Dipak Chouhan Vs State of Chhattisgarh

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Page 1 of 11 IN Criminal Appeal No. 833 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 833 of 20 18

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[Arising out of judgment dated 17.05.2018, passed in Special Sessions Case No.78 of 2016 (State of Chhattisgarh v. Dipak Chouhan), by the 5^th Additional Sessions Judge (FTC)/Special Judge (POCSO Act), Durg (C.G.)]

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Dipak Chouhan, Son of Vishwanath Chouhan, aged about 32 years, Resident of Village Brinda Nagar, Near Andhra School, Camp-I, Bhilai, Police Station Chhawni, Civil and Revenue District Durg (Chhattisgarh)

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Versus

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State of Chhattisgarh, through the District Magistrate, Durg, District Durg (Chhattisgarh)

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---- Respondent

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For Appellant : Ms. Savita Tiwari, Advocate For Respondent : Mr. Rahul Tamaskar, Government Advocate

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Division Bench

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

Judgment on Board

(13.06.2024)

Sanjay K. Agrawal, J

(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 17.05.2018, passed by 5^th Additional Sessions Judge (FTC)/Special Judge, constituted under the provision of the Protection of Children from Sexual Offences Act, 2012 (fort short “POCSO Act”), Durg (CG) in Special

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Criminal Appeal No. 833 of 2018

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Sessions Case No.78 of 2016, whereby he has been convicted and sentenced as under:

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Conviction	Sent	ence
U/s. 376(2)(i) of IPC	Imprisonment for i Rs.10,000/- and, in of fine, add imprisonment for 01	life i defa itiona mont	with fine of ult of payment l rigorous h.
U/s. 509 of IPC	Simple imprisonme fine of Rs.1,000/- payment of fine, imprisonment for 01	nt for i and, i add mont	01 year with i in default of i itional simple h.
U/s. 06 of POCSO Act, 2012	Imprisonment for i Rs.5,000/- and, in d fine, additional rig for 01 month.	life i efaul i orous	with fine of t of payment of i imprisonment

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[All the sentences are directed to run concurrently]

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(2) The case of the prosecution, in short, is that on 14.05.2016, in the night at about 08:00 PM, the accused-appellant herein, in his own house situated at Brinda Nagar, Near Andhra School, Camp-I, Bhilai within the ambit of Police Station Chhawni, District Durg (CG), has committed aggravated penetrative sexual assault with minor victim (PW-01), aged about 10 years, by entering his figure into her vagina, against her will and consent and also tried to insult the modesty of the victim (PW-01) and, thereby, said to have committed offences under Sections 376 & 509 of IPC, as also under Section 05 of the POCSO Act.

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(3) The further case of the prosecution is that when the mother

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of the victim, namely, Smt. Reshma Parwin (PW-02) reported the matter to the police, FIR (Ex.P/02) was registered by the police against the appellant and wheels of investigation started running, in which, panchnama of the place of occurrence and spot map were prepared vide Ex.P/09 & Ex.P/10 respectively. After obtaining consent from mother of the victim- Smt. Reshma Parwin (PW-02) vide Ex.P/04, the victim (PW-01) was subjected to medical examination, which was conducted by Dr. Rachna Dabey (PW-06) and, as per her MLC report Ex.P/13, though it has been opined that no definite incidences of intercourse can be given and episodes of fingering can neither be refuted nor confirmed, but one injury (abrasion) having colour- red and size0.5X.05 cm was found on the left labia minora of the victim (PW01) and further victim’s vaginal slides were also prepared and handed over to the police constable, which was seized vide Ex.P/20. Further, leggings of the victim (PW-01) was also seized vide Ex.P/05. The accused-appellant was arrested vide Ex.P/24 and sent for medical examination. MLC report of the appellant is (Ex.P/17) and further his undergarment was also seized vide Ex.P/18. Thereafter, aforesaid seized leggings, vaginal slides of the victim and undergarment of the appellant all were sent for chemical examination vide Ex.P/26 and, as per FSL report (Ex.P/28) it has been opined that no stains of human

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sperm/semen were found on any of the aforesaid seized articles. In order to ascertain correct age of the victim, copy of relevant page of Dakhila Kharij Register of the victim (PW-01) [Ex.P/29] was obtained/seized vide Ex.P/08, wherein her date of birth has been recorded as 13.06.2007, meaning thereby, the victim (PW01) was minor aged about 09 years (i.e. less than 10 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 09 witnesses and exhibited 30 documents, 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 & 509 of IPC as also under Section 06 of the POCSO Act, 2012 and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning

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the impugned judgment of conviction and order of sentence.

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(6) Ms. Savita Tiwari, 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 her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for offences in question. She would also submit that even if the date when the offence in question is said to have been committed (i.e. 14.05.2016) is considered, the un-amended provision of Section 06 of the POCSO Act, 2012 will come into play, wherein the minimum punishment for having committed offence under Section 06 of the POCSO Act, 2012 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, as awarded by the learned trial Court. She would rely upon the decision of the Supreme Court in the matter of State of Uttar Pradesh v. Sonu Kushwaha1 to buttress her 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

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1 (2023) 7 SCC 475

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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 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 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 with the daughter of the appellant in front of his house, the appellant herein took her inside the room, undressed her and thereafter sexually assaulted her coupled with other evidence available on record i.e. (i) copy of Dakhila Kharij Register of the victim (Ex.P/29), wherein the date of birth of the victim (PW-01) has been recorded as 13.06.2007, meaning thereby, she was minor aged about less than 10 years on the date of offence and (ii) MLC report of the victim (Ex.P/13), wherein it has been

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stated that though no definite incidences of intercourse can be given and episodes of fingering can neither be refuted nor confirmed, but one injury (abrasion) having colour- red and size0.5X.05 cm was found on the left labia minora of the victim (PW01), which is duly supported by the statement of Dr. Rachna Dabey (PW-06), who has medically examined the victim (PW-01), the finding recorded by the learned trial Court that the appellant is guilty of having committed aggravated penetrative 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 justified in awarding sentence for imprisonment for life to the appellant for having committed offence under Section 376(2)(i) of IPC as also 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

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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

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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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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 victimchild 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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(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 the offence i.e. less than 10 years and the medical evidence available on record in the shape of MLC report (Ex.P/13), while affirming the conviction of the appellant for offence under Section 376(2)(i) of IPC as also under under Section 06 of the POCSO Act, 2012, we deem it appropriate to sentenced him only 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 509 of IPC is also hereby affirmed/upheld and same shall remain as it is, but in view of provisions contained under Section 42 of the POCSO Act, 2012, the appellant shall have to undergo 10 years’ rigorous imprisonment for having committed offence under Section 06 of the POCSO Act, as the same is higher is decree.

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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

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necessary information and action

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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s@if

Dipak Chouhan v. State of Chhattisgarh

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Dipak Chouhan v. State of Chhattisgarh

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