Karnataka High Court
Siddalingappa vs State Of Karnataka By on 23 September, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 1573 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 1573 OF 2018
BETWEEN:
SIDDALINGAPPA
S/O LATE NINGAPPA
AGED ABOUT 45 YEARS
R/AT ASHRAYA LAYOUT
YESHWANTHAPURA HOBLI
BANGALURU NORTH TALUK
PIN - 560 079.
...APPELLANT
(BY SRI T A BASAVARAJU, ADVOCATE)
AND:
Digitally signed by
LAKSHMINARAYANA STATE OF KARNATAKA BY
MURTHY RAJASHRI
Location: HIGH TAVAREKERE POLICE STATION
COURT OF BANGALURU RURAL DISTRICT
KARNATAKA
PIN - 560 099.
HIGH COURT OF KARNATAKA
AT BENGALURU - 560 001.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI RANGASWAMY R, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 27.07.2018 PASSED BY THE II ADDITIONAL
SESSIONS AND SPECIAL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU IN SPL.C.No.45/2015 - CONVICTING
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THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376(2)(i)
OF IPC AND SECTION 4 OF POCSO ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed against judgment of conviction and
order of sentence dated 27.07.2018 passed in special Case
No.45/2015, by the II Additional Sessions and Special
Judge, Bengaluru (Rural) District, Bengaluru convicting the
appellant - accused for the offences under Section
376(2)(i) of the Indian Penal Code, 1860 (for short
hereinafter referred to as 'IPC'), Section 4 of the
Protection of Children from Sexual Offences Act, 2012 (for
short hereinafter referred to as 'the POCSO Act'),
sentencing to undergo rigorous imprisonment for a period
of twenty years and to pay fine of Rs.80,000/-, in default,
to undergo simple imprisonment for another three years.
The Trial Court ordered, in default sentence has to run
consecutively.
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2. The factual matrix of the case is that; on 10.02.2013
at 1.00 am., in the house of the appellant - accused
situated at Ashraya Extension, Kodigehalli, Yeshwanthpura
Hobli, Bengaluru North Taluk, the appellant - accused has
committed rape on his own daughter - PW1, who is aged
about 13 years, when she was sleeping in the house, by
putting fear, against her will and without her consent and
committed penetrative sexual assault on the victim. The
charge came to be framed for the offence under Section
376(2)(i) of IPC and Sections 3(a) and 4 of the POCSO
Act.
3. The prosecution examined 14 witnesses as PWs.1 to
14 and got marked the documents as Exs.P1 to P11 and
MOs.1 to 6. The statement of the accused under Section
313 of Cr.P.C has been recorded.
4. After hearing the arguments on both sides, the Trial
Court formulated the points for consideration and
convicted the appellant - accused for the offences under
Section 376(2)(i) of IPC and Section 4 of the POCSO Act.
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The Trial Court has awarded common sentence for both
the offences. The said judgment of conviction and order of
sentence has been challenged in this appeal.
5. Heard learned counsel for the appellant - accused and
learned High Court Government Pleader for the respondent
- State.
6. Learned counsel for the appellant would contend that
since the appellant - accused is already in custody for
more than ten years, he is not addressing his arguments
on merits of the case and he is only addressing the
arguments on the sentence awarded by the Trial Court.
He submits that the sentence provided for the offence
under Section 376(2)(i) of IPC is rigorous imprisonment
for a term which shall not be less than ten years, but it
may extend to imprisonment for life. He further argued
that the punishment provided for the offence under section
4 of the POCSO Act is imprisonment of either description
of which shall not be less than seven years, but it may
extend to imprisonment for life. He further argued that
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the Trial Court has no power to award the fixed term of
sentence of twenty years which is not provided for the
offences under Section 376(2)(i) of IPC and Section 4 of
the POCSO Act. The Trial Court did not chose to award
the sentence of imprisonment for life which is the
maximum sentence which can be imposed for the said
offences. Considering the said provisions, the sentence
may either be imprisonment for ten years or for
imprisonment for life. The Trial Court erred in sentencing
the appellant - accused for twenty years which is not
provided for the said offences. With this, he prayed for
modifying the sentence to imprisonment for ten years and
fine.
7. Per contra, learned High Court Government Pleader
has argued that the sentence as awarded by the Trial
Court is proper, looking to the facts and circumstances of
the case, as provided for the said offences.
8. As learned counsel for the appellant - accused has
only addressed his arguments on sentence, this Court is
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not considering the merits of the case with regard to
conviction of the appellant - accused for the offences
under Section 376(2)(i) of IPC and Section 4 of the POCSO
Act. The Court is only taking into consideration whether
the sentence awarded by the Trial Court is in accordance
with law or not.
9. In view of the above, the following point would arise
for consideration;
"Whether the sentence of imprisonment of twenty
years as awarded by the Trial Court for the
offences under Section 376(2)(i) of IPC and Section
4 of the POCSO Act is provided for the said
offences or not?"
