Partly allowed

Satyam Das Mahant v. State Of Chhattisgarh

Chhattisgarh HC5 Dec 2023CRA/733/2016

Case brief

AI extract

What is this about?

Two criminal appeals challenged conviction and sentencing under POCSO and IPC. The High Court reduced life imprisonment to ten years due to prior law and acquitted two appellants for lack of proof regarding their knowledge of the kidnapping.

What did the court decide?

Appellant 1's life sentence reduced to 10 years RI. Appellants 2 & 3 acquitted of Section 368 IPC charge.

Satyam Das Mahant Vs State Of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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Page 1 of 9

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NAFR

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(Cr.A.Nos.733/2016 & 272/2016)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.733 of 2016

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{ Arising out of judgment dated 15-2-2016 passed by the Additional Sessions Judge (Fast Track Court), Raigarh in Special Case No.53/2014}

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Satyam Das Mahant, S/o Kripal Das Mahant, aged about 23 years, R/o Village Chhaal, Mahantpara, Thana Chhaal, Distt. Raigarh (C.G.)

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(In Jail) ---- Appellant

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Versus

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State of Chhattisgarh, Through Station House Officer, Police Station Chhaal, Distt. Raigarh (C.G.)

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---- Respondent

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AND

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Criminal Appeal No.272 of 2016

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Dhorilal Kanwar, S/o Aatma Ram Kanwar, aged about 30 years,

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Khembai Kanwar, W/o Dorilal Kanwar, aged about 28 years,

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Both residents of Village Tendumudi, Police Station Chhal, District Raigarh (C.G.)

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---- Appellants

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Versus

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State of Chhattisgarh, Through Station House Officer, Police Station Chhal, Bhilai, District Raigarh (C.G.)

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---- Respondent

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-------------------------------------------------------------------------------------------------For Appellant in Cr.A.No.733/2016: -

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Mr. Shaleen Singh Baghel, Advocate.

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For Appellants in Cr.A.No.272/2016: -

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Mr. Amit Singh, Advocate.

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For Respondent / State: -

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Mr. Ashish Tiwari, Government Advocate.

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Hon'ble Shri Sanjay K. Agrawal and H on'ble Shri Sanjay Agrawal, JJ.

Judgment On Board

(05/12/2023)

Page 2 of 9

(Cr.A.Nos.733/2016 & 272/2016)

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Sanjay K. Agrawal, J.

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Since both the above criminal appeals have arisen out of one and same judgment dated 15-2-2016 passed by the Additional Sessions Judge (Fast Track Court), Raigarh in Special Case No.53/2014 and since common question of fact and law is involved in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

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Sole appellant in Cr.A.No.733/2016 namely, Satyam Das Mahant (A-1) and two appellants in Cr.A.No.272/2016 namely, Dhorilal Kanwar (A-2) & Khembai Kanwar (A-3) have preferred these two appeals under Section 374(2) of the CrPC against the impugned judgment of conviction and order of sentence dated 15-2-2016 passed by the Additional Sessions Judge (Fast Track Court), Raigarh in Special Case No.53/2014, whereby Satyam Das Mahant (A-1) (sole appellant in Cr.A.No.733/2016) has been convicted and sentenced as under with a direction that all the sentences shall run concurrently: -

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Conviction	Sentence
Sec. 4 of the Protection of Children from Sexual Offences Act, 2012	Imprisonment for life & fine of ₹ 2,000/-, in default, additional rigorous imprisonment for four months
Sec. 363 of the IPC	Rigorous imprisonment for three years & fine of ₹ 200/-, in default, additional rigorous imprisonment for two months
Sec. 366 of the IPC	Rigorous imprisonment for five years & fine of ₹ 500/-, in default, additional rigorous imprisonment for three months
Sec. 368 read with Sec. 34 of the IPC	Rigorous imprisonment for five years & fine of ₹ 500/-, in default, additional rigorous imprisonment for three months

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Page 3 of 9

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(Cr.A.Nos.733/2016 & 272/2016)

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Similarly, Dhorilal Kanwar (A-2) & Khembai Kanwar (A-3) (two appellants in Cr.A.No.272/2016) have been convicted under Section 368 read with Section 34 of the IPC and sentenced to undergo rigorous imprisonment for five years & pay fine of ₹ 500/each, in default of payment of tine to further undergo additional rigorous imprisonment for three months.

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Case of the prosecution, in brief, is that on 8-6-2014 in between 12 mid night and 4 a.m., at Village Chhal, Thanapara, Police Station Chhal, accused-appellant Satyamdas Mahant (A-1) kidnapped the minor victim from the lawful guardianship of her parents and taken her to the house of accused/appellants Dhorilal Kanwar (A-2) & Khembai Kanwar (A-3) and committed sexual intercourse with her, and thereby committed the aforesaid offences. The matter was reported to the police pursuant to which A-1 and the victim were recovered vide Ex.P-3 from the house of A-2 & A-3 and thereafter, offence was registered and the wheels of investigation started running. The victim was subjected to medical examination by Dr. Smt. Uma Agrawal (PW-8) vide Ex.P-13 and her vaginal slides were sent for chemical analysis to the Forensic Science Laboratory (FSL), but no FSL report has been brought on record. Certificate regarding age of the victim was collected by the prosecution vide Ex.P-18C in which she was found to be minor. Statements of witnesses were recorded under Section 161 of the CrPC and after usual investigation, the appellants were charge-sheeted and the case was committed to the Court of Sessions from where the

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Page 4 of 9

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(Cr.A.Nos.733/2016 & 272/2016)

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learned Additional Sessions Judge (FTC), Raigarh, received the case on transfer for trial and for hearing and disposal in accordance with law.

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The prosecution, in order to prove the offence against the appellants, examined as many as 13 witnesses and brought on record 23 documents Exs.P-1 to P-23. The defence has not examined any witness, however, exhibited one document Ex.D-1 i.e. the statement of Kumar Neha recorded under Section 161 of the CrPC. The accused-appellants were examined under Section 313 of the CrPC in which they abjured the guilt and pleaded innocence and false implication.

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The trial Court after appreciating oral and documentary evidence on record, by its impugned judgment, convicted and sentenced the appellants herein as mentioned in the opening paragraph of this judgment which is sought to be challenged in these criminal appeals preferred under Section 374(2) of the CrPC by the appellants.

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Mr. Shaleen Singh Baghel, learned counsel appearing for appellant Satyam Das Mahant (A-1) in Cr.A.No.733/2016, would submit that conviction is based on the statements of the victim (PW-1) and her father Gopiram Sahu (PW-6) and as such, it is liable to be set aside. Even otherwise, minimum sentence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) on the date of offence was seven years which has been amended with effect from 16-8-2019 and it has been enhanced to

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Page 5 of 9

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(Cr.A.Nos.733/2016 & 272/2016)

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ten years, therefore, the appellant (A-1) be sentenced accordingly if his conviction is maintained.

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Mr. Amit Singh, learned counsel appearing for appellants Dhorilal Kanwar (A-2) & Khembai Kanwar (A-3) in Cr.A.No.272/2016, would submit that the prosecution has failed to prove that A-2 & A-3 knew that A-1 has kidnapped the minor victim and brought her to their home and in that view of the matter, they are entitled for acquittal in light of the decision of the Supreme Court in the matter of Raghunath Singh v. State of M.P. 1.

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Mr. Ashish Tiwari, learned Government Advocate appearing for the State/respondent, would support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellants beyond reasonable doubt. Therefore, the two appeals deserve to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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Considering the nature of evidence, we will consider the case of A-1 on the one hand and that of A-2 & A-3 on the other hand, separately.

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Case of Satyam Das Mahant (A-1)

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The victim (PW-1) has clearly stated in her statement before the Court that Satyam Das Mahant (A-1) has pressed her mouth and kidnapped her and taken her to Tendumudi and committed sexual

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1 1967 MPLJ 477

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Page 6 of 9

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(Cr.A.Nos.733/2016 & 272/2016)

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intercourse with her. In her cross-examination nothing could be extracted to hold that she was telling lie and that she has not supported the case of the prosecution. Further, complainant Gopiram Sahu (PW-6) – father of the victim, has also supported the case of the prosecution. The victim has rightly been held to be minor on the date of offence on the basis of the document Ex.P18C, which is a copy of school admission / discharge register of the victim. It is a correct finding of fact. As such, A-1 has rightly been convicted under Sections 363, 366 & 368 read with Section 34 of the IPC and also under Section 4 of the POCSO Act.

