Partly allowed

Pawan Kumar Khunte v. State of Chhattisgarh

Chhattisgarh HC17 Sept 2024CRA/194/2019

Case brief

AI extract

What is this about?

Appeal against conviction for aggravated penetrative sexual assault on a four-year-old girl. The High Court affirmed the conviction on the strength of the victim's testimony and medical/FSL evidence but, applying the Supreme Court's Sonu Kushwaha ruling that the pre-amendment minimum applies to a 2018 offence, reduced the sentence from life to twelve years' rigorous imprisonment.

What the court decided

AI extract

Pawan Kumar Khunte Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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Page No.1 of 9 IN CRA-194-2019

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 194 of 20 19

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[Arising out of judgment dated 22.01.2019, passed in Special Criminal Case (POCSO Act) No.21 of 2018 (State of Chhattisgarh v. Pawan Kumar Khunte), by the Incharge Additional Sessions Judge (FTC), Raigarh (C.G.)]

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Pawan Kumar Khunte, Son of Tijram Khunte, aged about 20 years, Resident of Devgaon, Police Station Kharsiya, District Raigarh (Chhattisgarh)

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2024.09.23 11:06:56 +0530

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through the Station House Officer, Police Station Kharsiya, District Raigarh (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Ashok Kumar Swarnakar, Advocate For Respondent : Mr. Soumya Rai, Panel Lawyer

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Amitendra Kishore Prasad Judgment on Board (18.09.2024)

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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 22.01.2019, passed in Special Criminal Case (POCSO Act) No.21 of 2018 (State of Chhattisgarh v. Pawan Kumar Khunte), by the Incharge Additional Sessions Judge (FTC), Raigarh (C.G.), whereby he has been

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Page No.2 of 9 IN CRA-194-2019

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convicted and sentenced as under:

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Conviction		Sentence
U/s. 06 of POCSO Act	Imprisonment	for life	with fine of
r/w S.376(2)(i) of IPC	Rs.2,000/- and, fine, additional	in default rigorous	of payment of imprisonment
[However, in light of	for 02 month.
S.42 of POCSO Act,
punished only U/s. 6 of
POCSO Act, as the same
is higher in degree]

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(2) The case of the prosecution, in short, is that on 29.03.2018, at about 17:30 hours, the accused-appellant herein, in his own house, situated at Devgaon, which comes within the ambit of Police Station Kharsiya, District Raigarh (CG), committed aggravated penetrative sexual assault with minor victim (PW-02), aged about 04 years, and, thereby, said to have committed the aforesaid offence.

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(3) The further case of the prosecution is that when mother of the victim, namely, Bhawanmati Sahu (PW-01) reported the matter to the police by filing written complaint (Ex.P/01), FIR (Ex.P/02) was registered by the police against the appellant and wheels of investigation started running, in which, after obtaining necessary consent vide Ex.P/03, the victim (PW-02) was subjected to medical examination, which was conducted by Dr. Smt. Lalita Rathiya (PW03) and, as per MLC report Ex.P/07 of the victim, it has been opined that attempt to commit sexual intercourse was done with the victim (PW-02). Further victim’s vaginal slides alongwith her vaginal swab were prepared and handed over to the police constable for

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Page No.3 of 9 IN CRA-194-2019

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analysis, which were seized vide Ex.P/16. On production of vitim’s undergarment by her mother (PW-01), the same was also seized vide Ex.P/05. The accused-appellant was arrested vide Ex.P/10 and sent for medical examination. Appellant’s MLC report is Ex.P/12 and his undergarment was seized vide Ex.P/11. The aforesaid seized articles were sent for chemical analysis vide Ex.P/23 and, according to FSL report (though no exhibited, but annexed at Page No.41-42 of the paper-book) it has been opined that stains of human sperm/semen were found on the vaginal slides, swab and undergarment of the victim (PW-02) as also in the undergarment of the appellant. Thereafter, statement of witnesses were recorded 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 09 witnesses and exhibited 24 documents apart from FSL report, whereas the appellant in support of his defence, though examined 02 witnesses, but not 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 Section 376(2)(i) of IPC read

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Page No.4 of 9 IN CRA-194-2019

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with Section 06 of the POCSO Act, 2012 and sentenced him as mentioned in the opening paragraph of this judgment, 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. Ashok Kumar Swarnakar, 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 while holding the appellant guilty for offences in question. He would also submit that even if the date when the offence in question is said to have been committed (i.e. 29.03.2018) is considered, the unamended provision of Section 06 of the POCSO Act will come into play, wherein the minimum punishment prescribed for having committed aforesaid offence 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 for having committed offence under Section 06 of the POCSO Act. Learned counsel would rely upon the decision of the Supreme Court in the matter of State of Uttar Pradesh v. Sonu Kushwaha1 to buttress his submission. Hence, the present appellant be allowed in full or in part.

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(7) Per-contra , learned State counsel would submit that prosecution 1 (2023) 7 SCC 475

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Page No.5 of 9 IN CRA-194-2019

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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 medical evidence available on record i.e. victim’s MLC report (Ex.P/07) and FSL report, 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, 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 and time of the offence, while she was playing in her house, the appellant took her to his house and committed sexual intercourse with her. The victim (PW-02) was subjected to lengthy cross-examination, but nothing could be extracted from her to hold that the appellant has not committed the said crime with her or she is telling lie before the Court in order to falsely implicate the appellant. Furthermore, the said stand/statement of the victim (PW-02) is duly supported by her mother, namely, Bhawanmati Sahu (PW-01), who has reported the

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Page No.6 of 9 IN CRA-194-2019

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matter to the police and lodged FIR in the matter. The medical evidence available on record also supported the case of the prosecution, whereby as per MLC report of the victim (Ex.P/07), it has been opined that attempt to commit sexual intercourse was done with her and redness was found on her private part, which is duly supported by the statement of Dr. Smt. Lalita Rathiya (PW-03), who has medically examined the victim (PW-01) and as per FSL report (Pages No.41-42 of the paper-book) it has clearly been opined that stains of human sperm/semen were found on the the vaginal slide, swarb and undergarment of the victim (PW-02) as also on the undergarment of the appellant. Moreover, according to the statement of the mother of the victim (PW-02), on the date of offence, she was minor aged about 04 years. As such, the learned trial Court has rightly held that it is the appellant who committed aggravated penetrative sexual assault with the minor victim (PW02), which 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 a recent decision of the Supreme Court in the matter of Sonu Kushwaha (supra).

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Page No.7 of 9 IN CRA-194-2019

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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 Para-11 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

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Page No.8 of 9 IN CRA-194-2019

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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 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

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Page No.9 of 9 IN CRA-194-2019

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laid down by their Lordships of the Supreme Court in the matter of Sonu Kushwaha (supra) and specially considering the age of the victim at the time of commissions of the offence i.e. 04 years (less than 12 years) and her statement before the Court coupled with the medical evidence available on record i.e. MLC report and FSL report, while affirming the conviction of the appellant for offences under Section 376(2)(i) of IPC read with Section 06 of the POCSO Act, 2012, we deem it appropriate to sentence him for a period of 12 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 both the sentences shall run concurrently, shall remain intact.

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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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Sd/Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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s@if

Pawan Kumar Khunte v. State of Chhattisgarh

Case brief

What is this about?

What the court decided

Pawan Kumar Khunte v. State of Chhattisgarh

Case brief

What is this about?

What the court decided

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