Section 26 of the GC Act as under: “26. Provision as to offences punishable under two or more enactments:- where an act or omission constitutes an offence under to or more enactments, then the offender shall liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be Page No.10 of 17 IN CRA-1299-2019 punished twice for the same offence.” (15) The object of the above-quoted Section 26 of the GC Act is that if a person is made to undergo punishment more than once for the same act, there would be harassment beyond limits. Therefore, taking into account the consideration of avoiding oppression, this section adopts a restrictive attitude and, while allowing double prosecution for the same offence, it prohibits double punishment. Section 26 envisages the possibility of the same act or omission not only being an offence under different enactments, but of the accused being charged under either or any of them, though he shall not be punished twice for the same offence. Section 26 protects the guilty parties against double jeopardy or double penalty. This section lays down that where an act or omission constitutes an offence under two or more enactments than the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence (See: Municipal Corporation of Delhi v. Shiv Shanker 2 ). The opening words of Section 26 are very specific “an act or omission constitutes an offence under two or more enactments”. The test would be whether two offence are the same is not identity of the allegations, but the identity of the ingredients of offence. This principle is based upon well known maxim “nemo debet bis vexari si constat curiae quod sit pro una et eadem causa” which means that