Partly allowed

Jivan Varma v. State of Chhattisgarh

Chhattisgarh HC21 Aug 2024CRA/1570/2018

Case brief

AI extract

What is this about?

The High Court affirmed conviction for abduction and sexual assault under IPC and POCSO. Relying on Supreme Court precedents, it reduced the life sentence under POCSO to ten years. It also set aside the separate life sentence under IPC Section 377, holding that only one sentence is required under Section 42 POCSO.

What did the court decide?

Life sentence under IPC Section 377 set aside; sentence for Section 6 POCSO reduced to ten years rigorous imprisonment; conviction for IPC Section 363 and POCSO Section 4 affirmed.

Jivan Varma Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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Page No.1 of 18 IN CRA-1570-2018

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2024:CGHC:31960-DB

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NAFR

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2024.08.29 12:39:54 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 1570 of 20 18

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[Arising out of judgment dated 30.08.2018, passed in Special Sessions Case No.05 of 2018 (State of Chhattisgarh v. Jeevan Verma), by the Addl. Sessions Judge, Khairagarh, District Rajnandgaon (C.G.)]

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Jivan Varma, Son of Jaychand Varma, aged about 40 years, Resident of Village Surajpura, Police Station Saja, District Bemetara (Chhattisgarh)

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---- Appellant (In Jail) Versus

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State of Chhattisgarh, through Police Station Chhuikhadan, District Rajnandgaon (Chhattisgarh)

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---- Respondent ------------------------------------------------------------------------------------------- For Appellant : Mr. Tarun Dansena, Advocate/Panel Lawyer appointed through CG High Court Legal Services Committee For Respondent : Mr. Amit Buxy, Panel Lawyer Amicus Curiae : Mr. Anurag Dayal Shrivastava, Advocate -------------------------------------------------------------------------------------------

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (22.08.2024)

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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 30.08.2018, passed in

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Special Sessions Case No.05 of 2018 (State of Chhattisgarh v. Jeevan Verma), by the Additional Sessions Judge, Khairagarh, District Rajnandgaon (C.G.), whereby he has been convicted and sentenced as under:

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Conviction	Sentence
U/s. 363 of IPC	Rigorous imprisonment for 07years.
U/s. 377 of IPC	Imprisonment for life.
U/s. 04 of POCSO Act	Rigorous imprisonment for 07 years.
for violating S.03 of
POCSO Act
U/s. 06 of POCSO Act	Imprisonment for life.
for violating S.5(l)(m) of
POCSO Act

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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 20.02.2018 at about 18:45, in front of Government Primary School, in common road, at Village Bhulatola, which comes within the ambit of Police Station Chhuikhadan, District Rajnandgaon (CG), the accusedappellant herein firstly abducted minor victim (PW-02) from lawful custody of his father- Jitendra Verma (not examined) and, thereafter, committed aggravated penetrative sexual assault with him and, thereby, said to have committed the aforesaid offences in question.

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(3) The further case of the prosecution is that when grand-father of the victim, namely, Jhagruram Verma (PW-01) reported the matter to the police, FIR (Ex.P/01) was registered against the appellant herein and wheels of investigation started running, in

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which, spot map was prepared vide Ex.P/23. After obtaining necessary consent and permission, the victim (PW-02) was subjected to medical examination, which was conducted by Dr. Manish Baghel (PW-05) and, as per his MLC report (Ex.P/10), it has been opined that neither any external injury nor any bleeding was found, however, victim’s undergarment was recovered and handed over to the police for analysis, which was seized vide Ex.P/07. The victim (PW-02) was referred to the District Child Protection Unit, Rajnandgaon for the purpose of counseling and, according to the Consultancy Report (Ex.P/04), it has been opined that the victim (PW-02) has been hurt physically and mentally on account of the incident in question. Thereafter, the accusedappellant was arrested and sent for medical examination. Appellant’s MLC report is Ex.P/11 and his undergarment was also seized vide Ex.P/16. The seized articles were sent for chemical examination and, as per FSL report (Ex.P/31), it has been mentioned that stains of human sperm/semen were found on the undergarments of the victim (PW-02) as well as that of the appellant. Further, Test Identification Parade (TIP) was also conducted vide Ex.P/09 by the Executive Magistrate concerned, wherein though the accused/appellant was mixed with other 04 unknown persons, but he has been correctly identified by the victim (PW-02) as also by his elder sister (PW-03) and Dr. P.C. Lal Yadav (PW-04). Thereafter, statement of witnesses were recorded

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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 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 06 witnesses and exhibited 31 documents, whereas the appellant in support of his defence, though not examined any witness but exhibited 03 documents.

