Girija Shankar Patel @ Golu Vs State of Chhattisgarh

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Page No.1 of 10 IN CRA-135-2019

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NAFR

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2025:CGHC:10403-DB

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2025.03.05 10:58:20 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 135 of 2019

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[Arising out of judgment dated 01.09.2018, passed in Special Criminal Case (POCSO) No.40 of 2017 (State of Chhattisgarh v. Girija Shankar Patel @ Golu) by the Special Judge (FTC), Balodabazar (CG)]

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Girija Shankar Patel @ Golu S/o Ramnarayan Patel Aged About 21 Years R/o Amalibhatha Tundra, Police Station Gidhouri, District Baloda Bazar-Bhatapara Chhattisarh, District : BalodabazarBhathapara, Chhattisgarh

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... Appellant(s)

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Versus

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State Of Chhattisgarh Through The Station House Officer, Police Station Gidhouri, Tundra, District Baloda Bazar-Bhatapara Chhattisarh, District : Balodabazar-Bhathapara, Chhattisgarh

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... Respondent(s)

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[Cause-title taken from Case Information System (CIS)]

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------------------------------------------------------------------------------------------- For Appellant : Mr. Pushpendra Kumar Patel, Advocate For Respondent : Mr. Amit Buxy, Panel Lawyer For Objector/Victim : Mr. Varun Sharma, Advocate

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

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Judgment on Board (03.03.2025)

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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 01.09.2018, passed in Special Criminal Case (POCSO) No.40 of 2017 (State of Chhattisgarh

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Page No.2 of 10 IN CRA-135-2019

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v. Girija Shankar Patel @ Golu) by the Special Judge (Fast Track Court), Balodabazar (CG), whereby he has been convicted and sentenced as under:

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Conviction	Sentence
U/s. 06 of Protection of	Imprisonment for life	with fine of
Children from Sexual	Rs.5,000/- and, in default	of payment of
Offences Act, 2012 (for	fine, additional rigorous	imprisonment
short ‘POCSO Act’)	for 01 year.
U/s. 04 of POCSO Act	Rigorous imprisonment fo fine of Rs.5,000/- and, payment of fine, additi imprisonment for 01year.	r 10 years with in default of onal rigorous
[Both the sentenc	es are directed to run conc	urrently]

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(2) The case of the prosecution, in short, is that on 16.05.2017, between 21:00 to 22:00 hours, at Banghuwa Talab, Parchi, Village Tundra, which comes within the ambit of Police Station Gidhouri, the accused-appellant herein has committed sexual assault on the minor victim (PW-02), who was aged about 10 years 11 months (i.e. less than 12 years), against his will and consent and, thereby, said to have committed the aforesaid offences.

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(3) The further case of the prosecution is that when victim (PW02) reported the matter to the police, FIR (Ex.P/04) was registered against the appellant and wheels of investigation started running, in which, spot map was prepared vide Ex.P/03. Victim’s statement under Section 164 of CrPC was recorded vide Ex.P/27. After obtaining necessary consent vide Ex.P/01 & Ex.P/05, the victim (PW-02) was subjected to medical examination, which was

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Page No.3 of 10 IN CRA-135-2019

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conducted by Dr. Rakesh Kumar Pradhan (PW-10) and, as per his MLC report (Ex.P/01), it has been opined that upon internal examination of the victim (PW-02) multiple lacerated wounds were found and skin was tore. Further, victim’s slide was also prepared and handed over to the police for analysis alongwith his undergarment, which were seized vide Ex.P/17 & Ex.P/06 respectively. Thereafter, the appellant was arrested vide Ex.P/20 and sent for medical examination. Appellants’ MLC report is Ex.P/09 & Ex.P/10 and his undergarment was also seized vide Ex.P/08. Thereafter, the seized articles were sent for chemical analysis vide Ex.P/24 and, as per FSL report (Ex.P/26), it has clearly been opined that no stains of semen/human sperm were found on any of the seized articles. In order to ascertain correct age of the victim (PW-02), his school admission register (Ex.P/12C) was also obtained/seized vide Ex.P/11, wherein his date of birth has been recorded as 12.06.2006, meaning thereby, the victim (PW-02) was minor aged about 10 years 11 months years (i.e. less than 12 years) on the date of offence. Thereafter, statements 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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Page No.4 of 10 IN CRA-135-2019

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(4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 31 documents, whereas the appellant in support of his defence, though examined 02 witnesses, but not 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 Section 04 & 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 appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Pushpendra Kumar Patel, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. He vehemently argued that the forensic evidence does not supports the case of the prosecution. As such, the appellant is entitled for acquittal on the basis of benefit of doubt. In alternative, learned counsel submits that even if the date when the offence in question is said to have been committed (i.e. 16.05.2017) 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 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

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Page No.5 of 10 IN CRA-135-2019

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it from life imprisonment, as awarded by the learned trial Court, for having committed offences under Section 06 of the POCSO Act. Learned counsel 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 be allowed in full or in part.

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(7) Per-contra , Mr. Amit Buxy, learned State counsel and Mr. Varun Sharma, learned counsel for the objector would jointly submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted that in view of statement of the victim (PW-02), wherein he 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 i.e. MLC report of the victim (Ex.P/13), 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-02), wherein he has clearly narrated the incident in question and implicated the appellant herein to be the author of the crime by

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1 (2023) 7 SCC 475

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Page No.6 of 10 IN CRA-135-2019

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stating that on the date and time of the offence while he was near the house of Ramadhar (not examined), the accused-appellant first took him Banghuwa Talab, Parchi on his bi-cycle and, where, he removed the pants of the victim (PW-02) and committed sexual assault on him. The victim (PW-02) was also subjected to lengthy cross-examination, but he remained consistent in her version and, therefore, her testimony inspire confidence and can be relied upon to hold the appellant guilty for the offence. The said version of the victim (PW-02) is also supported by medical evidence available on record i.e. in shape of MLC report of the victim (Ex.P/13), wherein it has clearly been opined that upon internal examination of the victim (PW-02) multiple lacerated wounds were found and skin was tore, which aspect is duly supported and proved by the statement of Dr. Rakesh Kumar Pradhan (PW-10), who has medically examined the victim (PW-02). Moreover, according to victim’s school admission register (Ex.P/12C), his date of birth has been recorded as 12.06.2006, meaning thereby, the victim (PW-02) was minor aged about 10 years 11 months (i.e. less than 12 years) on the date of 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-02), is strictly in accordance with law and, for which, he has rightly been convicted by the learned trial Court. We do not find any illegality or perversity in findings recorded by the learned trial

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Page No.7 of 10 IN CRA-135-2019

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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

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Page No.8 of 10 IN CRA-135-2019

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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 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

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Page No.9 of 10 IN CRA-135-2019

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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) 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 statement of the victim (PW-02) and the medical evidence available on record in the shape of MLC report (Ex.P/13), in light of provisions of Section 06 of the POCSO Act (prior to its amended w.e.f. 16.08.2019), 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 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 04 of the POCSO Act is hereby affirmed/upheld and same shall remain as it is.

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Page No.10 of 10 IN CRA-135-2019

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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) (Sanjay Kumar Jaiswal) Judge Judge

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s@if

Girija Shankar Patel @ Golu v. State of Chhattisgarh

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Girija Shankar Patel @ Golu v. State of Chhattisgarh

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