Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 719 OF 2019
(Arising out of SLP (Criminal) No.1948 of 2017)
KUMAR GHIMIREY … APPELLANT(S)
VERSUS
THE STATE OF SIKKIM … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. This appeal has been filed by the appellant against
the judgment of Sikkim High Court dated 20.09.2016
dismissing Criminal Appeal No.19 of 2015 filed by the
appellant questioning the order of conviction and
sentence dated 31.01.2014 passed by the Special
Judge(POCSO Act, 2012)convicting the appellant under
Section 9/10 of the Protection of Children from Sexual
Signature Not Verified
Digitally signed by
SANJAY KUMAR
Date: 2019.04.22
16:17:59 IST
Reason:
Offences Act, 2012(POCSO Act, 2012), Section 341 of
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IPC. The appellant was to undergo simple imprisonment
for a period of seven years and to pay fine of
Rs.50,000/ under Section 9/10 of POCSO Act, 2012 and
under Section 341 of IPC he was sentenced to undergo
simple imprisonment for a period of one month.
3. The appellant aggrieved by the judgment of the
Special Judge filed an appeal which though has been
dismissed by the High Court but while dismissing the
appeal sentence under Section 9/10 of POCSO Act, 2012
has been converted into sentence under Section 5(m) of
the POCSO Act read with Section 6 of the POCSO Act and
sentence has been enhanced from seven years to ten
years with fine of Rs.5,000/.
4. As per the prosecution case, on 20.02.2014 at 1700
hours, Mangal Das Rai, PW.2 (father of Anjali Rai)
resident of Lower Namphing, South Sikkim gave a written
complaint to Temi Police Station that the accused
appellant, Kumar Ghimirey had attempted to sexually
assault his seven year old daughter, Anjali Rai, PW.1,
at around 1330 hours in a jungle. The FIR No.05(02) 14
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under Section 376/511 of IPC was registered on the same
day against the accusedappellant and the matter was
taken up for investigation by the OfficerinCharge of
the PS i.e., SubInspector(SI).
5. A chargesheet was submitted under Section
376/511/341/342 of IPC read with Section 4 of POCSO
Act, 2012. Learned Special Judge framed charges under
Section 341 of IPC and under Section 5 of POCSO Act,
2012, punishment under Section 6 of POCSO Act, 2012 and
also under Section 376(2) of IPC. Statement of PW.1,
(Child ) Anjali Rai was recorded. The mother of victim,
PW.3 was examined. Father of the victim appeared as
PW.2. PW.5 and PW.6 were the girls who before attending
the school with the victim were returning at the same
time. They also appeared in the witness box
corroborating the incident. PW.9, Gynecologist, who
examined the victim has also appeared in the witness
box.
6. Learned Special Judge after considering the entire
evidence convicted the appellant under Section 9/10 of
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POCSO Act, 2012 as well as Section 341 of IPC. In
paragraph 25, the Special Judge while recording
conviction held under Section 9/10 of POCSO Act, 2012
imposed simple imprisonment for a period of seven years
and fine of Rs.50,000/. Under Section 341 of IPC
sentence imposed was simple imprisonment for a period
of one month. The appeal was filed by the appellant in
the High Court which appeal though has been dismissed
by the High Court vide its judgment dated 20.09.2016
but while dismissing the appeal the High Court altered
the conviction imposed by the Special Judge under
Section 9/10 of POCSO Act, 2012 to Section 5(m) read
with Section 6 and enhanced the punishment to rigorous
imprisonment of ten years and a fine or Rs.5,000/.
Paragraph 25 of the judgment of the High Court is as
follows:
"25. Having regard to the entirety of the facts
and circumstances, the evidence on record and
the discussions supra, I cannot bring myself to
agree with the finding of the Learned Trial
Court that the offence was one under Section 9
punishable under Section 10 of the POCSO Act. IT
is undoubtedly commission of an offence under
Section 5(m) of the POCSO Act punishable under
Section 6 of the POCSO Act. The appellant is
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convicted accordingly, duly altering the
conviction imposed by the learned Trial Court
under Sections 9/10 of the POCSO Act.
Accordingly, he is sentenced to undergo rigorous
imprisonment for a period of ten years and to
pay a fine of Rs.5,000/(Rupees five thousand)
only, under Section 5(m) punishable under
Section 6 of the POCSO Act, in default of fine
to undergo simple imprisonment of six months.
For the offence under Section 341 of IPC the
sentence of the Learned Trial Court is upheld.
The Sentences of imprisonment shall run
concurrently.”
7. The victim was also directed to be paid
compensation of Rs.1,00,000/(Rupees one lakh) by the
High Court under Sikkim Compensation to Victim Scheme.
The appellant aggrieved by the judgment of the High
Court has come up in the appeal.
8. Learned counsel for the appellant challenging the
judgment of the High Court contends that the High Court
erred in enhancing the punishment whereas no appeal was
filed for enhancement of the punishment. In his
submission, the High Court ought not to have enhanced
the sentence. It is further submitted that the
punishment awarded by the trial court was the maximum
punishment under Section 9/10 of POCSO Act, 2012
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whereas in the facts and circumstances of the case, the
appellant could have been at best awarded punishment of
five years only under Section 10.
9. Learned counsel appearing for the State supported
the order of the High Court. It is contended that under
Section 386 subclause (b)of Cr.P.C. the High Court has
right to alter the finding and the High Court having
found that offence was covered under Section 5(m) of
POCSO Act, 2012, the punishment of ten years rigorous
imprisonment was rightly imposed. It is submitted that
the offences under Section 5(m) of POCSO Act have been
fully proved. It is submitted that the High Court after
analysing the evidence has rightly concluded that the
offence was aggravated penetrative sexual assault
minimum punishment for which was ten years RI. Hence,
this Court may not interfere with punishment awarded.
10. We have considered the submissions of the learned
counsel for the parties and perused the records.
10. The first submission of the learned counsel for the
appellant is that the High Court ought not to have
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enhanced the punishment from seven years to ten years.
The enhancement has been made by the High Court in
appeal filed by the appellant under Section 386 of
Cr.P.C. challenging his conviction order. Powers of the
Appellate Court under Section 386 are to the following
effect:
“Section 386 . After perusing such record and
hearing the appellant or his pleader, if he
appears, and the Public Prosecutor, if he
appears, and in case of an appeal under section
377 or section 378, the accused, if he
appears, the Appellate Court may, if it
considers that there is no sufficient ground
for interfering, dismiss the appeal, or may
(a) in an appeal from an order of acquittal,
reverse such order and direct that further
inquiry be made, or that the accused be re
tried or committed for trial, as the case may
be, or find him guilty and pass sentence on him
according to law;
(b) in an appeal from a conviction
(i)reverse the finding and sentence and
acquit or discharge the accused, or
order him to be retried by a Court of
competent jurisdiction subordinate to
such Appellate Court or committed for
trial, or
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(ii)alter the finding, maintaining the
sentence, or
(iii)with or without altering the
finding, alter the nature or the extent,
or the nature and extent, of the
sentence, but not so as to enhance the
same;
(c) in an appeal for enhancement of sentence
(i)reverse the finding and sentence and
acquit or discharge the accused or order
him to be retried by a Court competent
to try the offence, or
(ii)alter the finding maintaining the
sentence, or
(iii)with or without altering the
finding, alter the nature or the extent,
or the nature and extent, of the
sentence, so as to enhance or reduce the
same;
(d)in an appeal from any other order, alter or
reverse such order;
(e)make any amendment or any consequential or
incidental order that may be just or proper;
Provided that the sentence shall not be
enhanced unless the accused has had an
opportunity of showing cause against such
enhancement;
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Provided further that the Appellate Court
shall not inflict greater punishment for the
offence which in its opinion the accused has
committed, than might have been inflicted for
that offence by the Court passing the order or
sentence under appeal.”
11. As per Section 386 clause (b) of Cr.P.C. in an
appeal from a conviction although the Appellate Court
can alter the finding, maintaining the sentence, or
with or without altering the finding, alter the nature
or the extent, of the sentence, but not so as to
enhance the same. Under Section 386(b)(iii), in an
appeal from a conviction, for enhancement of sentence,
the Appellate Court can exercise the power of
enhancement. The Appellate Court in an appeal for
enhancement, can enhance the sentence also. The proviso
to Section 386, further, provids that the sentence
shall not be enhanced unless the accused had an
opportunity of showing cause against such enhancement.