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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 offence punishable under Sections 363 & 377 of IPC as also under Sections 04 & 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 appellantaccused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Tarun Dansena, 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 his statement before the Court, the learned trial Court has erred in law

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while holding the appellant guilty for offences in question. He would also submits that even if the date when the offence in question is said to have been committed (i.e. 20.02.2018) is considered, the un-amended provision of Section 06 of the POCSO Act, 2012 will come into play, wherein the minimum punishment prescribed for having committed offence under Section 06 of the POCSO Act, 2012 was 10 years’ RI and the same was subsequently amended w.e.f. 16.08.2019. Therefore, the present appellant be also sentenced for a period of 10 years’ RI by reducing it from life imprisonment, 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 support his aforesaid submission. Furthermore, 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 Maharashtra2 would submit that the learned trial Court has committed grave legal error in imposing two sentences of imprisonment for life upon the appellant for having committed offences under Section 377 of IPC and under Section 06 of the POCSO Act with the direction that all the sentences shall run concurrently because once punishment/sentence has been imposed upon the appellant for offence punishable under Section 06 of the POSCO Act, which is higher is degree, therefore, in light of Section 42 of the POCSO Act,

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1 (2023) 7 SCC 475

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2 2023 SCC Online Bom 2339

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Page No.6 of 18 IN CRA-1570-2018

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there is no requirement for awarding a separate sentence/punishment on the appellant for committing offence punishable under Section 377 of IPC, even though he has been held guilty for the same. 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-01), wherein he 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. Consultation Report (Ex.P/04), FSL report (Ex.P/31) and TIP (Ex.P/09), the trial Court has rightly convicted the appellant for the offences mentioned herein-above 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, considering the statement of victim (PW02), 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 while he was going to his home

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from the school, the appellant abducted him, took him in the fields and sexually assulted him. The said statement of the victim (PW02) is also supported by his elder sister (PW-03), who has informed about the same to her grand-father, namely, Jhagruram Verma (PW-01), who in turn lodged the report. As such, the statement of the victim (PW-02) inspire confidence and can be relied upon to hold the appellant herein guilty of the offences in question. Furthermore, the aforesaid stand of the victim (PW-02), mush less the prosecution, is also corroborated by other evidence available on record i.e. (i) Consultation Report (Ex.P/04) of the District Child Protection Unit, Rajnandgaon, wherein during the course of counseling it has been stated that the victim (PW-02) has been assulted physically and mentally on account of incident in question; (ii) FSL report (Ex.P/31), wherein it has clearly been opined that stains of human sperm/semen were found on the undergarments of the victim (PW-02) as also that of the appellant herein; and (iii) TIP (Ex.P/09), wherein the accused/appellant herein has clearly been identified by the victim (PW-02), her sister (PW-03) and Dr. P.C. Lal Yadav (PW-04). As such, we are of the considered opinion that the finding recorded by the learned trial Court that the appellant is guilty of abducting the victim (PW-03) and further committing aggravated penetrative sexual assault on the minor victim (PW-02), is strictly in accordance with law. We do not find any illegality or perversity in findings recorded by the

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learned trial Court. Accordingly, we hereby affirm the said finding.

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(10) Now, the first 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 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 16.08.2019, was 10 years’ RI, awarded him sentence for 10 years’ RI with fine of Rs.5,000/- and held in Para11 to 15 as under:

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“ 11. Section 6, as applicable before its substitution on 1608-2019, 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 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

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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 of law laid down by their Lordships of the Supreme Court in the matter of Sonu Kushwaha (supra) and further considering the statement of the victim (PW-02) coupled with other evidence available on record in the shape of FSL report (Ex.P/31) and TIP (Ex.P/09), while affirming the conviction of the appellant for offence under Section 06 of the POCSO Act, 2012, we deem it appropriate to sentence him only for a period of 10 years’ rigorous imprisonment by reducing it from imprisonment for life. We hereby hold accordingly.

