Karnataka High Court
The State Of Karnataka vs Shaik Raouf S/O Pasha Miyan on 3 January, 2023
Bench: V Srishananda
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 03RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL No.200060/2016
BETWEEN:
THE STATE OF KARNATAKA
THROUGH BHALKI TOWN
POLICE STATION,
BIDAR DISTRICT
... APPELLANT
(BY SRI GURURAJ V. HASILKAR, HCGP)
AND:
SHAIK ROUF S/O PASHA MIYAN
AGE: 35 YEARS, OCC: LABOUR,
R/O BASAVANAGAR, KALWADI
TQ. BHALKI, DIST. BIDAR.
... RESPONDENT
(BY SRI ISHWARAJ S. CHOWDAPUR, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
377(1)(B) OF CR.P.C., PRAYING TO MODIFY THE ORDER
DATED 07/09/2015 PASSED BY THE LEARNED SPECIAL
JUDGE AND ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BIDAR, IN SPECIAL CASE NO.58/2014 WHERE BY
2
IMPOSING MAXIMUM SENTENCE ON THE RESPONDENT
FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF
IPC AND SECTION 4 OF THE POCSO ACT, 2012; CONVICT
AND SENTENCE THE RESPONDENT/ACCUSED FOR ALL THE
OFFENCES WITH WHICH HE HAS BEEN CHARGED, IN
ACCORDANCE WITH LAW.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the State with the
following prayer:
"WHEREFORE, The Appellant/State most
respectfully prayed that this Hon'ble Court may
kindly be pleased to call for the records of
Special Case No.58/2014 Additional District
and Sessions Judge, Bidar.
a) GRANT LEAVE to appeal against the
judgment and order of Inadequate punishment
/sentence dated: 07.09.2015 passed by the
Learned Special Judge and Additional District
and Sessions Judge at Bidar, in Special Case
No.58/2014 may be modified by imposing
maximum punishment and imposing fine
amount to the respondent for offence
punishable under Section 376 of IPC and
Section 4 of the POCSO Act, 2012.
b) Modify the order dated: 07.09.2015 passed
by the Learned Special Judge and Additional
District and Sessions Judge, Bidar, in Special
Case No.58/2014 where by imposing maximum
sentence on the respondent for the offence
punishable under Section 376 of IPC and
Section 4 of the POCSO Act of 2012.
c) CONVICT AND SENTENCE the respondent/
accused for all the offences with which he has
been charged in accordance with law, in the
interest of justice and equity."
2. Brief facts which are necessary for disposal of
the appeal are as under:
Accused/respondent was chargesheeted for the
offence punishable under Section 376 of IPC and Section 4
of Protection of Children from Sexual Offences Act, 2012,
(for short, hereinafter referred to as 'POCSO Act'). Accused
pleaded not guilty and therefore, the trial was held.
Prosecution in order to prove its case, examined 21
witnesses as P.Ws.1 to 21 and relied on 17 documentary
evidence which are exhibited and marked as Exs.P.1 to
P.17. The prosecution also placed reliance on 9 material
objects which are marked as M.Os.1 to 9. Thereafter,
statement of accused as contemplated under Section 313
of Cr.P.C., was recorded wherein accused denied all the
incriminating materials that are found against the accused.
Accused did not chose to place any defence evidence or his
written statement as is contemplated under Section 313
(5) of Cr.P.C.
3. In other words, the presumption contemplated
under Section 29 and 30 of the POCSO Act, were not
rebutted by the accused by placing rebuttal evidence on
record.
4. Thereafter, learned Special Judge heard the
parties in detail and after considering the material
evidence on record, passed an order of conviction,
convicting the respondent/accused for the offence
punishable under Sections 376 of IPC and Section 4 of the
POCSO Act. The order of sentence is extracted as under:
"1. Convict / accused is sentenced to
undergo Simple Imprisonment for a period of
05 years and shall pay a fine of Rs.2,000/-, for
the offence punishable under section 376 of
IPC. In default to pay fine, he shall
undergo further S.I. for a period of two
months.
2. Convict / accused is sentenced to
undergo Simple Imprisonment for a period of
05 years and shall pay a fine of Rs.2,000/-, for
the offence punishable under section 4 of
POCSO Act. In default to pay fine, he shall
undergo further S.I. for a period of two
months.
Both the above sentences shall run
concurrently.
Furnish free copy of this judgment to the
convict/accused forthwith.
Convict / accused is given benefit of set off,
for the period of imprisonment undergone by
him as provided under section 428 of Cr.P.C.
