Full Judgment Text
2025 INSC 335
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP(Criminal) No(s). of 2025)
(Diary No. 36334 of 2024)
GYANENDRA SINGH
@ RAJA SINGH ….APPELLANT(S)
VERSUS
STATE OF U.P. ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Heard.
2. Delay condoned.
3. Leave granted.
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2025.03.07
18:26:40 IST
Reason:
1
1
4. This appeal, preferred on behalf of the appellant-accused , takes
nd
an exception to the judgment dated 2 August, 2019, passed by the
2
High Court of Judicature at Allahabad dismissing Jail Appeal No.
6590 of 2016 preferred by the appellant.
5. The Division Bench, while dismissing the appeal, affirmed the
th
judgment and order dated 16 September, 2016, passed by the
3
learned Additional Sessions Judge Court No.2, Fatehpur in Sessions
Trial No. 06 of 2016, arising out of Case Crime No. 236 of 2015
registered at Police Station Chandpur, District Fatehpur, convicting
the appellant for the offences punishable under Sections 376(2)(f) and
4
376(2)(i) of the Indian Penal Code, 1860 and Sections 3/4 of
5
Protection of Children from Sexual Offences Act, 2012 . The appellant
was awarded punishment of imprisonment for life along with a fine of
Rs. 25,000/-. In default of payment of aforesaid fine, it was ordered
that the appellant was to undergo two months of additional
imprisonment on each count.
6. Brief facts of the case are that the appellant, Gyanendra Singh @
Raja Singh, is the father of victim (PW-2) who was of about 9 years at
th 6
the time of the incident. On 28 October,2015, an FIR came to be
lodged by the wife of the appellant, Smt. Rajani, at P.S. Chandpur,
District Fatehpur, alleging inter alia , that she had gone to her parental
1
For short, ‘appellant’.
2
Hereinafter, being referred to as the ‘High Court’.
3
Hereinafter, being referred to as the ‘trial Court’.
4
Hereinafter, being referred to as ‘IPC’.
5
Hereinafter referred to as ‘POCSO Act’.
6
(Exh. Ka.1) FIR Case Crime No. 236 of 2015.
house about two months ago with her youngest son Krishna, aged
about 2 years, leaving her minor daughter, the victim herein, aged
about 9 years, and a son named Vishnu, aged about 4 years at her
matrimonial house in the custody of her husband, i.e. , the appellant.
nd
On 22 October, 2015 at about 8:00 p.m., the appellant enticed the
minor victim (PW-2) and took her to the rooftop and committed sexual
assault upon the child. She was detained on the roof by threatening
her. The minor victim came down from the roof in the morning and
narrated the whole incident to her grandfather, Ram Naresh Singh
(PW-3), who, in turn, telephonically informed the informant about the
occurrence. The appellant went absconding after the incident. The
informant (PW-1) got frightened because of the incident and did not
go to her matrimonial home. She somehow mustered the courage and
approached the police station along with her father Ranjeet Singh and
father-in-law, Ram Naresh Singh (PW-3), as well as the victim and
7
filed the FIR against the appellant. It was, inter alia , urged in the FIR
that the child victim should be medically examined. It was also stated
in the FIR that a day prior to the lodging of the report, the informant
had approached the District Headquarter, Fatehpur from where she
was redirected to approach P.S. Chandpur for lodging the FIR.
7. Investigation was undertaken by Rajesh Kumar Singh (PW-7),
Investigating Officer (I.O.). The minor victim was subjected to medical
examination by Dr. Manisha Shukla (PW-4) who opined that no
external injury was found on the body of the victim. On internal
examination, redness was seen present over the labia minora in the
vagina of the victim and her hymen was intact. Forensic material was
collected from the oral, vaginal, vulval and anal swab of the minor
7
Supra note 4.
victim, slide was prepared and sent for pathological examination,
D.N.A. mapping and examination of presence of spermatozoa. The
place of the incident was inspected, the site plan was prepared and
accordingly, the appellant was arrested.
8. The certificate of date of birth was collected from the school. The
child was examined under Section 164 of Code of Criminal Procedure,
8
1973 wherein she made an emphatic allegation of penetrative sexual
assault against the appellant.
