1 2025:CGHC:43921-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 19.06.2025 Judgment delivered on :29.08.2025 CRA No. 1617 of 2019 1 - Bharat Kenwat S/o Rajendra Prasad Kenwat Aged About 20 Years R/o Chandupara, Champa, Police Station Champa, District Janjgir Champa Chhattisgarh. ...Appellant versus 1 - State of Chhattisgarh Through Station House Officer, Police Station AJAK, Janjgir, District Janjgir Champa Chhattisgarh. ... Respondent(s) For Appellant : Mr. Sanjeev Kumar Agrawal, Advocate For Respondent/State : Mr. Abhishek Singh, P.L. Hon'ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad CAV Judgment Per Rajani Dubey, Judge 1. This appeal under Section 374(2) of Cr.P.C. has been filed by the appellant against the judgment of conviction and order of sentence 2 dated 24.09.2019 passed by learned Special Judge (Atrocity), District Janjgir Champa (C.G.) in Special Sessions Trial No. 15/2017 whereby, the trial Court convicted the appellant and sentenced him as under:- Conviction Sentence U/s 376(2)( I ) of IPC R.I. for 20 years and fine of Rs.25,000/- in default of payment of fine amount, to undergo additional imprisonment for two years U/s 4 of the Protection of Children from Sexual Offences Act, 2012 R.I. for 20 years and fine of Rs.25,000/- in default of payment of fine amount, to undergo additional imprisonment for two years Both sentences to run concurrently 2. Case of the prosecution, in brief, is that on 28.03.2017, mother of the prosecutrix (P.W.-1) was staying in her home at Chandupara Champa and her daughter victim/complainant (P.W.-2) aged about 7 years was playing near the house of Samaru Jangde under the tree with other children. At about 1:00 p.m., her nephew Durgesh Jangde (P.W.-5) came to her house and told that the victim/complainant (P.W.-2) was lying unconscious under the tree. Mother of the prosecutrix (P.W.-1) went to the spot and saw that the blood oozing out from the private part of the victim/complainant (P.W.-2). Durgesh Jangde (P.W.-5) and victim/complainant (P.W.-2) told that the accused had taken her to 3 bathroom of Ram Singh Ratre (P.W.-7) where blood had fallen on the ground. The accused committed rape on the victim after taking her to the bathroom of Ramsingh Ratre. The incident was seen by Anjana Jangde (P.W.-4) and Durgesh (P.W.-5). Thereafter, the mother of the victim (P.W.-1) took the victim (P.W.-2) back to her house and after informing her husband Suresh Jangde (P.W.-3), she lodged report (Ex.P/1) at police station Champa on 28.03.2017. Shiv Prasad Singh, Sub Inspector (P.W.-17) had prepared the spot map vide Ex.P/3 after inspecting the incident spot on 28-03-2017. He had sent a report (Ex.P/10) for getting the medical examination of the victim/complainant done. Dr. Anita Shrivastava (P.W.-9) had conducted the medical examination of the victim/complainant (P.W.-2) and gave her report vide Ex.P/10. During investigation, seizures were made. Accused was arrested. On 31-03-2017, complaint (Ex.P/15) was sent to Tehsildar Champa for getting the map of the place of incident prepared by the Patwari. Complaint (Ex.P/6) was sent to the Principal of the Primary School Mission Chopa for submitting the Dakhil Kharij register of the victim. On 20-06-2017, upon submitting Dakhil Kharij register by Headmaster Pramila Bansiyar (P.W.-6), the same was seized vide Ex.P/8.The then Deputy Superintendent of Police, PC Rai (P.W.-15) sent the seized property to FSL office Bilaspur for chemical examination. Thereafter, the charge-sheet was filed against the appellant before the learned trial Court. Learned trial Court framed the charges under Sections 6 of POCSO Act, 376(2)( I ) of IPC and Section 3(2)(5) of Scheduled Castes 4 and Scheduled Tribes (Prevention of Atrocities) Act, 1989, to which appellant abjured his guilt and claimed to be tried. 3. So as to hold the accused/appellant guilty, the prosecution examined as many as 17 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, he did not adduce any evidence in his defence. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 24.09.2019 finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment passed by the learned trial Court being perverse, unreasonable, illegal, amounts to be set-aside. Learned trial Court without appreciating the witnesses, in its right perspective have passed the impugned judgment. No cogent and reliable evidence is available on record which shows that present appellant has been guilty for the said offences. There are no independent witnesses in the case. The learned trial Court erred in relying upon the report of Dr. Anita Shrivastava (PW-9) regarding the vaginal swabs/slides for fixing the criminal liability on the accused. The learned trial Court had erroneously recorded the findings and came to conclusion which is not in accordance with law. The findings of the learned trial Court are contrary to facts and evidence on record. Therefore, the impugned judgment is liable to be set aside. 5 Alternatively, he submits that the date of incident is 28.03.2017 and at that time, the minimum sentence prescribed under Section 4 of the POCSO Act, 2012, was 7 years which has been enhanced to 20 years by amendment and which has been made effective from 16.08.2019, therefore, at the most, 7 years be awarded to the appellant for the offence under Section 4 of the POCSO Act, 2012. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of State of Uttar Pradesh Vs. Sonu Kushwaha reported in (2023) 7 SCC 475 and this Court’s judgment dated 09.09.2024 passed in CRA No. 508 of 2020 in the matter of Phool Chand Dhobi Vs. State of Chhattisgarh and judgment dated 25.06.2025 passed in CRA No. 1707 of 2019 in the matter of Lakhan Lal Chouhan Vs. State of Chhattisgarh. 