Section 376(2) (i) of IPC is pertaining to rape of a
woman when she is under sixteen years of age. Even under
Section 376(2)(i) of IPC, the minimum sentence imposed is
10 years. {Para 14}
15. Section 42 of POCSO Act deals with alternative
sentence which reads 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,
370A, 375, 376, 376A, 376AB,376B, 376C, 376D,
376DA, 376DB, 376E or section 509 of the Indian
Penal Code, 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.”
16. Further, Section 42A makes it clear that act is not
in derogation of any other law and if there is any
inconsistency with any other law for the time being in force,
the provisions of POCSO Act shall have overriding effect. In
the instant case, there is no inconsistency as the offence
under Section 376(2)(i) as well as Section 6 of POCSO Act are
punishable with minimum imprisonment of ten years. But the
judgment discloses that though the Trial Court has considered
Section 42 of POCSO Act, it has proceeded to impose
sentence of 7 years with fine of Rs.30,000/- with default
clause of RI for two years. This is against the statute and the
State is harping on this point.
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
CRL.A. NO.100242/2018
THE STATE OF KARNATAKA Vs SHANKAR URF SHANKRAPPA S/O RAMPPA HUBBALLI,
PRESENT
MR. JUSTICE H.T.NARENDRA PRASAD
AND
MR. JUSTICE RAJENDRA BADAMIKAR
Author: RAJENDRA BADAMIKAR, J.
DATED: 22ND DAY OF APRIL 2022
The State has filed this appeal under Section 377(1) (b)
of Code of Criminal Procedure, 1973 (hereinafter referred to
as ‘Cr.P.C.’, for short) challenging the inadequate sentence of
imprisonment imposed against the accused.
2. For the sake of convenience, the parties herein
are referred to with their original ranks occupied by them
before the trial Court.
3. Brief factual matrix leading to the case is as
under:
The P.S.I. of Mundaragi has charge sheeted the accused
for the offences punishable under Sections 363, 342, 343,
376(i) and 506 of Indian Penal Code, 1860 (hereinafter
referred to as ‘IPC’ for short) and Sections 4 and 5(L) of the
Protection of Children from Sexual Offices Act, 2012
(hereinafter referred to as ‘POCSO Act’, for short). According
to prosecution on 21.05.2014, the victim came to Mundaragi
for attending the marriage of their relative and accused came
there in a car bearing No.KA-37/A-3170 and then persuaded
the victim girl to accompany him and around about 1 O’clock,
he kidnapped the victim girl in the said car and took her to his
sister’s house situated in Savadi village of Ron Taluk by
introducing the victim as his wife. It is also alleged that
accused had kept the victim in the house of his sister and had
forcible sexual intercourse over her in spite of her protest and
thereafter confined her in a rented house situated in Koppal
wherein he repeatedly had sexual intercourse with the victim
in spite of her protest. He had also threatened her when she
attempted to contact her parents. The complainant has
lodged a missing complaint and later on the victim was traced
in the company of the accused and she was secured by the
police and then she was subjected to medical examination.
She has also given statement under Section 164 of Cr.P.C.
before the learned Magistrate. Then the charge sheet came
to be submitted against the accused for the above said
offences.
4. The accused was arrested and was remanded to
judicial custody. He was represented by the counsel and
prosecution papers were furnished to him and charges framed
against him were read over and explained to him and he
pleaded not guilty. Then the prosecution examined in all 29
witnesses as PW-1 to PW-29 and placed reliance on 44
documents marked as Exs.P-1 to P-44. Further, prosecution
has also placed reliance on 6 material objects marked as
M.Os.1 to 6. After conclusion of evidence of the prosecution,
the statement of accused under Section 313 of Cr.P.C. was
recorded to enable the accused to explain the incriminating
evidence appearing against him. The case of accused is of
total denial and he did not choose to lead any oral or
documentary evidence in support of his case. Thereafter, the
learned Special Judge after hearing the arguments and after
perusing the material evidence placed on record, has
convicted the accused for the offences punishable under
Sections 363, 342, 343, 376(i) and 506 of IPC and Sections 4
and 5(L) of POCSO Act and passed the following sentence:
Accused is sentenced to undergo simple
imprisonment for 5 years and to pay fine of
Rs.10,000/- in default to undergo SI for 1 year for
the offence punishable under Section 363 of IPC.
