Partly allowed

Govind Vaishnav v. State of Chhattisgarh

Chhattisgarh HC24 Jun 2024CRA/940/2018

Case brief

AI extract

What is this about?

The Division Bench affirmed the conviction of the appellant for offences under Sections 450, 363 IPC and Section 6 of the POCSO Act via Section 376(2)(i) IPC. Relying on Supreme Court precedent, the Court reduced the sentence for the POCSO/IPC offence from 12 years to the statutory minimum of 10 years, rejecting the appeal partially.

What did the court decide?

The appeal was partly allowed; the sentence for the POCSO/IPC offence was reduced from 12 years to 10 years rigorous imprisonment; all other convictions and parts of the sentence remain intact.

Govind Vaishnav Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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Page 1 of 10 IN Criminal Appeal No.940 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 940 of 20 18

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[Arising out of judgment dated 16.05.2018, passed in Special POCSO Case No.26 of 2016 (State of Chhattisgarh v. Govind Vaishnav), by the Additional Sessions Judge (FTC)/Special Judge (POCSO Act), Korba (C.G.)]

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Govind Vaishnav, Son of Hemdas Vaishnav, aged about 27 years, Resident of Village Limgaon, Police Station Urga, Present Address- Dhodhipara, Chowki CSEB, Police Station Kotwali, District Korba (Chhattisgarh)

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---- Appellant (In Jail) Versus

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State of Chhattisgarh, through Station House Officer, Police Chowki- CSEB, Police Station Kotwali, District Korba (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Amit Singh Chauhan, Advocate For Respondent : Mr. Arvind Dubey, Government Advocate

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

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Judgment on Board (25.06.2024)

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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 16.05.2018, passed by the Additional Sessions Judge (FTC)/ Special Judge, constituted under the provisions of the Protection of Children from Sexual Officer Act, 2012 (for short the “POCSO Act”), Korba in Special POCSO Case No.26 of 2016, whereby he has been convicted and sentenced as under:

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Page 2 of 10 IN Criminal Appeal No.940 of 2018

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Conviction		Sentence
U/s. 450 of IPC	R.I. for 07 Rs.2,000/- payment of for 02 month	years with fine of and, in default of fine, additional R.I. s.
U/s. 363 of IPC	R.I. for 05 Rs.2,000/- payment of for 02 month	years with fine of and, in default of fine, additional R.I. s.
U/s. 06 of POCSO Act, 2012 r/w S. 376(2)(i) of IPC [Though convicted for offence U/s. 06 of POCSO Act as also U/s. 376(2)(i) of IPC, however, in light of S.42 of the POCSO Act, punished only U/s. 376(2)(i) of IPC]	R.I. for 12 Rs.2,000/- payment of for 02 month	years with fine of and, in default of fine, additional R.I. s.
[All the sentences are d	irected to ru	n concurrently ]

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(2) The case of the prosecution, in brief, is that in the intervening night of 05-06.11.2016, at about 01:00 AM, within the ambit of Police Station Kotwali, at Village Dhodhipara, the accused-appellant herein, with the intent to commit sexual intercourse with the victim (PW-07), firstly trespassed into the house of the complainant, namely, Kanchan Das (PW-09) and, thereafter, abducted his daughter [victim (PW-07)], who was below 18 years of age and, further, committed aggravated penetrative sexual assault/sexual intercourse with her and also threatened her to kill and, thereby, said to have committed offences under Sections 450, 363, 376(2)(i) & 506 of IPC as also under Section 06 of the POCSO Act.

