Nanku @ Bhupendra Vs State of Chhattisgarh

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Page 1 of 10 IN Criminal Appeal No. 1175 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1175 of 20 18

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[Arising out of judgment dated 08.05.2018, passed in Special Criminal Case No.10 of 2017 (State of Chhattisgarh v. Nanku @ Bhupendra), by the 1^st Additional Sessions Judge, Sakti, District Janjgir-Champa (C.G.)] Nanku @ Bhupendra, Son of Pardesi Sidar, aged about 25 years, Resident of Village Dharabhata, Police Station Malkharoda, District Janjgir-Champa (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Station House Officer, Police Station Malkharoda, District Janjgir-Champa (Chhattisgarh)

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---- Respondent

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------------------------------------------------------------------------------------------- For Appellant : Mr. Hari Agrawal, Advocate For Respondent : Mr. Sharad Mishra, Panel Lawyer

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Division Bench

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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 (19.06.2024)

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Sanjay K. Agrawal, J

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(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 08.05.2018, passed by 1^st Additional Sessions Judge, Sakti, District JanjgirChampa (CG) in Special Criminal Case No.10 of 2017, whereby he has been convicted and sentenced as under:

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Conviction	Sentence
U/s. 363 of IPC	Rigorous imprisonment for 05 years with
	fine of Rs.5,000/- and, in default of

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Criminal Appeal No. 1175 of 2018

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	payment of imprisonment	fine, for 06	additional rigorous months.
U/s. 366A of IPC	Rigorous impri fine of Rs.5,0 payment of imprisonment	sonm 00/- fine, for 06	ent for 05 years with and, in default of additional simple months.
U/s. 06 of POCSO	Act, Imprisonment	for	life with fine of
2012	Rs.5,000/- an fine, additiona for 06 months.	d, in l rig	default of payment of orous imprisonment

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[All the sentences are directed to run concurrently]

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(2) The case of the prosecution, in short, is that on 13.03.2017, in the morning at about 11:00 AM, at Village Dharabhata within the ambit of Police Station Malkharoda, the accused-appellant herein firstly abducted minor victim (PW-02), aged about 05 years, from lawful guardianship of her parents and, thereafter, committed aggravated penetrative sexual assault with her against her will and consent and, thereby, said to have committed offences under Sections 363 & 366A of IPC and also under Section 06 of the Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”).

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(3) The further case of the prosecution is that when mother of the victim, namely, Pitar Bai (PW-01) reported the matter to the police, FIR (Ex.P/01) was registered against the appellant and wheels of investigation started running, in which, panchnama and nazari naksha were prepared vide Ex.P/14 & Ex.P/13 respectively. After obtaining consent from mother of the victim,

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Page 3 of 10 IN Criminal Appeal No. 1175 of 2018

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namely, Pitar Bai (PW-01) vide Ex.P/02, the victim (PW-02) was subjected to medical examination, which was conducted by Dr. Katyayni Singh (PW-12). As per MLC report Ex.P/20 of the victim (PW-02), it has been mentioned that blood clot was seen on her labia, her hymen was found to be ruptured and it has clearly been opined by the doctor that rupture of hymen is due to rape and further victim’s vaginal slides were also prepared and handed over to the police constable alongwith her undergarment, which were seized vide Ex.P/26. The accused-appellant was arrested vide Ex.P/28 and sent for medical examination. MLC report of the appellant is (Ex.P/31) and further his undergarment was also seized vide Ex.P/24. Thereafter, aforesaid seized undergarments of the appellant and that of the victim (PW-02) alongwith her vaginal slides were sent for chemical examination and according to FSL report (Ex.P/33), no stains of human sperm/semen were found on any of the aforesaid seized articles. Further, in order to ascertain correct age of the victim, copy of relevant page of Daily Attendance Register of the Students (Ex.P/18C) was obtained/seized from Anganwadi Center, Dharabhata, wherein the date of birth of the victim (PW-02) has been recorded as 22.06.2011, meaning thereby, the victim (PW-02) was minor aged about 05 years 08 months (i.e. less than 06 years) on the date of offence. Thereafter, statement of witnesses were recorded and,

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Page 4 of 10 IN Criminal Appeal No. 1175 of 2018

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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.

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(4) The prosecution in order to prove its case examined as many as 16 witnesses and exhibited 33 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document.

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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 offences punishable under Sections 363 & 366A of IPC 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.

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(6) Mr. Hari Agrawal, 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-02) in her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for offences in question. He

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Page 5 of 10 IN Criminal Appeal No. 1175 of 2018

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would also submit that even if the date when the offence in question is said to have been committed (i.e. 13.03.2017) is considered, the unamended provision of Section 06 of the POCSO Act, will come into play, wherein the minimum prescribed punishment for having committed offence under Section 06 of the POCSO Act, was 10 years’ RI which may extend to imprisonment for life. By taking this Court to a decision of the Supreme Court in the matter of Nawabuddin v. State of Uttarakhand1 , learned counsel submits that in similar situated case, the Supreme Court while considering certain mitigating circumstances therein, converted the life sentence of the accused therein to 15 year’s RI. Therefore, the present appellant be also sentenced for a period of 15 years’ RI by reducing it from life imprisonment, as awarded by the learned trial Court. Hence, the present appeal be allowed in full or in part.

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(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-02), 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. victim’s MLC report (Ex.P/20), the learned 1 (2022) 5 SCC 419

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Page 6 of 10 IN Criminal Appeal No. 1175 of 2018

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trial Court has rightly convicted the appellant for the offences mentioned herein-above and it is not a case where life sentence of the appellant requires to be altered/converted to 15 year’s RI, 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, considering the statement of the victim (PW-02), wherein she has clearly narrated the incident in question and implicated the appellant herein to be the author of the crime by stating that on the date of offence firstly the appellant herein abducted her on the pretext of purchasing colours for the festival of Holi and, thereafter, took her in the fields and committed sexual intercourse with her, due to which, she suffered pain and blood was also coming out from her private parts, coupled with other evidence available on record i.e. (i) copy of Daily Attendance Register of the Students (Ex.P/18C), wherein the date of birth of the victim (PW-02) has been recorded as 22.06.2011, meaning thereby, she was minor aged about less than 06 years on the date of offence and (ii) MLC report of the victim (Ex.P/20), wherein it has been stated that blood clot was seen on the labia of the victim (PW-02) and her hymen was found to be ruptured and it has clearly been opined by the doctor that

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Page 7 of 10 IN Criminal Appeal No. 1175 of 2018

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rupture of hymen is due to rape, which is duly supported by the statement of Dr. Katyayni Singh (PW-12), who has medically examined the victim (PW-02), the finding recorded by the learned trial Court that the appellant is guilty of having committed aggravated penetrative sexual assault on the minor victim (PW02), 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.

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(10) Now the question would be whether the learned trial Court is justified in awarding sentence for imprisonment for life to the 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 the decision of the Supreme Court in the matter of Nawabuddin (supra).

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(11) In the matter of Nawabuddin (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 which may

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extend to imprisonment for life coupled with other mitigating circumstances therein, awarded him sentence for 15 years’ RI by reducing it from imprisonment for life and held in Para-20 to 22 as under:

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“ 20 . In the present case it is to be noted that the accused was aged approximately 65 years of age at the time of commission of offence. He was a neighbour of the victim girl. He took advantage of the absence of her parents, when her mother went to fetch water and her father had gone to work. He is found to have committed aggravated penetrative sexual assault (as observed hereinabove) on a girl child aged four years, which demonstrates the mental state or mindset of the accused. As a neighbour, in fact, it was the duty of the accused to protect the victim girl when alone rather than exploiting her innocence and vulnerability. The victim was barely a four years girl. The accused – appellant was the neighbour. The accused instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust. It is a case where trust has been betrayed and social values are impaired. Therefore, the accused as such does not deserve any sympathy and/or any leniency.

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21. However, the punishment provided for the offence under Section 6, as it stood prior to its amendment and at the time of commission of the offence in the instant case for aggravated penetrative sexual assault was rigours 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. Now as per the amended Section 6 with effect from 16.08.2019, the minimum punishment provided is twenty years and which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death. Therefore, at the relevant time the minimum punishment provided for the offence under Section 6 of

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the POCSO Act, 2012 was ten years RI and which may extend to imprisonment for life. It is reported that today the accused is aged 70-75 years of age and it is also reported that he is suffering from Tuberculosis (TB). Therefore, considering such mitigating circumstances we are of the opinion that if the life sentence is converted to fifteen years RI and the fine imposed by the Trial Court confirmed by the High Court to be maintained, it can be said to be an adequate punishment commensurate with the offence committed by the accused.

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22. In view of the above discussion the impugned judgment and order passed by the High Court and the learned Special Court convicting the accused for the offences punishable under Sections 376(2)(i) of IPC and Section 5 of the POCSO Act and imposing the punishment under Section 6 of the POCSO Act is hereby upheld. The accused is rightly held guilty for the aforesaid offences. However, for the reasons assigned hereinabove the sentence of life imprisonment is converted to that of fifteen (15) years RI with fine/compensation imposed by the Trial Court confirmed by the High Court. Now the accused shall undergo fifteen (15) years RI with fine imposed by the Trial Court confirmed by the High Court for the aforesaid offences instead of life imprisonment. The present appeal is partly allowed to the aforesaid extent only.”

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(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 Nawabuddin (supra) and further considering the age of the victim at the time of the offence i.e. less than 06 years and the medical evidence available on record in the shape of MLC report (Ex.P/20), while affirming the conviction of the appellant for offence under under Section 06 of the POCSO Act, 2012, we deem it appropriate to sentenced him only for a period of 15

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Page 10 of 10 IN Criminal Appeal No. 1175 of 2018

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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, alongwith the direction that all the sentences shall run concurrently, shall remain intact. Further, the conviction and sentences of the appellant for offences under Section 363 & 366A of IPC are also hereby affirmed/upheld and same shall remain as it is, but in view of provisions contained under Section 42 of the POCSO Act, 2012, the appellant shall have to undergo 15 years’ rigorous imprisonment for having committed offence under Section 06 of the POCSO Act, as the same is higher is decree.

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(13) Consequently, this criminal appeal is partly allowed to the extent indicated herein-above.

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(14) 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.

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s@if

Nanku @ Bhupendra v. State of Chhattisgarh

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Nanku @ Bhupendra v. State of Chhattisgarh

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