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(13) The next argument raised on behalf of the appellant, which needs consideration is that once punishment/sentence has been

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imposed upon the appellant for having committed offence punishable under Section 06 of the POSCO Act, which is also higher is degree, in light of Section 42 of the POCSO Act, there is no requirement for awarding a separate sentence/punishment on the appellant for having committed offence punishable under Section 377 of IPC, even though he has been held guilty for the same that too with the direction that all the sentences shall run concurrently and, while do so, the learned trial Court has committed error of law in light of decision of Manoj (supra).

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(14) In this regard, the submissions putforth by Mr. Anurag Dayal Shrivastava, learned amicus curiae need to be considered/noticed here profitably. It is submitted by learned amicus curiae that in present case, firstly the learned trial Court has convicted the appellant for offences punishable under Section 377 of IPC and also under Section 06 of POCSO Act and sentenced him to undergo imprisonment for life for both offences separately and, secondly, by invoking Section 31(1) of CrPC has ordered that all the sentences awarded to the appellant shall run concurrently. By referring to Section 26 of the General Clauses Act, 1897 and Section 42 of the POCSO Act, which deals with the situation where an act constitute an offence under two or more enactments, then offender shall not be liable to be punished twice, learned amicus curiae also submits that it is necessary to consider where a common act is made penal by two or more statutory provisions/enactments,

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which constitutes offence in those provisions/enactments, in that situation, though the legal labels are different but their ingredients are identical, the punishment should be one. Essentially, there is only one culpable act and different legal labels may lead to two different offences. It is by the reason of two different legislation, an act happens to fall under two different enactments, however, the ingredients of such act/offence, in both the enactments, are one and same and, therefore, the offender should not receive punishment for more than one of them.

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(15) Learned amicus curiae categorically submits that so far as awarding separate/different sentences for the offences involved under the POCSO Act together with any other enactment (i.e. IPC in this case) is concerned, such analogy can be drawn from Section 42 of POCSO Act, which provides for awarding greater punishment in degree, which ever is provided in those two enactments. In the present case, the learned trial Court has committed error of law while sentencing the appellant separately to undergo imprisonment for life for having committed offences punishable under Section 377 of IPC and under Section 06 of POCSO Act for the reason that the ingredients of offence/act, which made it penal under Section 5/6 of the POCSO Act and further under Section 377 of IPC are same. As such, the appellant should have been awarded one sentence in the present case for both the aforesaid offences.

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(16) In light of above submissions raised by learned amicus curiae,

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now it become necessary for us to notice Section 26 of the General Clauses Act, 1897 and Section 42 of the POCSO Act, which read as under:

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“Section 26 of the General Clauses Act, 1897

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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 punished twice for the same offence.

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Section 42 of the POCSO Act, 2012

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42. Alternate punishment. —Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 2[376A, 376AB, 376B, 376C, 376D, 376DA, 376DB], 3[376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000 (21 of 2000)], then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”

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(17) A bare perusal of the above-quoted provisions would show that the basic object of the Legislature while enacting such provisions is to emphasize on the ingredients which constitute one act/offence, with which the offender is charged, punishable under two or more enactments and, in such a situation, the offender shall not be liable to be punished twice of the same offence/act. The above principle is based upon well known maxim

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“nemo debet bis vexari si constat curiae quod sit pro una et eadem causa” meaning thereby no one ought to be vexed twice if it appears to the Court that it is for one and the same cause. Further, by way of Section 42 of the POCSO Act, the Legislators have very cautiously provided a path of imposing punishment which is greater in degree in between the offences punishable under the POCSO Act and under the IPC or IT Act, 2000.

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(18) In this context, some assistance can also be taken from Section 71 of IPC (i.e. Section 09 of the Bhartiya Nyaya Sanhita, 2023), which provides for limit of punishment of offence made up of several offences and reads as under:

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“Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.

