(Cr.A.No.1609/2019) 2025:CGHC:9112-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1609 of 2019 (Arising out of judgment dated 19-9-2019 passed by the 5th Additional Sessions Judge/Special Judge under the Protection of Children from Sexual Offences Act, 2012, Durg, in Special Sessions Trial No.26/2018) Naveen Kumar Thakur, S/o late Ashwani Kumar Thakur, Aged about 24 years, R/o Village Parastarai, Sada Devta Mandir, Police Station Arjunda, District Balod, Chhattisgarh (In Jail) ... Appellant versus State of Chhattisgarh, through the Station House Officer, Police Station Jamul, District Durg, Chhattisgarh ... Respondent For Appellant : Mr. Krishna Kumar Dewangan, Advocate. For Respondent/State : Mr. Afroz Khan, Panel Lawyer. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Kumar Jaiswal, JJ. Judgment On Board (21/02/2025) Sanjay K. Agrawal, J. 1. This appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 19-9- 2019 passed by the 5th Additional Sessions Judge/Special Judge under the Protection of Children from Sexual Offences Act, 2012, Durg, in SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.02.24 14:52:51 +0530 (Cr.A.No.1609/2019) Special Sessions Trial No.26/2018, by which the appellant has been convicted and sentenced as under with a direction that all the sentences shall run concurrently: - Conviction Sentence Section 376(2) of the IPC read with Section 5(m)/6 of the POCSO Act. However, punished only under Section 376(2) of the IPC, in light of Section 42 of the POCSO Act. Imprisonment for life & fine of ₹ 10,000/-, in default, additional rigorous imprisonment for one month Section 354 of the IPC Rigorous imprisonment for three years & fine of ₹ 100/-, in default, additional simple imprisonment for one month Section 509 of the IPC Rigorous imprisonment for one year & fine of ₹ 100/-, in default, additional simple imprisonment for ten days 2. Case of the prosecution, in short, is that on 12-1-2018 at about 4.30 p.m., in the house of one Banti, neighbour of the victim-child, situate at Housing Board, Jamul, Police Station Jamul, District Durg, the appellant committed sexual intercourse with the minor victim and thereby committed the offence. Written complaint was lodged by Jyoti Singh (PW-2) – mother of the victim, vide Ex.P-3 after three hours of the incident on the basis of which, FIR was registered vide Ex.P-4. Crime details form Ex.P-5 was prepared by the Investigating Officer. Daily attendance register of students (Ex.P-7C) and dakhil kharij register (Ex.P-8C) were seized vide Ex.P-6. The victim was (Cr.A.No.1609/2019) medically examined by Dr. Manju Rathore (PW-7) vide Ex.P-15. Statement of the victim under Section 164 of the CrPC was recorded under vide Ex.P-13. 3. After usual investigation, the appellant was charge-sheeted before the jurisdictional criminal court and the case was committed to the Court of Sessions, Durg from where the learned 5th Additional Sessions Judge/Special Judge under the POCSO Act, Durg, received the case on transfer for trial. 4. The prosecution, in order to prove the offence against the appellant, examined as many as 7 witnesses and brought on record 15 documents Exs.P-1 to P-15. The defence has not examined any witness, however, brought into record one document Ex.D-1 – statement of Durga Shrivastava recorded under Section 161 of the CrPC. 5. The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellant herein as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred. 6. Mr. Krishna Kumar Dewangan, learned counsel appearing for the appellant, would submit that the victim (PW-1) is not the reliable witness and conviction of the appellant is based on the sole testimony of the victim (PW-1). He would further submit that there is no medical evidence as also forensic evidence against the appellant and the date of offence is 12-1-2018 i.e. prior to amendment in Section 6 (Cr.A.No.1609/2019) of the POCSO Act, as the amendment came into force on 16-8-2019 and prior to that, minimum sentence prescribed under Section 6 of the POCSO Act was ten years, therefore, in light of the decision of the Supreme Court in the matter of State of Uttar Pradesh v. Sonu Kushwaha1, the appellant be sentenced to the period already undergone or in alternative, 10 years sentence be awarded to him by partly allowing the appeal. 7. Mr. Afroz Khan, 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 appellant beyond reasonable doubt, the appellant has sexually assaulted the minor victim, aged about 8 years, and subjected her to sexual intercourse and as such, no interference in the impugned judgment would be made out. Therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record carefully and thoroughly as well. 9. Conviction of the appellant is solely based on the testimony of the victim (PW-1), who has clearly stated that it is the appellant who when she had gone to his house to watch TV, pressed her mouth and undressed her and thereafter committed the offence. Even in cross- examination, she has supported the case of the prosecution. Though, 1 (2023) 7 SCC 475 (Cr.A.No.1609/2019) the case of the prosecution is not supported by medical and forensic evidence, but yet, on the basis of the sole testimony of the victim (PW-1) and considering the age of the victim, which was 8 years on the date of offence, we are of the considered opinion that the trial Court is absolutely justified in convicting the appellant under Section 376(2) of the IPC and as such, the trial Court has rightly convicted the appellant under Section 376(2) of the IPC and as such, judgment of the trial Court to that extent is well merited. 10. 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 376(2) of the IPC read with Section 5(m)/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). 11. 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 16-8-2019, was 10 years’ RI, awarded him sentence for 10 years’ RI with fine of (Cr.A.No.1609/2019) Rs.5,000/- and held in Paras-11 to 15 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. 12. 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/. 13. 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 (Cr.A.No.1609/2019) 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. 14. 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. 15. 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/-.” 12. Reverting to the facts of the case in light of the aforesaid decision of the Supreme Court, it is correct to say that minimum sentence for offence under Section 6 of the POCSO Act was 10 years, but considering the age of the victim which is less than 12 years on the date of offence and the manner in which the offence was committed (Cr.A.No.1609/2019) by the appellant and further considering the principles of law laid down by their Lordships of the Supreme Court in Sonu Kushwaha (supra), while affirming the conviction of the appellant for offence under Section 376(2) of the IPC read with Section 5(m)/6 of the POCSO Act, we award him sentence for a period of 10 years’ rigorous imprisonment by reducing it from imprisonment for life with fine of ₹ 10,000/-, as awarded by the learned trial Court. However, in view of the discussion made herein-above, conviction and sentences of the appellant for offences under Sections 354 & 509 of the IPC, as awarded by the learned trial Court, are hereby maintained and shall remain as it is. 13. The appeal is partly allowed to the extent indicated herein-above. 14. 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 is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Soma