9. Investigation was concluded and the charge-sheet was filed
against the appellant in the trial Court for the offences punishable
under Sections 376(2)(f) and 376(2)(i) of IPC and Sections 3/4/5 of
the POCSO Act. The trial Court framed charges against the appellant
for the said offences, who pleaded not guilty and claimed trial. As
many as 9 witnesses were examined and 8 documents were exhibited
by the prosecution in its evidence. After the completion of prosecution
evidence, the appellant was questioned under Section 313 CrPC and
was confronted with the allegations as appearing in the prosecution
case, which the appellant denied and claimed to have been falsely
implicated. The appellant stated that he had earlier lodged an FIR
against his wife, the informant herein, and his father (PW-3) and
therefore, a false case had been registered against him. He further
stated that at the time of the incident, the child was residing with his
sister. No evidence was led from the side of the defence.
10. Upon hearing the arguments advanced by the defence counsel
and the public prosecutor and appreciating the evidence available on
record, the learned trial Court convicted and sentenced the appellant
8
Hereinafter, referred to as ‘CrPC’.
9
as stated above. The appeal preferred by the appellant was rejected
nd
by the High Court vide judgment dated 2 August, 2019, which is
assailed in this appeal by special leave.
11. While entertaining the special leave petition, notice limited to the
nd
question of sentence was issued by this Court vide order dated 2
September, 2024.
12. Shri R. Balasubramanian, learned senior counsel appearing for
the appellant advanced a solitary submission urging that the trial
Court ought not to have convicted the appellant for the offences
punishable under Sections 376(2)(f) and 376(2)(i) IPC because the
acts alleged are defined as offences in both category of laws, i.e., the
general laws, i.e. , the IPC, as well as in the special law, i.e. , the
POCSO Act. Since the offences are overlapping, the special law would
prevail over the general law and hence, conviction of the appellant
could not have been recorded by the trial Court for both the offences.
He placed reliance on Section 42A of the POCSO Act and urged that
the said provision makes it clear that the provisions of the POCSO Act
are not in derogation of any other law and that the provisions of the
POCSO Act have an overriding effect on the provisions of any other
law to the extent of inconsistency.
13. Shri R. Balasubramanian, learned senior counsel, further urged
that the trial Court awarded sentence of life imprisonment to the
appellant for the offences punishable under Sections 376(2)(f) and
376(2)(i) of IPC, but the High Court in the appeal against conviction,
has modified the judgment of the trial Court and has increased the
rigor of the punishment by directing that the appellant would have to
9
Refer, Para 5 of this judgment.
undergo life imprisonment for the remainder of his natural life as
provided under Sections 376(2)(f) and 376(2)(i) of IPC and that there
would be no requirement of a separate sentence for the offence
punishable under Sections 3/4 of the POCSO Act. The learned
counsel submitted that without there being any appeal for
enhancement of sentence, the High Court, in an appeal against
conviction filed by the appellant, ought not to have enhanced the rigor
of the punishment awarded to the appellant and, to this extent, the
judgment of the High Court is illegal and deserves to be set aside.
14. Per contra , learned counsel appearing for the respondent-State
vehemently and fervently opposed the submissions advanced by the
appellant’s counsel. He urged that the appellant has been convicted
for a reprehensible act and the heinous offence of subjecting his own
minor daughter to forcible sexual assault and as such, the High
10
Court was fully justified in awarding the enhanced punishment to
the appellant under Sections 376(2)(f) and 376(2)(i) of IPC. On these
grounds, he implored this Court to dismiss the appeal and affirm the
judgment of the High Court.
15. We have gone through the submissions advanced at the Bar and
have gone through the material placed on record.
16. Shri R. Balasubramanian, learned senior counsel for the
appellant, fairly did not assail the guilt of the appellant as recorded by
the trial Court and affirmed by the High Court but in spite thereof, we
have carefully scrutinized the material available on record and find
that there is wholesome evidence justifying the conviction of the
appellant for the offences as alleged.
10
Vide its order dated 02.08.2019, in the case no. Jail Appeal No. 6590 of 2016
17. The only moot question which thus, requires adjudication is
whether the conviction of the appellant ought to have been recorded
under the IPC or whether the provisions of the Special law, i.e. ,
Section 42A of POCSO Act, would prevail thereby, vitiating the
sentence awarded to the appellant for the offences punishable under
Sections 376(2)(f) and 376(2)(i) of IPC.
18. Sections 42 and 42A of the POCSO Act would be relevant to
adjudicate this issue and are reproduced hereinbelow for ready
reference: -
“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.
