Nirmal Sahu @ Tonu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 10.03.2017 passed by the Additional Sessions Judge (F.T.C.), Bilaspur, Chhattisgarh, in Special Sessions Trial No. 402/2014 by which appellant herein has been convicted and sentenced as under:-

Conviction

Sentence

Under Section 6 of the POCSO Act, 2012

Imprisonment for life and to pay fine of 20,000/-; in default of Rs. payment of fine amount 1 year additional rigorous imprisonment.

Case of the prosecution, in nutshell, is that appellant committed sexual intercourse with minor victim (PW-2), aged about 9 years on the date of offence, against her wishes and thereby committed the aforesaid offence. It is further case of the prosecution that appellant being a neighbour used to visit the house of victim (PW-2). On 27.07.2013 victim (PW-2) informed about the incident to her mother (PW-1) that when she was playing outside of the house with other children, appellant came there and asked to play luka-chhipi and took her at his home and committed sexual intercourse with her against her wishes which was witnessed by her (PW-2) cousin brother (PW-3) and she (PW-2) has also informed her mother (PW-1) that prior to that appellant had also committed sexual intercourse with her many times and also threatened her that if she discloses the fact about the said incident to anyone she will have to face dire consequences, due to which, she did not disclose this incident to anyone. FIR was lodged by mother of the victim (PW-1) vide Ex.P/1. Nazari naksha was prepared vide Ex.P/3. As per Dakhil Kariz Register (Ex.P/8C) age of the victim was about 9 years & as per radiologist report (MLC report) (Ex.P/12) aged of the victim was between 10 to 12 years at the time of offence. Minor victim was medically examined by Dr. Shikha Nigam (PW-9) & Dr. Madhulika Thakur (PW-8) and medical report was prepared vide Ex.P/10. In the medical report (Ex.P/10), as per Dr. Shikha Nigam (PW-9) hymen of the victim was found ruptured and redness was also found on the vagina of the victim and as per Dr. Madhulika Thakur (PW-8) intercourse is not possible, but sign of sexual assault over private part of the victim was found. Slides of the victim were sent for chemical analysis.

After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. Statement of the appellant was taken under Section 313 of CrPC wherein, appellant / accused abjured his guilt and entered into defence stating that he has not committed the offence.

In order to bring home the offence, prosecution has examined as many as 17 witnesses and exhibited 27 documents & 5 articles, whereas the appellant in support of his defence has examined 5 witness and exhibited 1 document.

The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

Mr. Virendra Verma, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence by recording a finding which is perverse to the record as there is no evidence on record upon which his conviction could have been based and even otherwise, at the time when the offence was committed, in Section 6 of the POCSO Act, 2012, minimum sentence prescribed was 10 years which has been enhanced to 20 years by amendment and which has been made effective from 16.08.2019, therefore, at the most, 10 years be awarded to the appellant for the offence under Section 6 of the POCSO Act, 2012. He would rely upon the decision 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, Ms. Nand Kumari Kashyap, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. She would further submit that considering the age of minor victim, who was below 18 years at the time of offence as per Dakhil Kariz Register (Ex.P/8C) & as per radiologist report (Ex.P/12); in medical report (Ex.P/10) hymen of the victim was found ruptured and redness was also found on the vagina of the victim and sign of sexual assault over private part of the victim was also found and cousin of the victim (PW-3) has clearly supported the case of the prosecution, the conviction of the appellant is well merited and the instant appeal deserves to be dismissed.

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

Considering the statements of victim (PW-2) & her cousin (PW-3) and further considering the medical report of the victim (Ex.P/10), proved by Dr. Shikha Nigam (PW-9) & Madhulika Thakur (PW-8), in which hymen of the victim was found ruptured and redness was also found on the vagina of the victim and sign of sexual assault over private part of the victim was also found and also considering the age of the victim who was minor on the date of offence as per Dakhil Kariz Register (Ex.P/8C) & as radiologist report (MLC report) (Ex.P/12), we are of the considered opinion that the trial Court has rightly convicted the appellant for offence under Section 6 of the POCSO Act, 2012.

Now, the question would be whether, the learned trial Court is justified in awarding sentence for imprisonment of life to the appellant for having committed offence under Section 6 of the POCSO Act, 2012 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 the matter of Sonu Kushwaha (supra).

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 16.08.2009, 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 the matter of Sonu Kushwaha (supra), while affirming the conviction of the appellant for offence under Section 06 of the POCSO Act, 2012, we award him sentence for a period of 10 years’ rigorous imprisonment by reducing it from imprisonment for life as the principles of law laid down by the Supreme Court in the matter of Sonu Kushwaha (supra) would squarely apply in the instant case as in the instant case date of offence is 27.07.2013 and prior to that date, which is prior to the date of amendment of Section 6 of the POCSO Act, 2012, i.e. 16.08.2019. However, the fine amount imposed by the trial Court shall remain intact.

This criminal appeal is partly allowed to the extent indicated hereinabove.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any.