Neeraj Nishad Vs State of Chhattisgarh

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Page No.1 of 10 IN CRA-238-2019

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2024:CGHC:46208-DB

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Digitally SAIFAN signed by KHAN SAIFAN KHAN

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HIGH COURT OF CHHATTISGARH, BILASPUR

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NAFR

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Criminal Appeal No. 238 of 20 19

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[Arising out of judgment dated 16.01.2019, passed in Special Criminal Case under POCSO Act No.63 of 2018 (State of Chhattisgarh v. Neeraj Nishad), by the Incharge, Additional Sessions Judge (FTC), Raigarh (C.G.)]

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Neeraj Nishad, Son of Ramsai Nishad, aged about 20 years, Resident of Madhuban, Tikrapara, Police Station Kotwali, Raigarh, District Raigarh (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 Chakradharnagar, Raigarh, District Raigarh (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent : Mr. R.S. Marhas, Addl. A.G.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal

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Judgment on Board (26.11.2024)

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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 16.01.2019, passed in Special Criminal Case under POCSO Act No.63 of 2018 (State of Chhattisgarh v. Neeraj Nishad), by the Incharge, Additional Sessions Judge (FTC), Raigarh (CG), whereby he has been

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Page No.2 of 10 IN CRA-238-2019

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convicted and sentenced as under:

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Conviction	Sen	tence
U/s. 04 of POCSO Act,	Imprisonment for	life	with fine of
2012	Rs.2,000/- and, in fine, additional rig	default orous	of payment of imprisonment
[Though, convicted under Section 376 of IPC r/w	for 02 months.
S. 04 of POCSO Act, but
in light of S. 42 of the
POCSO Act, sentenced only U/s. 04 of POCSO
Act]
U/s. 366 of IPC	Rigorous imprisonm fine of Rs.1,000/- payment of fine, imprisonment for 01	ent fo and, additi mont	r 03 years with in default of onal rigorous h.

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[Both the sentences are directed to run concurrently]

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(2) The case of the prosecution, in short, is that between 01.04.2018 to 30.04.2018, the accused-appellant herein firstly abducted minor victim (PW-01), aged about 14 years from lawful guardianship of her parents and, thereafter, took her to Siddhi Vinayak Colony and committed sexual intercourse with her against her will and consent in a vacant house and, thereby, said to have committed aforesaid offences.

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(3) The further case of the prosecution is that when mother of the victim (PW-03) reported the matter to the police, FIR (Ex.P/06) was registered by the police against the appellant and wheels of investigation started running, in which, spot map was prepared vide Ex.P/03. After obtaining necessary consent vide Ex.P/01 & P/05, the victim (PW-01) was subjected to medical examination,

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Page No.3 of 10 IN CRA-238-2019

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which was conducted by Dr. Amrawatin Kurre (PW-02) and, as per MLC report Ex.P/04, it has been opined that no injury were found on the internal and external part of the body of the victim (PW-01) and no definite opinion can be given on the basis of clinical examination with regard to intercourse. Further, vaginal slides was prepare and handed over to the police for analysis, which was seized vide Ex.P/08. The accused-appellant was arrested vide Ex.P/13 and subjected to medical examination vide Ex.P/11. Thereafter, seized vaginal slide of the victim was sent for chemical examination to FSL, Raipur vide Ex.P/15, but no FSL report has been brought on record for the reasons best known to the prosecution. In order to ascertain correct age of the victim, copy of her birth certificate [Article-A/01], issued by the Government of Chhattisgarh was obtained/seized vide Ex.P/07, wherein her date of birth has been recorded as 13.07.2004, meaning thereby, the victim (PW-01) was minor aged about 14 years (i.e. less than 16 years) on the date of offence. 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

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Page No.4 of 10 IN CRA-238-2019

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as 04 witnesses and exhibited 16 documents apart from ArticleA/01, 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 376 of IPC read with Section 04 of the POCSO Act, 2012 as also under Section 366 of IPC 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. Rishi Rahul Soni, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. He also submits that only on the basis of the self-serving testimony of the victim (PW-01) the appellant has been convicted for the offences in question, which is no supported by any medical evidence of forensic evidence. Therefore, the appellant is entitled for acquittal from the aforesaid charges under the facts and circumstances of the present case. In alternative, learned counsel vehemently argued that even if the date when the offence in question is said to have been committed (i.e. between 01.04.2018to 30.04.2018) is considered, the un-amended provision of Section 04 of the POCSO Act, 2012 will come into play, wherein the minimum punishment

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Page No.5 of 10 IN CRA-238-2019

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for having committed aforesaid offences was 07 years’ RI and, the same were subsequently amended w.e.f. 16.08.2019. Therefore, the present appellant be also sentenced for the period of 07 years’ RI by reducing it from imprisonment for life, 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-01), 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 , the trial Court has rightly convicted the appellant for the offences mentioned herein-above. He vehemently argued that though unamended provision of Section 04 of POCSO Act provides for minimum punishment for 07 years’ RI, but the appellant has also been convicted for offence under Section 376 of IPC by the learned trial Court and, for which, after amendment w.e.f. 03.02.2013, the minimum sentenced that has been prescribed is 10 years’ RI, therefore, the appellant shall not be punished with imprisonment for less than 10 years. Hence, 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

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Page No.6 of 10 IN CRA-238-2019

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records with utmost circumspection.

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(9) In the instant case, considering the statement of the victim (PW-01), wherein she has clearly narrated the incident in question and implicated the appellant herein to be the author of the crime by stating that the appellant developed friendship with her via facebook and, on the date and time of the offence, the appellant took her to his house situated at Siddhi Vinayak Colony, Raigarh and committed sexual intercourse with her against her will and consent. The aforesaid statement of the victim (PW-01) has duly been supported by her mother (PW-02), who has lodged FIR (Ex.P/06) and reported the matter to the police. Further, the victim (PW-01) was also subjected to lengthy cross-examination, but she remain consistent in her version and, therefore, her testimony appears to be reliable and inspire confidence. Further, admittedly, as per birth certificate of the victim (Article-A/01), issued by the Government of Chhattisgarh, the victim (PW-01) was aged about 14 years on the date and time of the offence. As such, on the basis of aforesaid evidence available on record, the finding recorded by the learned trial Court that the appellant is guilty of having committed sexual assault on the minor victim (PW-01), 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

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Page No.7 of 10 IN CRA-238-2019

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justified in awarding sentence for imprisonment for life to the appellant for having committed offence under Section 376 of IPC read with Section 04 of the POCSO Act, 2012 or same can be reduced, as contended by learned counsel for the appellant ?

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(11) In the matter of Uttar Pradesh v. Sonu Kushwaha1 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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1 (2023) 7 SCC 475

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Page No.8 of 10 IN CRA-238-2019

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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 lifelong. 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

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Page No.9 of 10 IN CRA-238-2019

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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 age of the victim at the time of commissions of the offence i.e. less than 16 years and her statement before the Court, in light of amended provisions of Section 376 of IPC w.e.f. 03.02.2013, while affirming the conviction of the appellant for offence under Section 376 of IPC read with Section 04 of the POCSO Act and, in view of provisions contained in Section 42 of POSCO Act, we deem it appropriate to sentence him for a period of 10 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 sentence of the appellant for offence under Section 366 of IPC is hereby affirmed/upheld and same shall remain as it is.

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

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Page No.10 of 10 IN CRA-238-2019

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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

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necessary information and action.

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

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s@if

Neeraj Nishad v. State of Chhattisgarh

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Neeraj Nishad v. State of Chhattisgarh

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