Upendra Singh Vs State of Chhattisgarh

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Page No.1 of 10 IN CRA-138-2019

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2025:CGHC:3357-DB

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2025.01.21 16:55:53 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 138 of 20 19

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[Arising out of judgment dated 04.01.2019, passed in Special Criminal Case No.45 of 2017 (State of Chhattisgarh v. Upendra Singh), by the Additional Sessions Judge (FTC), Surajpur (C.G.)]

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Upendra Singh, Son of Late Heera Singh, aged about 26 years, Caste Gond, Resident of Village Laxmipur, Police Station Bhatgaon, District Surajpur (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Police Station Bhatgaon, District Surajpur (Chhattisgarh)

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---- Respondent ------------------------------------------------------------------------------------------- For Appellant : Mr. Rohit Sharma, Advocate/Panel Lawyer appointed through CC High Court Legal Services Committee

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For Respondent : Mr. HAPS Bhatia, Panel Lawyer

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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 (20.01.2025)

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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 04.01.2019, passed in Special Criminal Case No.45 of 2017 (State of Chhattisgarh v. Upendra Singh), by the Additional Sessions Judge (FTC), Surajpur (C.G.),

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Page No.2 of 10 IN CRA-138-2019

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whereby he has been convicted and sentenced as under:

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Conviction	Sentence
U/s. 376(2)(i) of IPC	Imprisonment for life with fine of
R/w S.06 of POCSO Act	Rs.5,000/- and, in default of payment of fine, additional rigorous imprisonment
[However, in light of S.42 of POCSO Act punished only U/s. 376(2)(i) of IPC]	for 06 months.
U/s. 506 (Part-II) of IPC	Rigorous imprisonment for 01 year with fine of Rs.1,000/- and, in default of payment of fine, additional rigorous imprisonment for 03 months.

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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 13.11.2017, at about 17:00 hours, at Village Laxmipur, near the fields of Samal Singh, which comes within the ambit of Police Station Bhatgaon, District Surajpur (CG), the accused-appellant herein has committed repeated sexual intercourse with the minor victim (PW-06), who was aged about 11 years (i.e. less than 12 years), against her will and consent, and also threatened her to kill if she discloses about the same 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 victim (PW-06) 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/06. Victim’s statement under Section 164 of CrPC was recorded vide Ex.P/07. After obtaining necessary consent vide Ex.P/09, the victim (PW-06) was

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Page No.3 of 10 IN CRA-138-2019

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subjected to medical examination, which was conducted by Dr. Seema Gupta (PW-05) and, as per her MLC report (Ex.P/03), it has been opined that the victim (PW-06) is subjected to forceful intercourse recently. Further, victim’s vaginal slide were also prepared and handed over to the police alongwith her clothes (i.e. undergarment, frock and pajama) for analysis, which were seized vide Ex.P/10. Thereafter, the appellant was arrested vide Ex.P/17 and sent for medical examination. The aforesaid seized articles were sent for chemical analysis and, as per FSL report (Ex.P/11), it has clearly been opined that stains of semen/human sperm were found on the slides of the victim as also on her undergarment. In order to ascertain correct age of the victim (PW-06), her school admission register (Ex.P/02C) and her school progress report (Article-A) were also obtained/seized vide Ex.P/01 & Ex.P/08 respectively, wherein her date of birth has been recorded as 15.06.2006, meaning thereby, the victim (PW-06) was minor aged about 11 years 05 months (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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(4) The prosecution in order to prove its case examined as many as

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Page No.4 of 10 IN CRA-138-2019

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10 witnesses and exhibited 11 documents apart from Articles-A whereas the appellant in support of his defence, has neither examined any witness nor 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 offences punishable under Section 376(2)(i) of IPC read with Section 06 of the POCSO Act, 2012 as also under Section 506 (Part-II) 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. Rohit Sharma, 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 victim was the consenting party. 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. 13.11.2017) 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 offences was 10 years’ RI and, the same was subsequently amended w.e.f. 16.08.2019 and, at that time also, the minimum punishment prescribed for offence under Section 376(2)(i) of IPC was 10 years, which was later on omitted by Act of 22

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Page No.5 of 10 IN CRA-138-2019

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of 2018 w.e.f. 21.04.2018. 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, for having committed offences under Section 376(2)(i) of IPC read with 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 her submission. Hence, the present appeal 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-06), 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/03) and FSL report (Article-A), 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-06), wherein she has clearly narrated the incident in question

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1 (2023) 7 SCC 475

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Page No.6 of 10 IN CRA-138-2019

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and implicated the appellant herein to be the author of the crime by stating that on the date and time of the offence, while after returning from school she had gone to attend the call of nature near her house, the appellant came there and committed forceful sexual intercourse with her against her will and consent and further threatened her to kill if she discloses about the same to anyone. Further, the victim (PW-02) was also subjected to lengthy cross-examination, but she 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-06) is also supported by other evidence available on record i.e. (i) MLC report of the victim (Ex.P/03), wherein it has clearly been opined that the victim (PW-06) is subjected to forceful intercourse recently, which is duly supported and proved by the statement of Dr. Seema Gupta (PW-05), who has medically examined the victim (PW-06) and (ii) FSL report (Ex.P/11), wherein it has been mentioned that the stains of semen/human sperm were found on the undergarment of the victim as also on her slides. Moreover, according to victim’s school admission register (Ex.P/02C) and her school progress report (Article-A), her date of birth has been recorded as 15.06.2006, meaning thereby, the victim (PW-06) was minor aged about 11 years 05 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

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Page No.7 of 10 IN CRA-138-2019

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having committed sexual intercourse with the minor victim (PW-06) and threatening her, 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 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 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/- 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

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Page No.8 of 10 IN CRA-138-2019

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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 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

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Page No.9 of 10 IN CRA-138-2019

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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 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-06) and other evidence available on record in the shape of MLC report (Ex.P/03) and FSL report (Ex.P/11), in light of provisions of Section 06 of the POCSO Act (prior to its amended w.e.f. 16.08.2019) and that of Section 376(2)(i) of IPC (prior to its omission w.e.f. 21.04.2018), while affirming the conviction of the appellant for offence under Section 376(2)(i) of IPC read with 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

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Page No.10 of 10 IN CRA-138-2019

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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 506 (Part-II) of IPC is hereby affirmed/upheld and same shall remain as it is. It is needless to emphasize that though the conviction of the appellant for offence under Section 06 of the POCSO Act, as awarded by the learned trial Court, is also hereby affirmed, but in light of Section 42 of the POCSO Act, the appellant shall have to serve 10 years’ rigorous imprisonment only for having committed offence under Section 376(2)(i) of IPC.

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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

Upendra Singh v. State of Chhattisgarh

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Upendra Singh v. State of Chhattisgarh

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