1 2025:CGHC:27627-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1707 of 2019 1 - Lakhan Lal Chouhan, S/o Rama Chouhan, Aged About 22 Years, R/o Jaitpur, Police Station Sarsiwa, District- Baloda Bazar-Bhatapara, Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through: Station House Officer, Police Station Sarsiwa, District- Baloda Bazar-Bhatapara, Chhattisgarh. ... Respondent(s) For Appellant : Mr. Ratnesh Kumar Agrawal, Advocate For Respondent(s)/State : Mr. Devesh G. Kela, P.L. Hon'ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad Judgment on Board Per Rajani Dubey, Judge 25.06.2025 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 dated 25.09.2019 passed by learned Special Judge (POCSO) Baloda 2 Bazar, District- Baloda Bazar- Bhatapara (C.G.) in Special Criminal (POCSO) Case No.08/2018 whereby, the trial Court convicted the appellant for the offence under Sections 363, 366, 376 of IPC & Section 4 & 18 of the POCSO Act, however, the offence under Section 18 of POCSO Act is for attempt to commit offence whereas in the present case an offence has been committed, hence the trial Court did not award separate sentence under Section 18 of the POCSO Act. Furthermore, as the quantum of sentence prescribed under Section 376 of IPC and that under Section 4 of the POCSO Act being the same, considering the fact that the victim is a minor and there is a special Act for dealing with such offences, trial Court sentenced the appellant as under:- Conviction Sentence U/s 363 of IPC Rigorous imprisonment for 5 years and fine of Rs.2,000/- in default of payment of fine amount, to undergo additional RI for 3 months. U/s 366 of IPC Rigorous imprisonment for 7 years and fine of Rs.2,000/- in default of payment of fine amount, to undergo additional RI for 3 months. U/s 04 of the POCSO Act Life imprisonment and fine of Rs.5,000/- in default of payment of fine amount, to undergo additional RI for 6 months. 3 2. Case of the prosecution is that the complainant (P.W.-1) lodged the report to the concerned police station Sarsiwa alleging that he is a resident of village Jaitpur and working as labourer. On 12.12.2017, he had gone out to work when his wife called and informed that his daughter/victim, aged about 2 years and 7 months, was taken by the neighbour Lakhan Chauhan and molested her. Upon hearing the same, he immediately came home and seeing the girl/victim almost unconscious, he brought her to Government Hospital- Sarsiva for treatment. From there, he went to the police station to register a report. His daughter/victim aged 3 years was taken to the house of neighbour Lakhan Chauhan and raped due to which blood came out from the private part of the daughter and got stained on her underwear. On the basis of said report, FIR (Ex.P.1) was registered against the appellant for the offence punishable under Sections 363, 366, 376 of the IPC and Sections 4, 18 of the Protection of Children from Sexual Offences Act. Spot map (Ex.P/2) was prepared. Medical examination of the victim was done. Seizures were made. Thereafter, the accused was arrested. After completion of investigation, a charge sheet was filed before the trial Court under Sections 363, 366, 376 of the IPC and Sections 4, 18 of the Protection of Children from Sexual Offences Act followed by framing of charges, to which the appellant abjured his guilt and prayed for trial. 3. So as to hold the accused/appellant guilty, the prosecution examined as many as 16 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded 4 innocence and false implication in the case. 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 25.09.2019 finding evidence adduced by the prosecution trustworthy, convicted and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is bad in law as well as facts available on record. The offence under sections 363, 366 of Indian Penal Code and Section 04 of POCSO Act is not made out against the appellant, on any corner of law. The learned trial Court failed to consider that police has not recovered the victim from the possession of the present appellant and no allegation has been proved against him. The learned trial Court has wrongly appreciated the age of the victim without applying its mind and without considering material available on record. The learned trial Court has failed to consider the medical evidence properly. The judgment of conviction and order of sentence passed by the learned trial Court is illegal, arbitrary and bad in the eye of law. The statements of the prosecution witnesses are not reliable. Learned trial Court failed to appreciate that there is material contradictions and omissions in the statements of several witnesses. As per the evidence and material available on record, no offence under Sections 363, 366, of IPC and Section 04 of POCSO Act is made out against the appellant. There is material illegality in the judgment of conviction and order of sentence passed by the learned trial Court. Therefore, the 5 impugned judgment is liable to be set aside and appellant deserves to be acquitted. He further submitted that at the time when the offence was committed, the minimum sentence prescribed under Section 4 of the POCSO Act, 2012, 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 4 of 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. 