Further it is ordered that the victim i.e,
P.W.1 approached District Legal Services
Authority for victim compensation under sec.
357(a) of Cr.P.C.,
M.O.1 to 9 are worthless and valueless
ordered to be destroyed after appeal period is
over."
5. Being aggrieved by the order of sentence
passed by the learned Special Judge in respect of the
offence under Section 4 of the POCSO Act, the State has
preferred the present appeal with the following grounds:
x It is submitted that, the offence punishable
under Section 376 is for life or
imprisonment for 10 years and fine but the
trial court in order to reduce the period of
imprisonment for the said offence against
the respondent/accused has not given any
reasons. So the sentence and fine ordered
by the trial court for the above offence is
totally in adequate and liable to be modified
and pass the order of sentence and fine as
proved under Section 376 of IPC, so the
order under challenge require interference
by this Hon'ble Court.
x That, the Trial Court had found that the
prosecution has proved the case by
examining all material important witnesses,
as discussed in the judgment under appeal.
So, the Trial Court is not correct in getting
reduced the quantum of sentence and fine
amount against the respondent/accused.
So the order under challenge required
modification and there by enhanced the
period of sentence and fine amount.
x It is submitted that, the Trail Court has not
considered the material important evidence
of victim girl and has not awarded
maximum punishment under Section 4 of
the POCSO Act, this Hon'ble Court to please
to modify the order under challenge and
there by convict by awarding maximum
punishment to the respondent/accused.
x It is submitted that, on going through the
judgment under challenge the
respondent/accused has not given any
acceptable explanation and reasoning,
when he was heard on the quantum of
sentence by Trial Court. The explanation
given by the respondent/accused that he
had wife and Children's also coming from
poor family is not at all acceptable. Since,
the respondent/accused by committing
heinous offence had ruined future life of
just 12 years old minor girl and her well
reputed status in the society is defamed
and caused social concern to society at
large. So, the sentence fine amount order
by the Trial Court is very much in adequate
and same is not in accordance with IPC and
the POCSO Act. The Learned Trial Court
Judge has not applied the provision of
Section 357 of Cr.P.C. while imposing the
maximum fine amount on the respondent/
accused, so the appeal may kindly be
allowed.
x In viewed of the above grounds urged and
catena of decision of this Hon'ble Court and
appeal may kindly be allowed.
6. Reiterating the grounds urged in the appeal,
Sri Gururaj V.Hasilkar, learned High Court Government
Pleader vehemently contended that approach of the trial
Court in sentencing the respondent/accused for a period of
five years for the offence under Section 4 of the POCSO
Act is illegal as minimum sentence that is prescribed under
the provisions of Section 4 of the POCSO Act is seven
years and there is no discretion vested in the learned
Special judge to reduce the minimum sentence of seven
years to five years and sought for allowing the appeal.
7. Per contra, Sri Ishwaraj S. Chowdapur, learned
counsel for the respondent/accused vehemently contended
that the trial Court was not justified in convicting the
accused both under Sections 376 of IPC and 4 of the
POCSO Act and therefore, taking note of the fact that he
has been convicted for both the offences and sentencing
the accused for a period of five years is justified in the
facts and circumstances of the case, more so, in view of
Section 42 of the POCSO Act and hence, sought for
dismissal of the appeal.
8. In view of the rival contentions urged by the
parties, this Court perused the material available on record
meticulously. On such perusal of the records, the sole
point that would arise for consideration is:
Whether sentencing the
accused/respondent for a period of 5 years for
the offence under Section 4 of the POCSO Act
is justified?
9. In the case on hand, the order of conviction
passed by the trial Court insofar as convicting the accused
under Section 376 of IPC and under Section 4 of the
POCSO Act is not challenged by the respondent / accused.
As such, the conviction order has become final. The
accused did not choose to file cross appeal after the
present appeal was admitted by this Court.
10. Therefore, it is necessary for this Court to
delve into the merits of the matter and the validity of the
order of conviction passed by the learned Special Judge.
11. Even otherwise the material on record clearly
disclose that the victim girl having supported the case of
the prosecution and other material on record having
corroborated the oral testimony of the victim girl, the
learned Special Judge was justified in passing the order of
conviction for the offence punishable under Section 376 of
IPC and Section 4 of POCSO Act.
12. Section 42 of the POCSO Act reads as under:
"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 (45 of 1860)
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 under this Act or
under the Indian Penal Code as provides for
punishment which is greater in degree.]"
