Life sentence reduced: No separate sentence for POCSO is imposed while maintaining conviction under section 376 AB IPC

Death sentence reduced into imprisonment for life in High Court

2) In troth, it is a common judgment in Criminal Reference No.6/2018 submitted by the Trial Court under Section 366 of the Code of Criminal Procedure, 1973 (Cr.PC) for confirmation of the conviction under Section 376 AB of the Indian Penal Code, 1860 (IPC) as amended by Act No.22 of 2018 and in Criminal Appeal No.5725 of 2018 filed by the petitioner-convict herein aggrieved by the conviction and sentence imposed against him for certain other offences under the IPC, as also against the conviction under the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). As per the impugned judgment, the capital punishment awarded for the conviction under Section 376 AB, IPC was not confirmed and it was commuted to imprisonment for life, which, going by the provisions thereunder, means imprisonment for the remainder of the convict’s natural life.

3) Heard the learned counsel appearing for the petitioner convict and the learned Additional Advocate General for the State of Madhya Pradesh.

Challenge is on the question of sentence alone

4) It is to be noted that in the instant case, after condoning the delay, limited notice on the question of sentence alone was issued on 24.02.2023. Since we do not find any reason to enlarge the scope, the parties confined their arguments within the permissible scope.

Trial and sentence

5) We are of the considered view that for considering the aforesaid question it is apposite to refer succinctly to the facts of the case. On 21.05.2018, the complainant Munni Bai (PW-8) who is the grandmother of the victim lodged a report that her granddaughter X, who was examined as PW-1, aged 7 years was kidnapped and raped by the petitioner-convict. After the trial, the Trial Court found that the prosecution had succeeded in bringing damning evidence to establish that the victim, aged 7 years was taken to Rajaram Baba Thakur Mandir by the petitioner-convict and there upon making her and himself nude he committed rape. Upon her screaming, the prosecution witnesses who went there found the convict, belonging to the same village, laying over and violating the victim and at their sight running away from there. The oral testimonies of the prosecution witnesses (PWs-1, 2 and 14) on the culpability of the convict got credence from the medical evidence unerringly pointing to his guilt. The consequential conviction inter alia, under Section 376 AB, IPC as amended by Act No.22 of 2018, originally, brought him capital sentence. Though, the petitioner was also convicted under Section 376 (2) (i) and under Sections 3/4, Sections 5(d)/6 of the POCSO Act taking note of his conviction under Section 376 AB, IPC, no separate sentences were awarded for the aforesaid offences by the trial Court. In view of the commutation of capital punishment awarded for the conviction under Section 376 AB, IPC it is also a matter to be considered if we interfere with the sentence of life imprisonment for the offence under Section 376 AB, IPC as amended under the Act No.22 of 2018.

Alternative for life punishment is rigorous imprisonment not less than 20 years with fine

6) As noticed hereinbefore, on appreciating the evidence on record and coming to the conclusion that the guilt of the petitioner under Section 376 AB, IPC has been conclusively proved, but capital punishment imposed therefor, is to be commuted while confirming the conviction under Section 376 AB, IPC. The High Court commuted it to imprisonment for life though another alternative punishment was also possible viz. rigorous imprisonment for a term not less than 20 years with fine.

7) In the decision in Mulla v. State of U.P ((2010) 3 SCC 508), this Court held:-

“85………It is open to the sentencing court to prescribe the length of incarceration. This is especially true in cases where death sentence has been replaced by life imprisonment……”

The act of appellant is only barbaric and not brutal

10) We have taken note of the observation of the High Court made after referring to the manner of commission of the crime concerned that it was not barbaric and brutal. We are of the concerned view that when the words ‘barbaric’ and ‘brutal’ are used simultaneously they are not to take the character of synonym, but to take distinctive meanings. In view of the manner in which the offence was committed by the petitioner-convict, as observed by the High Court under the above extracted recital, according to us, one can only say that the action of the petitioner-convict is barbaric though he had not acted in a brutal manner. We will take the meanings of the words ‘barbaric’, ‘barbarians’ and ‘brutal’ to know the distinctive meanings of the words ‘barbaric’ and ‘brutal’.

Reason for referring the act as barbaric

In the light of the evidence on record and rightly noted by the High Court in the above-extracted paragraph 34 of the impugned judgment it may be true to say that the petitioner-convict had committed the offence of rape brutally, but then, certainly his action was barbaric. In the instant case, the petitioner-convict was aged 40 years on the date of occurrence and the victim was then only a girl, aged 7 years. Thus, the position is that he used a lass aged 7 years to satisfy his lust. For that the petitioner-convict took the victim to a temple, unmindful of the holiness of the place disrobed her and himself and then committed the crime. We have no hesitation to hold that the fact he had not done it brutally will not make its commission non-barbaric.

In capital punishment only constitutional courts can modify or fixed the term for life sentence

13) After referring to the relevant paragraphs from the said decisions in Shiva Kumar (Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka – (2023) 9 SCC 817) this Court held as follows: –

“13. 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 433A of Cr.P.C.”

Life sentence modified for 30 years includes the period already undergone

16) Then, we are also to take into account the present age of the petitioner and the fact that he has already undergone the incarceration. On consideration of all such aspects, we are of the considered view that a fixed term of sentence of 30 years, which shall include the period already undergone, must be the modified sentence of imprisonment.

Alternative punishment under section 42 of the POCSO Act

19) We fully endorse the said contention as paragraph 1 of the impugned judgment itself would reveal that the High Court had actually taken into consideration the fact that the petitioner-convict was convicted only under Section 376 AB, IPC as amended by Act No.22 of 2018 and under Section 363 IPC. In such circumstances, the conviction and sentence imposed on the petitioner-convict is confirmed. We have taken note of the fact that though the petitioner-convict was convicted for the offence under Section 3/4 and 5 (m)/6 of the POCSO Act, no separate sentence was imposed on the petitioner-convict by the Trial Court taking note of the provision under Section 42 of the POCSO Act. The said provision reads thus:-

“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.”

No separate sentence for POCSO is imposed while maintaining conviction under section 376 AB IPC

20) Since, even after the interference with the sentence imposed for the conviction of the petitioner-convict under Section 376 AB, IPC and modified sentence imposed on commutation by the High Court, we have awarded 30 years of rigorous imprisonment with a fine of Rupees One Lakh, no separate sentence for the aforesaid offence under POCSO Act is to be imposed on the convict. While maintaining the conviction of the petitioner-convict under Section 376 AB, IPC, the sentence imposed thereunder is modified to a sentence of rigorous imprisonment for a term of 30 years, making it clear that this will also include the period of sentence already undergone and the period, if any ordered by the Trial Court for set off. The imprisonment awarded for the conviction under Section 363, IPC shall run concurrently. The amount of fine imposed thereunder shall be added to the fine imposed by us viz., Rupees One Lakh.

Party

Bhaggi @ Bhagirath @ Naran …Petitioner versus The State of Madhya Pradesh …Respondents – Special Leave Petition (Crl.) No.2888 of 2023 – February 05, 2024 – 2024 INSC 82

https://main.sci.gov.in/supremecourt/2022/42693/42693_2022_13_1501_50074_Judgement_05-Feb-2024.pdf

Bhaggi-@-Bhagirath-@-Naran-vs.-The-State-of-M.P-42693_2022_13_1501_50074_Judgement_05-Feb-2024