6. On the other hand, 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 learned 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 framed the charges under Sections 363, 366, 376 of the IPC and Sections 4, 18 of the Protection of Children from Sexual Offences Act. As per prosecution, the age of the victim was below 3 years at the time of the incident. 9. Father of the victim (P.W.-1) and mother of the victim (P.W.-2) stated that victim was aged about 2 years and 7 months. As per seizure 6 memo (Ex.P/6), birth certificate of victim was seized and according to which, date of birth of the victim is 24.03.2015. 10. Dr. Subarna Mitra (P.W.-7) who medically examined the victim, also stated that the victim is aged about 2 years and 7 months. 11. Considering the statements of father of victim (P.W.-1), mother of the victim (P.W.-2), Dr. Subarna Mitra (P.W.-7) and seizure memo (Ex.P/6), it is clear that at the time of incident i.e. 12.12.2017, victim was aged about 2 years and 7 months. 12. Mother of the victim (P.W.-2) stated that on the date of incident i.e. on 12.12.2017, between 9:00 a.m. and 11:00 a.m., when she was sitting in her courtyard with her younger daughter in her lap, at that time, the victim came there crying. On being asked, she showed her underwear from where the blood was oozing out from her vagina. Thereafter, she took the victim outside and at that time, the accused was coming out of his house. The victim pointed towards him and told that he has committed the crime. Thereafter, the FIR (Ex.P/1) was registered against the appellant. 13. Father of the victim (P.W.-1) also supported the statement of his wife i.e. mother of the victim (P.W.-2) and stated that they lodged the FIR (Ex.P/1) against the appellant/accused. 14. Chhahmat Bai (P.W.-3) also stated that on the date of incident, when her mother enquired the victim about the incident, then she pointed towards the appellant. 15. Dr. Neha Gangeshree (P.W.-4) stated that she examined the victim on 12.12.2017. In the internal examination of the victim, she found that 7 there was swelling in the vulva, there was swelling in the vagina as well as redness. There was a cut injury on the back side of the orifice in the victim’s vagina. Blood was also visible at the said cut place and there was also a white coloured discharge. She stated that for further examination, treatment and obtaining opinion on the said examination, she advised to send the victim to the surgeon of the pediatric department and the gynecologist department of the higher centre Raipur Medical College. She gave her report vide Ex.P/4 in this regard. Upon query made by the Court about the injuries which she found on the private part of the victim, she stated that the said injuries has been caused by forceful sexual penetration. 16. Dr. Subarna Mitra (P.W.-7) examined the victim and stated that there was a superficial injury on both sides of the regional boundary of the vagina. The hymen was not clearly identified, it was probably ruptured. She further stated that the injury of pediatric vestibule was stitched. She opined that an attempt has been made to forcefully penetrate the vagina of the victim. She gave her report vide Ex.P/14 in this regard. FSL report (Ex.P/31) has also supported the case of the prosecution. As per FLS report (Ex.P/31), semen and human sperm were found in Articles A, B,C1, C2 and D. 17. Considering the age of the minor victim, statements of the father of the victim (P.W.-1) and mother of the victim (P.W.-2), independent witness- Chhahmat Bai (P.W.-3), Dr. Neha Gangeshree (P.W.-4), Dr. Subarna Mitra (P.W.-7) and FSL report (Ex.P/31) & also considering the other evidence available on record, we are of the considered opinion that the 8 trial Court has rightly convicted the appellant herein for the offence as mentioned in para 1 of this judgment. 18. 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 6 of the Act for penetrative sexual assault was enhanced from 10 years to 20 years. 19. 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 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: 9 "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 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. 10 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. 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 11 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.” 20. In the present case, remitted the incident took place on 12.12.2017 i.e. prior to the 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. 21. Considering the facts and circumstances of the case, the manner in which the offence is committed on a girl aged about 2 years and 7 months, 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 sentence awarded to the appellant under Section 4 of the Act of life imprisonment by the trial Court is reduced to R.I. for 10 years with fine. 22. In the result, the conviction of the appellant under Sections 363, 366 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 13.12.2017 i.e. 7 years, 6 months and 12 days, the same period shall be adjusted in his jail sentence. 23. This criminal appeal is partly allowed to the extent indicated hereinabove. 12 24. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerneed and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action if, any. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV