1 2025:CGHC:47441-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1596 of 2021 Sandeep Sinha S/o Siyaram Sinha, aged about 19 years R/o Baputola, O.P. Chichola, Police Station Chhuriya, District- Rajnandgaon, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Station House Officer, O.P. Chichola, Police Station Chhuriya, District- Rajnandgaon, Chhattisgarh. ... Respondent For Appellant : Mr. Avinash Chand Sahu, Advocate For Respondent/State : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 16 .0 9 .202 5 1. Mr. Avinash Chand Sahu, learned counsel appears and submits that the appellant wants to prosecute the case through private counsel. 2. In view of the above submission, Mr. Arun Kumar Shukla, who was appointed through Legal Aid, is discharge. ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 3. This criminal appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 10.11.2021 passed by the learned Additional Sessions Judge (FTSC), (POCSO), Rajnandgaon, District – Rajnandgaon (C.G.) in Special Criminal (POCSO) Case No. 20 of 2018, by which the appellant has been convicted and sentenced with the direction to run both the sentences concurrently in the following manner : Conviction under Section Sentence Under Section 376AB of the Indian Penal Code (for short, ‘IPC’) Life imprisonment and fine of Rs.1,000/-, in default of payment of fine amount, further R.I. for 01 year (Imprisonment for life shall mean imprisonment for the remainder of that person’s natural life) Under Section 506 Part II of the IPC R.I. for 3 years Under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) Life imprisonment and fine of Rs.1,000/-, in default of payment of fine amount, further R.I. for 01 year. 4. The prosecution case in brief is that on 19.08.2018, after the victim's mother went to the Outpost Chichola and lodged a verbal complaint against the accused, a First Information Report (Ex.P-1) was lodged under Crime No. 123/2018 at Outpost Chichola, Police Station 3 Chhuriya under Sections 376 AB, DA, DB, 450, 506 of IPC and Sections 4 and 6 of the POCSO Act and Section 3(2)(v) of the Prevention of Atrocities Act and the victim was medically examined and her statement was recorded under Section 164 Cr.P.C. Regarding the age of the victim, progress report (Article A-C) and birth certificate (Article B-C) were seized. A site map of the incident was prepared vide Ex.P-4 and the underwear worn by the victim at the time of the incident was seized vide Ex.P-3. After taking consent from the mother of the victim vide Ex.P-2 and from his father vide Ex.P-7, the victim was medically examined and report of the same was obtained vide Ex.P-24. 5. The accused was taken into custody and medically examined vide Ex.P-12 and the underwear worn at the time of the incident was seized vide Ex.P-10 and the accused was arrested vide Ex.P-22 and information regarding his arrest was given vide Ex.P-23. The underwear worn by the victim and the accused at the time of the incident was sent FSL examination through the Superintendent of Police, Rajnandgaon, to Forensic Science, Raipur vide Ex.P-14. After completion of the investigation, a charge sheet was presented against the accused before the Court of Additional Sessions Judge (FTSC), (POCSO), Rajnandgaon, District – Rajnandgaon (C.G.) under sections 376AB, DA, DB, 450, 506, 377 of the IPC, Sections 4 and 6 of the POCSO Act and Section 3 (2) (v) of the Prevention of Atrocities Act. 6. Learned trial Court framed charges for the offences punishable under Sections 376(3), 376AB, 506 Part II of the IPC, Section 3(2)(v), 4 3(2)(va) of the Prevention of Atrocities Act and Section 6 of the POCSO Act against the accused and read over and explained to the accused, who abjured his guilt. 7. In order to bring home the offence, the prosecution examined as many as 09 witnesses and exhibited 25 documents in support of its case. Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied all the circumstances appearing against him and stated that he is innocent and has been falsely implicated. The defence has neither examined any witness nor has exhibited any document. 8. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who have committed aforesaid offence, convicted and sentenced him in the aforementioned manner, against which the appeal under Section 374(2) of the Cr.P.C. has been preferred by the accused/appellant. 9. Learned counsel for appellant would submit that he is not pressing this appeal as far as it relates to conviction part of impugned judgment and is confining his argument to the quantum of sentence only. He submits at the time of incident, the appellant was aged about 19 years and the learned trial Court has awarded the sentence of life imprisonment, which would mean imprisonment for rest of the natural life which is too harsh considering the evidence available on record and the same may be converted to rigorous imprisonment for 20 years, which is minimum sentence. He would also submit that the learned trial Court, 5 without assigning any reason, has further convicted the appellant under Section 6 of POCSO Act and sentenced him for maximum punishment of life imprisonment, the same may also be reduced to the minimum sentence, which is 10 years at the relevant point of time. 10. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant, would submit that looking to the fact that the appellant committed rape of the minor victim who was below age of 12 years at the time of incident, which has been duly proved by the proved by the prosecution, as such, leniency should not be shown to appellant herein. 11. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection and carefully as well. 12. In the instant case conviction of the accused/appellant is substantially based on the testimonies of the victim (PW-2), mother of the victim (PW-1), father of the victim (PW-3) and relative of the victim (PW- 4) and documentary evidence progress report (Article / A-C) and birth certificate (Article / B-C). 13. As per case of the prosecution, the date of birth of the victim is 27.08.2008 on this basis on the date of incident i.e. 12.08.2018, the age of the victim was 09 years 11 months and 17 days. In this case, none of the witnesses have specifically alleged the date of birth of the victim but have only alleged that the age of the victim was about 10 years, which has not been disputed by the defence. The father of the victim (P.W-3) 6 has alleged in his examination-in-chief that he had got the progress report of his daughter victim of class 4 seized by the police, the original copy of which he has brought with him which is Article A, the photocopy of which is attached in the case, which is Article A-C. He has also alleged that he had got the birth certificate of his daughter seized, the original copy of which he has brought with him today, which is Article B and the attested copy of the birth certificate attached in the case is Article B-C. The defence has not cross-examined this witness in relation to the seizure of the said documents. The victim's date of birth is recorded as 27.08.2008 in the progress sheet article A-C and the victim's date of birth is also recorded as 27.08.2008 in the birth certificate article B-C. This fact could not be refuted by the defence and no document has been presented in its refutation. Thus, on the basis of aforesaid oral and documentary evidence, we find that the learned trial Court has rightly held that on the date of incident the victim was child and aged about 09 years 11 months and 17 days. We hereby affirm the said finding. 14. The victim's father (PW-3) has clearly stated in his main examination that he belongs to the Gond Scheduled Tribe. The police had confiscated the original caste certificate of the victim which is Ex.P- 4 and the original caste certificate is Ex.P-9. It is clearly mentioned in the original caste certificate Ex.P-9 that the victim is a member of the Scheduled Tribe, no document has been presented to refute this and Ex.P-9 is a document issued by the competent authority. Thus, in this case, it is found to be proved that the victim is a member of the Scheduled Tribe. 7 15. The victim (PW2) has stated in her main examination that she goes to her friend's house to watch TV. The accused is her friend's maternal uncle who lives with her. On the date of the incident, on Sunday, she went to watch TV on her friend's call. At that time, her friend, her friend's grandmother and her maternal uncle i.e. the accused were present in their house. The victim's friend's grandmother went to take a bath and the victim's friend went somewhere to play. She also stated that thereafter she was watching TV, when the accused forcibly dragged her to his room and said that he would kill her if she refused and pinched her cheek with his hand and the accused put his urinating organ in her mouth and on her urinating place. Thereafter the accused sent her home and said that do not tell your parents or else he would kill her. She did not tell about the incident of that day. One week after that her mother sent her to her friend's house to bring milk, then she said that she will not go, then on her mother asking her, she had told the alleged incident that after the incident, she used to have pain in her urinary tract and also had difficulty in urinating. 16. Mother of the victim (P.W.1) has also stated in her main examination that when she asked her daughter to bring milk from her friend's place, the victim refused to go there because the accused does dirty things and hence she would not go. On asking the victim what dirty things they do, the victim told that the accused puts his penis in the victim's mouth. Then she told her husband about the incident in the evening of the same day and along with her husband and Zakir Khan went to Police Station Chichola and lodged a report. The First 8 Information Report is Ex.P-1. 17. Father of the victim (PW-3) while supporting the version of the victim regarding the incident has alleged that on his wife's asking the victim, she had told that on Sunday when she had gone to her friend's place to watch TV the accused had inserted his penis in the victim's mouth and also in her urinal place, due to which she got scared and the accused had threatened to kill her if she told anyone. The victim had also told that the accused Sandeep had inserted his penis in the victim's mouth many times before and used to do bad things. On the victim's telling, the family was consulted and the incident was informed to the Deputy Sarpanch's husband over the phone and he was called to the house and informed about the incident. The Deputy Sarpanch's husband (PW-4) has also made a statement to the same effect in his main examination. 18. Dr. Suchitra Shrivastava (PW-8) has stated in her examination-in- chief that on 19.08.2018, when the victim aged 10 years was brought before her by constable Shraddha Baghmare of Chichola police station at 8:00 pm for examination, she had obtained consent from the victim and her mother before the examination. The victim had stated that on 12.08.2018, she was sexually assaulted at home and she was forcibly made to have sexual intercourse and the penis was inserted in her mouth and the penis was forcibly inserted in her vagina due to which she was in pain and was feeling pain even while walking. The victim also talked about physical violence like pulling hair, hitting, shaking head and 9 she was also emotionally intimidated and threatened with death. This witness in his examination-in-chief also stated that on examining the victim, she found that there were scratch marks on the victim's right palm and right thigh and that area had turned black. In clause 15F of the medical report, she was asked about the details of sexual violence in which she mentioned about inserting penis in vagina, inserting penis in mouth, to which she replied in the affirmative and the above things were also told to her by the victim. In the same clause, questions about kissing, licking and touching have been asked to which she replied in the affirmative and the above things were also told to her by the victim. At the end of clause 15 of the medical report, the victim has stated that she was having pain in her vagina and she was also having pain while urinating, to which she also replied in the affirmative. 19. Although the medical witness Dr. Suchitra Shrivastava (PW-8) has admitted in her cross-examination that she had not seen any injury on the body of the victim, but it is clear from her main examination that on examining the victim, she had found a scratch on the palm of the victim's right hand and a scratch on the right thigh which had turned black and similarly, on examining the vaginal opening of the victim, swelling with redness was found on the labia-majora and around it, she was having pain in the vagina, there was a small scratch of one cm on the vaginal opening hymen membrane on her right side, on examining the mouth of the victim, there was a red swelling on her lips. In this case, from the statements of the victim and her mother, it has become completely clear that the victim had pain at the place of urination and she had also told the 10 doctor everything regarding the incident and on this basis also, it is confirmed that a crime was committed against the victim. 20. Thus, in this case, it is proved beyond reasonable doubt that on 12.08.2018, between 1:00 pm to 2:00 pm or thereabouts, the accused committed rape and aggravated penetrative sexual assault by inserting penis into the mouth and vagina of the victim aged 09 years 11 months and 17 days in his house and also committed criminal intimidation by threatening to kill the victim with the intention of causing terror to her, but there is no evidence in this regard in the case that the accused may have committed the crime against the victim knowing that she belonged to a Scheduled Tribe or on caste grounds. In such circumstances, the accused cannot be convicted under any section of the Prevention of Atrocities Act. 21. As per the amended provisions of criminal law (by ordinance 2018) wherein Section 376AB was inserted after Section 376A which reads as under : "376AB - Person committing an offence of rape on a woman under twelve years of age shall be sentenced with rigorous imprisonment of not less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person's natural life and with fine or with death." 22. Section 6 of the POSCO Act has been amended w.e.f. 16.08.2019 and on the date of incident i.e. 12.08.2018, unamended Section 6 of the POCSO Act would be prevailing which provides as under : 11 “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.” 23. In our considered opinion in the instant case the alleged offence is not committed in barbaric and brutal manner, hence it does not fall within "rarest of rare" case to award maximum punishment as prescribed under the law particularly, when the learned trial Court without assigning any cogent reasons, has awarded maximum sentence under Section 376AB of IPC as well as under Section 6 of the POCSO Act. 24. Consequently, the conviction and sentence as awarded by the trial Court under Sections 376AB, 506 Part II of the IPC is hereby upheld. So far as the conviction under Section 6 of the POCSO Act is concerned, the same is also upheld. 25. However, considering age of the accused at the time of incident and further considering the fact that the learned trial Court without assigning any cogent reasons, has awarded maximum sentence under Section 376AB of IPC as well as under Section 6 of the POCSO Act , this Court is of the view that the sentence of life imprisonment which would mean imprisonment for rest of the natural life, is too harsh and as such, the sentence under Section 376AB of IPC is converted to rigorous imprisonment for 20 years (which is minimum sentence) instead to life imprisonment which would mean imprisonment for rest of the natural life 12 and the sentence under Section 6 of the POCSO Act is converted to rigorous imprisonment for 10 years (which is minimum sentence) instead of life imprisonment. The imposition of fine amount and the default sentence is upheld. 26. The appellant is stated to be in jail since 21.08.2018 being the date of arrest. He is directed to serve out the sentence as modified above. 27. The criminal appeal is partly allowed to the extent indicated hereinabove. 28. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra