Sukhi Ram @ Legdu Sonar Vs State of Chhattisgarh

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Page No.1 of 11 IN CRA-2012-2019

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2025:CGHC:1445-DB

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2025.01.14 10:52:29 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 2012 of 20 19

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[Arising out of judgment dated 19.11.2019, passed in Special Criminal Case No.01 of 2019 (State of Chhattisgarh v. Sukhi Ram Sonar @ Legdu Sonar), by the Special Judge (POCSO Act), Pathalgaon (C.G.)]

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Sukhi Ram @ Legdu Sonar, Son of Krishna Ram Sonar, aged about 50 years, Resident of Palidih, Junapara, Police Station Patthal Gaon, District Jashpur (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Police Station Patthal Gaon, District Jashpur (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Atul Kumar Kesharwani, Advocate For Respondent : Mr. Amit Buxy, Panel Lawyer

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (09.01.2025)

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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 19.11.2019, passed in Special Criminal Case No.01 of 2019 (State of Chhattisgarh v. Sukhi Ram Sonar @ Legdu Sonar), by the Special Judge, constituted under the provisions of the Protection of Children from

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Page No.2 of 11 IN CRA-2012-2019

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

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	Conviction	Sentence
U/s.	06 of POCSO Act,	Rigorous imprisonment for 20 years with
2012	r/w S.376(2)(f) of	fine of Rs.500/- and, in default of
IPC		payment of fine, additional rigorous imprisonment for 06 months.
[How	ever, punished only
U/s.	06 of POCSO Act in
light	of S.42 of POCSO
Act]

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(2) The case of the prosecution, in short, is that on 27.10.2017, at about 01-02 PM in the afternoon, at Village Palidih, which comes within the ambit of Police Station Pathalgaon, District Jashpur (CG), the accused-appellant herein committed aggravated penetrative sexual assault with the minor victim (PW-04), who was aged about less than 12 years, and further threatened her to kill, if she discloses about the incident to anyone and, thereby, said to have committed aforesaid offences.

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(3) The further case of the prosecution is that when mother of the victim (PW-01) reported the matter to the police, FIR (Ex.P/01) was registered against the appellant and wheels of investigation started running, in which, spot map was prepared vide Ex.P/04. The victim (PW-04) statement under Section 164 of CrPC was recorded vide Ex.P/08. After obtaining necessary consent vide Ex.P/02, the victim (PW-04) was subjected to medical examination, which was conducted by Dr. Sandhya Rani Toppo (PW-03) and, as

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Page No.3 of 11 IN CRA-2012-2019

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per her MLC report Ex.P/07, it has been mentioned that victim’s hymen was found ruptured, redness was found on lower part of labia majora and, ultimately, it has been opined that the victim has been subjected to sexual abuse. Further, victim’s vaginal slides were prepare and handed over to the police for analysis alongwith her undergarment, which were seized vide Ex.P/15. The accusedappellant was arrested vide Ex.P/17 and his undergarment was also seized vide Ex.P/19. Thereafter, aforesaid seized articles were sent for chemical examination, as per FSL report (Ex.P/23) it has been opined that stains of human sperm/semen were only found on the slide and undergarment of the victim as also on the undergarment of the appellant. Further, in order to ascertain correct age of the victim, copy of relevant page of Dakhila Kharij Register of the victim (PW-04) [Ex.P/12C] and her aadhar card (Ex.P/09C) were obtained/seized, wherein her date of birth has been recorded as 22.07.2005, meaning thereby, the victim (PW-04) was minor aged about 12 years 03 months 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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Page No.4 of 11 IN CRA-2012-2019

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(4) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 25 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(2)(f) of IPC read with Section 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. Atul Kumar Kesharwani, 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. The victim as the consenting party. As such, the appellant is entitled for acquittal on the basis of benefit of doubt. In alternative, learned counsel vehemently argued that even if the date when the offence in question is said to have been committed (i.e. 27.10.2017) is considered, the un-amended provision of Section 06 of the POCSO Act, 2012 will come into play, wherein the minimum punishment

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Page No.5 of 11 IN CRA-2012-2019

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for having committed aforesaid offences was 10 years’ RI and, the same were 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 20 years’ RI, as awarded by the learned trial Court. 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 , 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-04), 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/07) and FSL report (Ex.P/23), 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

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1 (2023) 7 SCC 475

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Page No.6 of 11 IN CRA-2012-2019

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(PW-04), 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 when her parents had gone out for work, the appellant committed sexual intercourse with her against her will and consent. The aforesaid statement of the victim (PW-04) has duly been supported by her mother (PW-01), who has lodged FIR (Ex.P/01) and reported the matter to the police. Further, the victim (PW-04) was also subjected to lengthy crossexamination, 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-04) is also supported by other evidence available on record i.e. (i) MLC report of the victim (Ex.P/07), wherein it has clearly been mentioned that victim’s hymen was found ruptured, redness was found on lower part of labia majora and, ultimately, it has been opined that the victim has been subjected to sexual abuse, which is duly supported by the statement of Dr. Sandhya Rani Toppo (PW-03), who has medically examined the victim (PW-04) and (ii) FSL report (Ex.P/23), wherein it has mentioned that stains of human sperm/semen were only found on victim’s slide and undergarment as also on the undergarment of the appellant. Further, according to the copy of relevant page of Dakhila Kharij Register of the victim (PW-04) [Ex.P/12C] and her aadhar card (Ex.P/09C), her date of birth has been recorded as 22.07.2005, meaning thereby, the victim

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Page No.7 of 11 IN CRA-2012-2019

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(PW-04) was minor aged about 12 years 03 months 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 aggravated penetrative sexual assault on the victim (PW-04), 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 20 years’ RI to the appellant for having committed offence under Section 376(2)(f) 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

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Page No.8 of 11 IN CRA-2012-2019

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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 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

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Page No.9 of 11 IN CRA-2012-2019

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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 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) Furthermore, the learned trial Court has awarded sentence of 20 years’ RI to the appellant on the basis of amended provision of Section 06 of the POCSO Act, which came into force w.e.f. 16.08.2019. However, under the facts and circumstances of the present case, the same is also not sustainable in law, as in light of the decision of the Supreme Court in the matter of CBI v. R.R.

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Page No.10 of 11 IN CRA-2012-2019

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Kishore2, where the Constitution Bench by relying upon clause (1) of Article 20 of the Constitution of India has clearly held that a person can only be subjected to penalties prescribed under the law at the time when the offence for which he is charged was committed. Consequently, in the present case, when the incident took place i.e. on 27.10.2017, the unamended provision of Section 06 of POCSO Act would be applicable, wherein the minimum punishment prescribed for having committed the said offence was 10 years.

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(13) 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 R.R. Kishore (supra) and further considering the statement of the victim (PW-04) and other evidence available on record in the shape of MLC report (Ex.P/07) and FSL report (Ex.P/23), in light of un-amended 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 376(2)(f) of IPC read with Section 06 of the POCSO Act, 2012, in light of Section 42 of the POCSO Act, we deem it appropriate to sentence him for a period of 10 years’ rigorous imprisonment by reducing it from 20 years’ RI. However, the fine sentence and default stipulation, as imposed upon the appellant by the learned trial Court, shall remain intact.

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2 (2023) 15 SCC 339

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Page No.11 of 11 IN CRA-2012-2019

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(14) Consequently, this criminal appeal is partly allowed to the extent indicated herein-above.

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(15) 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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Sukhi Ram @ Legdu Sonar v. State of Chhattisgarh

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Sukhi Ram @ Legdu Sonar v. State of Chhattisgarh

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