12. Present is a case where the High Court has enhanced
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the sentence in appeal filed by the accused challenging
his conviction. The submission of the learned counsel
for the appellant that the procedure prescribed under
Section 386 proviso has not been followed by the High
Court since no notice for enhancement was issued to the
appellant has not been refuted by the learned counsel
for the State. There can be no doubt with regard to the
power of the High Court to enhance the sentence in an
appropriate case. The High Court can also exercise its
power under Section 401 of Cr.P.C. in an appropriate
case. Section 401 of Cr.P.C. provides for the power of
revision to the High Court. The High Court under
Section 401 of Cr.P.C. can exercise any of the powers
conferred on a Court of Appeal by Sections 386, 390 and
391 or on a Court of Session by Section 307 of Cr.P.C.
The High Court could have very well exercised power
under Section 401 of Cr.P.C. read with Section 386(b)
(iii), could have enhanced the sentence but the said
course is permissible only after giving notice of
enhancement. The power of the High Court has been
accepted and reiterated by this Court in a large number
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of cases. Reference is made to the case in Surjit Singh
In
and others vs. State of Punjab, 1984 (Supp)SCC 518.
the above case the appellants were convicted under
Section 302 of IPC. They preferred a criminal appeal
before the High Court of Punjab and Haryana. The High
Court while dismissing the appeal has passed order
which amounted to enhancement of sentence. This Court
held that the High Court could not have enhanced the
sentence before following the prescribed procedure. In
paragraph 3 following has been held:
“ 3. While dismissing the appeal of the
appellants a division Bench of the High Court
observed 'that Surjit Singh and Harjinder Singh
who had been proved to have committed the murder
of Bachan Singh in quite a ruthless manner as is
apparent from the number of injuries found on
the person of the deceased'. The High Court
further observed that it is a fit case in which
over and above the sentence of imprisonment for
life imposed by the trial court a fine of Rs.
5,000/ in default to suffer further rigorous
imprisonment for two years must be imposed on
the appellants. This additional sentence imposed
by the High Court unquestionably constitutes an
enhancement of sentence. The High Court did not
issue notice calling upon the appellants to show
cause why the sentence imposed upon them be not
enhanced before doing so. Rules of natural
justice as also the prescribed procedure require
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that the sentence imposed on the accused cannot
be enhanced without giving notice to the
appellants and the opportunity to be heard on
the proposed action. The record does not show
that such a notice and opportunity were given to
the appellants and in the absence of notice the
appellants had no opportunity to contest the
proposed action. Therefore, we allow this appeal
limited to the question that the sentence of
fine of Rs. 5,000/ and the default sentence
imposed on each appellant by the High Court is
quashed and set aside confirming the sentence of
imprisonment for life imposed by the trial
court. The appeal is allowed to the extent
herein indicated.”
13. In the case of Sahab Singh and others vs. State of
Haryana, (1990) 2 SCC 385, also after considering the
procedure prescribed by Cr.P.C. including Sections 386
and 401 High Court held that the High Court even if no
appeal is filed by the State for enhancement of
sentence can exercise suo motu power of revision under
Section 397 read with Section 401 of Cr.P.C. b ut
before the High Court can exercise its revisional
jurisdiction to enhance the sentence, it is
imperative that the convict is put on notice. In
paragraph 4 this Court laid down following:
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"4.Section 374 of the Code of Criminal
Procedure ('the Code' hereinafter) provides for
appeals from conviction by a Sessions Judge or
an Additional Sessions Judge to the High Court.
