Abdul Matin vs The State Of Assam And Anr
2023 Latest Caselaw 2427 Gua

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GAHC010049472020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.A./109/2020

            ABDUL MATIN
            S/O- LATE JABAKSA ALI, VILL.- KACHARI BHETI TUP, P.S. ORANG, DIST.-
            UDALGURI, BTR, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            TO BE REP. BY THE PUBLIC PROSECUTOR, ASSAM.

            2:MD. JABED ALI
             S/O- LATE ABDUL MANAS ALI
            VILL.- KACHARI BHETI
             P.S. ORANG
             DIST.- UDALGURI
             BTR
            ASSAM
             PIN- 784509

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM
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                                       BEFORE

                  HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                   HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                       ORDER

08-06-2023 (Michael Zothankhuma, J)

Heard Mr. A. Ahmed, learned counsel appearing for the appellant. Also heard Ms. S. Jahan, learned Additional P.P. appearing for the State of Assam.

2. This appeal has been filed against the impugned Judgment dated 20.01.2020, passed by the Court of the learned Additional Sessions Judge, Udalguri in Special (POCSO) Case No. 04/2019, by which the appellant has been convicted under Section 6 read with Section 18 of the POCSO Act, 2012.

3. By the said Judgment dated 20.01.2020, the appellant has been sentenced to undergo Rigorous Imprisonment for one-half of the imprisonment for life under Section 6 read with Section 18 of the POCSO Act, 2012 and to pay a fine of Rs. 10,000/-(Rupees ten thousand) only, in default of payment of fine, Rigorous Imprisonment for 6(six) months.

4. The counsel for the parties submit that a reading of Section 2(2) of the POCSO Act, 2012, read with Section 57 of the IPC and Rule 7(b) of Chapter II of the Gauhati High Court Rules, in terms of the sentence/punishment awarded as per the Judgment dated 20.01.2020, requires the sentence to be undergone by the accused to be 10(ten) years of Rigorous Imprisonment, which would have to be heard by a Single Bench of this Court and not by the Division Bench.

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5. The facts of this case is that an FIR dated 30.12.2018 was submitted before the Officer-in-Charge of Orang Police Station, Udalguri BTAD, Assam, which stated that around 3:00 P.M. on 30.12.2018, the appellant on the pretext of giving Indian Berries (jujube) to the informant's minor daughter, took away the victim girl into a house where no person was living. After the appellant raped the minor girl, some persons saw the appellant running away from the place of occurrence.

6. After charge-sheet had been filed and charge under Section 376AB IPC and Section 6 of the POCSO Act, 2012 was framed against the appellant, the learned Trial Court recorded the evidence of 10(ten) prosecution witnesses. After examining the appellant under Section 313 Cr.P.C., the learned trial Court came to a finding that the appellant was guilty of the offence under Section 6 read with Section 18 of the POCSO Act, 2012. The appellant was convicted under Section 6 read with Section 18 of the POCSO Act, 2012.

7. The learned trial Court thereafter sentenced the appellant to undergo Rigorous Imprisonment for half the term of imprisonment for life under Section 6 read with Section 18 of the POCSO Act and to pay a fine of Rs. 10,000/- (Rupees ten thousand), in default, Rigorous Imprisonment for 6(six) months.

8. As can be seen from the above facts, the incident occurred on 30.12.2018 and at that relevant point of time, the unamended Section 6 of the POCSO Act, 2012 provided that for the offence of aggravated penetrative sexual assault, punishment by way of Rigorous Imprisonment for a term of not less than 10 years was to be awarded/imposed, but which may extend to imprisonment for life and shall also be liable to fine.

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9. In view of the amendment made to Section 6 of the POCSO Act,

2012, which came into effect from 16.08.2019 vide S.O. 2957(E) dated 16 th August, 2019, the amended Section 6 of the POCSO Act provided that for the offence of aggravated penetrative sexual assault, Rigorous Imprisonment for a term not less than 20 years was to be awarded, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine, or with death.

10. As can be seen from the above, the amended Section 6 of the POCSO Act, 2012, having come into effect only from 16.08.2019, the amended Section 6 of the POCSO Act could not be made applicable to the facts of this case, inasmuch as, the incident had occurred prior to the date of coming into effect of the amended Section 6 of the POCSO Act, 2012. Thus, the unamended Section 6 of the POCSO Act, 2012 would be applicable to the facts of this case.

