Partly allowed

Ram Charan Patel v. State Of Chhattisgarh

Chhattisgarh HC28 Nov 2023CRA/1242/2016

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part. It affirmed the conviction for kidnapping, false evidence, and rape but modified the sentence for aggravated penetrative sexual assault under the POCSO Act from life imprisonment to ten years. This reduction relied on the retrospective application of the Supreme Court's ruling in Sonu Kushwaha regarding minimum sentencing before the 2019 amendment. The co

What did the court decide?

Sentence for aggravated penetrative sexual assault reduced from life imprisonment to ten years rigorous imprisonment. All other convictions and sentences maintained.

Ram Charan Patel Vs State Of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No.1242 of 2016

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Ram Charan Patel S/o Sadalu Patel Aged About 50 Years R/o Village Kulia Police Station Gurur Revenue And Civil District Balod Chhattisgarh , Chhattisgarh

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---- Appellant (In Jail)

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Versus

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State Of Chhattisgarh Through Police Station - Gurur District Balod Chhattisgarh , Chhattisgarh

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---- Respondent

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For Appellant : Shri A. L. Singroul, Advocate For Respondent/State: Shri Ashish Tiwari, G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment on Board (28/11/2023)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 23.05.2016 passed by the learned First Additional Sessions Judge, Balod, District Balod in Sessions Trial No.89/2015, by which, he has been convicted and sentenced as under:-

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CONVICTION	SEN	TENCE
Under Section 506 of IPC	Rigorous imprison fine of Rs.100/-, in fine, additional rigor 15 days	ment for 1 year and default of payment of ous imprisonment for
Under Section 376 of IPC	Imprisonment for Rs.1,000/-,in defau additional rigorous days	life and fine of lt of payment of fine, imprisonment for 30
Under Sections 4, 5(l) & 6 of the POCSO Act, 2012	Imprisonment for Rs.1,000/-,in defau additional rigorous days	life and fine of lt of payment of fine, imprisonment for 30
	Sentences were concurrently.	ordered to run

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The case of the prosecution, in short, is that in the month of April, 2015, the appellant herein repeatedly committed sexual intercourse with his minor daughter (PW-2) in his house against her wishes and threatened her to kill and thereby, the appellant is said to have committed offence under Sections 376 & 506 of IPC and also under Sections 4, 5(l) & 6 of the Protection of Children from Sexual Offence, Act, 2012 (for short the “POCSO Act”).

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(3) Thereafter, upon report so lodged by the prosecutrix (PW-2), Police Station Gurur, District Balod registered FIR (Ex.P-3) and wheels of investigation started running, in which,

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Nazari Naksha was prepared vide Ex.P/4. After obtaining permission from the Sub-Divisional Magistrate vide Ex.P-16 and consent from the mother of the victim, namely, Smt. Chander Patel (PW-3) as also consent from the victim vide Ex.P-5, the victim (PW-2) was subjected to medical examination, which was conducted by Dr. S. Cladius (PW-1) and her MLC report is Ex.P/1. Dr. S. Cladius (PW-1) has stated in his examination that the prosecutrix is carrying 32 weeks of pregnancy and delivered a baby in the month of December, 2015 as per the statement of Chander Bai (PW-3). Thereafter, statements of witnesses were recorded and, after due investigation by the jurisdictional police, the appellant was charge-sheeted for commission of offence punishable under Sections 376 & 506 of IPC and Sections 4, 5 (l) & 6 of the POCSO Act and the case was committed to the Court of Sessions for trial. The appellant abjured his guilt and entered into defence by stating that he has been falsely implicated in the offence in question.

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(4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 18 documents apart from final report. Statement of the appellant-accused was recorded under Section 313 of the Cr.P.C., wherein he denied guilt, however, he examined none in his defence.

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(5) The learned trial Court, after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for commission of offence punishable under Sections 376 & 506 of IPC and also under Sections 4, 5 (l) & 6 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.

