Appeal against dismissing jail appeal by the Hon’ble High Court
4. This appeal, preferred on behalf of the appellant-accused, takes an exception to the judgment dated 2nd August, 2019, passed by the High Court of Judicature at Allahabad dismissing Jail Appeal No. 6590 of 2016 preferred by the appellant.
Division bench Hon’ble High Court convicted for IPC and POCSO
5. The Division Bench, while dismissing the appeal, affirmed the judgment and order dated 16th September, 2016, passed by the learned Additional Sessions Judge Court No.2, Fatehpur3 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 376(2)(i) of the Indian Penal Code, 1860 and Sections 3/4 of 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.
Facts
Appellant/accused is the father of minor victim (PW.2) who committed sexual assault on PW.2
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 the time of the incident. On 28th 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 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. On 22nd 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 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.
During investigation DNA mapping and examination of present of spermatozoa
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 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.
DOB certificate collected and s.164 CrPC was recorded
8. The certificate of date of birth was collected from the school. The child was examined under Section 164 of Code of Criminal Procedure, 19738 wherein she made an emphatic allegation of penetrative sexual assault against the appellant.
Appellant took the defence that he had earlier lodged an FIR against his wife and father hence falsely implicated in this case
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 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.
Trial court convicted and sentenced the appellant
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 as stated above. The appeal preferred by the appellant was rejected by the High Court vide judgment dated 2nd August, 2019, which is assailed in this appeal by special leave.
Analysis
Appeal is for limited to question of sentence
11. While entertaining the special leave petition, notice limited to the question of sentence was issued by this Court vide order dated 2nd September, 2024.
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.
Sections 42 and 42A POCSO Act
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.
Arguments regarding punishment only under POCSO Act and under IPC and its findings by the Apex court
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.
Though section 42A POCSO Act overrides any other law that are inconsistent with POCSO Act but not section 42 POCSO Act
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.
No illegality in directing the appellant to under punishment under sections376(2)(f) and 376(2)(i) of IPC and Sections 3/4 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.
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 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.”
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.
Judgments Cited and Relied Upon in the Judgment:
1. Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka – (2023) 9 SCC 817
2. Navas @ Mulanavas v. State of Kerala – 2024 SCC Online SC 315
3. Swamy Shraddhananda v. State of Karnataka – (2008) 13 SCC 767
4. Union of India v. V. Sriharan alias Murugan – (2016) 7 SCC 1
5. Veerendra v. State of Madhya Pradesh – (Case involving offences under the POCSO Act and IPC)
Party
Gyanendra Singh @ Raja Singh – State of U.P – Criminal Appeal No(s). of 2025 (Arising out of SLP(Criminal) No(s). of 2025) (Diary No. 36334 of 2024) – 2025 INSC 335 – March 7, 2025 – Justice Vikram Nath, Justice Sandeep Mehta