13. It is the argument of the learned counsel for
the respondent/accused, Sri Ishwaraj S. Chowdapur that
the learned Special Judge ought not to have convicted the
accused for the offence punishable under Section 376 of
IPC, when once accused was convicted for the offence
punishable under Section 4 of the POCSO Act. Said
argument looses its significance in view of the fact that
punishment prescribed under Section 376 of IPC and
Section 4 of POCSO Act are one and the same.
14. Section 4 of the POCSO Act reads as under:
"4. Punishment for penetrative
sexual assault.-
[(1)] Whoever commits penetrative
sexual assault shall be punished with
imprisonment of either description for a term
which shall not be less than [ten years] but
which may extend to imprisonment for life, and
shall also be liable to fine.
[(2) Whoever commits penetrative
sexual assault on a child below sixteen years of
age shall be punished with imprisonment for a
term which shall not be less than twenty years,
but which may extend to imprisonment for life,
which shall mean imprisonment for the
remainder of natural life of that person, and
shall also be liable to fine.
(3) The fine imposed under sub-section
(1) shall be just and reasonable and paid to
the victim to meet the medical expenses and
rehabilitation of such victim.]"
15. As could be seen from Section 4 of the POCSO
Act (Unamended), the minimum sentence that was to be
imposed after finding the accused guilty under Section 4 of
the POCSO Act is seven years. It is pertinent to note that
since the statute has prescribed a minimum sentence of
seven years for the offence punishable under Section 4 of
the POCSO Act, learned Special Judge did not have any
power whatsoever to reduce minimum sentence to five
years. Perhaps, the said aspect of the matter has missed
the notice of the learned Special Judge while passing the
order of sentence.
16. It is settled principle of law and requires no
emphasis that when a statute prescribes minimum
sentence, the trial judge or the appellate judge has no
discretion whatsoever to reduce the minimum sentence
prescribed by the statute.
17. Said view of this Court in this regard, is
fortified by the judgment of the Hon'ble Apex Court in the
case of Mohd. Hashim vs. State of Uttar Pradesh and
Others reported in (2017)2 SCC 198. The relevant
paragraph of the said judgment reads as under:
" 15. The three-Judge Bench while
adverting to the concept of "minimum
sentence", relied on the observations made in
Bahubali (supra) which we have reproduced
hereinabove, and opined that:-
"9. The above observations also clearly show
that where there is a statute which bars the
exercise of judicial discretion in the matter of
award of sentence, the Probation of Offenders
Act will have no application or relevance. As
Rule 126-P(2)(ii) of the DI Rules manifestly bars
the exercise of judicial discretion in awarding
punishment or in releasing an offender on
probation in lieu of sentencing him by laying
down a minimum sentence of imprisonment, it
has to prevail over the aforesaid provisions of
the Probation of Offenders Act, 1958 in view of
Section 43 of the Defence of India Act, 1962
which is later than the Probation of Offenders
Act and has an overriding effect.'"
18. Applying the said principle of law enunciated in
the aforesaid decision to the case on hand, awarding
sentence of five years to the respondent/accused by the
learned trial judge ignoring the fact that statute has
prescribed the minimum sentence of seven years for the
offence punishable under Section 4 of POCSO Act, is thus,
clearly illegal and calls for interference by this Court in this
appeal.
19. Therefore, in the facts and circumstances of
the case, the State has made out a case for enhancing the
sentence to seven years which is minimum sentence
prescribed by statute under Section 4 of POCSO Act.
20. However, the material on record would not
make out a case for sentence to be passed for more than
seven years, having regard to the fact that the incident is
of the year 2013 and victim was aged 13 years at that
point of time and accused has already spent the period of
imprisonment as ordered by the trial Court, therefore, the
only modification that is required insofar as the sentence
imposed by the learned Special judge which is impugned in
this appeal, is to now enhance the sentence of five years
to seven years.
21. Accordingly, the point is answered in negative
and following order is passed:
ORDER
i) Appeal is allowed.
ii) While maintaining the conviction of the
respondent/accused for the offence
punishable under Section 376 of IPC and
Section 4 of POCSO Act, the sentence
ordered by the learned Special Judge for the
offence under section 4 of the POCSO Act is
enhanced to seven years.
iii) Needless to emphasise that respondent/
accused shall surrender before the trial
Court on or before 31.01.2023 and in the
event of respondent failing to surrender to
serve balance period of sentence before the
trial Court, the trial Court is at liberty to
issue modified conviction warrant and
secure the presence of accused for serving
remaining part of the sentence.
Sd/-
JUDGE
VNR
