Ajay Sarkar Vs State of Chhattisgarh

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Page No.1 of 11 IN CRA-1378-2019

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2025:CGHC:1145-DB

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Digitally signed SAIFAN by SAIFANKHAN KHAN Date: 2025.01.15 16:20:55 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1378 of 20 19

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[Arising out of judgment dated 23.08.2019, passed in Special Criminal Case (POCSO Act) No.19 of 2018 (State of Chhattisgarh v. Ajay Sarkar), by the Special Judge (POCSO Act), Bhanupratappur (C.G.)]

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Ajay Sarkar, S/o Anukul Sarkar, aged about 18 years, R/o Village Sakin, P.V. 82, Police Station Bande, 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 Police Station Bande, District North Bastar, Kanker (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Sanjay Agrawal, Advocate For Respondent : Mr. HAPS Bhatia, Panel Lawyer

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Division Bench

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

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Judgment on Board (08.01.2025)

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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 23.08.2019, passed in Special Criminal Case (POCSO Act) No.19 of 2018 (State of Chhattisgarh v. Ajay Sarkar), by the Special Judge, constituted under the provisions of the Protection of Children from Sexual

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Offences Act, 2012 (for brevity the “POCSO Act”), Bhanupratappur (CG), whereby he has been convicted and sentenced as under:

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	Conviction	Sent	ence
U/s.	376AB of IPC r/w	Rigorous imprisonm	ent for 20 years with
S.04	of POCSO Act,	fine of Rs.5,000/-	and, in default of
2012 [How of PO only	ever, in light of S.42 CSO Act, sentenced U/s. 376AB of IPC]	payment of fine, imprisonment for 01	additional rigorous year.
U/s.	450 of IPC	Rigorous imprisonm fine of Rs.100/- payment of fine, imprisonment for 01	ent for 03 years with and, in default of additional rigorous month.

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(2) The case of the prosecution, in short, is that on 30.04.2018, at about 01:00 PM, in the house of the complainant (PW-02), situated at P.H. No.82, Village Sakin, which comes within the ambit of Police Station Bande, North Bastar, Kanker (CG), the accused-appellant, who is close relative of the victim (PW-03), firstly trespassed into the house of the complainant and, thereafter, committed penetrative sexual assault with his daughter, who is minor victim (PW-03), aged about less than 12 years of age and, thereby, said to have committed the aforesaid offences.

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(3) The further case of the prosecution is that when father of the victim (PW-02) reported the matter to the police by submitting written complaint (Ex.P/07), FIR (Ex.P/08) was registered against the appellant and wheels of investigation started running, in which, spot map and panchnama were prepared vide Ex.P/11 & Ex.P/03

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respectively. After obtaining necessary consent vide Ex.P/01, the victim (PW-03) was subjected to medical examination, which was conducted by Dr. Sonali Vaishnav (PW-07) and, as per her MLC report (Ex.P/13), it has been opined that slight swelling was found over labia majora, hymen was also found ruptured and any object penetration must have taken place with the victim (PW-03) to cause rupture of the hymen. The accused-appellant was arrested vide Ex.P/24 and sent for medical examination. Appellant’s MLC report is Ex.P/15 & Ex.P/16. Further, in order to ascertain correct age of the victim (PW-03), her birth certificate (Ex.P/05) and copy of Jaccha Baccha Raksha Card (Ex.P/06), issued by the Government of Chhattisgarh were obtained/seized, wherein her date of birth has been recorded as 28.04.2014, meaning thereby the victim (PW-03) was minor aged about 04 years (i.e. below 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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(4) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 24 documents, whereas the appellant in support of his defence, examined 03 witnesses and exhibited 02

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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 376AB of IPC read with Section 04 of the POCSO Act, 2012 and also under Section 450 of IPC 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. Sanjay Agrawal, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence. In view of questions framed and answers given by the victim (PW-03) in her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for the offences in question. The forensic evidence is not available in the present case and there is a delay of 07 days in lodging the FIR. As such, the appellant is entitled for acquittal on the basis of benefit of doubt. In alternative, learned counsel for the appellant submits that since in the present case, the incident took place on 30.04.2018 and Section 04 of POCSO Act suffered amendment w.e.f. 16.08.2019 and, prior to its amendment, the minimum sentence prescribed for having committed the said offence was 07 years’ RI, therefore, in light of the decision of the Supreme Court rendered in the matter of State of

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Uttar Pradesh v. Sonu Kushwaha1 , the sentence of 20 years’ RI, awarded to the appellant for having committed offence under Section 376AB of IPC read with Section 04 of POCSO Act, be reduced to 07 years’ RI. Hence, the present appeal be allowed in full or in part.

