Khileshwar Markam vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant against impugned judgment dated 23/01/2016 passed by learned Additional Sessions Judge, Bhanupratappur in Special Sessions Trial No. 77/2015 whereby he has been convicted and sentenced as under, with a direction to run the sentences concurrently :-

Conviction

Sentence

U/s 376(2)(n) of IPC read with Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012

Life imprisonment with fine of Rs. 10,000/- and in default of payment of fine, additional R.I. for 3 years.

U/s 363 of IPC

R.I. for 7 years with fine of Rs. 5000/- and in default of payment of fine, additional R.I. for 1 month.

U/s 366A of IPC

R.I. for 10 years with fine of Rs. 5000/- and in default of payment of fine, additional R.I. for 1 month.

Case of the prosecution, in a nutshell, is that on 30/06/2015 in between 8 PM to 12 AM at village Picchekatta, the appellant herein abducted the victim, aged about 15 years, from her legal guardianship and committed sexual intercourse with her on the pretext of marriage and thereby, committed the aforesaid offence.

Further case of the prosecution is that on 30/06/2015 at about 8 PM, victim and her family had gone to sleep after taking their meals and at about 12 AM, when her mother (PW-2) woke up to answer nature's call, she found that her daughter was not in her bed. Thereafter, victim's family started searching for her but they could not find her and having their doubts on the appellant, victim's father (PW-3) lodged first information report against the appellant on 05/07/2015 vide Ex. P/10 pursuant to which nazri naksha was prepared vide Ex. P/12 and after taking consent from victim's parents vide Ex. P/3 and after taking permission from the Sub-divisional Magistrate, Bhanupratappur vide Ex. P/16, victim was subjected to medical examination which was conducted by Dr. Preeti Singh (PW-11) and her MLC report (Ex. P/19) was found positive. Victim's radiological test was conducted by Dr. Rajeshwar Kumar Singh (PW-14) and as per the radiological report (Ex. P/23), victim's age was determined to be between 13-16 years. Appellant's underwear as well as victim's slides were seized and sent for forensic examination and the FSL report (page 31-32 of the paper-book) was also found positive. After due investigation, the appellant was charge-sheeted for offence punishable under Sections 363, 366(a), 376(2)(n) of IPC and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter the Act of 2012) which was committed to the Court of Special Judge for trial in accordance with law. The appellant abjured his guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 14 witnesses and brought on record 27 documents. Statement of the appellant was recorded under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and only brought two documents on record.

Learned Special Judge, after appreciation of oral and documentary evidence on record, proceeded to convict the appellant for offence punishable under Sections 376(2)(n), 363 and 366(a) of IPC and Sections 4 and 6 of the Act of 2012 and sentenced him as aforesaid.

Mr. Rahil Arun Kochar, learned counsel for the appellant, would submit that victim was a consenting party and she lived along with the appellant for more than one month without any protest. He would further submit that statement of the victim (PW-1) is not reliable and there is no legally admissible evidence showing the victim to be minor and considering the statements of victim's father (PW-2) and her mother (PW-7), it appears that victim was above 18 years of age and furthermore, the report of Dr. Rajeshwar Kumar Singh (PW-14) is also not reliable as he was not an expert in the radiology subject. In alternative, he would submit that even if the date when the offence in question is said to have been committed is considered, the unamended provision of Section 6 of the Act of 2012 will come into play, wherein the minimum punishment for offence punishable under Section 6 of Act of 2012 was 10 years’ RI and the same was amended w.e.f. 16.08.2019. Therefore, the present appellant be sentenced for a period of 10 years’ RI by reducing it from imprisonment for life, as awarded by the learned trial Court. He would reply upon the deision of the Supreme Court in the matter of State of Uttar Pradesh v. Sonu Kushwaha (2023) 7 SCC 475 to buttress his submission.

Per contra, Mr. Ashish Tiwari, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt as the radiologist's report (Ex. P/23) clearly record the age of the victim to be between 13-16 years and moreover, as per the school admission register (Ex. P/8C), victim was about 15 years of age and moreover, victim's MLC report (Ex. P/19) was found positive and the FSL report (page 33-34 of the paper book) was also found positive, as such, the trial Court has rightly convicted the appellant for the aforesaid offences and therefore, the instant appeal is liable to be dismissed.

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

The first question for consideration would be, whether the trial Court is justified in convicting the appellant for the offence in question ?

Victim (PW-1), aged about 15 years, has been examined before the Court and she has supported the case of the prosecution and her statement has been corroborated by her mother (PW-2) and her father (PW-7). Moreover, victim was subjected to medical examination which was conducted by Dr. Preeti Singh (PW-11) and her MLC report (Ex. P/19) has been found positive which is also supported by FSL report (page 31-32 of the paper-book). So far as the age of the victim is concerned, her school admission register has been brought on record as Ex. P/8C in which her date of birth has been recorded as 02/04/2000 as well as the Radiologist's report has been brought on record as Ex. P/23 according to which victim's age has been determined to be between 13-16 years. As such, considering the entire evidence available on record particularly the statement of the victim (PW-1), her mother (PW-2) and her father (PW-7) and her MLC report (Ex. P/19) proved by Dr. Preeti Singh (PW-11) as well as the FSL report, we are of the considered opinion that the trial Court has rightly convicted the appellant for offence punishable under Sections 376(2) (n), 363 and 366(A) of IPC and Sections 4 and 6 of the Act of 2012.

Now the next question for consideration is whether, as claimed by learned counsel for the appellant, the appellant is entitled for reduction in the sentence of life imprisonment as awarded by the trial Court for offence punishable under Section 376(2)(h) of IPC read with Sections 4 and 6 of the Act of 2012 ?

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, 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 the matter of Sonu Kushwaha (supra), while affirming the conviction of the appellant for offence under Section 376(2)(n) of IPC read with Sections 4 and 6 of the Act of 2012, we award him sentence for a period of 10 years’ rigorous imprisonment by reducing it from imprisonment for life as awarded by the trial Court as in the present case also date of offence is 30/06/2015 to 05/07/2015 i.e. prior to 16/08/2019 when minimum sentence under Section 6 of the Act of 2012 was enhanced, as such, principle of law laid down by the Supreme Court in Sonu Kushwaha (supra) would apply. However, the fine sentence and default sentence shall remain intact and in view of discussions made herein above, the conviction and sentence of the appellant for offence under Sections 363 and 366(A) of IPC, as awarded by the learned trial Court, is hereby maintained and shall remain as it is.

This criminal appeal is allowed to the extent indicated hereinabove.

Let a certified copy of this judgment be sent to the concerned trial Court along with the original records as well as to the jail for information and compliance.