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2025 DIGILAW 128 (CHH)

Baldau Nishad v. The State of Chhattisgarh

2025-02-28

SANJAY K.AGRAWAL

body2025
Judgment : (Sanjay K. Agrawal, J.) 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, is to the legality, validity and correctness of the judgment dated 28.08.2023 passed by the Additional Sessions Judge, F.T.C. (POCSO) Bemetara, District Bemetara, Chhattisgarh, in Sessions Trial No. 18/2023 by which the appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Section 354A of the IPC Rigorous imprisonment for 2 years with fine of Rs. 500/-; in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Under Section 354 of the IPC Rigorous imprisonment for 2 years with fine of Rs. 500/-; in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Under Section 8 of the POCSO Act Rigorous imprisonment for 4 years with fine of Rs. 500/-; in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Under Section 12 of the POCSO Act Rigorous imprisonment for 2 years with fine of Rs. 500/-; in default of payment of fine amount to undergo additional rigorous imprisonment for two months. All the sentences are directed to run concurrently. Prosecution story:- 2. The case of the prosecution as projected by the prosecution and accepted by the trial Court is that on 01.06.2023 at about 11:00 pm at village Piraiya, Police Station Chandnu, District Bemetara, Chhattisgarh, the appellant, who is the neighbour of the victim (PW-5), has outraged the modesty of the minor victim (PW-5), aged about 14 years on the date and time of offence and thereby committed the offences as mentioned in the opening paragraph of the judgment. 3. It is further case of the prosecution about the said incident the victim (PW-5) made a written complaint on 03.08.2023 vide Ex.P/8 and on that basis FIR was registered vide Ex.P/9 on the same day. Spot map and crime details form were prepared vide Exs.P/7 & P/11, respectively. As per the victim her date of birth is 05.04.2009 which was duly supported by dakhil khariz register, which was seized vide Ex.P/1, proved by Head Master Mohan Lal Dewangan (PW-3) and also supported from the statements of victim’s father (PW-1); victim’s grandmother (PW-2) and village Kotwar Chamrudas Manikpuri (PW-6). Wheels of investigation started running and the appellant was arrested. 4. Wheels of investigation started running and the appellant was arrested. 4. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant/accused abjured his guilt and entered into defence. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 9 witnesses and exhibited 20 documents, whereas, the appellant in defence has examined 1 witness and exhibited 1 document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 7. Mr. R K. Pali, learned counsel for the appellant, would firstly submit that the prosecution has not been able to bring home the offence beyond reasonable doubt, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. He would further submit that by virtue of Section 42 of the POCSO Act (for brevity “the Act”) the sentence could have been awarded either for offence under Section 354A of the IPC or for offence under Section 8 of the Act which is greater in degree, but the trial Court has awarded the sentence for both the offences. He would further submit that for offence under Section 8 of the Act, the appellant has been awarded sentence to undergo rigorous imprisonment for 4 years, however no rationale basis for awarding sentence for four years as minimum sentence prescribed for offence under Section 8 of the Act is three years. He would further submit that the conviction for offence under Section 12 of the Act is not proved by the prosecution. Thus, appeal is allowed in full or part. 8. Mr. He would further submit that the conviction for offence under Section 12 of the Act is not proved by the prosecution. Thus, appeal is allowed in full or part. 8. Mr. Rahul Tamaskar, learned State counsel, would submit that considering the nature of the offence and the manner in which the appellant is said to have outraged the modesty of the victim, the trial Court has rightly convicted the appellant for offences as mentioned in the opening paragraph of the judgment, therefore, the instant appeal deserves to be dismissed. 9. I have heard learned counsel, considered their rival submissions made herein-above and gone through the records minutely. Discussion & Analysis : - 10.Now, the question for consideration would be whether the trial Court has rightly convicted the appellant for offences under Sections 354, 354A of the IPC and for offences under Sections 8 and 12 of the Act? 11.Taking into consideration the statements of the victim (PW-5), victim’s grand-mother (PW-2), father of the victim (PW-1) and dakhil kharij register (Ex.P/1) proved by head master Mohal Lal Dewangan (PW-3) qua age of the victim, the prosecution has been able to prove that the age of the victim was 14 years on the date and time of the offence. Further taking into consideration of the statement of victim’s sister (PW-7) and the victim (PW-5) in which she has clearly implicated the appellant in crime in question by stating that on the date of offence when she was sleeping, the appellant came into her house and outraged her modesty, I am satisfied that the conviction of the appellant recorded for offence under Sections 354 and 354A of the IPC and under Section 8 of the POCSO Act is well merited which is neither perverse nor contrary to the records. Accordingly, the conviction of the appellant for offence under Sections 354 & 354A of the IPC and conviction for offence under Section 8 of the POCSO Act is hereby affirmed. 12.Now, the question for consideration would be whether the trial Court has rightly convicted the appellant for offence under Section 12 of the Act or not? 13.For the offence of Sexual harassment which comes under Section 11 of the Act, the accused is liable to be punished under Section 12 of the Act and it would be appropriate to notice of Sections 11 and 12 of the Act, which state as under:- 11. 