42A. Act not in derogation of any other law. — The provisions of
this 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 this Act shall have overriding effect on
the provisions of any such law to the extent of the inconsistency. ”
19. A bare perusal of Section 42 of the POCSO Act, would make it
clear that when the alleged acts or omissions constitute offence both
under the IPC and the POCSO Act then, the law which prescribes the
punishment of greater degree would have to be applied.
20. Shri R. Balasubramanian, learned senior counsel, tried to draw
a distinction by urging that Section 42A of the POCSO Act, provides
that where there is an inconsistency between the provisions of the
POCSO Act and any other law, the provisions of the special law would
have an overriding effect to the extent of the inconsistency. He
submitted that since the offence under Sections 3/4 of the POCSO
Act does not carry punishment of imprisonment for life, which means
imprisonment for remainder of person’s natural life, the accused
could only have been punished under the said provision and not
under Sections 376(2)(f) and 376(2)(i) of IPC, looking to the
inconsistency in the sentence provided.
21. We feel that the said submission lacks merit. On the face of it,
the fields of operation of Section 42 and Section 42A are in
completely different spheres. Section 42 specifically deals with the
quantum of punishment mandating that when a particular act or
omission constitutes an offence, both under the POCSO Act and also
under the provisions of the IPC or the Information Technology Act,
2000 then, the offender found guilty of the offence would be liable to
punishment under the POCSO Act or under the provisions of the IPC
whichever provides a punishment of a greater degree.
22. Section 42A of POSCO Act, on the other hand, deals with the
procedural aspects and gives an overriding effect to the provisions of
the POCSO Act over any other law for the time being in force where,
the two acts are inconsistent with each other. Hence, the provisions of
Section 42A of POSCO Act, by no stretch of imagination, can be
interpreted so as to override the scope and ambit of enabling
provision, i.e. , Section 42 of POCSO Act.
23. Consequently, we are of the view that conviction of the appellant
for the offences punishable under Sections 376(2)(f) and 376(2)(i) of
IPC and Sections 3/4 of POCSO Act is wholly justified. However, we
feel that the High Court erred while directing that the appellant would
have to serve life imprisonment for remainder of his natural life as
provided under Sections 376(2)(f) and 376(2)(i) of IPC.
24. We may note that the said direction was passed in an appeal
against conviction filed by the appellant. Sections 376(2)(f) and 376(2)
(i), are punishable as below: -
“ 376. Punishment for rape. — ( 1 ) 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 ten years, but which may extend to imprisonment for life, and shall
also be liable to fine].
(2) Whoever,—
(a)-(e )….
(f) being a relative, guardian or teacher of, or a person in
a position of trust or authority towards the woman,
commits rape on such woman ; or
(g)-(h)….
11
(i) commits rape, on a woman incapable of giving consent;
or 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, which shall mean
imprisonment for the remainder of that person’s natural
life, and shall also be liable to fine .”
(emphasis supplied)
25. Thus, under this provision, the Courts have been given
discretion to award punishment for a term sentence of minimum 10
years or of imprisonment for life. Where the sentence awarded in the
discretion of the Court is for life, the same shall mean imprisonment
for the remainder of that person’s natural life. Hence, there is no
mandate of law that under these provisions, the convict must be
awarded life imprisonment.
11
Clause (i) omitted by Act 22 of 2018 S.4. (w.e.f. 21-4-2018).
26. The trial Court, however, had awarded imprisonment for life to
the appellant while convicting him for the offences punishable under
Sections 376(2)(f) and 376(2)(i) of IPC. Since, the said Sections of IPC
provides for a higher sentence as compared to Sections 3/4 of POCSO
Act, the trial Court was justified in choosing the former to award
punishment in terms of Section 42 of POCSO Act. However, we have
to consider whether the award of imprisonment for life, which means
imprisonment for remainder of person’s natural life, was warranted in
the facts and circumstances of the case. This Court in case of Shiva
12
Kumar @ Shiva @ Shivamurthy v. State of Karnataka , held as
below:-
“14. Hence, we have no manner of doubt that even in a case where
capital punishment is not imposed or is not proposed, the
Constitutional Courts can always exercise the power of imposing a
modified or fixed-term sentence by directing that a life sentence, as
contemplated by "secondly" in Section 53 of the IPC, shall be of a fixed
period of more than fourteen years, for example, of twenty years, thirty
years and so on. The fixed punishment cannot be for a period less
than 14 years in view of the mandate of Section 433-A CrPC."
27. The High Court, while deciding the appeal against conviction
preferred by the appellant, observed that the sentence of life
imprisonment awarded by the trial Court for the offences punishable
under Sections 376(2)(f) and 376(2)(i) of IPC would extend to the
remainder of the natural life of the appellant. This direction was
merely a clarification to keep the sentence in tune with the language
of the sentencing provision. Nevertheless, the fact remains that
because of this clarification, the rigour of the sentence awarded has
been increased to the effect that the appellant would have to spend
12
(2023) 9 SCC 817.
the remainder of his natural life in prison without any possibility of
early release.
28. Hon’ble Shri K.V. Vishwanathan, J., speaking for a three-Judge
13
Bench of this Court, in Navas @ Mulanavas v. State of Kerala
considered the issue of sentencing beyond the period of 14 years and
held as below:-
“17. The question before us is what should be the appropriate
sentence and whether the High Court was justified in adopting
the Swamy Shraddhananda v. State of Karnataka , (2008) 13 SCC 767
line of cases and even it was justified whether the fixing of the
quantum at 30 years without remission was the appropriate sentence,
in the facts and circumstances of the case?
. . .
25. Swamy Shraddananda (supra), since affirmed subsequently
in v. , (2016) 7 SCC 1 ,
Union of India V. Sriharan alias Murugan
resolved a judge's dilemma. Often it happens that a case that falls
short of the rarest of the rare category may also be one where a
mere sentence of 14 years (the normal benchmark for life
imprisonment) may be grossly disproportionate and inadequate.
The Court may find that while death penalty may not be
warranted keeping in mind the overall circumstances, a
proportionate penalty would be to fix the period between 14 years
and for the imprisonment till rest of the life without remission .
Addressing this issue felicitously in Swamy Shraddananda (supra)
Justice Aftab Alam speaking for the court, held as follows:
“92. The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A sentence
may be excessive and unduly harsh or it may be highly
disproportionately inadequate . When an appellant comes to
this Court carrying a death sentence awarded by the trial
court and confirmed by the High Court, this Court may find,
as in the present appeal, that the case just falls short of the
rarest of the rare category and may feel somewhat reluctant in
endorsing the death sentence. But at the same time, having
regard to the nature of the crime, the Court may strongly feel
that a sentence of life imprisonment subject to remission
normally works out to a term of 14 years would be grossly
disproportionate and inadequate. What then should the Court
do? If the Court's option is limited only to two punishments,
one a sentence of imprisonment, for all intents and
purposes, of not more than 14 years and the other death, the
13
2024 SCC Online SC 315.
Court may feel tempted and find itself nudged into endorsing
the death penalty. Such a course would indeed be disastrous.
A far more just, reasonable and proper course would be to
expand the options and to take over what, as a matter of fact,
lawfully belongs to the Court i.e. the vast hiatus between 14
years' imprisonment and death. It needs to be emphasised
that the Court would take recourse to the expanded option
primarily because in the facts of the case, the sentence of 14
years' imprisonment would amount to no punishment at all. ”
(emphasis supplied)
29. In the case of Veerendra v. State of Madhya Pradesh , this
Court, while considering the case involving the offences under the
POCSO Act as well as under 376(2)(i) of the IPC, confined the life
imprisonment to mean actual imprisonment for a period of 30 years.
While doing so, the Bench relied upon the celebrated judgment of this
Court in the case of Swamy Shraddananda v. State of
14
Karnataka.
30. Keeping in view the aforesaid exposition of the law, we thus,
direct that the ends of justice would be served by restoring the
judgment of the trial Court and directing that the sentence of life
imprisonment awarded to the accused, by the trial Court, for the
offence under Sections 3/4 of the POCSO Act shall stand revived.
31. For the offences punishable under Sections 376(2)(f) and 376(2)
(i) of IPC, the accused is sentenced to undergo imprisonment for life,
as awarded by the trial Court, without the stipulation that the life
term will enure till the natural life of the appellant and a fine of Rs.
5,00,000/- and in default, to further undergo imprisonment of two
years. Both the sentences shall run concurrently.
32. The fine, upon being deposited, shall be paid to the victim.
33. The appeal is partially allowed in these terms.
14
(2008) 13 SCC 767.
34. Pending application(s), if any, shall stand disposed of.
….……………………J.
(VIKRAM NATH)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
MARCH 07, 2025.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP(Criminal) No(s). of 2025)
(Diary No. 36334 of 2024)
GYANENDRA SINGH
@ RAJA SINGH ….APPELLANT(S)
VERSUS
STATE OF U.P. ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Heard.
2. Delay condoned.
3. Leave granted.
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2025.03.07
18:26:40 IST
Reason:
1
1
4. This appeal, preferred on behalf of the appellant-accused , takes
nd
an exception to the judgment dated 2 August, 2019, passed by the
2
High Court of Judicature at Allahabad dismissing Jail Appeal No.
6590 of 2016 preferred by the appellant.
5. The Division Bench, while dismissing the appeal, affirmed the
th
judgment and order dated 16 September, 2016, passed by the
3
learned Additional Sessions Judge Court No.2, Fatehpur in Sessions
Trial No. 06 of 2016, arising out of Case Crime No. 236 of 2015
registered at Police Station Chandpur, District Fatehpur, convicting
the appellant for the offences punishable under Sections 376(2)(f) and
4
376(2)(i) of the Indian Penal Code, 1860 and Sections 3/4 of
5
Protection of Children from Sexual Offences Act, 2012 . The appellant
was awarded punishment of imprisonment for life along with a fine of
Rs. 25,000/-. In default of payment of aforesaid fine, it was ordered
that the appellant was to undergo two months of additional
imprisonment on each count.
6. Brief facts of the case are that the appellant, Gyanendra Singh @
Raja Singh, is the father of victim (PW-2) who was of about 9 years at
th 6
the time of the incident. On 28 October,2015, an FIR came to be
lodged by the wife of the appellant, Smt. Rajani, at P.S. Chandpur,
District Fatehpur, alleging inter alia , that she had gone to her parental
1
For short, ‘appellant’.
2
Hereinafter, being referred to as the ‘High Court’.
3
Hereinafter, being referred to as the ‘trial Court’.
4
Hereinafter, being referred to as ‘IPC’.
5
Hereinafter referred to as ‘POCSO Act’.
6
(Exh. Ka.1) FIR Case Crime No. 236 of 2015.
house about two months ago with her youngest son Krishna, aged
about 2 years, leaving her minor daughter, the victim herein, aged
about 9 years, and a son named Vishnu, aged about 4 years at her
matrimonial house in the custody of her husband, i.e. , the appellant.
nd
On 22 October, 2015 at about 8:00 p.m., the appellant enticed the
minor victim (PW-2) and took her to the rooftop and committed sexual
assault upon the child. She was detained on the roof by threatening
her. The minor victim came down from the roof in the morning and
narrated the whole incident to her grandfather, Ram Naresh Singh
(PW-3), who, in turn, telephonically informed the informant about the
occurrence. The appellant went absconding after the incident. The
informant (PW-1) got frightened because of the incident and did not
go to her matrimonial home. She somehow mustered the courage and
approached the police station along with her father Ranjeet Singh and
father-in-law, Ram Naresh Singh (PW-3), as well as the victim and
7
filed the FIR against the appellant. It was, inter alia , urged in the FIR
that the child victim should be medically examined. It was also stated
in the FIR that a day prior to the lodging of the report, the informant
had approached the District Headquarter, Fatehpur from where she
was redirected to approach P.S. Chandpur for lodging the FIR.
7. Investigation was undertaken by Rajesh Kumar Singh (PW-7),
Investigating Officer (I.O.). The minor victim was subjected to medical
examination by Dr. Manisha Shukla (PW-4) who opined that no
external injury was found on the body of the victim. On internal
examination, redness was seen present over the labia minora in the
vagina of the victim and her hymen was intact. Forensic material was
collected from the oral, vaginal, vulval and anal swab of the minor
7
Supra note 4.
victim, slide was prepared and sent for pathological examination,
D.N.A. mapping and examination of presence of spermatozoa. The
place of the incident was inspected, the site plan was prepared and
accordingly, the appellant was arrested.
8. The certificate of date of birth was collected from the school. The
child was examined under Section 164 of Code of Criminal Procedure,
8
1973 wherein she made an emphatic allegation of penetrative sexual
assault against the appellant.
