Partly allowed

Anand Patro v. State of Chhattisgarh

Chhattisgarh HC10 Sept 2024CRA/255/2019

Case brief

AI extract

What is this about?

Criminal Appeal regarding conviction under POCSO and IPC. High Court held that appellant's 15-year sentence for POCSO exceeded the 10-year minimum applicable at the time of the offence (2016) despite additional convictions. Sentence reduced to 10 years relying on Sonu Kushwaha and Uggarsain.

What did the court decide?

Appellant's sentence of 15 years rigorous imprisonment for offence under Section 6 of the POCSO Act reduced to 10 years. Other convictions and sentences affirmed.

Anand Patro Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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1 / 13 (Cr.A. No. 255 of 2019)

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2024:CGHC:35588-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRIMINAL APPEAL NO. 255 OF 2019

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(Arising out of Judgment dated 11.1.2019 passed by Additional Sessions Judge (F.T.C.), Bastar at Jagdalpur –cumSpecial Judge (Protection of Children from Sexual Offences Act, 2012) in Special Sessions Case No.08 of 2017)

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Anand Patro, S/o Mohan Patro, aged about 36 years, R/o Kumharpara, Jagdalpur, District Bastar (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Police Station Bodhghat, District Bastar (C.G.)

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... Respondent(s)

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For Appellant	:-	Mr. Bhaskar Payashi, Advocate.
For Respondent/State	:-	Mr. Arvind Dubey,
		Government Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment on Board [11-09-2024]

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Sanjay K. Agrawal, J.

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1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (‘CrPC’ for brevity) has been filed by the appellant, Anand Patro, questioning the legality, validity and correctness of the Judgment

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(Cr.A. No. 255 of 2019)

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dated 11.1.2019 passed by learned Additional Sessions Judge (F.T.C.), Bastar at Jagdalpur - cum - Special Judge (Protection of Children from Sexual Offences Act, 2012) (‘Trial Court’ for brevity) in Special Sessions Case No.08 of 2017, by which the appellant has been convicted for offences under Sections 363, 342, 376 & 506 of the Indian Penal Code, 1860 (‘IPC’ for brevity) as well as under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for brevity) and sentenced thereunder in the manner as mentioned at the chart given below:-

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Conviction	Sentence
1.Under Section 363 of IPC.	1.Rigorous Imprisonment for 05 Years. 2.Fine of Rs.1000/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 01 month.
2.Under Section 342 of IPC.	1.Rigorous Imprisonment for 03 months. 2.Fine of Rs.500/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 15 days.
3.Under Section 506 of IPC.	1.Rigorous Imprisonment for 03 months. 2.Fine of Rs.500/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 15 days.

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3 / 13 (Cr.A. No. 255 of 2019)

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4.Under Section 376 of IPC.	The appellant has not been punished under Section 376 of IPC instead he has been punished as given below under Section 6 of POCSO Act as the same being higher in degree than Section 376 of IPC in view of the provisions contained in Section 42 of POCSO Act.
5.Under Section 6 of POCSO Act.	1.Rigorous Imprisonment for 15 Years. 2.Fine of Rs.10,000/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 01year.

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2. The appellant, Anand Patro, along with two other co-

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accused persons namely Premdan @ Mintu and Suresh @ Ramlal was tried before the Trial Court for offences punishable under Sections 363, 342, 376, 506 of IPC and under Section 6 of POCSO Act on the charges that on 25.12.2016 around 7:30 p.m., at Village Karkapal, they abducted the minor victim (PW1) from her lawful guardianship without her consent, wrongfully confined her and also committed rape/aggravated penetrative sexual assault on her without her consent by criminally intimidating her giving threat to her life.

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3. Finally, after completion of a full-fledged trial, learned Trial Court by impugned Judgment dated 11.1.2019, convicted the appellant, Anand Patro, for offences under Sections 363, 342, 376 & 506 of IPC as well as under Section 6 of POCSO Act and sentenced him thereunder as mentioned at the chart given in the opening paragraph of this judgment, the greater sentence among them being 15 years’ Rigorous Imprisonment with fine and its default sentence under Section 6 of POCSO Act. However, learned Trial Court while acquitting the aforesaid two co-accused persons, Premdan @ Mintu and Suresh @ Ramlal, of the other offences charged with, convicted them only for offence under Section 376 of IPC and Section 6 of POCSO Act and sentenced them to undergo 10 years’ Rigorous Imprisonment with fine and its default sentence under Section 6 of POCSO Act as the same being higher in degree than Section 376 of IPC in view of the provisions contained in Section 42 of POCSO Act.

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4. Mr. Bhaskar Payashi, learned counsel appearing for the appellant, Anand Patro, makes a solitary submission that learned Trial Court, having held all the three accused persons criminally liable under

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(Cr.A. No. 255 of 2019)

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Section 376 of IPC and Section 6 of POCSO Act and also not having found any distinguishing feature in the form of separate roles played by each of them, should not have awarded 15 years of sentence to the appellant, Anand Patro, which is greater than 10 years’ of sentence which has been awarded to the other two co-accused persons, Premdan @ Mintu and Suresh @ Ramlal, for offence under Section 6 of POCSO Act. Apart from that, even if the date of incident i.e., 25.12.2016, when the offence is said to have been committed is considered, the unamended provision of Section 6 of POCSO Act, as the same was amended much later with effect from 16.8.2019, will come into play wherein minimum punishment for offence under Section 6 of POCSO Act was 10 years’ Rigorous Imprisonment. Therefore, the appellant be sentenced for a period of 10 years’ Rigorous Imprisonment by reducing it from 15 years' Rigorous Imprisonment for offence under Section 6 of POCSO Act, in light of the decisions of the Supreme Court rendered in the matter of State of Uttar Pradesh v. Sonu Kushwaha1 and Uggarsain v. State of Haryana2 .

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1 (2023) 7 SCC 475

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2 (2023) 8 SCC 109

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6 / 13 (Cr.A. No. 255 of 2019)

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5. Mr. Arvind Dubey, learned Government Advocate, opposing the appeal, would submit that since the appellant, Anand Patro, in addition to Section 376 of IPC and Section 6 of POCSO Act has also been convicted for offence under Sections 363, 342, 506 of IPC and therefore the sentence of 15 years’ Rigorous Imprisonment awarded by learned Trial Court for offence under Section 6 of POCSO Act is absolutely justified and does not need any interference and the appeal is liable to be dismissed.

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6. We have heard learned counsel for parties, considered their rival submissions and also perused the record of the case with utmost care and circumspection.

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7. True it is that the present accused appellant, Anand Patro, as well as the other two co-accused persons, Premdan @ Mintu and Suresh @ Ramlal, have been convicted for offence under Section 376 of IPC and Section 6 of POCSO Act and the present appellant has been sentenced thereunder to undergo 15 years’ Rigorous Imprisonment and the co-accused Premdan @ Mintu and Suresh @ Ramlal have been sentenced thereunder to undergo 10 years’ Rigorous Imprisonment. However, the present appellant, Anand

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(Cr.A. No. 255 of 2019)

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Patro, in addition to Section 376 of IPC and Section 6 of POCSO Act, has also been convicted and sentenced for offences under Sections 363, 342, 506 of IPC and for that reason admittedly and undisputedly a separate and greater sentence of 15 years’ Rigorous Imprisonment has been awarded by learned Trial Court for offence under Section 6 of POCSO Act.

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8. In this regard, the decision of the Supreme Court delivered in Uggarsain (supra) would be profitable to notice in paragraphs 15 & 16 of which their Lordships have held as under:-

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“15. The sentencing in this case, to put it mildly, is inexplicable (if not downright bizarre). On the one hand, Krishan underwent sentence for 9 years 4 months - at the other end of the spectrum, Sunder s/o Rajpal underwent only 11 months. No rationale appears from the reasoning of the High Court for this wide disparity. It is not as though the court took note of the role ascribed to the accused (such a course was not possible, given the nature of the evidence). If it were assumed that the age of the accused played a role, then Krishan, at 61 years - who served 9 years and Brahmajit, who had served in the army, and was detained for over 8 years got the stiffest sentence. On the other end of the scale, younger persons were left relatively unscathed, having served between 3 years and 11 months.

