Sentences for multiple offences arising from a single transaction should generally run concurrently, following Section 31 Cr.P.C.

In brief

The question

1. Whether the failure of the child victim to identify the accused during the trial is fatal to the prosecution's case when other evidence corroborates identity

The court held

The Court upheld the conviction of Yogesh Tanwar, finding no merit in the defense of tutoring or false implication

It also directed

It dismissed the State’s appeal for enhancement, finding 10 years to be an adequate minimum

However, it modified the order on sentence to direct that the punishments (10 years RI and 5 years RI) shall run concurrently, as the 15-year aggregate was legally unsustainable under Section 31 Cr.P.C.

01Facts

The victim, a four-year-old girl, was allegedly sexually assaulted by her school cab driver, Yogesh Tanwar, on August 11, 2014

pp. 3-4

Upon returning from school, the victim's mother (PW-4) noticed reddish marks and scratches on the child's chest and thighs; the child disclosed that the driver had touched her private parts and inserted his finger into her vagina

pp. 16-17

The Trial Court convicted Tanwar under Section 6 (aggravated penetrative sexual assault) and Section 10 (aggravated sexual assault) of the POCSO Act

p. 6

Tanwar appealed the conviction (CRL.A. 199/2020) on grounds of faulty identification and tutoring, while the State appealed for enhancement of the sentence (CRL.A. 205/2022)

pp. 6-7

02Issues

i.1. Whether the failure of the child victim to identify the accused during the trial is fatal to the prosecution's case when other evidence corroborates identity

pp. 12 / para. 34-35

ii.2. Whether the sentence of 10 years and 5 years for distinct offences in a single transaction should run concurrently or consecutively

p. 21 / para. 56

iii.3. Whether the aggregate sentence can exceed fourteen years under Section 31 of the Cr.P.C.

pp. 23 / para. 58-62

03Law Applied

The Court applied Sections 3, 5, 6, 7, 9, and 10 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the presumption of guilt under Section 29

pp. 18-19

It primarily relied on Section 31 of the Cr.P.C., which governs sentences in cases of conviction of several offences at one trial, specifically Proviso (a) which mandates that the aggregate imprisonment period shall not exceed fourteen years

p. 22

The Court followed the precedents of O.M. Cherian v. State of Kerala, establishing that sentences for offences arising from a single transaction should generally run concurrently

p. 24

Chattar Singh v. State of M.P., which affirms the fourteen-year statutory limit for consecutive sentences

pp. 25-26

Provisions in the judgment · 16 · Linked ones open on LawLens

Protection of Children from Sexual Offences Act, 2012 Section 3 Section 4 Section 5 Section 6 Section 7 Section 9 Section 10 Section 29

Indian Penal Code, 1860 Section 354 Section 376

Code of Criminal Procedure, 1973 Section 31 Section 164 Section 216 Section 313 Section 374 Section 377

04Reasoning

The Court held that the victim’s inability to identify the accused via video link after 1.5 years did not negate the case, as her identity of "Yogesh the driver" was corroborated by the mother (PW-4) and the vehicle owner (PW-6), and the accused admitted his role in his Section 313 statement

pp. 14-15

Regarding the medical evidence, the Court found that the ruptured hymen and congestion supported the charge of "fingering," satisfying the definition of penetration under Section 3 of the POCSO Act

p. 18

On sentencing, the Court noted that the Trial Court failed to specify if the 10-year and 5-year sentences were to be served concurrently or consecutively, resulting in a 15-year term by default

p. 26

The Court reasoned that since both offences arose from a single continuous transaction, the "rule of thumb" favoring concurrent sentences applied, and a 15-year aggregate sentence would expressly violate the 14-year cap mandated by the Proviso to Section 31(2) Cr.P.C.

p. 27