He is sentenced to undergo RI for 7 years
and to pay fine of Rs.30,000/- in default to undergo
RI for 2 years for the offence punishable under
Section 376(i) of IPC and Sections 4 and 5(L) of
POCSO Act.
He is further sentenced to undergo SI for 6
months for the offence punishable under Section
342 of IPC.
He is further sentenced to undergo SI for 1
year for the offence punishable under Section 343
of IPC.
He is further sentenced to undergo SI for 2
years and to pay fine of Rs.1,000/- in default to
undergo SI for 3 months for the offence punishable
under Section 506 of IPC.
The maximum sentence imposed was 7 years for the
offence under Section 376(i) of IPC and Sections 4 and 5(L) of
POCSO Act and he directed that all sentences shall run
concurrently.
5. Being aggrieved by the sentence, the State has
filed this appeal.
6. We have heard the arguments advanced by the
learned Addl. State Public Prosecutor and learned counsel for
respondent/accused. We have also perused the records.
7. Addl. State Public Prosecutor contended that the
imposition of lesser/inadequate sentence for the offence
under Section 376(i) of IPC and Sections 4 and 5(L) of POCSO
Act is contrary to law, facts and evidence on record. He
would also contend that under Section 42 of the of POCSO
Act, if the offender is found guilty of the offence under such
other law, he is liable for punishment under the provisions of
POCSO Act as well as under other law, then he shall be
punished for the offence which is greater in degree. He would
further contend that Section 42A of the POCSO Act shall be in
addition to and not in derogation of the provisions of any
other law for the time being in force and in case of any
inconsistency, the provisions of POCSO Act will have
overriding effect on the provisions of other law to the extent
of inconsistency. He would contend that under Section 5(L) of
POCSO Act which is punishable under Section 6 of POCSO Act
for aggravated penetrative sexual assault the minimum
sentence shall not be less than ten years along with fine and
it may extend to life. He would contend that though the
learned Special Judge has convicted the accused for the
offence punishable under Section 5(L) of POCSO Act, he has
not imposed minimum sentence prescribed under the statute
but imposed only 7 years of imprisonment which is against
the statutory mandate. Hence, he would contend that the
impugned judgment in respect of imposition of sentence calls
interference and modification and as such, he prayed for
allowing the appeal in this regard.
8. Per contra, learned counsel for respondent/
accused has contended that the accused was granted
remission by the State and he was compelled to withdraw the
appeal filed by him and now the present appeal is not
maintainable as the State being a parental party, cannot take
dual stand for remission and for enhancement of the
sentence. She would also contend that the State cannot be
permitted to blow hot and cold simultaneously. She would
invite the attention of the Court towards the Doctrine of
legitimate expectation by the public authority which is
responsible in this regard. She would contend that doctrine is
not engraved but it is followed by practice and though the
accused had challenged the judgment of conviction, due to
persuasion by the State under the guise of seeking remission,
he was compelled to withdraw Crl.A.No.100248/2018. She
would further contend that the act of the State in this regard
is a compulsion and also violates the human rights. As such,
she would contend that the State having given remission to
the accused, is not entitled to pursue this appeal and as such,
she would seek for dismissal of the appeal.
9. Having heard the arguments and perusing the oral
as well as documentary evidence, now the following point
would arise for our consideration:
“Whether the Trial Court is erred in not
imposing adequate minimum sentence as
prescribed under the statute?”
10. It is evident from the records that accused was
convicted for the offence punishable under Sections, 363,
342, 343, 376(i) and 506 of IPC and Sections 4 and 5(L) of
POCSO Act. Though the accused had challenged the
judgment of conviction in Crl.A.No.100248/2018 initially, he
withdrew the said appeal and the appeal came to be
dismissed by order dated 04.12.2019 in view of the memo
filed by the counsel for the appellant. Under such
circumstances, now the question of considering merits of
conviction cannot be gone into. Though learned counsel has
tried to argue on the ground that there is dispute regarding
the age of the victim so as to non-application of the provisions
of POCSO Act, this defence is not available to the accused.
Even otherwise, on perusing the evidence of the victim, it is
evident that her age was not at all challenged in her entire
cross-examination. As such, the said ground now cannot be
urged.
11. The offence is said to have committed on
21.05.2014 and thereafter for two months. The accused is
found guilty of the offence under Section 5(L) of POCSO Act,
which reads as under:
5. Aggravated penetrative sexual assault.—
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx
(f) xxx
(g) xxx
(h) xxx
(i) xxx
(j) xxx
(k) xxx
10
(l) whoever commits penetrative sexual assault on the
child more than once or repeatedly; or
(m) xxx
(n) xxx
(o) xxx
(p) xxx
(q) xxx
(r) xxx
(s) xxx
(t) xxx
(u) xxx
It is not under the serious dispute that the victim was
minor and she suffered penetrative sexual assault by the
accused regularly for nearly two months. The said offence is
punishable under Section 6 of POCSO Act. Section 6 of
POCSO Act is amended with effect to 16.08.2019 wherein the
minimum sentence is 20 years but in the instant case the
offence is committed on 21.05.2014 and for two months
thereafter. Hence, prior to amendment to Section 6 reads as
under:
“6. Punishment for aggravated penetrative
sexual assault.—Whoever, commits aggravated
penetrative sexual assault, shall be punished with
rigorous imprisonment for a terms which shall not
be less than ten years but which may extend to
imprisonment for life and shall also be liable to
fine.”
12. Hence, even prior to amendment, the minimum
sentence prescribed for the offence under Section 5(L) is
imprisonment which shall not be less than ten years with fine.
13. Section 4 of POCSO Act deals with penetrative
sexual assault and since Section 5 is more grave, offence
under Section 4 merges with Sections 5 and 6.
14. Section 376(2) (i) of IPC is pertaining to rape of a
woman when she is under sixteen years of age. Even under
Section 376(2)(i) of IPC, the minimum sentence imposed is
10 years.
15. Section 42 of POCSO Act deals with alternative
sentence which reads 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,
370A, 375, 376, 376A, 376AB,376B, 376C, 376D,
376DA, 376DB, 376E or section 509 of the Indian
Penal Code, 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.”
16. Further, Section 42A makes it clear that act is not
in derogation of any other law and if there is any
inconsistency with any other law for the time being in force,
the provisions of POCSO Act shall have overriding effect. In
the instant case, there is no inconsistency as the offence
under Section 376(2)(i) as well as Section 6 of POCSO Act are
punishable with minimum imprisonment of ten years. But the
judgment discloses that though the Trial Court has considered
Section 42 of POCSO Act, it has proceeded to impose
sentence of 7 years with fine of Rs.30,000/- with default
clause of RI for two years. This is against the statute and the
State is harping on this point.
17. The main contention of the respondent/accused is
that by the act of the State, the accused was compelled to
withdraw Crl.A.No.100248/2018 in order to get remission and
hence, learned counsel contended that the appeal is not
maintainable as the State being a parental party cannot by
way of compulsion blow hot and cold simultaneously.
18. It is an undisputed fact that the appeal filed by
the accused was withdrawn. The memo of withdrawal was
filed along with the letter forwarded by the accused. The
memo of withdrawal as well as letter forwarded by the
accused are extracted hereinbelow:
MEMO FOR WITHDRAWAL OF APPEAL
The advocate for the petitioner submits herein as
under:
That the appellant in the above appeals does
not want to continue the appeal any further for the
reasons stated in his letter to the Seceratary, Legal
Aid High court Dharwad. This case was entrusted
to me through the Legal Aid and hence I am filing
this memo for withdrawal of this appeal.
Sd/-
Letter forwarded by the accused
Respected sir,
I Shankar s/o. Ramappa Hubballi, CTP
No.4255, central prison Dharwad, do hereby
submits and prays as under.
That I had filed Crimanal appeal
No.100248/2018 before the Hon’ble High Court of
Karnataka Dharwad. That my sentence of
imprisonment period is about to end in the year of
march 2020. If my appeal will not decided n time
it will adversely affect to my release. And I am not
willing to continue with my above said case. my
advocate is Smt. Aruna Deshpande.
Hence I request you to kindly withdraw the
said Criminal Appeal No.100248/2018 and same
may intimate to me for which I shall be ever
grateful to your kind self.
Sd/-
19. In the memo, there is no specific reasons quoted
but in the letter, it is contended by the accused that his
sentence of imprisonment period is about to end in the March,
2020 and if his appeal is not decided in time, it would
adversely affect his release and as such, he withdrew the
appeal. On what basis he asserted that his appeal will not be
decided in time is not forthcoming. This letter is dated
05.10.2019 and memo was filed on 22.11.2019. The appeal
was dismissed as withdrawn on 04.12.2019. However, the
imprisonment period according to accused was till the end of
March 2020. In that event, he would have insisted for early
hearing of the appeal but that is not done by him.