Section 377 entitles the State Government to
direct the Public Prosecutor to present an
appeal to the High Court against the sentence on
the ground of its inadequacy. Sub section 3 of
Section 377 says that when an appeal has been
filed against the sentence on the ground of its
inadequacy, the High Court shall not enhance the
sentence except after giving to the accused a
reasonable opportunity of showing cause against
such enhancement and while showing cause the
accused may plead for his acquittal or for the
reduction of the sentence. Admittedly no appeal
was preferred by the State Government against
the sentence imposed by the High Court on the
conviction of the appellants under Section
3 02/149 , I .P.C. Section 378 provides for an
appeal against an order of acquittal. Section
386 enumerates the powers of the appellate
court. The first proviso to that section states
that the sentence shall not be enhanced unless
the accused has had an opportunity of showing
cause against such enhancement. Section
397 confers revisional powers on the High Court
as well as the Sessions Court. It, inter alia,
provides that the High Court may call for and
examine the record of any proceeding before any
inferior criminal court situate within its
jurisdiction for the purposes of satisfying
itself as to the correctness, legality or
propriety of any finding, sentence or order
recorded or passed and as to the regularity of
any proceedings of any inferior court. Section
401 further provides that in the case of any
proceedings, the record of which has been called
for by itself or which otherwise comes to its
knowledge, the High Court may, in its
discretion, exercise any of the powers conferred
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on a Court of appeal by Sections
386 ,3 89 , 3 90 and 3 91 of the Code. Subsection 2
of Section 401 provides that no order under this
Section shall be made to the prejudice of the
accused or other person unless he has had an
opportunity of being heard either personally or
by Pleader in his own defence. Subsection
4 next provides that where under this Code an
appeal lies and no appeal is brought, no
proceeding by way of revision shall be
entertained at theinstance of the party who
could have appealed. It is clear from a conjoint
reading of Section 3 77 , 386 , 397 and 401 that
if the State Government is aggrieved about the
inade quacy of the sentence it can prefer an
appeal under Section 377(1) of the Code. The
failure on the part of the State Government to
prefer an appeal does not, however, preclude the
High Court from exercising suo motu power of
revision under Section 397 read with Section
401 of the Code since the High Court itself is
empowered to call for the record of the
proceeding of any court subordinate to it. Sub
section 4 of Section 401 operates as a bar to
the party which has a right to prefer an appeal
but has failed to do so but that subsection
cannot stand in the way of the High Court
exercising revisional jurisdiction suo motu. But
before the High Court exercises its suo motu
revisional jurisdiction to enhance the sentence,
it is imperative that the convict is put on
notice and is given an opportunity of being
heard on the question of sentence either in
person or through his advocate. The revisional
jurisdiction cannot be exercised to the
prejudice of the convict without putting him on
guard that it is proposed to enhance the
sentence imposed by the Trial Court.”
14. The same proposition has been laid down in Govind
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Ramji Jadhav vs. State of Maharashtra, (1990) 4 SCC 718
and
Surendra Singh Rautela @ Surendra Singh Bengali vs.
State of Bihar (Now State of Jharkhand), (2002) 1 SCC
266.
15. We, thus, are of the view that the judgment of the
High Court in sofaras it enhanced the sentence from
seven years to ten years is not in accordance with the
procedure prescribed. The judgment of the High Court to
the extent it has enhanced the sentence from seven
years to ten years is set aside.
16. Now, we come to the submission of the appellant
that the sentence imposed on the appellant is
excessive. He submits that under Section 10 minimum
sentence is five years, hence, in the facts of the
present case, the sentence ought to have been imposed
of five years only to the appellant. Hence, the
sentence be reduced by this Court to five years which
submission has been refuted by the counsel for the
State.
17. The learned Special Judge has marshalled the
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evidence. The victim herself appeared as PW.1. She was
thoroughly crossexamined by the accused, the evidence
of victim has proved, the charge levelled against the
accused which evidence was corroborated by evidence of
PW.6 and PW.7 who were also students studying in the
same school and returning from the school at the time
when victim was returning from the school. The medical
evidence also fully corroborated the charge on the
appellant. The High Court has rightly affirmed the
finding of the conviction of the appellant. We do not
find any ground to interfere with the finding of
conviction and in fact learned counsel for the
appellant has not very seriously challenged the
conviction of the appellant. His submission was that he
could have been awarded only sentence of five years
under Section 10. The Special Judge after considering
the factors imposed the sentence of seven years. The
Special Judge has noted that the offence committed
against the minor girl child (7 years) cannot be viewed
lightly, we fully endorse the view of the learned
Special Judge and considering the serious nature of the
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offence the conviction of seven years RI need no
interference in this appeal. We, thus, reject the
submission of the learned counsel for the appellant
that the sentence awarded ought to be reduced to five
years.
18. In the result, the appeal is partly allowed. The
direction of the High Court in paragraph 25 of the
judgment in sofaras it has enhanced sentence from seven
years to 10 years RI is set aside. The sentence awarded
by the Special Judge i.e. seven years under POCSO Act,
2012 and one month under Section 341 of IPC is
maintained. The rest of judgment of the High Court is
affirmed.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
April 22, 2019.