Page No.1 of 15 IN CRA-1720-2019 2025:CGHC:7014-DB AFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1720 of 20 19 [Arising out of judgment dated 16.10.2019, passed in Special Criminal Case No.06 of 2018 (State of Chhattisgarh v. Parsu @ Parasram Chandravanshi), by the Additional Sessions Judge, Dongargarh, District Rajnandgaon (C.G.)] Parsu @ Parasram Chandravanshi, Son of Chhagan Singh, aged about 23 years, Resident of Rengakathera, Police Station Dongergarh, District Rajnandgaon (Chhattisgarh) ---- Appellant (In Jail) Versus State of Chhattisgarh, through Police Station Dongergarh, District Rajnandgaon (Chhattisgarh) ---- Respondent ------------------------------------------------------------------------------------------- For Appellant : Mr. F.S. Khare, Advocate For Respondent : Mr. Ashish Shukla, Addl. A.G. Amicus Curiae : Mr. Amrito Das, Advocate ------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justic e Sanjay Kumar Jaiswal Judgment on Board (07.02.2025) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court enshrined under Section 374(2) of the Code of Criminal Procedure (for short the “CrPC”), the accused/appellant is calling in question the legality, validity and correctness of impugned judgment of conviction and order of sentence dated 16.10.2019, passed in SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.02.12 16:30:22 +0530 Page No.2 of 15 IN CRA-1720-2019 Special Criminal Case No.06 of 2018 (State of Chhattisgarh v. Parsu @ Parasram Chandravanshi), by the Additional Sessions Judge, Dongargarh, District Rajnandgaon (C.G.), whereby he has been convicted and sentenced as under: Conviction Sentence U/s. 450 of IPC Rigorous imprisonment for 07 years with fine of Rs.1,000/- and, in default of payment of fine, additional rigorous imprisonment for 02 months. U/s. 376(3) of IPC R/w S.04/06 of POCSO Act [However, in light of S.42 of POCSO Act punished only under S.376(3) of IPC] Rigorous imprisonment for 20 years with fine of Rs.2,000/- and, in default of payment of fine, additional rigorous imprisonment for 04 months. [Both the sentences are directed to run concurrently] (2) The case of the prosecution, in a nutshell, is that between 18.03.2018 to 30.04.2018, in the house of the complainant/mother of the victim (PW-06), situated at Village Rengakathera, which comes within the ambit of Police Station Dongergarh, District Rajnandgaon (CG), the accused-appellant herein, firstly illegally trespassed into the said house of the complainant (PW-06) and, thereafter, committed repeated sexual intercourse with her minor daughter/victim (PW-07), who was aged about 13 years, due to which, she became pregnant and, thereby, said to have committed the aforesaid offences. (3) The further case of the prosecution is that when mother of the Page No.3 of 15 IN CRA-1720-2019 victim (PW-06) reported the matter to the police, FIR (Ex.P/05) was registered by the police against the appellant and wheels of investigation started running, in which, spot map was prepared vide Ex.P/07. Victim’s statement under Section 164 of CrPC was recorded vide Ex.P/12. After obtaining necessary consent vide Ex.P/08, Ex.P/09 & Ex.P/11, the victim (PW-07) was subjected to medical examination, which was conducted by Dr. Ananya Shrivastava (PW-19) and, as per her MLC report Ex.P/19, it has been opined that the victim (PW-07) may be pregnant. Further, victim’s vaginal slide were also prepared and handed over to the police, which was seized vide Ex.P/18. The victim (PW-07) was also subjected to ultrasonography test and pregnancy test and, according to said reports (Ex.P/41 & Ex.P/42), it has been opined that the pregnancy test of the victim (PW-07) was found positive and, as per her ultrasonography report, she was carrying pregnancy of 14 weeks. The accused-appellant was arrested vide Ex.P/02 and sent for medical examination. Appellant’s MLC report is Ex.P/20 and his undergarment was also seized vide Ex.P/01. (4) Further, blood samples of the victim and that of the appellant were also collected/seized vide Ex.P/04, whereas blood samples of victim’s foetus were also collected/seized vide Ex.P/03. Thereafter, all the said blood samples were sent for DNA profiling and, as per, DNA report (Ex.P/43), it has clearly been opined that the appellant and the victim (PW-07) are biological father and mother of the child Page No.4 of 15 IN CRA-1720-2019 (foetus). In order to ascertain correct age of the victim (PW-07), copy of relevant page of her admission register [Article-A(1)(c)] and school progress report/mark-sheet [Article-A(2)(c)] were also obtained/seized, wherein her date of birth has been recorded as 15.08.2004, meaning thereby, the victim (PW-07) was minor aged about more than 13 years (i.e. less than 16 years) on the date of offence. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (5) The prosecution in order to prove its case examined as many as 25 witnesses and exhibited 43 documents, whereas the appellant in support of his defence though not examined any witness, but exhibited 02 documents. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offences punishable under Sections 376(3) of IPC read with Sections 04,06 of the POCSO Act as also under Section 450 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the Page No.5 of 15 IN CRA-1720-2019 appellant-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. F.S. Khare, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. He further submits that the testimony of the victim (PW-02) is not reliable and trustworthy. The victim (PW-07) was the consenting party and the appellant has been convicted on the basis of surmises and conjectures and, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. Hence, the present appeal deserves to be allowed in toto. (8) Per-contra, Mr. Ashish Shukla, learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW-07), who was less than 16 years of age on the date and time of the offence, has clearly narrated the incident and implicated the appellant herein to be the author of the crime in question coupled with medical evidence available on record i.e. MLC report of the victim (Ex.P/19), ultrasonography report (Ex.P/41), pregnancy test report (Ex.P/42) and DNA report (Ex.P/43), the trial Court has rightly convicted and sentenced the appellant for the offences mentioned herein-above. Therefore, the Page No.6 of 15 IN CRA-1720-2019 present appeal is liable to be dismissed. (9) Mr. Amrito Das, learned amicus curiae would submit that in the present case, on 18.03.2018, the victim for the first time alleged that the appellant has committed sexual intercourse with her and, ultimately, on 22.05.2018, FIR (Ex.P/05) was registered. On 02.06.2018, the victim (PW-07) had undergone ultrasonography test and, according to her report (Ex.P/41), it has been opined that she is carrying pregnancy of 14 weeks and, after which, on 23.05.2018 the appellant was arrested. However, though the learned trial Court on 26.07.2018, apart from charge under Section 450 of IPC, has also framed charge under Section 376(2)(i) of IPC against the appellant holding that he has committed sexual intercourse with the minor victim (PW-07) between 18.03.2018 to 30.04.2018, but, thereafter, proceeded to convict him for the said offences without recording a finding that the offence in question has been committed on or after 21.04.2018 i.e. the date on which Section 376(3) of IPC came into force/inserted in statute books, which is violative of Article 20(1) of the Constitution of India. (10) Learned amicus curiae vehemently submits that for convicting the appellant for offence under Section 376(3) of IPC, the learned trial Court ought to have recorded a specific finding that the offence was committed on 21.04.2018 or thereafter, as prior to which, Section 376(3) of IPC was not in force/not brought into the statue Page No.7 of 15 IN CRA-1720-2019 books, whereas the evidence available on record would suggest that the date of offence in the present matter is between 18.03.2018 to 26.03.2018. Hence, there is no specific and cogent evidence available on record, except for the inference that can be drawn that the victim (PW-07) was subjected to sexual intercourse by the appellant on or after 21.04.2018 (i.e. after insertion of sub-section (03) to Section 376 of IPC). Therefore, the appellant is entitled to get benefit of doubt so far as offence under Section 376(3) of IPC is concerned. (11) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (12) The first question for consideration would be whether the victim (PW-07) was less than 16 years of age on the date and time of the offence, which the learned trial Court has recorded in affirmative on the basis of copy of relevant page of victim’s admission register [Article-A(1)(c)] and her school progress report/mark-sheet [Article- A(2)(c)], wherein her date of birth has been recorded as 15.08.2004, meaning thereby, the victim (PW-07) was minor aged about more than 13 years (i.e. less than 16 years) on the date of offence. Furthermore, the victim (PW-07) in her statement before the Court in Para-01 has deposed that her date of birth is 15.08.2004 and, her father (PW-09) has also stated that the victim (PW-07) was aged Page No.8 of 15 IN CRA-1720-2019 about 14 years at the time of occurrence. As such, on the basis of aforesaid evidence available on record, the finding recorded by the learned trial Court that the victim (PW-07) was minor aged about less than 16 years on the date and time of the offence, is strictly in accordance with law. We do not find any illegality or perversity in the said finding recorded by the learned trial Court. Accordingly, we hereby affirm the said finding. (13) The next question for consideration would be whether the victim (PW-07) was subjected to sexual intercourse/rape by the appellant or not? (14) In the case at hand, considering the statement of the victim (PW-07), wherein she has clearly narrated the incident in question and implicated the appellant herein to be the author of the crime by stating that firstly at the time of Chait-Navratra, in the year 2018, while she was alone in her house, the appellant unauthorisedly entered into her house and, finding her alone, locked the doors of the house from inside and, then, forcefully took her inside the worship room and knot her legs and hands and, thereafter, committed sexual intercourse with her. It is also stated by the victim (PW-07) that the appellant has also threatened her to kill if she discloses about the incident to anyone and, further, after the said incident, 03-04 time again the appellant has committed sexual intercourse with her. The victim (PW-07) has further stated that on Page No.9 of 15 IN CRA-1720-2019 account of such sexual intercourse committed by the appellant, she became pregnant. The aforesaid statements of the victim (PW-07) have duly been supported by her mother (PW-06), who reported the matter to the police and lodged FIR. Further, the victim (PW-07) was also subjected to lengthy cross-examination, but she remained consistent in her version and, therefore, her testimony inspire confidence and can be relied upon to hold the appellant guilty for the offence. (15) Apart from this, the said version of the victim (PW-07) is also supported by medical evidence available on record: i.e. (i) MLC report of the victim (Ex.P/19), wherein it has clearly been opined that the victim (PW-07) may be pregnant, which is duly supported by the statement of Dr. Ananya Shrivastava (PW-24), who has medically examined the victim (PW-02); (ii) pregnancy test report (Ex.P/42), which is found positive and duly proved by Dr. Reeti Sharma (PW-25) who has conducted the same; (iii) ultrasonography report (Ex.P/41), wherein it has clearly been mentioned that the victim (PW-07) is carrying pregnancy of 14 weeks, which is duly proved by Dr. Rajesh Patel (PW-23) and (iv) DNA report (Ex.P/43), in which, it has clearly been opined that upon examination of blood samples of the victim (PW-07), the appellant and that of victim’s foetus, it is found that the appellant and the victim (PW-07) are biological father and mother of the child (foetus). As such, on the basis of aforesaid evidence available on record, the finding recorded Page No.10 of 15 IN CRA-1720-2019 by the learned trial Court that the appellant is guilty of having committed repeated sexual intercourse on the minor victim (PW-07), who was aged about less than 16 years, is strictly in accordance with law. We do not find any illegality or perversity in findings recorded by the learned trial Court. Accordingly, we hereby affirm the said finding. (16) Now the question would be whether under the facts and circumstance of the present case, the learned trial Court is justified in convicting the appellant for offence under Section 376(3) of IPC or same can be modified/altered ? (17) Admittedly, Section 376(3) of IPC was brought into the statute book w.e.f. 21.04.2018. We do not find any illegality or perversity in findings recorded by the learned trial Court. Accordingly, we hereby affirm the said finding. (16) Now the question would be whether under the facts and circumstance of the present case, the learned trial Court is justified in convicting the appellant for offence under Section 376(3) of IPC or same can be modified/altered ? (17) Admittedly, Section 376(3) of IPC was brought into the statute book w.e.f. 21.04.2018. However, in the present case, the learned trial Court on 26.07.2018 framed charges against the appellant, wherein firstly in Para-01 of the memo of charge it is stated that the appellant has committed said offences between 18.03.2018 to 30.04.2018 but, thereafter, the charge against the appellant was amended as per order dated 30.09.2019, the relevant portion of which reads as under: “ अंतिम ्ቅ ्ቅी ैयारी ्ቅे दौरान विरति आरोप प्ቔ पर ध्यान आ्ቅቧኌ होने पर यह दቦኌ होा है वि्ቅ त््ቅालीन पीठासीन अति#्ቅारी ्ቅे ्ቛारा आरोप प्ቔ ्ቅी ्ቅं ति%्ቅा 2 में आरोपी परसराम ्ቅे विरू्ቍ #ारा 376 (2) (झ) ्ቅा आरोप विरति वि्ቅया गया है जबवि्ቅ अभि.योग प्ቔ ्ቚस्ुी विदनां्ቅ 20.07.2018 ्ቅो उ्ሹ #ारा विलोविप हो ु्ቅी थी एं उस्ቅे स्थान पर विदनां्ቅ 21 अ्ቚैल 2018 से #ारा 376 उप#ारा 3 ्ቚ.ाील है। अः दं% ्ቚवि8या संविहा ्ቅी #ारा 216 में ्ቚद्ቈ वि्ሹयों ्ቅे Page No.11 of 15 IN CRA-1720-2019 अनुपालन में आरोप में परिरन ्ቅरना आश्य्ቅ है । अः ्ቚथम दृ्ቖया अभि.योग प्ቔ एं संल्ሿ दस्ाेजों ्ቅे आ#ार पर आरोप प्ቔ ्ቅी ्ቅं ति%्ቅा 2 में परिरन वि्ቅया जा्ቅर #ारा 376 (2) (झ) ्ቅे स्थान पर #ारा 376(3) संोति# वि्ቅया गया। परिरቔኌ अपरा# आरोपी ्ቅो पढ़्ቅर सुनाये एं समझाये जाने पर आरोपी ने अपरा# वि्ቅया जाना ” अस्ी्ቅार वि्ቅया। (18) Thereafter, while convicting the appellant for offence under Section 376(3) of IPC, the learned trial Court did not record a finding that the offence in question was committed on or after 21.04.2018, i.e. the date when Section 376(3) came into the statute books, punishing a person/accused who commits an offence of rape on the victim under 16 years of age. However, fact remains that Section 376(3) is a penal statute and it is a well settled principle of interpretation of criminal law that such provisions have to