20. The main contention of the learned counsel for
respondent/accused is that accused has given remission by
the State and now again the State cannot file appeal for
enhancement of sentence and he was not made aware of
filing of the appeal. But the records disclose that the notice of
this appeal was served on accused through Jailor prior to filing
of the memo. Apart from that, the remission was granted as
per the statute and it is not a discretionary remission granted
to the accused. In this context, learned Addl. State Public
Prosecutor has invited the attention of the Court to Rule 35
and 36 of Chapter VI of Karnataka Prisons Rules, 1974 which
read as under:
35. Remission of sentence.—(a) Remission system
means the system of regulating award of marks to
an to consequential shortening of sentence of
prisoners in prisons in accordance with the rules for
the time being in force.
(b) Remission can be granted to prisoners by
the State Government or Inspector General or
Superintendent subject to withdrawal or forfeiture or
revocations. The State Government may debar any
prisoner or categories of prisoners from the
concession of remission.
(c) Remission is an incentive for good
behaviour and good work and is not the matter of
right for any prisoner.
(d) Remission is of three kinds :—
(i) Ordinary remission;
(ii) Special remission;
(iii) Remission by the State Government.
36. Ordinary Remission.—(1) Ordinary remission
may be granted at the scale shown below to
prisoners who are eligible for earning remission other
than those employed on conservancy work.
(i) three days per month for good
behaviour discipline and scrupulous attention
to all prison regulations.
(ii) three days per month for industry
and due performance of allotted work at
prescribed standard.
(2) Convict Warders shall receive eight days
ordinary remission per month and convict night
watchman seven days per month.
(3) (a) Prisoners employed on prison service
such as cooks, etc., who work on Sundays and
Holidays may be awarded three days remission per
quarter in addition to any other remission earned
under these rules.
(b) Prisoners employed on conservancy
work and who work on Sundays and holidays
may be awarded seven days ordinary
remission per month.
(4) any prisoner eligible for ordinary remission
under these rules, who, for a period of one year
reckoned from the first day of the month following
the date of the month following the date of his
sentence, or the date on which he was last punished
for a prison offence has committed no prison offence
thereafter, shall be awarded fifteen days ordinary
remission in addition to any other remission earned
under the rules.
(5) Thirty days remission shall be granted to
all classes of convicts on the following scale for
attending literacy classes and completing the literacy
course or award of certificates by the concerned
authorities.
(6) the award of ordinary remission shall be
made as nearly as possible on 1st January, 1st April
and 1st July and 1st October and the amount of
remission recorded in the history ticket.
(7) No prisoner shall be granted ordinary
remission for the month in which he is released.
21. The remission was granted to the accused under
Karnataka Prisons Rules and it is an ordinary remission in
respect of good behavior incentive and other conditions
incorporated in Rule 36. The remission was not granted by
the State by passing any special law or treating it as special
case but the remission was statutory remission under the
provisions of Karnataka Prisons Rules, 1974.
22. Further, the learned Addl. State Public Prosecutor
has also brought to the notice of the Court with regard to
Karnataka Prisons Manual 1978 and invited the attention of
the court to Chapter XII and Rules 214 to 220. Rule 216
deals with original remission and procedure is also
incorporated thereunder.
23. Learned counsel for respondent/accused has
vehemently contended that the State has compelled the
accused to withdraw the appeal in order to get remission
under the provisions of the Karnataka Prisons Rules, 1974.
But in these Rules, there is no provision to show that
remission cannot be granted in case of any pendency of the
appeal. It is argued by the learned counsel for
respondent/accused that there is a practice for refusing the
remission in case of pendency of the appeal but no evidence
is placed to show that any such practice is being followed.
Further, the remission is under statute and pendency of
appeal has no relevancy and in any event accused is going to
get the benefit of remission if he is entitled under law. Under
such circumstances, the said arguments do not have any
relevancy and cannot be accepted. When the remission is
granted under the statute, it cannot lie in the mouth of the
accused that the State is taking dual stand regarding granting
remission and also seeking enhancement of the sentence. It
is to be noted here that remission is granted under the
statute. The enhancement of sentence is also sought only
under the statute wherein minimum sentence is prescribed.