6. Per contra, learned State counsel supports the impugned judgment and submits that the learned trial Court rightly appreciated oral and documentary evidence and convicted the appellant accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court. 7. Heard counsel for the parties and perused the material placed on record including the impugned judgment. 8. It is clear from record of learned trial Court that the learned trial Court famed the charges under Section 376(2)(I) of the IPC and Section 6 of POCSO Act, 2012 and Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and after appreciating oral and documentary evidence, learned trial Court acquitted the appellant of the offence under Section 3(2)(5) of the 6 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and convicted him under Section 376(2)(I) of the IPC and Section 4 of POCSO Act, 2012 and sentenced him as prescribed in para 1 the judgment. 9. Before proceeding to record the statement of the victim, the Court put some general questions to her to ascertain the capability of the witness for giving statement and thereafter recorded her statement. The learned trial Court considered the apparent age of the victim to be 7 years. 10. Mother of the prosecutrix (P.W.-1) stated that her daughter is aged about 7 years. 11. Pramila Bansiyar (P.W.-6), Principal of Mission Primary School, Champa, District- Janjgir- Champa (C.G.) stated that the admission and discharge register of school has been marked as Ex.P/7. As per the said register, at serial No. 5138, date of birth of the prosecutrix is mentioned as 01.01.2009. Police seized the said register as per seizure memo (Ex.P/8). Copy of Dakhil Kharij certificate is Ex.P/9. In her cross-examination, she denied this suggestion of defence that the entry of Ex.P/7 has not been made by her. She denied that she cannot tell as to on what basis the date of birth of the victim was recorded. She voluntarily stated that the birth certificate and Aadhar card of the victim were submitted by her father along with the application form and on the basis of which, her date of birth has been recorded. She also denied this suggestion that she entered the date of birth of the victim on estimation. 7 12. Dr. Anita Shrivastava (P.W.-9) also stated that the age of the victim is 7 years. 13. Looking to the statement of mother of the prosecutrix (P.W.-1), trial Court’s estimation with regard to age of the victim, statement of Pramila Bansiyar (P.W.-6) and entry made in school’s admission and discharge register (Ex.P/7), it is clear that the date of birth of the prosecutrix is 01.01.2009 and on the the date of incident i.e. on 28.03.2017, victim was aged about 7 years. 14. Prosecutrix (P.W.-2) stated that on the date of incident, she was playing with a child named Chhote. At that time, the accused Bharat came and took her to the bathroom of the oilman (Ram Singh) and removed her underwear and committed wrong with her due to which, blood started oozing out of her private parts and she started crying in pain. Thereafter, the accused ran away from there. In her cross-examination, she denied this suggestion that she got hurt by falling while playing. She further denied this suggestion as the accused had a dispute with her father, therefore she is making statement to implicate the accused in a false case. 15. Mother of the prosecutrix (P.W.-1) stated that on the date of incident, her daughter (victim) was playing along with other children near Ganga Imli. At about 1:30 p.m., her nephew came and told her that victim was lying unconscious near the bathroom. She went the spot and saw that the blood was oozing out from the private part of her daughter. On being asked, she told that the accused Bharat had taken her to the bathroom and committed wrong with her. Thereafter, FIR (Ex.P/1) was lodged against the appellant. 8 The police had seized the blood from the crime scene by preserving it in cotton vide seizure memo Ex.P/2 wherein she admits her signature from A to A part of it. The police had prepared the spot map vide Ex.P./3 wherein she admits her signature from A to A part of it. The Patwari had also gone to the spot and had prepared the map and Panchnama vide Ex.P/4 and Ex.P/5 respectively wherein she admits her signature on it. 16. Durgesh Jangde (P.W.-5) is a child witness in this case. Before proceeding to record the statement of this witness, the Court put some general questions to him to ascertain the capability of the witness for giving statement and thereafter recorded his statement. 17. Durgesh Jangde (P.W.-5) stated that on the date of incident, when he had gone to eat Ganga Imli (imli), the accused came near the tree and committed wrong with the victim. Victim was bleeding. Thereafter, he went to tell mother of the victim about the incident. In his cross-examination, he denied that he did not see the accused committing wrong with victim. 18. Dr. Anita Shrivastava (P.W.-9) examined the victim and found that the victim was conscious, cooperative, well oriented and mentally sound. Her secondary sexual characteristics such as armpit hair, pubic hair, breasts were not developed. Her labia majora and labia minora were underdeveloped. Her hymen was slightly torn, which was at the 8 o'clock position. Victim had abrasion on her right labia minora measuring 0.5:0.5 cm. Two slides of victim’s vaginal discharge was prepared. Blood was oozing from victim's vagina and it was stuck to the cotton bud. The slide was prepared from the blood stuck to the 9 same cotton bud. No other external injury was found on her body. She referred victim to the district hospital and advised her to get an X-ray done for determination of her age. She opined that a forcible attempt was made to have sexual intercourse with the victim. The injuries sustained by the victim were of ordinary nature which appeared to have been caused by hard and blunt objects, which were within twenty-four hours of her examination and were likely to heal within seven days. The examination report is Ex.P/10 wherein she admitted her signature from A to A part of it. In her cross-examination, she denied this suggestion that falling on the tamarind tree can cause injury to the labia minora. The witness voluntarily stated that if the legs are wide open while running, then falling on the tree can cause injury to the labia minora. 19. As per FSL report (Ex.P/18), semen was found in vaginal slide of victim which is marked as Article A, clothes of the victim which is marked as Article B, clothes of the accused which is marked as Article C and the cotton collected from the spot which is marked as Article D. 20. Victim (P.W.-2) and witness Durgesh Jangde (P.W.-5) stated against the accused that he has committed forcible sexual intercourse with the victim and they remain firm in their statement. 21. Mother of the prosecutrix (P.W.-1) also stated that she saw the injuries sustained by the victim. 22. Dr. Anita Shrivastava (P.W.-9) found injuries on the body of the victim and also found ruptured hymen of the victim. She opined that a forcible sexual intercourse has been done with the victim. FSL report also supported the case of the prosecution. 10 23. Considering the statements of victim (P.W.-2), Durgesh Jangde (P.W.- 5), mother of the prosecutrix (P.W.-1) and Dr. Anita Shrivastava (P.W.- 9) as well as medical evidence available on record, it is clear that the prosecution has proved this fact beyond reasonable doubt that the accused has committed forcible sexual intercourse with the victim who is below 14 years of age. Thus, the learned trial Court rightly convicted the appellant for the offence punishable under Section 4 of the POCSO Act read with Section 376 (2)(I) of IPC. 24. Sections 4 and 6 of the POCSO Act, 2012 suffered amendment with effect from 16.08.2019 whereby the minimum sentence for penetrative sexual assault on the child below 16 years of age was 20 years and the minimum sentence under Section 4 of the Act for penetrative sexual assault was enhanced from 7 years to 20 years. 25. This Court while deciding criminal appeal i.e. CRA No. 508 of 2020 in the matter of Phool Chand Dhobi (supra) where the incident took place in the year 2016 i.e. prior to the said amendment and the accused was convicted under Section 6 of the Act and awarded life imprisonment till death, reduced the sentence to 10 years R.I.. Paras 11 and 12 of the said judgment are relevant and reproduced herein as under:- “11. 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 11 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. 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 12 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. 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 13 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. Returning to the facts of the present case in the light of principles of law laid down by their Lordships of the Hon'ble Supreme Court in the matter of Sonu Kushwaha (supra), it is quite vivid that the date of incident is before 26.10.2016 and Section 6 of the POCSO Act, 2012 has been amended on 16.08.2019 by which for offence under Section 6 of the POCSO Act, 2012 minimum sentence has been enhanced from 10 years to 20 years, as such, on the date of offence the minimum sentence was 10 years. Considering the age of the minor victim (PW-9) to be 8 years, 1 months and 12 days on the date of offence; evidence of Arti Mishra (PW-1) and other evidence available on record, we while affirming the conviction of the appellant for offence under Section 376 (2) (F) of IPC and Section 6 of the POCSO Act, 2012, in the facts and circumstances of the case we deem it appropriate to award him sentence for a period of 10 years' rigorous imprisonment by reducing it from imprisonment for life. However, the fine amount imposed by the trial Court shall remain intact. The appellant is reported to be in jail since 30.10.2016 i.e. 7 years, 10 months and 10 days, the same period shall be adjusted in his jail sentence. 26. In light of above decision, in the present case also, the incident took place on 28.03.2017 i.e. prior to amendment in Section 4 of the POCSO Act. Before the amendment, the minimum sentence prescribed under Section 4 of the Act was 7 years which may extend to imprisonment for life and fine. 27. Considering the facts and circumstances of the case, the manner in which the offence is committed on a girl aged about 7 years, in the light of aforesaid judgment of Hon’ble Supreme Court and this Court, we are of the opinion that the ends of the justice would be served if the 14 sentence awarded to the appellant under Section 4 of the Act of rigorous imprisonment of 20 years by the trial Court is reduced to R.I. for 10 years with fine. 28. In the result, the sentence of the appellant under Sections 376(2)(I) of IPC and Section 4 of the POCSO Act imposed upon the appellant by the trial Court is hereby reduced to 10 years RI. The fine amount imposed on the appellant under Section 4 of the POCSO Act by the trial Court with default sentence shall remain intact. The appellant is reported to be in jail since 29.03.2017 i.e. about 8 years and 5 months, the same period shall be adjusted in his jail sentence. 29. This criminal appeal is partly allowed to the extent indicated hereinabove. 30. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, 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/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV