Sukhram Karma vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused herein is directed against the impugned judgment of conviction and order of sentence dated 24.11.2016 passed by the Special Additional Sessions Judge, Fast Track Court, South Bastar, Dantewada Chhattisgarh, in Special Sessions Trial No. 16/2015 by which appellant herein has been convicted and sentenced as under:-

Conviction

Sentence

Under Section 376(2)((f)i) of the IPC [clause (i) of sub-section (2) of Section 376 of IPC has been omitted  by  the  Act  22  of  2018

w.e.f. 21.4.2018]

Imprisonment for life.

Under Section 323 of the IPC

Imprisonment for 1 year.

Section 506(B) of the IPC

Imprisonment for 7 years.

Under  Sections  5(j)(ii),  6  of  the POCSO Act, 2012

Imprisonment for life.

All sentences were directed to run concurrently.

Case of the prosecution, in nutshell, is that seven months prior to 30.07.2015, at Tamopara, Kirandul, Police Station Kirandul, Civil and Revenue District Dantewada Chhattisgarh, appellant committed sexual intercourse upon minor victim (PW-2), who was aged about 13 years at the time of incident, against her wishes and also threatened her to kill if she informs about the said incident to anyone. Due to that she became pregnant and delivered a baby on 04.08.2015 and thereby committed the aforesaid offence. FIR was registered vide Ex.P/4 by maternal uncle of the victim (PW-3). Nazari naksha was prepared vide Ex.P/10. As per birth certificate (Ex.P/14) and Dakhil Khariz Register (Ex.P/15C), at the time of incident victim was aged about 12 years. Minor victim (PW-2) was medically examined by Dr. Anita Gangesh (PW-5) and medical report was prepared vide Ex.P/9. In medical report (Ex.P/9) victim (PW-1) was found 7 months pregnant and swelling was also found on her feet.

After due investigation, appellant was charge-sheeted for the aforesaid offences 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 offences, prosecution has examined as many as 12 witnesses and exhibited 27 documents & articles A & B, whereas the appellant in support of his defence has neither examined any witness, nor exhibited any document.

The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offences 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. Keshav Dewangan, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences 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 her 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 birth certificate (Ex.P/14) & as per Dakhil khariz register (Ex.P/15C); in medical report (Ex.P/9) victim was found carrying pregnancy of 30-32 weeks and swelling has also been found on the feet of the victim, which, as per statement of victim, appellant assaulted her by wooden stick and also considering the other evidence available on record, 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 age of minor victim as per birth certificate (Ex.P/14) & as per Dakhil khariz register (Ex.P/15C), she was minor at the time of offence; furthermore considering the statements of victim (PW-2), Dr. Anita Gangesh (PW-5), and medical report of the victim (Ex.P/9) proved by PW-5, in which victim was found 7 months pregnant and she delivered a baby on 04.08.2015 and also considering the other evidence available on record, we are of the considered opinion that the trial Court has rightly convicted the appellant herein for the offences as mentioned in the opening paragraph of the judgment.

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/-.”

Returning to the facts of the present case, it is quite vivid that sexual intercourse was committed upon the minor victim (PW-2) by the appellant who is father of the victim by which she became pregnant and delivered a baby on 04.08.2015, we are of the considered opinion that while affirming the conviction of the appellant for offences under Section 376(2)(f)(i) of IPC [clause (i) of sub-section (2) of Section 376 of IPC has been omitted by the Act 22 of 2018 w.e.f. 21.4.2018] as well as Sections 5(j)(ii), 6 of the POCSO Act, 2012, we award him sentence for a period of 15 years’ rigorous imprisonment by reducing it from imprisonment for life. However, in view of discussions made herein above, the conviction and sentences of the appellant for offences under Sections 323 & 506(B) of the IPC, as awarded by the learned trial Court, is hereby maintained and shall remain as it is.

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

The District Legal Services Authority, Dantewada will submit a report as to whether in compliance of direction issued in para 31 of the judgment of the trial Court, compensation is paid and if not paid, it will be paid within 30 days from the date of receipt of copy of this judgment. A certified copy of this judgment be transmitted to the District Legal Services Authority, Dantewada.

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.