Kunjbihari Vs State of Chhattisgarh

For Appellant :- Mr. Vijay Kumar Sahu, Advocate / Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent-State :- Mr. Sharad Mishra, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board

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(16.07.2024)

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Sanjay K. Agrawal, J

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This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 25.07.2018 passed by the Additional Sessions Judge (F.T.C.), Durg, Chhattisgarh, in Special Criminal Case No. 10/2014 by

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which appellant herein has been convicted and sentenced as under:-

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	Conviction	Sentence
Under POCSO	Section 6 of Act, 2012	the Imprisonment for life and to pay fine of 100/-; in default of ₹ payment of fine amount 2 months additional rigorous imprisonment.
Under IPC	Section 363 of	the Rigorous imprisonment for 3 years and to pay fine of 100/-; ₹ in default of payment of fine amount 2 months additional rigorous imprisonment.
Under IPC	Section 366 A of	the Rigorous imprisonment for 5 years and to pay fine of 100/-; ₹ in default of payment of fine amount 2 months additional rigorous imprisonment.

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All sentences are directed to run concurrently.

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Case of the prosecution, in nutshell, is that on 08.01.2014 at about 2:00 pm at village Ghooma, Police Station Utai, District Durg, Chhattisgarh, the appellant abducted the minor victim (PW-1), aged about 6 years, and committed aggravated penetrative sexual intercourse with her, against her wishes and thereby committed the aforesaid offence. It is further case of the prosecution that on the date of offence when the minor victim had gone to shop to buy something, the appellant met

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her and took her along with him on his bicycle, which was witnessed by Omkar Verma (PW-3) and who informed the same to mother of the victim (PW-2), thereafter, she (PW-2) along with her brother-in-law (not examined) went to find victim and at that time, she saw the victim coming towards her in injured condition. The said incident was reported by mother of the victim (PW-2) to police pursuant to which FIR was registered vide Ex.P/5. Identification parade (Ex.P/3) was conducted in presence of, G.B.K. Verma (PW-19), Nayab Tehsildar, in which the minor victim identified the appellant herein. As per birth certificate (Ex.P/9C) date of the birth of the victim is 28.01.2008, meaning thereby, at the time of offence the minor victim was aged about 5 years 11 months and also as per X- Ray report of the victim (Ex.P/30) proved by Dr. A.K. Sahu (PW-18) , age of the victim was between 5 to 6 years, at the time of incident. Minor victim was medically examined by Dr. Ujjwala Dewangan (PW-20) and medical report was prepared vide Ex.P/33. In the medical report (Ex.P/8), 2 abrasions were found on both sides of vaginal, on touching bleeding was found in vagina, hymen was torn, tenderness was also found as the victim complained of pain on touching and as per Dr. Ujjwala Dewangan (PW-20) the said injuries might be caused while attempting sexual intercourse. Appellant was found to be

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competent in sexual intercourse vide Ex.P/23 proved by Dr. Anil Agrawal (PW-17).

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After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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In order to bring home the offence, prosecution has examined as many as 21 witnesses and exhibited 34 documents and defence in support of its case has not examined any witness, but exhibited 2 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Vijay Kumar Sahu, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence by recording a finding which is perverse to the record as there is no evidence on record upon which his conviction could have been based and even otherwise, at the time when the alleged offence was committed, in Section 6 of the POCSO Act, 2012, minimum sentence prescribed was 10 years which has been enhanced to 20 years by amendment and which has been made effective from 16.08.2019, therefore, at the most, 10 years be awarded to the appellant for the offence under Section 6 of the POCSO Act, 2012. He would rely upon the decision of the Supreme Court in the matter of State of Uttar Pradesh v.

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Sonu Kushwaha1 to buttress his submission.

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Per contra , Mr. Sharad Mishra, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that considering the age of minor victim, who was aged about 6 years at the time of offence as per birth certificate (Ex.P/9C) and x-ray report (Ex.P/30) proved by Dr. A.K. Sahu (PW-18) ; in medical report (Ex.P/33) proved by Dr. Ujjwala Dewangan (PW-20), 2 abrasions were

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1 (2023) 7 SCC 475

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found on both sides of vaginal, on touching bleeding was found in the vagina, hymen was torn, tenderness was also found as the victim complained of pain on touching and as per doctor (PW-20) the said injuries might be caused while attempting sexual intercourse, the conviction of the appellant is well merited and the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.

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Considering the statement of minor victim (PW-1); mother of the victim (PW-2); medical report of the victim (Ex.P/33), proved by Dr. Ujjwala Dewangan (PW-20), in which 2 abrasions were found on both sides of vaginal, on touching bleeding was found in vagina, hymen was torn, tenderness was also found as the victim complained of pain on touching and as per opinion of doctor (PW-20) the said injuries might be caused while attempting sexual intercourse and also considering the age of the victim who aged about 5 years 11 months on the date of offence as per birth certificate of the victim (Ex.P/9C) and as per x-ray report of the victim (Ex.P/30) proved by Dr. A.K. Sahu (PW-18), age of the victim was between 5 to 6 years on the date of offence, we are of the

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considered opinion that the trial Court has rightly convicted the appellant for offence under Section 6 of the POCSO Act, 2012.

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Now, the question would be whether, the learned trial Court is justified in awarding sentence for imprisonment of life to the appellant for having committed offence under Section 6 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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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 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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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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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.

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However, we find no such provision in the POCSO Act.

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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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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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Coming to the facts of the present case in the light of principles of law laid down by their Lordships of the Supreme Court in the matter of Sonu Kushwaha (supra), it is quite vivid that the date of incident is 08.01.2014 and Section 6 of the POCSO Act, 2012 has been amendment on 16.08.2019 by which for offence under Section 6 of the POCSO Act, 2012

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minimum sentence has been enhanced from 10 years to 20 years, as such, on the date of offence the minimum sentence was 10 years, considering the age of the minor victim to be 6 years on the date of offence and further considering the facts and circumstances of the case, we while affirming his (appellant) conviction for offence under Section 6 of the POCSO Act, 2012 award him sentence for a period of 12 years’ rigorous imprisonment by reducing it from imprisonment for life. However, the fine amount imposed by the trial Court shall remain intact.

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So far as the conviction of the appellant for the offence punishable under Sections 363 & 366 A of the IPC is well merited and the trial Court has rightly convicted the appellant for the said offence on the basis of evidence available on record and, therefore, conviction and sentence along with default stipulations imposed by the learned trial Court for the aforesaid offence are not interfered with and we hereby affirm the same.

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This criminal appeal is partly allowed to the extent indicated herein-above.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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Ankit

Kunjbihari v. State of Chhattisgarh

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Kunjbihari v. State of Chhattisgarh

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