Baleshwar Dhada @ Bali vs State Of Chhattisgarh

Sanjay K. Agrawal, J

Since both the above criminal appeals have arisen out of one and same judgment dated 30-3-2016 passed by the Additional Sessions Judge (Fast Track Court), Raigarh in Special Case No.23/2014 and since common question of fact and law is involved in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

Sole appellant in Cr.A.No.509/2016 namely, Baleshwar Dhada @ Bali (A-1) and sole appellant in Cr.A.No.504/2016 namely, Surendra Kumar Chouhan @ Dadu have preferred these two appeals under Section 374(2) of the CrPC against the impugned judgment, whereby Baleshwar Dhada @ Bali (A-1) (sole appellant in Cr.A. No.509/2016) has been convicted and sentenced as under with a direction that the sentences shall run concurrently: -

Conviction

Sentence

Section 376D IPC

Imprisonment for life & fine of Rs. 1,000/-, in default, additional rigorous imprisonment for six months

Section 506B of the IPC

Rigorous imprisonment for three years & fine of Rs. 200/-, in default, additional rigorous imprisonment for three months

Similarly, Surendra Kumar Chouhan @ Dadu (A-2) (sole appellant in Cr.A.No.504/2016) has been convicted under Section 376D of the IPC and sentenced to undergo imprisonment for life & pay fine of Rs. 1,000/-, in default of payment of tine to further undergo additional rigorous imprisonment for six months.

Case of the prosecution, in short, is that on 20-2-2014 at about 6-7 p.m., at Jhopadipara, Police Station Kotwali, District Raigarh, Surendra Kumar Chouhan @ Dadu (A-2) confined the major victim in his bathroom and thereafter, Baleshwar Dhada @ Bali (A-1) came and committed sexual intercourse upon her and thereby committed the offence. The victim lodged written report Ex.P-10 pursuant to which FIR was registered against Baleshwar Dhada @ Bali (A-1) vide Ex.P-11 and spot maps were prepared vide Exs.P-12 & P-13 by the investigating officer and the Patwari, respectively. The victim was medically examined by Dr. D.K. Toppo (PW-7) vide Ex.P-16 in which internal injuries were found over the private part of the victim and vaginal slides were also prepared and sent for chemical examination to the FSL, Raipur from where report Ex.P-31 was received according to which human sperm was found on the vaginal slides of the victim.

After usual investigation, the appellants were charge-sheeted before the jurisdictional criminal court and the case was committed to the Court of Sessions, Raigarh from where the learned Additional Sessions Judge (FTC), Raigarh, received the case on transfer for trial.

The prosecution, in order to prove the offence against the appellants, examined as many as 14 witnesses and brought on record 31 documents Exs.P-1 to P-31 as also four articles Article A-1 to A-4 – photographs of the place of incident. The defence has examined one witness Radha Chauhan as DW-1, and brought into record three documents Exs.D-1 to D-3 – statements of Kumari Shama Khatun & Shahida @ Rubina Begum recorded under Section 161 of the CrPC and Ex.D-3 – written report lodged by Radha Chauhan.

The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellants herein as mentioned in the opening paragraph of this judgment against which these two appeals have been preferred.

Mr. Raj Kumar Pali and Mr. Rajeev Kumar Dubey, learned counsel appearing for appellant Baleshwar Dhada @ Bali (A-1) in Cr.A. No.509/2016, would submit that the trial Court is absolutely unjustified in convicting the appellant under Section 376D of the IPC as no offence under Section 376D is made out against him and at the best, Section 6 of the Protection of Children from Sexual Offences Act, 2012 would attract for which minimum sentence prescribed on the date of offence (20-2-2014) was 10 years in the light of the decision of the Supreme Court in the matter of State of Uttar Pradesh v. Sonu Kushwaha (2023) 7 SCC 475 and therefore the appeal deserves to be partly allowed.

Mr. Ashish Gupta, learned counsel appearing for appellant Surendra Kumar Chouhan @ Dadu (A-2) in Cr.A.No.504/2016, would submit that there is no allegation of rape against A-2, he is said to have confined the victim in his bathroom and neither in the statement recorded under Section 161 of the CrPC nor in the statement under Section 164 of the CrPC and neither in the written report nor in the FIR, A-2 is named, therefore, he is entitled for acquittal.

Mr. Ravi Maheshwari, learned Panel Lawyer appearing for the State / respondent, would support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellants and the medical report of the victim and the FSL report have been found positive. Therefore, the appeals deserve to be dismissed.

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

Considering the nature of evidence, we will consider the appeal of Surendra Kumar Chouhan @ Dadu (A-2) first.

Written report was lodged by the victim vide Ex.P-10 in which she has only stated that her mother has asked her to do household work which she refused and on account of fear, she came to the house of Surendra Kumar Chouhan @ Dadu (A-2) and thereafter, Baleshwar Dhada @ Bali (A-1) came and committed sexual intercourse with her. In her statement recorded under Section 164 of the CrPC also there is no allegation of rape having been committed by A-2. As such, there is no evidence available on record that A-2 has committed sexual intercourse with the victim and therefore he is entitled for acquittal.

Now, the appeal of Baleshwar Dhada @ Bali (A-1) comes for consideration.

Written report Ex.P-10 has been lodged the victim herself. The medical report Ex.P-16 as also the FSL report Ex.P-31 have been found positive. Considering the age of the victim, A-1 is convicted for offence under Section 376D of the IPC read with Section 6 of the POCSO Act.

Now, the question would be whether the learned trial Court is justified in awarding sentence for imprisonment of life to A-1 for having committed offence under Section 6 of the POCSO Act or the same is on higher side and can be reduced, as contended by learned counsel for the appellant by placing reliance on a recent decision of the Supreme Court in Sonu Kushwaha (supra).

In 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 6 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 6 of the POCSO Act, 2012 at the time when offence was committed i.e. prior to 16.08.2009, was 10 years’ RI, awarded him sentence for 10 years’ RI with fine of Rs.5,000/- and held in Para-11, 12 & 13 as under:

“11. Section 6, as applicable before its substitution on 16-08-2019, read thus:

"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."

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.

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/.

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.

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.

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 8th 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/-.”

In that view of the matter and considering the principles of law laid down by their Lordships of the Supreme Court in Sonu Kushwaha (supra), while affirming the conviction of A-1 for offence under Section 6 of the POCSO Act, 2012 read with Section 376 of IPC, we award him sentence for a period of 10 years’ rigorous imprisonment by reducing it from imprisonment for life with fine of Rs. 1,000/-, as awarded by the learned trial Court. However, in view of discussion made herein above, conviction and sentence of A-1 for offence under Section 506B of the IPC, as awarded by the learned trial Court, is hereby maintained and shall remain as it is.

Resultantly, Cr.A.No.509/2016 preferred by Baleshwar Dhada @ Bali (A-1) is partly allowed and Cr.A.No.504/2016 preferred by Surendra Kumar Chouhan @ Dadu (A-2) is allowed. A-2 is already on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant (A-1) is suffering the jail sentence.