HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 19.10.2019
Delivered on: 15.11.2019
Court No. – 79
Case :- CRIMINAL APPEAL No. – 2854 of 2017
Appellant :- Shyam Sunder
Respondent :- State of U.P.
Counsel for Appellant :- P.K. Singh
Counsel for Respondent :- G.A.
Hon’ble Ram Krishna Gautam,J.
1. This appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) has been filed by convict-appellant Shyam Sunder against judgment of conviction and sentence made therein in Special Sessions Trial No. 579 of 2013 (State Vs. Shyam Sunder), arising out of Case Crime No. 351 of 2013, under Sections 376, 506 I.P.C. read with Section 3/4 POCSO Act, Police Station Kalyanpur, District Kanpur Nagar, passed by Court of Special Judge (POCSO Act) / Additional Session Judge, Court No. 14, Kanpur Nagar.
2. Memo of appeal contends that trial court failed to appreciate facts and evidence placed on record. There was inordinate delay in lodging the F.I.R. and it was without any explanation. There was inconsistency in medical report and oral testimony, resulting improvement and exaggeration in prosecution case. Owing to dispute of tenancy, this false implication was made. Hence, this appeal with a prayer for setting aside impugned judgment of conviction and sentence made therein.
3. At the very outset, it is mentioned by Sri P.K. Singh, learned counsel for appellant that he is not challenging the judgment of conviction, wherein convict-appellant has been convicted for offence punishable under Sections 376, 506 I.P.C. read with Section 3/4 of POCSO Act. Rather, quantum of punishment has been challenged because trial court has convicted and sentenced the convict-appellant with ten years’ rigorous imprisonment and fine of Rs.10,000/- and in case of default six months’ additional rigorous imprisonment under Section 376 I.P.C. with further sentence for one year’s simple imprisonment under Section 506 I.P.C. with additional imprisonment of seven years’ imprisonment with fine of Rs.15,000/- and in case of default six months’ additional rigorous imprisonment under Section 3/4 of POCSO Act. There had been a direction for concurrent running of sentences and adjustment of previous imprisonment in this very case, towards above sentence awarded. Whereas, as per Section 42 of the Protection of Children From Sexual Offences Act, 2012 (Act No. 32 of 2012) “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, 376C, 376D, 376E or Section 509 of the Indian Penal Code (45 of 1860), 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 under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.” i.e. punishment may not be made in both the provisions of Indian Penal Code as well as of POCSO Act. Rather, the punishment, which is higher in degree, for one and same offence, as provided under POCSO Act as well as I.P.C. is to be chosen and that is to be awarded. The awarded sentence by trial court under Section 376 I.P.C. was ten years’ rigorous imprisonment with fine of Rs.10,000/- and in default, six months’ additional rigorous imprisonment. Again for same offence of penetrative sexual assault i.e. rape, defined under Section 375 I.P.C. as well as Section 3 of POCSO Act, punishable under Section 376 I.P.C. and Section 4 of POCSO Act, trial court has awarded sentence of seven years imprisonment with fine of Rs.15,000/- and in default six months’ additional imprisonment. Hence, it was apparently erroneous.
4. For determination of this point regarding higher degree of sentence, Section 376 I.P.C. provides whoever except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life or for a term which may extend to ten years and shall also be liable to fine, unless the woman raped is his own wife and is not under 12 years of age, in which case he shall be punished with either description for a term which may extend to two years or fine or with both. Meaning thereby, punishment under this section is of two categories. First is not less than seven years, which may extend to life. The second one is for a term, which may extend to ten years and shall also be liable to fine. The trial Judge in present case has invoked jurisdiction for this second part because fine has been imposed along with ten years rigorous imprisonment, which is not provided in first part. Whereas under POCSO Act under Section 4 the punishment for penetrative sexual assault is “whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine i.e. imprisonment not less than seven years extending up to life imprisonment, along with fine has been provided in this Section 4. Hence, it is a graver punishment in degree. Because under Section 376 I.P.C., the punishment of life imprisonment was with no fine and a punishment which was with fine was up to ten years only. Whereas under Section 4 of POCSO Act punishment provided is up to life imprisonment, but not less than seven years coupled with fine. Hence, it is a graver punishment. Hence, as per Section 42 of POCSO Act, in case of conviction under Section 376 I.P.C as well as for penetrative sexual assault, punishable under Section 4 of POCSO Act, the sentencing is to be made under Section 4 of the POCSO Act. Because it is of graver degree sentence. The trial Judge, in impugned judgment, has awarded ten years’ rigorous imprisonment with fine for offence punishable under Section 376 I.P.C. and he has further sentenced rigorous imprisonment of seven years with fine and in default additional imprisonment, under Section 4 of POCSO Act. Hence, prayer for setting aside sentence provided under Section 376 I.P.C. has been made.
