Indrajeet Thakur Vs State of Chhattisgarh

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Page No.1 of 10 IN CRA-384-2019

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2024:CGHC:36182-DB

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Digitally signed ANKIT by ANKITKUMAR SINGH KUMAR Date: 2024.09.19 SINGH 12:16:43 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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NAFR

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Criminal Appeal No. 384 of 20 19

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[Arising out of judgment dated 08.02.2019, passed in Special Criminal Case (POCSO Act) No.56 of 2015 (State of Chhattisgarh v. Indrajeet Thakur), by the Additional Sessions Judge (FTC)/Special Judge (POCSO Act), North Bastar, District Kanker (C.G.)]

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Indrajeet Thakur, Son of Budhar Singh Thakur, aged about 35 years, Resident of Village Mohpur, Tehsil and Police Station Narharpur, District North Bastar, Kanker (Chhattisgarh)

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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 Kanker, District North Bastar, Kanker (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Sanjay Kumar Agrawal, Advocate For Respondent : Mr. Vivek Mishra, Panel Lawyer -------------------------------------------------------------------------------------------

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

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Judgment on Board (17.09.2024)

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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 08.02.2019, passed in Special Criminal Case (POCSO Act) No.56 of 2015 (State of Chhattisgarh v. Indrajeet Thakur), by the Additional Sessions Judge (FTC)/Special Judge, constituted under the provision of the

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Page No.2 of 10 IN CRA-384-2019

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Protection of Children from Sexual Offences Act, 2012 (fort short “POCSO Act”), North Bastar, District Kanker (CG), whereby he has been convicted and sentenced as under:

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	Conviction	Sentence
U/s.	506 (Part-II) of IPC	Rigorous imprisonment fo fine of Rs.1,000/- and, payment of fine, additi imprisonment for 06 mont	r 07 years with in default of onal rigorous hs.
U/s.	06 of POCSO Act,	Imprisonment for life	with fine of
2012		Rs.1,000/- and, in default fine, additional rigorous for 01year.	of payment of imprisonment

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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 on 20.08.2015, at about 13:00 hours and prior to it also, at Central School, Kanker, the accused-appellant, who used to work as Peon in the said school committed aggravated penetrative sexual assault with minor victim (PW-01) against her will and consent and further threatened him to kill if he discloses about the said incident to anyone and, thereby, said to have committed the aforesaid offences.

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(3) The further case of the prosecution is that when grand-mother of the victim, namely, Aysha Bai (PW-08) reported the matter to the police, FIR (Ex.P/19) 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-01) was subjected to medical examination, which was conducted by Dr. V. Kumeti (PW-11) and, as per MLC report Ex.P/04 of the victim, it has been opined that swelling and redness was found on the private

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Page No.3 of 10 IN CRA-384-2019

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parts of the victim and he was subjected to unnatural anal sex. Further victim’s slides were prepared and handed over to the police constable alongwith his clothes (i.e. half-pant and half-shirt) and undergarment, which were seized vide Ex.P/10 & Ex.P/05 respectively. The accused-appellant was arrested vide Ex.P/08 and sent for medical examination. Appellant’s MLC report is Ex.P/24 and his clothes (baniyan & undergarment) alongwith semen slides were also seized vide Ex.P/09 & Ex.P/26 respectively. The aforesaid seized articles were sent for chemical analysis vide Ex.P/37 and, according to FSL report (Ex.C/01) it has been opined that stains of human sperm/semen were found on the half-pant and slide of the victim (PW-01) as also on the undergarment and semen slide of the appellant. In order to ascertain correct age of the victim (PW-01), his school’s admission form (Ex.D/01) and registration form (Ex.D/02C) were obtained, wherein victim’s date of birth has been recorded as 08.12.2007, meaning thereby, he was minor aged about 08 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 as 16 witnesses and exhibited 38 documents apart from FSL report,

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Page No.4 of 10 IN CRA-384-2019

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whereas the appellant in support of his defence examined 02 witness and exhibited 02 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 offences punishable under Section 506 (Part-II) of IPC as also under 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 appellantaccused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Sanjay Kumar Agrawal, 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-01) 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. 20.08.2015) 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

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Page No.5 of 10 IN CRA-384-2019

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decision of the Supreme Court in the matter of State of Uttar

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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 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/04) and FSL report (Ex.C/01), 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 the victim (PW-01), wherein he 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 he was in the school, the appellant took her in girls toilet and committed sexual intercourse with him unnaturally. He has also stated that at prior to the said incident also the appellant used to commit aggravated sexual intercourse with him and used to threaten him if he

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1 (2023) 7 SCC 475

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Page No.6 of 10 IN CRA-384-2019

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discloses about the same to anyone. The victim (PW-01) was subjected to lengthy cross-examination, but nothing could be extracted from him to hold that the appellant has not committed the said crime with him or he is telling lie before the Court in order to falsely implicate the appellant. Furthermore, the said stand/statement of the victim is duly supported by her grandmother, namely, Aaysha Bai (PW-08), who has reported the 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/04), it has been opined that swelling and redness was found on the private parts of the victim and he was subjected to unnatural anal sex, which is duly supported by the statement of Dr. V. Kumeti (PW-11), who has medically examined the victim (PW-01) and as per FSL report (Ex.C/01) it has clearly been opined that stains of human sperm/semen were found on the half-pant and slide of the victim (PW-01) as also on the undergarment and semen slide of the appellant. Moreover, according to victim’s admission form (Ex.D/01) and registration form (Ex.D/02C), his date of birth has been mentioned as 08.12.2007, meaning thereby, he was minor aged about 08 years on the date of offence. As such, the learned trial Court has rightly held that it is the appellant who committed aggravated penetrative sexual assault with the minor victim (PW-01) and threatened him to kill, which is strictly in accordance with law We do not find any illegality or perversity in findings recorded by the

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Page No.7 of 10 IN CRA-384-2019

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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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(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

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Page No.8 of 10 IN CRA-384-2019

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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 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

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Page No.9 of 10 IN CRA-384-2019

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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. 08 years (less than 12 years) and his statement before the Court coupled with the medical evidence available on record i.e. MLC report and FSL report and the fact that the appellant used to work as a Peon in the school where he committed carnal offence with the minor victim (PW-01), in light of un-amended Section 06 of the POCSO Act, while affirming the conviction of the appellant for offence under 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. Further, the conviction and sentence of the appellant for offence under Section 506 (Part-II) of IPC is hereby affirmed/upheld and same shall remain as it is.

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Page No.10 of 10 IN CRA-384-2019

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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

Indrajeet Thakur v. State of Chhattisgarh

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Indrajeet Thakur v. State of Chhattisgarh

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