10. The incident has taken place on 10.02.2013. As on
the date of the said offences, the sentence provided for
the offence under Section 376(2)(i) of IPC was as under;
"376. Punishment for rape.-(1) Whoever, except in
the cases provided for in sub-section (2), commits
rape, shall be punished with rigorous imprisonment
of either description for a term which shall not be
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less than ten years, but which may extend to
imprisonment of life, and shall also be liable to fine.
(2) whoever,-
xxxxx
(i) Commits rape on a woman when she is under
sixteen years of age shall be punished with rigorous
imprisonment for a term which shall not be less
than ten years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of that person's
natural life and shall also be liable to fine."
11. The sentence provided for the offence under Section 4
of the POCSO Act reads as under;
"4. Punishment for penetrative sexual assault;
Whoever commits penetrative sexual assault
shall be punished with imprisonment of either
description for a term which shall not be less than
seven years but which may extend to imprisonment
for life, and shall also be liable to fine."
12. The Trial Court has awarded common sentence for the
offences under Section 376(2)(i) of IPC, R/w Section 4 of
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the POCSO Act, to undergo rigorous imprisonment for a
period of twenty years and to pay fine of Rs.80,000/-, in
default, to undergo simple imprisonment for another three
years, which shall run consecutively. Even though the
sentence of imprisonment for life is provided for the said
offences, the Trial Court did not chose to exercise its
discretion to impose the sentence of imprisonment for life.
13. The Hon'ble Apex Court in the case of Gopal Vinayak
Godsey v. State of Maharashtra reported in AIR 1961
SC 600 has observed that, life imprisonment should not
have any term of confinement like 14 or 20 years. It is
imprisonment for the rest of the natural life of the person
convicted. The length of sentence of life in prison is not
specified under IPC. The life imprisonment means
confinement for the rest of the prisoner's life.
14. The Hon'ble Apex Court in the case of Sangeet &
another v. State of Haryana, reported in (2013) 2 SCC
452 held that, a prisoner in prison for life should stay in
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detention until the end of his life, subject to any remission
granted by the appropriate government.
15. The Hon'ble Apex Court in the case of Naib Singh v.
State of Punjab & Ors. reported in AIR 1983 SC 855
has cleared the confusion with the duration of life
imprisonment and section 55 of IPC, and held that, a life
convict cannot claim for his release after serving 14 years
in prison. Life imprisonment continues until the death of
the person. The only exception to this is commutation and
remission. Life imprisonment, if not remitted or committed
by the appropriate Government, will be equivalent to
imprisonment for the rest of the natural life of the person
convicted and not only 14 years or 20 years.
16. The Hon'ble Apex Court in the case of Union of India
v. V.Sriharan reported in (2016) 7 SCC 1 has held that
Trial Court does not have the power to deprive the
remission power of the appropriate Government. This
power lies only with the High Court and Supreme Court.
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The same view was reiterated in the case of Savitri v.
State of Haryana reported in (2016) 1 SCC 1.
17. The Trial Court even though the imprisonment for life
is provided for the said offences, has not chosen to award
imprisonment for life. The Trial Court awarded the
sentence of imprisonment for twenty years. The award of
imprisonment for twenty years which is fixed term is not
provided either under Section 376(2)(i) of IPC or under
Section 4 of the POCSO act. The Court for the offences
under Section 376(2)(i) of IPC, is empowered to impose
the sentence, either ten years which is the minimum
sentence or imprisonment for life. The Court for the
offence under Section 4 of the POCSO Act, is empowered
to impose the sentence for a term of seven years, which is
minimum sentence or imprisonment for life. The said two
provisions ie., Section 376(2)(i) of IPC and Section 4 of
the POCSO Act, does not give discretion to award sentence
for fixed term of twenty years. The sentence for fixed
term like 15 years, 20 years, 30 years, 40 years or
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50 years is not provided for those offences. Therefore, the
sentence imposed by the Trial Court for a fixed term of
twenty years is not provided either under Section
376(2)(i) of IPC or under Section 4 of the POCSO Act.
Therefore, the Trial Court has erred in sentencing the
appellant - accused to undergo Rigorous Imprisonment for
a fixed term of twenty years. As the Trial Court has not
exercised its discretion in awarding the maximum
sentence of imprisonment for life, now in this appeal
preferred by the appellant - accused, a minimum sentence
of imprisonment for ten years requires to be awarded.
Accordingly, the above point is answered. In the result,
the following;
ORDER
The appeal is allowed in part. The sentence dated
27.07.2018 passed in Special Case No.45/2015 by the
II Additional Sessions and Special judge, Bengaluru
(Rural) District, Bengaluru, is modified and the appellant -
accused is sentenced to undergo Rigorous Imprisonment
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for a period of ten years and to pay fine of Rs.80,000/-, in
default, to undergo simple imprisonment for six months
which shall run consecutively. The appellant - accused is
entitled for set-off under Section 428 of Cr.P.C.
In view of disposal of the appeal, I.A.No.1/2023
seeking suspension of sentence and grant of bail does not
survive for consideration.
Sd/-
JUDGE
GH