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Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.”

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(19) The Bombay High Court in the matter of Manoj (supra) taking into consideration the provisions of Section 42 of the POSCO Act as also the above-quoted Section 71 of IPC has clearly held that the

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offender tried for an offence punishable under Section 377 with Sections 376 of IPC and Section 06 of POCSO Act, cannot be separately punished, as such an act is an offence falling in two definitions i.e. the Penal Code, 1860 and POCSO Act, 2012 and held in Para-37 & 38 as under:

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“ 37. The question is, can the accused tried for carnal sexual assault/rape be separately punished for the offence punishable under Section 377 of the Penal Code or as per Section 42 of the POCSO Act.

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38. Section 71 of the Penal Code, 1860 speaks of the limit of punishment of offence made up of several offences. It has been provided therein that where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences. In view of the definition of “rape” under Section 375 of the Penal Code, 1860, the accused may be punished for carnal sexual assault under Section 376 of the Penal Code, 1860 as well as under Section 06 06 of the POCSO Act. Therefore, the court is of the view that the offender tried for an offence punishable under Section 377 with Section 376 of the Penal Code, 1860 and Section 06 of the POCSO Act cannot be separately punished as such an act is an offence falling in two definitions i.e. in the Penal Code, 1860 and POCSO Act. Therefore, the learned Sessions Judge has correctly not imposed a separate sentence for the offence punishable under Section 377 of the Penal Code, 1860.”

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(20) Now finally reverting to the facts of the present case in light of the above legal position, it is quite vivid that apart from other offence, the learned trial Court has convicted the present appellant for offences punishable under Section 377 of IPC and also under Section 06 of the POCSO Act and sentenced him for both the offences separately and, further, by invoking Section 31(1) of CrPC has ordered that all the sentences awarded to the appellant shall run concurrently. However, considering the dicta of Manoj (supra), since the appellant has been sentenced for offence punishable under Section 06 of the POCSO Act [for violating Section 05(l)(m)], no separate sentence is required to be awarded to the appellant for having committed offence punishable under Section 377 of IPC, though he has been held guilty for the same, for the reason that the ingredients of offence/act, which made it penal under Section 5/6 of the POCSO Act and further under Section 377 of IPC are same. As such, the learned trial Court has committed an error of law while doing so and, therefore, while affirming the conviction of the appellant for offences punishable under Section 377 of IPC and

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under Section 06 of POCSO Act, the singular punishment/sentence is being awarded to him i.e. for offence punishable under Section 06 of the POCSO Act. We hereby hold accordingly.

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(21) Resultantly, in view of foregoing analysis, we order as under:

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(i) the conviction and sentences of the appellant for offences punishable under Section 363 of IPC and under Section 04 of the POCSO Act, as awarded by the learned trial Court, are hereby affirmed/upheld and same shall remain as it being well-merited;

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(ii) conviction of the appellant for offence under Section 06 of the POCSO Act, 2012 is hereby affirmed, for which, he is sentenced to undergo rigorous imprisonment for 10 years, in light of Sonu Kushwaha (supra);

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(iii) the conviction of the appellant for offence punishable under Sections 377 of IPC is also hereby affirmed/maintained, however in view of finding arrived at hereinabove, considering the fact that the appellant has also been punished for offence under Section 06 of POCSO Act, as above, no separate sentence is awarded to the appellant for having committed offence under Section 377 of IPC and, as such, the sentence of imprisonment for life awarded to him by the learned trial Court for the said offence pales into insignificance and is hereby set aside; and

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(iv) the direction of the learned trial Court that all the sentences of the appellant shall run concurrently shall also remain intact.

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

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(23) While parting with the record, we must place on record the appreciation for assistance rendered by Mr. Anurag Dayal Shrivastava, learned amicus curiae , who not only argued the case at length on short notice but has also brought relevant facts and legal position to our notice and further submitted excellent written submission.

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(24) 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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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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s@if

Jivan Varma v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jivan Varma v. State of Chhattisgarh

Case brief

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