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(7) Per-contra , learned State counsel would submit that the 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-03), 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 i.e. MLC report of the victim (Ex.P/13), the trial Court has rightly convicted the appellant for the offence mentioned herein-above. Learned State counsel vehemently argued that the decision rendered in the matter of Sonu Kushwaha (supra) will not be applicable in the present case for the reason that though Section 04 of POCSO Act was amended w.e.f. 16.08.2019, but in the present case, the appellant has also been convicted for offence under Section 376AB of IPC, which came into force w.e.f. 21.04.2018 and the incident took place on 30.04.2018 i.e. after Section 376AB of IPC came into force. As such, the principles of law laid down in the mater of Sonu Kushwaha (supra) will not be attracted in the

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1 (2023) 7 SCC 475

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present case. It is also submitted that the appellant in Sonu Kushwaha (supra) was convicted for offence under Section 06 of POCSO Act and date of offence in the said case was 22.03.2016 i.e. much prior to the amendment in Section 06 of POCSO Act (w.e.f. 16.08.2019), therefore, it has been held that the amended provision of Section 06 POCSO Act would not be applicable as the incident took place prior to its amendment i.e. on 22.03.2016. Hence, the sentence of 20 years’ RI awarded to the appellant by the learned trial Court is just and proper and cannot be altered otherwise. As such, 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 view of the above, two questions arises for consideration: (i) whether the learned trial Court is justified in convicting the appellant for offences under Section 376AB of IPC read with Section 04 of the POCSO Act, 2012 and also under Section 450 of IPC ? and, if yes, (ii) whether the sentence awarded for the said offence is just and proper or can be reduced/modified ?

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As regards question No.(i):

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(10) In the case at hand, considering the statement of the victim (PW-03), wherein she has clearly narrated the incident in question and implicated the appellant herein to be the author of the crime by

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Page No.7 of 11 IN CRA-1378-2019

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stating that on the date and time of the offence while she was in her house, the appellant came to her house and committed penetrative sexual assault with her. The said stand of the victim (PW-03), has duly been supported by her mother (PW-01), who informed the matter to victim’s father (PW-02) and, thereafter, the father of the victim (PW-02) reported the matter to the police and lodged FIR (Ex.P/08). Further, the victim (PW-03) was also subjected to some length of cross-examination, but she remained consistent in her version and, therefore, her testimony appears to be reliable and inspire confidence. The said stand of the victim (PW-03) is also in conformity with the medical evidence available on record in shape of MLC report of the victim (Ex.P/13), wherein it has been opined that slight swelling was found over labia majora, hymen was also found ruptured and any object penetration must have taken place with the victim (PW-03) to cause rupture of the hymen, which is duly proved by the statement of Dr. Sonali Vaishnav (PW-07), who medically examined the victim. Furthermore, according to victim’s birth certificate (Ex.P/05) and copy of her Jaccha Baccha Raksha Card (Ex.P/06), issued by the Government of Chhattisgarh, her date of birth has been recorded as 28.04.2014, meaning thereby the victim (PW-03) was minor aged about 04 years (i.e. below 12 years) on the date of offence.

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(11) As such, on the basis of aforesaid evidence available on record, the finding recorded by the learned trial Court that the appellant is

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Page No.8 of 11 IN CRA-1378-2019

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guilty of having committed penetrative sexual assault with the minor victim (PW-03), aged about 04 years (less than 12 years), as also trespassing into her house, is strictly in accordance with law and, for which, he has rightly been convicted by the learned trial Court for offence punishable under Section 376AB of IPC read with Section 04 of the POCSO Act, 2012 and also under Section 450 of IPC. Though, in the present case there is a delay in lodging the FIR (Ex.P/08), but in view of the statement of the mother of the victim (PW-01), who has satisfactorily explained the said delay in lodging the FIR, same cannot be said to be a ground for acquittal that too when the appellant, being the close relative of the victim (PW-03), has committed such a heinous offence of penetrative sexual assault with the minor victim aged about 04 years. Thus, we do not find any illegality or perversity in the findings recorded by the learned trial Court in convicting the appellant for the offences in question. Consequently, we hereby affirm the said finding and, as such, question No.(i) is answered accordingly.