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Page 3 of 10 IN Criminal Appeal No.940 of 2018

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(3) The further case of the prosecution is that when the aforesaid incident was reported to the police by the father of the victim, namely, Kanchan Das (PW-09), the police registered dehati nalsi vide Ex.P/10 and FIR against the appellant and wheels of investigation started running, in which, spot map was prepared vide Ex.P/11. After obtaining necessary consent and permission for the purpose of medical examination of the victim (PW-07) vide Ex.P/12, P/17 & P/19 respectively, she was subjected to medical examination, which was conducted by Dr. K. B. Sonkar (PW-01). According to MLC report of the victim (Ex.P/01), it has been opined that no definite opinion regarding intercourse can be given, however, victim’s vaginal slides were prepared and handed over to police constable alongwith her undergarment for analysis, which were seized vide Ex.P/07 & Ex.P/13 respectively. The accused-appellant was arrested vide Ex.P/15 and sent for medical examination. MLC report of the appellant is Ex.P/08 and further underwear and slide of the appellant were also seized vide Ex.P/14. The aforesaid seized articles were sent for chemical examination and, as per FSL report (Ex.P/24), it has been opined that no stains of human sperm/semen were found on the slides and undergarments of the appellant as also that on the victim (PW-07). Further, in order to ascertain the correct age of the victim (PW-07), copy of relevant page of Dakhila Kharij Register (Ex.P/05C) were obtained/seized

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Page 4 of 10 IN Criminal Appeal No.940 of 2018

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vide Ex.P/06, wherein her date of birth has been recorded as 18.09.2010, meaning thereby, on the date of offence the victim was minor aged about 06 years 02 months. 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 13 witnesses and exhibited 24 documents, whereas the appellant in support of his defence has neither examined any witness not exhibited any 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 offence punishable under Sections 450, 363 of IPC as also under Section 376(2)(i) of IPC read with Section 06 of the POCSO Act, 2012 and sentenced him as mentioned hereinabove, 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. Amit Singh Chauhan, learned counsel for the appellant

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Page 5 of 10 IN Criminal Appeal No.940 of 2018

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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 (PW07) in her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for offence under Section 06 of the POCSO Act, 2012. He would also submit that even if the date when the offence in question is said to have been committed (i.e. 06.11.2016) is considered, the un-amended provision of Section 06 of the POCSO Act will come into play, wherein the minimum punishment prescribed for offence punishable under Section 06 of the POCSO Act 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 12 year’s RI, as imposed upon him by the learned trial Court for having committed offence under Section 376(2)(i) of IPC read with Section 06 of the POCSO Act. He 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 appeal deserves to 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

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1 (2023) 7 SCC 475

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Page 6 of 10 IN Criminal Appeal No.940 of 2018

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further submitted on behalf of the respondent-State that in view of statements of the victim (PW-07), 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 hereinabove and it is not a case where sentence of the appellant can be converted or reduced to any extent. Thus, the present 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 sleeping in her house, the appellant herein illegally entered into her house, as the door of the house was opened, and took her outside the house and, thereafter, committed forcible sexual intercourse (aggravated penetrative sexual assault) with her, which is statement is also supported by father of the victim, namely, Kanchan Das (PW-09) coupled with other evidence available on record i.e. copy of Dakhila Kharij Register of the victim (Ex.P/05C), wherein her date of birth has been recorded as

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Page 7 of 10 IN Criminal Appeal No.940 of 2018

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18.09.2010, meaning thereby, on the date of offence the victim was minor aged about 06 years 02 months, 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-07), 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 12 years’ RI to the appellant for having committed offence under Section 376(2)(i) of IPC read with 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/-

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Page 8 of 10 IN Criminal Appeal No.940 of 2018

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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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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

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Page 9 of 10 IN Criminal Appeal No.940 of 2018

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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 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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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) Reverting to the facts of the present case in light of above 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. 06 years 02 months, while affirming the conviction of the appellant for offence under Section 376(2)(i) of IPC read with Section 06 of

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Page 10 of 10 IN Criminal Appeal No.940 of 2018

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the POCSO Act, 2012, we deem it appropriate to sentenced him only for a period of 10 years’ rigorous imprisonment by reducing it from 12 years’ RI. 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 offences under Sections 450 & 363 of IPC are 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 376(2)(i) of IPC, 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 necessary information and action.

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

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s@if

Govind Vaishnav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Govind Vaishnav v. State of Chhattisgarh

Case brief

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