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16. The impugned judgment, in this court’s opinion, fell into error in not considering the gravity of the offence. Having held all the accused criminally liable, under Section

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(Cr.A. No. 255 of 2019)

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304 Part II read with Section 149 IPC and also not having found any distinguishing feature in the form of separate roles played by each of them, the imposition of the “sentence undergone” criteria, amounted to an aberration, and the sentencing is for that reason, flawed. This court is, therefore, of the view that given the totality of circumstances (which includes the fact that the accused have been at large for the past four years), the appropriate sentence would be five years rigorous imprisonment. However, at the same time, the court is cognizant of the fact Krishan and Bramhajit served more than that period. Therefore, the impugned judgment, as far as they are concerned, is left undisturbed. Consequently, the sentence of Raju, Parveen, Sunder s/o Amit Lal, Sandeep, Nar Singh, and Sunder s/o Rajpal is hereby modified; they are hereby sentenced to undergo Rigorous Imprisonment for five years. They shall surrender and serve the rest of their sentences within six weeks from today. ”

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9. Now, the question is, as to whether learned Trial Court, having held all the three accused persons criminally liable under Section 376 of IPC and Section 6 of POCSO Act and also not having found any distinguishing feature in the form of separate roles played by each of them, is justified in awarding 15 years’ Rigorous Imprisonment to the appellant, Anand Patro, and 10 years’ Rigorous Imprisonment to the other two co-accused persons, Premdan @ Mintu and Suresh @ Ramlal, for offence under Section 6 of POCSO Act.

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(Cr.A. No. 255 of 2019)

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10. A careful perusal of the impugned Judgment would show that learned Trial Court has not found any distinguishing feature in the form of separate role played by the present appellant while holding all three accused persons criminally liable under Section 376 of IPC and Section 6 of POCSO Act, except that the present appellant has also been convicted for offences under Sections 363, 342, 506 of IPC, but for the said offences, separate sentences have also been awarded to the present appellant by learned Trial Court. Learned State Counsel also could not find any distinguishing feature in the form of separate role played by the appellant than the other two co-accused persons who all have been convicted for offence under Section 6 of POCSO Act.

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11. Moreover, the date of incident in the instant case is 25.12.2016. 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 6 of POCSO Act, proceeded to convict him for the said offence and upon further finding that the minimum punishment prescribed for offence

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punishable under Section 6 of POCSO Act at the time when offence was committed i.e., prior to 16.8.2019, was 10 years’ Rigorous Imprisonment, awarded him sentence for 10 years’ Rigorous Imprisonment, and observed in paragraphs 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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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

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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 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

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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, learned Trial Court is absolutely unjustified in sentencing the present appellant for 15 years’ Rigorous Imprisonment under Section 6 of POCSO Act and, therefore, considering the principles of law laid down by their Lordships of the Supreme Court in the matter of Uggarsain (supra) as well as in Sonu Kushwaha (supra), though we affirm the convictions of the present appellant for offences under Sections 363, 342, 376, 506 of IPC and sentences awarded thereunder, however, while affirming the conviction of the present appellant for offence under Section 6 of POCSO Act as well, we modify his sentence of 15 years’ Rigorous Imprisonment to 10 years’ Rigorous Imprisonment, maintaining the fine amount and its default sentence awarded thereunder.

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13. In the result, this criminal appeal is partly allowed to the extent of modification indicated herein above in respect of the sentence awarded for offence under Section 6 of POCSO Act reducing it to 10 years’ Rigorous Imprisonment instead of 15 years’ Rigorous Imprisonment.

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14. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and a copy of this judgment be also supplied to the concerned Superintendent of Jail, for information and necessary action, if any, at the earliest.

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

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sharad

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Digitally signed SHARAD by SHARADKUMAR YADAV KUMAR Date: YADAV 2024.09.1217:15:05 +0530

Conviction	Sentence
1.Under Section 363 of IPC.	1.Rigorous Imprisonment for 05 Years. 2.Fine of Rs.1000/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 01 month.
2.Under Section 342 of IPC.	1.Rigorous Imprisonment for 03 months. 2.Fine of Rs.500/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 15 days.
3.Under Section 506 of IPC.	1.Rigorous Imprisonment for 03 months. 2.Fine of Rs.500/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 15 days.

Anand Patro v. State of Chhattisgarh

Case brief

What is this about?

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Anand Patro v. State of Chhattisgarh

Case brief

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