11. The question now remains as to what should be the punishment to be undergone by the appellant in terms of the impugned Judgment of the learned Trial Court, keeping in view the fact that the appellant has been sentenced to undergo Rigorous Imprisonment for one-half of the imprisonment for life. Though the POCSO Act, 2012 does not provide as to what would be one-half of the imprisonment for life under the un-amended Section 6 of the POCSO Act, 2012, we find that Section 2(2) of the POCSO Act, 2012 read with Section 57 of the IPC, would clarify the term of sentence to be undergone by the appellant, i.e. one-half of the imprisonment for life under Section 6 of the POCSO Act read with Section 18 of the POCSO Act, 2012.

12. Section 2(2) of the POCSO Act, 2012 and Section 57 of the IPC states as follows:-

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Section 2(2) of the POCSO Act: "the words and expressions used herein and not defined but defined in the Indian Penal Code (45 of

1860), the Code of Criminal Procedure, 1973 (2 of 1974), 2[the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)] and the Information Technology Act, 2000 (21 of 2000) shall have the meanings respectively assigned to them in the said Codes or the Acts".

Section 57 IPC states"Fractions of terms of punishment. - In

calculating fractions of terms of punishment, 2[imprisonment] for life

shall be reckoned as equivalent to 2[imprisonment] for twenty years."

13. A reading of Section 2(2) of the POCSO Act, 2012 shows that the words and expressions used but not defined in the POCSO Act, but defined in the IPC, the Cr.P.C., the Juvenile Justice (Care and Protection of Children) Act 2015 and the Information Technology Act, 2000 shall have the meanings respectively assigned to them in the said Codes or the Acts.

14. In view of the provision of Section 2(2) of the POCSO Act, 2012, the understanding/clarification of one-half of the imprisonment for life under Section 6 of the POCSO Act read with Section 18 of the POCSO Act, 2012 would have to be read into the IPC, Cr.PC or other Acts mentioned in Section 2(2) of the POCSO Act. In this regard, Section 57 of the IPC provides that for the purpose of calculating fractions of terms of "imprisonment for life" shall be taken as equivalent to be imprisonment for 20 years.

15. Accordingly, in view of Section 2(2) of the POCSO Act read with Page No.# 6/7

Section 57 of the IPC, we find that the appellant has been sentenced by the learned Trial Court, to undergo Rigorous Imprisonment for 10 years under the unamended Section 6 read with Section 18 of the POCSO Act, 2012.

16. Rule 7(b) of Chapter II of the Gauhati High Court Rules provides that in all matters where sentence of death penalty/ imprisonment for life/or sentence of imprisonment for a period more than 10 years has been awarded, shall be heard by the Division Bench, including appeals and revisions against acquittal arising out of cases tried under Section 302 IPC.

17. Thus, in terms of Rule 7(b) of Chapter II of the Gauhati High Court Rules, the matter before us would have to be heard by a Single Bench of this Court, as the sentence awarded to the appellant is 10 years, i.e. not more than 10 years.

18. We would also like to clarify that in terms of Section 376AB IPC, for which charge had been framed against the appellant along with Section 6 of the POCSO Act, the punishment for rape under Section 376AB is rigorous imprisonment which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death.

19. This Section 376AB IPC was inserted in the Indian Penal Code by Act 22 of 2018 w.e.f. 21.04.2018, i.e. prior to the date of the incident. However, though charge had been framed against the appellant under Section 376AB also, the learned Trial Court has not made any finding or decision with regard to the said 376AB. As the learned Trial Court has convicted and sentenced the appellant only under Section 6 of the POCSO Act read with Section 18 of the Page No.# 7/7

POCSO Act, thereby ignoring Section 376AB IPC altogether, we are of the view that the said issue need not be gone into, as the State has not filed any appeal against the impugned Judgment dated 20.01.2020 passed in Special (POCSO) Case No. 04/2019.

20. We would also like to observe here that attempt to commit aggravated penetrative sexual assault is also an offence. As the appellant was convicted for an offence of attempt to commit the offence under Section 6 of the POCSO Act, 2012, it would have been proper if the conviction of the appellant was recorded as under Section 18 of the POCSO Act, 2012 read with Section 6 of the POCSO Act, instead of other way round, as has been done in this case.

21. Be that as it may, in view of the reasons stated above, we direct the Registry to place this matter before the Appropriate Bench i.e. before a Single Judge Bench for hearing and disposal in terms of Rule 7(b) of Chapter-II of the Gauhati High Court Rules.

                         JUDGE                  JUDGE




Comparing Assistant