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The trial Court by virtue of Section 42 of the POCSO Act has proceeded to convict A-1 under Section 4 of the POCSO Act and awarded the sentence of imprisonment for life & fine of ₹ 2,000/-. However, it is pertinent to notice that Section 4 of the POCSO Act was amended with effect from 16-8-2019 and prior to that, minimum sentence prescribed for offence under Section 4 was seven years and Section 4 was re-numbered as sub-section (1) thereof and subsection (2) was added which states that whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years and thus, the minimum punishment prescribed under Section 4(2) is 20 years. Since the date of offence in the instant case is 18-6-2014 i.e. prior to 16-8-2019 and minimum punishment prescribed under Sec. 4 of the POCSO Act was seven years on the said date and even otherwise, as held by the Supreme Court in the matter of State of Uttar Pradesh v. Sonu

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Page 7 of 9

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(Cr.A.Nos.733/2016 & 272/2016)

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Kushwaha 2, the minimum punishment prescribed for the offence punishable under Section 6 of the POCSO Act at the time when the offence was committed i.e. prior to 16-8-2019 was ten years. In that view of the matter and considering that for offence under Section 376(2)(i) of the IPC {clause (i) of sub-section (2) of Section 376 of the IPC has been omitted by the Act 22 of 2018 w.e.f. 21-42018}, minimum sentence prescribed was ten years, we hereby award sentence of RI for ten years to Satyam Das Mahant (A-1) for offence under Section 376 of the IPC read with Section 4 of the POCSO Act, instead of imprisonment for life awarded by the trial Court, however, sentence of fine with default stipulation is maintained. However, sentences awarded under Sections 363, 366 & 368 read with Section 34 of the IPC are kept as it is, with a direction to run all the substantive sentences concurrently.

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Cases of Dhorilal Kanwar (A-2) & Khembai Kanwar (A-3)

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Dhorilal Kanwar (A-2) & Khembai Kanwar (A-3) have been convicted on the ground that Satyam Das Mahant (A-1) has kidnapped the minor victim and brought her to the house of A-2 & A-3 and committed sexual intercourse with her as per Sonamati (PW-10) and both the victim and A-1 were recovered from the house of A-2 & A-3 vide Ex.P-3.

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At this stage, it is pertinent to discuss Knowledge of offence as is defined under Section 368 of the IPC. A conviction under Section 368 of the IPC can only be maintained if the accused could be charged with the knowledge of the fact that an offence under

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2 (2023) 7 SCC 475

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Page 8 of 9

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(Cr.A.Nos.733/2016 & 272/2016)

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Section 366 had been committed in respect of the girl abducted. To apply Section 368 of the IPC, the accused must be proved to have had knowledge of the fact of kidnapping or abduction. Section 368 presupposes that the offence of kidnapping or abduction has taken place, so that anyone wrongfully concealing or confining the person kidnapped or abducted is guilty of an offence under Section 368 of the IPC. Knowledge not merely suspicion or reason to believe, in the accused about the kidnapping or abduction must be proved. Sometimes the gist of the offence is dependent on knowledge and the words “knowing or knowingly” are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before means rea can be established. Before an offence under Section 368 could be brought home it must be established that accused knew that the person had been kidnapped or abducted.

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The Supreme Court in Raghunath Singh (supra) has held that since Section 368 of the IPC is concerned with wrongful confinement of a person with the knowledge that the person has been kidnapped or has been abducted then even if such knowledge be not established and Section 368 does not apply, the offence of wrongful confinement remains still if wrongful confinement is established. The trial Court has not recorded any specific finding that it was within the knowledge of Dhorilal Kanwar (A-2) & Khembai Kanwar (A-3) that Satyam Das Mahant (A-1) has brought the victim in their house after kidnapping her and there is no evidence on record in this regard. In that view of the matter,

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Page 9 of 9

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(Cr.A.Nos.733/2016 & 272/2016)

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conviction and sentences imposed upon Dhorilal Kanwar (A-2) & Khembai Kanwar (A-3) under Section 368 read with Section 34 of the IPC are set-aside on the ground of benefit of doubt and they are acquitted of the said charge. They are reported to be on bail, they need not surrender. However, the bail bonds will remain in force for a period of six months in view of Section 437-A of the CrPC.

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Concludingly, Cr.A.No.733/2016 filed by Satyam Das Mahant (A-1) is partly allowed by reducing the sentence of life imprisonment awarded under Section 376 of the IPC read with Section 4 of the POCSO Act to RI for ten years and by maintaining the other substantive sentences, whereas Cr.A. No.272/2016 filed by Dhorilal Kanwar (A-2) & Khembai Kanwar (A-3) is allowed by acquitting them of the charge under Section 368 read with Section 34 of the IPC.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay Agrawal) Judge Judge

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Soma

Satyam Das Mahant v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Satyam Das Mahant v. State Of Chhattisgarh

Case brief

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