5. Sri K.K. Rajbhar, learned A.G.A. has vehemently opposed this contention by mentioning that sentence awarded in I.P.C. was in view of the provisions given under the Code, whereas under Section 4 of POCSO Act, it was within provision of the above Act. The Court had taken care for a direction for concurrent running of sentences and it cannot be said that twice sentencing is there. Hence, this appeal, against quantum of punishment, be dismissed.
6. From the very perusal of legal provision of Section 376 I.P.C., which provides for punishment of rape and Section 4 of POCSO Act, which provides punishment for penetrative sexual assault, it is apparently clear that sentence to be provided under Section 4 of POCSO Act is greater in degree then of I.P.C.. Because under POCSO Act the minimum sentence is seven years, which may extend to life imprisonment and it is to be coupled with fine. Whereas under Section 376 I.P.C. minimum sentence as the Code was in effect on that date is seven years imprisonment, which may extend up to life imprisonment, but there is not provision for fine and if fine is to be imposed then it is for second category where the maximum sentence is up to 10 years coupled with fine. Hence, the learned trial Judge was to sentence under Section 4 of POCSO Act because of Section 42 of POCSO Act and under Section 4 of POCSO Act, sentence awarded is of seven years’ imprisonment with fine and in default additional imprisonment of six months, which was in accordance with the provision of Section 4. The punishment awarded for offence punishable under Section 376 I.P.C. i.e. ten years’ rigorous imprisonment with fine of Rs.10,000/- was not to be awarded as per Section 42 of POCSO Act. Hence, this part of quantum of sentence is to be set aside. There is no State appeal for enhancement of punishment awarded under Section 4 of POCSO Act.
7. The factual aspect of this case is that prosecutrix was held to be of 15 years in medical age determination, though she was said to be of 11 years in F.I.R. (Ext.Ka-1) and other statement recorded. But from the perusal of first information report, it is apparent that this report was got lodged for above offence of rape after repeated rape being said to be made by convict-appellant. In between, neither prosecutrix disclosed the occurrence nor ever protest was raised. The last occurrence of rape was said to be of Chaitra Navratra of year 2013 i.e. a delayed report. The convict-appellant is of no criminal antecedent. There is likelihood of him being brought in the main stream of society after repent and reformation. Hence, sentence of seven years with fine of Rs.15,000/- and in default six months’ additional imprisonment under Section 4 of POCSO Act was adequate and proper sentence.
8. Under above facts and circumstances, imposed sentence under Section 376 I.P.C. was not permissible as per section 42 of POCSO Act. Hence, appeal is liable to be partly allowed regarding quantum of sentence for imprisonment, awarded under Section 376 I.P.C.. But for rest of sentence awarded under Section 506 I.P.C. and Section 3/4 of POCSO Act, the same is to be dismissed. Accordingly, it is being partly allowed. The sentence awarded by trial judge is being substituted as below.
Convict-appellant Shyam Sunder is being sentenced for offence punishable under Section 506 I.P.C. with one year simple imprisonment. He is further sentenced with seven years’ rigorous imprisonment and fine of Rs.15,000/- and in default six months’ additional imprisonment for offence punishable under Section 3/4 of POCSO Act. Both the sentences shall run concurrently and adjustment of previous imprisonment in this case crime number shall be made against above awarded sentence.
9. Copy of the judgment along with lower Court record be transmitted to trial Court for amendment of warrant of conviction and sentence as per above conviction and sentence and for follow up action.
Order Date :- 15.11.2019