Hence, there is no inconsistency with each other. The
arguments advanced by the learned counsel regarding
doctrine of legitimate expectation cannot be made applicable
to the facts and circumstances of the case in hand. In this
context, learned counsel for respondent has placed reliance
on a decision of the Delhi High Court in W.P.(C)
No.4760/2010 dated 12.11.2010 but the facts and
circumstances of the said case are entirely different and it was
pertaining to educational qualification and seat matrix. It has
nothing to do with the present case and as such, the doctrine
of legitimate expectation cannot be applied in the instant case
as the remission was granted under the statute and
enhancement of sentence is also being sought only under the
statute. Even if the sentence is enhanced, the remission will
not be taken away and the accused will get the remission and
Rule 36(8) of Karnataka Prisons Rules 1974 which deals with
re-admission and earning remission thereunder. Under such
circumstances, these rules are not contradictory to each
other.
24. Learned counsel for respondent has further relied
on a decision of the Hon’ble Apex Court in the case of M.P.
Sharma and others Vs. Satish Chandra reported in AIR
1954 SC 300 and the decision of the Hon’ble Apex Court in
the case of Tofan Sing Vs. State of Tamil Nadu in
Crl.A.No.152/2013 but both these decisions are pertaining to
Article 20(3) of Constitution in respect of no person accused
of any offence shall be compelled to be a witnesses against
himself. In the instant case, no such violation of Article 20(3)
is applicable. It is not a case of double jeopardy. Merely
because State has given remission and seeking minimum
sentence under the statute, it cannot be held that it amounts
to violation of Article 20(3) of Constitution of India. The facts
and circumstances of both the cases relied are entirely
different. Hence, they cannot be made applicable to the facts
and circumstances of the case in hand. The question of
doctrine of self incrimination is not applicable as trial is
already concluded and accused is also convicted. This is not a
case of self incrimination but it is only a case of imposition of
minimum sentence prescribed under the statute. Apart from
that, the remission given to the accused will not be taken
away in any event and if he is entitled for further remission
for the subsequent period of imprisonment, he is entitled
under the Karnataka Prisons Rules, 1974 and under the
provisions of Karnataka Prisons Manual. Under such
circumstances, the argument advanced by the learned counsel
in this regard holds no water. The act of the State in this
regard cannot be termed as contradictory and the doctrine of
legitimate expectation and doctrine of self incrimination
cannot be made applicable to the facts and circumstances of
the case in hand. Further, there is no compulsion for
withdrawal of the appeal by the accused.
25. Learned counsel has also invited the attention of
the Court to Section 377 of Cr.P.C. and contended that when
the State has filed an appeal for enhancement of sentence,
the accused is at liberty to plead for his acquittal or for
reduction of sentence. At the first instance, question of
seeking reduction of sentence in this case does not arise at all
as the Trial Court erred in not imposing minimum statutory
sentence prescribed under the law. The second aspect
regarding accused arguing for acquittal also does not arise,
since the appeal filed by him was withdrawn and now after
having withdrawn the appeal, he cannot argue for acquittal.
Hence, the said ground is also not sustainable. Under these
circumstances, the argument advanced by the learned counsel
for respondent/accused in this regard cannot be entertained
and admittedly, the Trial Court has failed to impose the
minimum sentence prescribed under the law. Under such
circumstances, the appeal filed by the State requires to be
allowed and the sentence so far as it relates to the offence
under Section 376(i) of IPC and under Section 5(L) read with
Section 6 of POCSO Act needs to be altered by enhancing it
from 7 years to 10 years as no other special reasons are
forthcoming to enhance it to life imprisonment. Accordingly,
we answer the point under consideration in the affirmative
and proceed to pass the following:
ORDER
The appeal filed by the State is partly allowed.
The sentence so far as it relates to Section 376(i) of IPC
and Sections 4 and 5 (L) read with Section 6 of POCSO Act is
enhanced and accused is sentenced to undergo rigorous
imprisonment for a period of ten years along with fine as
imposed by the Trial Court.
The rest of the sentence imposed by the Trial Court
pertaining to other offences including the fine imposed
remained unaltered.
The Trial Court is directed to secure the presence of the
accused for undergoing reminder part of the enhanced
sentence in this appeal.
Send back the Trial Court records along with a copy of
this order immediately for compliance.
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