be strictly construed and cannot be given a retrospective effect unless the legislative intent and expression is clear beyond ambiguity. Such penal statutes which create offences or which have the effect of increasing penalties for existing offences will only be prospective by reason of the constitutional restriction imposed by Article 20 of the Constitution (See: West Ramnad Electric Distribution Co. Ltd. v. State of Madras 1 and State of Maharashtra v. KKS Ramaswamy 2 ). Therefore, if an Act creates a new offence it will bring into its fold only those offenders who commit all ingredients of the offence after the Act comes into operation (See: Sajjan Singh v. 1 AIR 1962 SC 1753 2 AIR 1977 SC 2091 : 1977 (3) SCC 525 Page No.12 of 15 IN CRA-1720-2019 State of Punjab 3 and State of Maharashtra v. Krishnarao Dudhappa Shinde 4 ). (19) As such, a penal statute which create new offences is always prospective and a person can be punished for an offence committed by him in accordance with law as it existed on the date on which an offence was committed (See: Dayal Singh v. State of Rajasthan 5 , Para-11). At this stage, it is also relevant to notice Article 20(1) of the Constitution which provides for protection in respect of conviction for offences and states as under: “20. Protection in respect of conviction for offences. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.” (20) Now reverting to the facts of the present case in light of the above-quoted judgment rendered by their Lordships of the Supreme Court, it is quite vivid that in the present case the spinal issue is as to whether in absence of any specific evidence proving beyond all reasonable doubt that the offence in question was committed on or after 21.04.2018, the learned trial Court has rightly convicted the appellant for offence under Section 376(3) of 3 AIR 1964 SC 464 4 (2009) 4 SCC 219 5 AIR 2004 SC 2608 Page No.13 of 15 IN CRA-1720-2019 IPC. In this regard, firstly the statement of the victim (PW-07) may be notice herein profitably, wherein she has clearly stated in Para- 01 that the appellant committed rape upon her for the first time during Chait-Navratara in the year 2018. In the year 2018, Chait- Navratara occurred between 18.03.2018 to 26.03.2018. Secondly, according to ultrasonography report of the victim (Ex.P/41) dated 02.06.2018, she was carrying pregnancy of 14 weeks i.e. 03 months 14 days and, going by the said ultrasonography report (Ex.P/41), the offence in question might have occurred during 15.02.2018 till 20.02.2018 i.e. much prior to the date of the incident, as alleged by the victim (PW-07). As such, there is no specific and cogent evidence, except for the inference to be drawn, which is brought on record, to demonstrate that the victim (PW-07) was subjected to rape on or after 21.04.2018 i.e. post insertion of Section 376(3) into the statute book. Consequently, the prosecution miserably failed to established beyond all reasonable doubt that the offence in question was committed on or after 21.04.2018 and further the learned trial Court did not examine the said aspect of the matter and straightaway proceeded to convict the appellant for offence under Section 376(3) of IPC. Therefore, by virtue of Section 20(1) of the Constitution of India, the appellant, in the present case, cannot be subjected to a penalty greater for an offence other than that which might have been inflicted under the law in force at the time of the commission of the offence. We hereby hold accordingly. Page No.14 of 15 IN CRA-1720-2019 (21) In that view of the matter, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 376(3) of IPC, as under the facts and circumstances of the present case, the same is bad and unsustainable in law. Accordingly, the conviction and its respective sentence of the appellant for offence under Section 376(3) of IPC, as awarded by the learned trial Court, is hereby set aside. But, in lieu thereof, the appellant is convicted for offence under Section 376(2)(i) of IPC and sentenced to undergo rigorous imprisonment for 10 years (i.e. the minimum sentence prescribed for the said offence). Further, while affirming the conviction of the appellant for offence under Section 450 of IPC, we deem it appropriate to sentence him for 05 years’ RI by reducing it from 07 years’ RI. However, the fine sentence and default stipulation, as imposed upon the appellant by the learned trial Court for the both the offences, alongwith the direction that both the sentences to run concurrently, shall remain intact. (22) Consequently, this criminal appeal is partly allowed to the extent indicated herein-above. (23) While parting with the record, we must place on record the appreciation for assistance rendered by Mr. Amrito Das, learned amicus curiae, who not only argued the case at length on short notice but has also brought relevant facts and legal position to our Page No.15 of 15 IN CRA-1720-2019 notice and further submitted written submission. (24) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if