13.For the offence of Sexual harassment which comes under Section 11 of the Act, the accused is liable to be punished under Section 12 of the Act and it would be appropriate to notice of Sections 11 and 12 of the Act, which state as under:- 11. Sexual harassment:- A person is said to commit sexual harassment upon a child when such person with sexual intent:- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornogrphic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornogrphic purposes or gives gratification therefor. Explanation – Any question which involves “sexual intent” shall be a question of fact. 12. Punishment for sexual harassment:- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. 14.Considering the statement of the victim (PW-5) as well as the written report (Ex.P/8) lodged by her in my opinion no offence under Section 11 of the Act is made out which is punishable under Section 12 of the Act. Accordingly, conviction as well as sentence of the appellant for offence under Section 12 of the Act are hereby set aside. 15.Now, the question for consideration would be whether the trial Court has rightly awarded the sentence to the appellant for both the offences separately i.e. under Section 354A of the IPC as well as for offence under Section 8 of the Act or not as contended by learned counsel for the appellant ? 15.Now, the question for consideration would be whether the trial Court has rightly awarded the sentence to the appellant for both the offences separately i.e. under Section 354A of the IPC as well as for offence under Section 8 of the Act or not as contended by learned counsel for the appellant ? 16.The trial Court has convicted and also awarded the sentence to the appellant for offence under Section 354A of the IPC and Section 8 of the Act. However, it is the argument of learned counsel for the appellant that by virtue of Section 42 of the Act, the appellant could be sentenced for offence under Section 8 of the Act only being higher in degree and even could have awarded the minimum sentence i.e. 3 years, but the trial Court has overruled the provisions contained in Section 42 of the Act while awarding sentence to the appellant. 17.At this stage, it would be appropriate to notice Section 42 of the POCSO Act, which states as under:- “42 Alternate punishment – Where an act or omission constitutes an offence punishable under this Act and also under Sections 166A, 354A, 354B, 354C, 354D, 370, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, Section 509 of the Indian Penal Code or Section 67B of the Information Technology Act, 2000 (21 of 2000), then, notwithstanding anything contained in any law for the time being in force, the offender found guitly of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.” 18.In the instant case, since the criminal act of the appellant has constituted an offence punishable under Section 8 of the Act as well as under Section 354A of the IPC, but as per provison contained in Section 42 of the Act, the punishment under Section 8 of the Act being greater in degree, the trial Special Court ought to have sentenced only under Section 8 of the Act and not under both the Acts (POCSO Act as well as IPC). However, the Special Court has proceeded to sentence the appellant in both the offences i.e. under Section 354A of the IPC as well as under Section 8 of the Act. However, the Special Court has proceeded to sentence the appellant in both the offences i.e. under Section 354A of the IPC as well as under Section 8 of the Act. In this regard, the decision of the Supreme Court in the matter of Independent Thought v. Union of India , [ (2017 ) 10 SCC 800 ] may be noticed herein in which it has been held by their Lordships of the Supreme Court that Section 42 of the Act, makes it clear that where an offence is punishable, both under the POCSO Act and also under the IPC, then the offender, if found guilty of such offence, is liable to be punished under that Act, which provides for more severe punishment and held as under:- “188……………. Section 42 of the POCSO Act, as mentioned above, makes it clear that where an offence is punishable, both under the POCSO Act and also under IPC, then the offender, if found guilty of such offence, is liable to be punished under that Act, which provides for more severe punishment. This is against the traditional concept of criminal jurisprudence that if two punishments are provided, then the benefit of the lower punishment should be given to the offender. The legislature knowingly introduced Section 42 of the POCSO Act to protect the interests of the child. As the Statement of Objects and Reasons of the POCSO Act show, this Act was enacted as a special provision for protection of children, with a view to ensure that children of tender age are not abused during their childhood and youth. These children were to be protected from exploitation and given facilities to develop in a healthy manner. When a girl is married at the age of 15 years, it is not her human right of choice, which is violated. She is also deprived of having an education; she is deprived of leading a youthful life. Early marriage and consummation of child marriage affects the health of the girl child. All these ill effects of early marriage have been recognised by the Government of India in its own documents, referred to hereinabove.” 19.Similar view is taken by the Supreme Court in the matter of Bhaggi @ Bhagirath @ Naran v. State of Madhya Pradesh , [ (2024) 5 SCC 782 ] which states as under:- “29. All these ill effects of early marriage have been recognised by the Government of India in its own documents, referred to hereinabove.” 19.Similar view is taken by the Supreme Court in the matter of Bhaggi @ Bhagirath @ Naran v. State of Madhya Pradesh , [ (2024) 5 SCC 782 ] which states as under:- “29. We fully endorse the said contention as para 1 of the impugned judgment itself would reveal that the High Court had actually taken into consideration the fact that the petitioner convict was convicted only under Section 376 AB IPC as amended by Act No.22 of 2018 and under Section 363 IPC. In such circumstances, the conviction and sentence imposed on the petitioner convict is confirmed. We have taken note of the fact that though the petitioner convict was convicted for the offence under Section 3/4 and 5(m)/6 of the POCSO Act, no separate sentence was imposed on the petitioner convict by the Trial Court taking note of the provision under Section 42 of the POCSO Act. The said provision reads thus:- “42. Alternate punishment.—Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, [376A, 376AB, 376B, 376C, 376D, 376DA, 376DB], [376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000 (21 of 2000)], then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.” 30. Since, even after the interference with the sentence imposed for the conviction of the petitioner convict under Section 376-AB, IPC and modified sentence imposed on commutation by the High Court, we have awarded 30 years of rigorous imprisonment with a fine of Rupees One Lakh, no separate sentence for the aforesaid offence under the POCSO Act is to be imposed on the petitioner convict. While maintaining the conviction of the petitioner convict under Section 376-AB IPC, the sentence imposed thereunder is modified to a sentence of rigorous imprisonment for a term of 30 years, making it clear that this will also include the period of sentence already undergone and the period, if any ordered by the Trial Court for set off. While maintaining the conviction of the petitioner convict under Section 376-AB IPC, the sentence imposed thereunder is modified to a sentence of rigorous imprisonment for a term of 30 years, making it clear that this will also include the period of sentence already undergone and the period, if any ordered by the Trial Court for set off. The imprisonment awarded for the conviction under Section 363 IPC shall run concurrently. The amount of fine imposed thereunder shall be added to the fine imposed by us viz. Rupees One Lakh.” 20.From a careful perusal of Section 42 of the Act as well as the decisions of the Supreme Court in the matters of Independent Thought (supra) and Bhaggi @ Bhagirath @ Naran (supra), it is quite vivid that, in the instant case, the criminal act of the appellant has constituted an offence under the POCSO Act as well in the IPC, however, by virtue of Section 42 of the POCSO Act, the punishment is awardable to the appellant under Section 8 of the POCSO Act, which is greater in degree. But, the appellant has been sentenced to undergo rigorous imprisonment for four years for offence under Section 8 of the POCSO Act and also sentenced to undergo rigorous imprisonment for two years for offence under Section 354A of the IPC. However, the minimum punishment for offence under Section 8 of the POCSO Act is 3 years rigorous imprisonment and the maximum sentence is 5 years rigorous imprisonment; and for offence under Section 354A of the IPC the maximum sentence is prescribed 3 years rigorous imprisonment, therefore, the Special Court ought to have awarded the sentence the appellant only for offence under Section 8 of the POCSO Act. As such, the sentence awarded to the appellant for offence under Section 354A of the IPC is hereby set aside. As such, the sentence awarded to the appellant for offence under Section 354A of the IPC is hereby set aside. 21.Now, the next contention of the appellant is that the Special Court ought to have awarded the minimum sentence to the appellant i.e. rigorous imprisonment for 3 years for offence under Section 8 of the Act relying upon the decision of the Supreme Court in the matter of State of Uttar Pradesh v. Sonu Kushwaha , [ (2023) 7 SCC 475 ] in which the accused therein was convicted for offence under Section 6 of the Act and the case was prior to amendment of Section 6 of the Act and the amendment has taken place and it has been made effective from 16.08.2019 and the offence was of year 2016 in that case. However, in that case the High Court had convicted and sentenced the accused to undergo rigorous imprisonment for 7 years for offence under Section 6 of the Act, which their Lordships of the Supreme Court has enhanced to 10 years as at that time, the minimum sentence was 10 years’ rigorous imprisonment and held in Para-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. 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. 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 8 th 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/-.” 22.Coming to the facts of the instant case in light of principles of law laid down by their Lordhsips of the Supreme Court in the matter of Sonu Kushwaha (supra), it is quite vivid that no special reason has been assigned by the Special Court in view of provisions contained under Section 8 of the Act to award the sentence for 4 years rigorous imprisonment to the appellant, though the minimum sentence is 3 years rigorous imprisonment for offence under Section 8 of the POCSO Act. However, considering nature and gravity of offence; age of the appellant-accused to be 39 years and minimum sentence is prescribed 3 years rigorous imprisonment for offence under Section 8 of the POCSO Act, I am of the considered opinoin that it would be appropriate to award the sentence for 3 years rigorous imprisonment to the appellant for offence under Section 8 of the POCSO Act in the ends of justice by modifying the sentence awarded by the Special Court i.e. 4 years’ rigorous imprisonment. Conclusion:- 23.In view of the above discussion and analysis, the conviction of the appellant for offence under Section 354A of the IPC and Section 8 of the IPC is hereby affirm and sentence for offence under Section 354A is hereby set aside and for offence under Section 8 of the POCSO Act, the appellant is awarded to undergo rigorous imprisonment for 3 years instead of 4 years. However, the convcition and sentence of the appellant for offence under Section 354 of the IPC are hereby maintained and the fine amount imposed by the learned trial Court shall remain intact. 24.So far as the conviction and sentence of the appellant for offence under Section 12 of the Act are concerned, the prosecution has failed to bring home the offence against the appellant beyond reasonable doubt and, as such, the conviction and sentence of the appellant for offence under Section 12 of the Act are hereby set aside. 25.This criminal appeal is partly allowed to the extent indicated herein above. 25.This criminal appeal is partly allowed to the extent indicated herein above. 26.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any.