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(6) Mr. A. L. Singroul, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. It is further submitted that the appellant has been falsely implicated in this case as there are contradictions and omissions in the statement of the prosecutrix with respect to the allegations made in the FIR. It is also submitted that in view of the medical evidence available on record, which has not been proved by the victim, the appellant is entitled for acquittal. It is further submitted that there is inordinate delay in lodging the FIR and the said delay has not been properly explained by the prosecution as required under the law. In view of questions framed and answers given by the victim (PW-2) in her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for

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commission of offence under Section 6 of the POCSO Act, 2012. He would also submit that considering the evidence available on record as also considering the date when the offence in question is said to have been committed, the unamended provision of Section 6 of the POCSO Act, 2012 will come into play, wherein the minimum punishment for offence punishable under Section 6 of the POCSO Act, 2012 was 10 years’ RI and the same was amended w.e.f. 16.08.2019. Therefore, the present appellant be sentenced for a period of 10 years’ RI by reducing it from imprisonment for life, 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 Kushwaha1 to buttress his submission.

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(7) Per contra , Mr. Ashish Tiwari, learned State counsel, would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. He further submits that considering the incident, in which, the father (appellant herein) has committed sexual intercourse with his own minor daughter, no lenient view should be taken with the appellant herein. It is also submitted

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that in view of statement of prosecution

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1 (2023) 7 SCC 475

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witnesses, especially the statement of victim (PW-2) coupled with other evidence available on record i.e. medical evidence, the trial Court has rightly convicted the appellant for the offences mentioned hereinabove and, therefore, the appeal is liable to be dismissed.

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

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(9) In the instant case, victim (PW-2), has clearly stated that in the month of April, 2015, in absence of her mother, the appellant herein has committed sexual intercourse with her repeatedly for a period of five days against her wishes, which has not been contradicted in her cross-examination. Furthermore, Chander Bai (PW-3), mother of the victim has supported the case of the prosecution by stating that her daughter has delivered a baby in the month of December, 2015. Further considering the statement of Dr. S. Cladius (PW-1), who upon examination, found that the victim is carrying 32 weeks of pregnancy as also on the basis of evidence available on record, the finding recorded by the learned trial Court that the appellant has committed sexual intercourse on the victim (PW-2), who was

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minor on the date of commission of offence, which is punishable under Section 376 of the IPC and Sections 4, 5(l) and 6 of the POCSO Act, 2012. The above-stated finding is strictly in accordance with law. We do not find any illegality or perversity in said finding. Accordingly, we hereby affirm the said finding recorded by the learned trial Court.

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(10) Now the question would be whether the learned trial Court is justified in awarding the sentence of imprisonment for life to the appellant for having committed offence under Section 06 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).

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(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

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fine of Rs.5,000/- and held in Para-11 to 15, as under:

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“ 11. Section 6, as applicable before its substitution on 16-08-2019, read thus:

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"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."

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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.

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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/.

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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

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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.

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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 option but to set aside the impugned judgment of the High Court and restore the judgment of the Trial Court.

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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 8^th 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/-.”

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(12) In that view of the matter and considering the principles

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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 commission of offence under Section 06 of the POCSO Act, 2012 read with Section 376 of IPC, we award him sentence for a period of 10 years rigorous imprisonment by reducing it from imprisonment for life as awarded by the learned trial Court as the date of FIR is 31.08.2015 and Section 6 of the POCSO Act, 2012 was amended with effect from 16.08.2019 as such principle of law laid down by the Supreme Court in the matter of Sonu Kushwaha (supra) would squarely apply. However, in view of the discussion made herein above, the conviction and sentence of the appellant for commission of offence under Section 506 of IPC, as awarded by the learned trial Court, is hereby maintained. Fine amount awarded by the learned trial Court under Sections 376 & 506 of the IPC and Section 4, 5(l) & 6 of the POCSO Act, 2012 also shall remain as it is.

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

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(14) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is

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languishing for necessary information and action, if any.

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SD/SD/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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Tumane

Ram Charan Patel v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Ram Charan Patel v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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