9. Investigation was concluded and the charge-sheet was filed
against the appellant in the trial Court for the offences punishable
under Sections 376(2)(f) and 376(2)(i) of IPC and Sections 3/4/5 of
the POCSO Act. The trial Court framed charges against the appellant
for the said offences, who pleaded not guilty and claimed trial. As
many as 9 witnesses were examined and 8 documents were exhibited
by the prosecution in its evidence. After the completion of prosecution
evidence, the appellant was questioned under Section 313 CrPC and
was confronted with the allegations as appearing in the prosecution
case, which the appellant denied and claimed to have been falsely
implicated. The appellant stated that he had earlier lodged an FIR
against his wife, the informant herein, and his father (PW-3) and
therefore, a false case had been registered against him. He further
stated that at the time of the incident, the child was residing with his
sister. No evidence was led from the side of the defence.
10. Upon hearing the arguments advanced by the defence counsel
and the public prosecutor and appreciating the evidence available on
record, the learned trial Court convicted and sentenced the appellant
8
Hereinafter, referred to as ‘CrPC’.
9
as stated above. The appeal preferred by the appellant was rejected
nd
by the High Court vide judgment dated 2 August, 2019, which is
assailed in this appeal by special leave.
11. While entertaining the special leave petition, notice limited to the
nd
question of sentence was issued by this Court vide order dated 2
September, 2024.
12. Shri R. Balasubramanian, learned senior counsel appearing for
the appellant advanced a solitary submission urging that the trial
Court ought not to have convicted the appellant for the offences
punishable under Sections 376(2)(f) and 376(2)(i) IPC because the
acts alleged are defined as offences in both category of laws, i.e., the
general laws, i.e. , the IPC, as well as in the special law, i.e. , the
POCSO Act. Since the offences are overlapping, the special law would
prevail over the general law and hence, conviction of the appellant
could not have been recorded by the trial Court for both the offences.
He placed reliance on Section 42A of the POCSO Act and urged that
the said provision makes it clear that the provisions of the POCSO Act
are not in derogation of any other law and that the provisions of the
POCSO Act have an overriding effect on the provisions of any other
law to the extent of inconsistency.
13. Shri R. Balasubramanian, learned senior counsel, further urged
that the trial Court awarded sentence of life imprisonment to the
appellant for the offences punishable under Sections 376(2)(f) and
376(2)(i) of IPC, but the High Court in the appeal against conviction,
has modified the judgment of the trial Court and has increased the
rigor of the punishment by directing that the appellant would have to
9
Refer, Para 5 of this judgment.
undergo life imprisonment for the remainder of his natural life as
provided under Sections 376(2)(f) and 376(2)(i) of IPC and that there
would be no requirement of a separate sentence for the offence
punishable under Sections 3/4 of the POCSO Act. The learned
counsel submitted that without there being any appeal for
enhancement of sentence, the High Court, in an appeal against
conviction filed by the appellant, ought not to have enhanced the rigor
of the punishment awarded to the appellant and, to this extent, the
judgment of the High Court is illegal and deserves to be set aside.
14. Per contra , learned counsel appearing for the respondent-State
vehemently and fervently opposed the submissions advanced by the
appellant’s counsel. He urged that the appellant has been convicted
for a reprehensible act and the heinous offence of subjecting his own
minor daughter to forcible sexual assault and as such, the High
10
Court was fully justified in awarding the enhanced punishment to
the appellant under Sections 376(2)(f) and 376(2)(i) of IPC. On these
grounds, he implored this Court to dismiss the appeal and affirm the
judgment of the High Court.
15. We have gone through the submissions advanced at the Bar and
have gone through the material placed on record.
16. Shri R. Balasubramanian, learned senior counsel for the
appellant, fairly did not assail the guilt of the appellant as recorded by
the trial Court and affirmed by the High Court but in spite thereof, we
have carefully scrutinized the material available on record and find
that there is wholesome evidence justifying the conviction of the
appellant for the offences as alleged.
10
Vide its order dated 02.08.2019, in the case no. Jail Appeal No. 6590 of 2016
17. The only moot question which thus, requires adjudication is
whether the conviction of the appellant ought to have been recorded
under the IPC or whether the provisions of the Special law, i.e. ,
Section 42A of POCSO Act, would prevail thereby, vitiating the
sentence awarded to the appellant for the offences punishable under
Sections 376(2)(f) and 376(2)(i) of IPC.
18. Sections 42 and 42A of the POCSO Act would be relevant to
adjudicate this issue and are reproduced hereinbelow for ready
reference: -
“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.
42A. Act not in derogation of any other law. — The provisions of
this 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 this Act shall have overriding effect on
the provisions of any such law to the extent of the inconsistency. ”
19. A bare perusal of Section 42 of the POCSO Act, would make it
clear that when the alleged acts or omissions constitute offence both
under the IPC and the POCSO Act then, the law which prescribes the
punishment of greater degree would have to be applied.
20. Shri R. Balasubramanian, learned senior counsel, tried to draw
a distinction by urging that Section 42A of the POCSO Act, provides
that where there is an inconsistency between the provisions of the
POCSO Act and any other law, the provisions of the special law would
have an overriding effect to the extent of the inconsistency. He
submitted that since the offence under Sections 3/4 of the POCSO
Act does not carry punishment of imprisonment for life, which means
imprisonment for remainder of person’s natural life, the accused
could only have been punished under the said provision and not
under Sections 376(2)(f) and 376(2)(i) of IPC, looking to the
inconsistency in the sentence provided.
21. We feel that the said submission lacks merit. On the face of it,
the fields of operation of Section 42 and Section 42A are in
completely different spheres. Section 42 specifically deals with the
quantum of punishment mandating that when a particular act or
omission constitutes an offence, both under the POCSO Act and also
under the provisions of the IPC or the Information Technology Act,
2000 then, the offender found guilty of the offence would be liable to
punishment under the POCSO Act or under the provisions of the IPC
whichever provides a punishment of a greater degree.
22. Section 42A of POSCO Act, on the other hand, deals with the
procedural aspects and gives an overriding effect to the provisions of
the POCSO Act over any other law for the time being in force where,
the two acts are inconsistent with each other. Hence, the provisions of
Section 42A of POSCO Act, by no stretch of imagination, can be
interpreted so as to override the scope and ambit of enabling
provision, i.e. , Section 42 of POCSO Act.
23. Consequently, we are of the view that conviction of the appellant
for the offences punishable under Sections 376(2)(f) and 376(2)(i) of
IPC and Sections 3/4 of POCSO Act is wholly justified. However, we
feel that the High Court erred while directing that the appellant would
have to serve life imprisonment for remainder of his natural life as
provided under Sections 376(2)(f) and 376(2)(i) of IPC.
24. We may note that the said direction was passed in an appeal
against conviction filed by the appellant. Sections 376(2)(f) and 376(2)
(i), are punishable as below: -
“ 376. Punishment for rape. — ( 1 ) 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 ten years, but which may extend to imprisonment for life, and shall
also be liable to fine].
(2) Whoever,—
(a)-(e )….
(f) being a relative, guardian or teacher of, or a person in
a position of trust or authority towards the woman,
commits rape on such woman ; or
(g)-(h)….
11
(i) commits rape, on a woman incapable of giving consent;
or 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, which shall mean
imprisonment for the remainder of that person’s natural
life, and shall also be liable to fine .”
(emphasis supplied)
25. Thus, under this provision, the Courts have been given
discretion to award punishment for a term sentence of minimum 10
years or of imprisonment for life. Where the sentence awarded in the
discretion of the Court is for life, the same shall mean imprisonment
for the remainder of that person’s natural life. Hence, there is no
mandate of law that under these provisions, the convict must be
awarded life imprisonment.
11
Clause (i) omitted by Act 22 of 2018 S.4. (w.e.f. 21-4-2018).
26. The trial Court, however, had awarded imprisonment for life to
the appellant while convicting him for the offences punishable under
Sections 376(2)(f) and 376(2)(i) of IPC. Since, the said Sections of IPC
provides for a higher sentence as compared to Sections 3/4 of POCSO
Act, the trial Court was justified in choosing the former to award
punishment in terms of Section 42 of POCSO Act. However, we have
to consider whether the award of imprisonment for life, which means
imprisonment for remainder of person’s natural life, was warranted in
the facts and circumstances of the case. This Court in case of Shiva
12
Kumar @ Shiva @ Shivamurthy v. State of Karnataka , held as
below:-
“14. Hence, we have no manner of doubt that even in a case where
capital punishment is not imposed or is not proposed, the
Constitutional Courts can always exercise the power of imposing a
modified or fixed-term sentence by directing that a life sentence, as
contemplated by "secondly" in Section 53 of the IPC, shall be of a fixed
period of more than fourteen years, for example, of twenty years, thirty
years and so on. The fixed punishment cannot be for a period less
than 14 years in view of the mandate of Section 433-A CrPC."
27. The High Court, while deciding the appeal against conviction
preferred by the appellant, observed that the sentence of life
imprisonment awarded by the trial Court for the offences punishable
under Sections 376(2)(f) and 376(2)(i) of IPC would extend to the
remainder of the natural life of the appellant. This direction was
merely a clarification to keep the sentence in tune with the language
of the sentencing provision. Nevertheless, the fact remains that
because of this clarification, the rigour of the sentence awarded has
been increased to the effect that the appellant would have to spend
12
(2023) 9 SCC 817.
the remainder of his natural life in prison without any possibility of
early release.
28. Hon’ble Shri K.V. Vishwanathan, J., speaking for a three-Judge
13
Bench of this Court, in Navas @ Mulanavas v. State of Kerala
considered the issue of sentencing beyond the period of 14 years and
held as below:-
“17. The question before us is what should be the appropriate
sentence and whether the High Court was justified in adopting
the Swamy Shraddhananda v. State of Karnataka , (2008) 13 SCC 767
line of cases and even it was justified whether the fixing of the
quantum at 30 years without remission was the appropriate sentence,
in the facts and circumstances of the case?
. . .
25. Swamy Shraddananda (supra), since affirmed subsequently
in v. , (2016) 7 SCC 1 ,
Union of India V. Sriharan alias Murugan
resolved a judge's dilemma. Often it happens that a case that falls
short of the rarest of the rare category may also be one where a
mere sentence of 14 years (the normal benchmark for life
imprisonment) may be grossly disproportionate and inadequate.
The Court may find that while death penalty may not be
warranted keeping in mind the overall circumstances, a
proportionate penalty would be to fix the period between 14 years
and for the imprisonment till rest of the life without remission .
Addressing this issue felicitously in Swamy Shraddananda (supra)
Justice Aftab Alam speaking for the court, held as follows:
“92. The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A sentence
may be excessive and unduly harsh or it may be highly
disproportionately inadequate . When an appellant comes to
this Court carrying a death sentence awarded by the trial
court and confirmed by the High Court, this Court may find,
as in the present appeal, that the case just falls short of the
rarest of the rare category and may feel somewhat reluctant in
endorsing the death sentence. But at the same time, having
regard to the nature of the crime, the Court may strongly feel
that a sentence of life imprisonment subject to remission
normally works out to a term of 14 years would be grossly
disproportionate and inadequate. What then should the Court
do? If the Court's option is limited only to two punishments,
one a sentence of imprisonment, for all intents and
purposes, of not more than 14 years and the other death, the
13
2024 SCC Online SC 315.
Court may feel tempted and find itself nudged into endorsing
the death penalty. Such a course would indeed be disastrous.
A far more just, reasonable and proper course would be to
expand the options and to take over what, as a matter of fact,
lawfully belongs to the Court i.e. the vast hiatus between 14
years' imprisonment and death. It needs to be emphasised
that the Court would take recourse to the expanded option
primarily because in the facts of the case, the sentence of 14
years' imprisonment would amount to no punishment at all. ”
(emphasis supplied)
29. In the case of Veerendra v. State of Madhya Pradesh , this
Court, while considering the case involving the offences under the
POCSO Act as well as under 376(2)(i) of the IPC, confined the life
imprisonment to mean actual imprisonment for a period of 30 years.
While doing so, the Bench relied upon the celebrated judgment of this
Court in the case of Swamy Shraddananda v. State of
14
Karnataka.
30. Keeping in view the aforesaid exposition of the law, we thus,
direct that the ends of justice would be served by restoring the
judgment of the trial Court and directing that the sentence of life
imprisonment awarded to the accused, by the trial Court, for the
offence under Sections 3/4 of the POCSO Act shall stand revived.
31. For the offences punishable under Sections 376(2)(f) and 376(2)
(i) of IPC, the accused is sentenced to undergo imprisonment for life,
as awarded by the trial Court, without the stipulation that the life
term will enure till the natural life of the appellant and a fine of Rs.
5,00,000/- and in default, to further undergo imprisonment of two
years. Both the sentences shall run concurrently.
32. The fine, upon being deposited, shall be paid to the victim.
33. The appeal is partially allowed in these terms.
14
(2008) 13 SCC 767.
34. Pending application(s), if any, shall stand disposed of.
….……………………J.
(VIKRAM NATH)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
MARCH 07, 2025.