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As regards question No.(ii):

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(12) It is contended on behalf of the appellant that since in the present case the incident took place on 30.04.2018 and Section 04 of POCSO Act was amended w.e.f. 16.08.2019, whereby the minimum sentence was enhanced to 10 years and, prior to its amendment, the minimum sentence for having committed offence under Section 04 of POCSO Act was 07 years, therefore, in light of

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Sonu Kushwaha (supra), appellant’s sentence of 20 years’ RI be reduced to 07 years’ RI. However, in the present case, the victim (PW-03) has been found to be aged about 04 years (i.e. less than 12 years of age) on the date of offence and Section 376AB of IPC, which provides for punishment for rape on woman under 12 years of age, inserted in the statute books by Act 22 of 2018 w.e.f. 21.04.2018 and the date of offence in the present case is 30.04.2018, as such, Section 376AB of IPC would clearly attract in the present case.

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(13) At this stage it would be appropriate to notice Section 42 of POCSO Act, 2012, which reads as under:

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“ 42. Alternate punishment. —Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000 (21 of 2000)], then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”

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(14) A careful perusal of above-quoted Section 42 of POCSO Act would show that where an act or omission constitutes an offence punishable under the POCSO Act and also under other offences mentioned in IPC, including 376AB, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under the

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POCSO Act or under the IPC as provides for punishment which is greater in degree. Furthermore, at this stage, it would also be relevant to notice that Section 04 of POCSO Act has been amended w.e.f. 16.08.2019 by Act 25 of 2019, by which, the minimum sentence for having committed offence under Section 04 of POCSO Act was enhanced from “07 years” to “10 years”.

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(15) Admittedly, in the present case, so far as Section 04 of POCSO Act is concerned, the unamended provision would be applicable, whereby the minimum sentence was prescribed to be 07 years. But, the appellant has also been convicted for offence under Section 376AB of IPC, which was inserted in the statute book by Act 22 of 2018 and came into force w.e.f. 21.04.2018, and the minimum sentence prescribed for having committed offence under Section 376AB is 20 years. Therefore, by virtue of Section 42 of POCSO Act, the minimum sentence of 20 years prescribed for offence under Section 376AB of IPC would be applicable rather then the minimum sentence of 07 years prescribed for offence under Section 04 of POCSO Act (unamended). As such, the sentence of 20 years’ RI, as awarded to the appellant by the learned trial Court for having committed offence under Section 376AB of IPC read with Section 04 of POCSO Act, cannot be reduced to 07 years in light of Sonu Kushwaha (supra), as the same is just and proper. Moreover, the the principles of law laid down in Sonu Kushwaha (supra) also cannot be applied in the facts and circumstances of the present

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case because in the matter of Sonu Kushwaha (supra) the accused therein was only convicted for offence under Section 06 of the POCSO Act and prior to its amendment w.e.f. 16.08.2019 the minimum sentence prescribed for the said offence was 10 years, but the in present case, apart from Section 04 of POCSO Act, the appellant has also been convicted for offence under Section 376AB of IPC, for which, the minimum sentence prescribed is 20 years. Therefore, the decision of Sonu Kushwaha (supra) cannot be made applicable in the present case. Thus, the argument advanced by the learned counsel for the appellant in this regard vis-a-vis reducing the sentence of the appellant for having committed offence under Section 376AB of IPC R/w Section 04 of POCSO Act, deserved to be and is hereby rejected. We hereby hold and answered question No. (ii) accordingly.

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(16) In view of foregoing discussion, we do not find any illegality or perversity in the impugned judgment dated 23.08.2019 and, accordingly, affirm the conviction and their respective sentences of the appellant, as awarded by the learned trial Court, for offences under Section 376AB of IPC read with Section 04 of the POCSO Act, 2012 as also under Section 450 of IPC being well merited. Consequently, this criminal appeal stands dismissed being meritless.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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s@if

Ajay Sarkar v. State of Chhattisgarh

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Ajay Sarkar v. State of Chhattisgarh

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