Sikkim High Court
Suman Gurung vs State Of Sikkim on 30 November, 2022
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED : 30th November, 2022
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl.A. No.11 of 2021
Appellant : Suman Gurung
versus
Respondent : State of Sikkim
An Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973.
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Appearance
Mr. Jorgay Namka, Senior Advocate (Legal Aid Counsel) for the
Appellant.
Mr. Thinlay Dorjee Bhutia, Additional Public Prosecutor and Mr.
Yadev Sharma, Additional Public Prosecutor for the State-
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant was convicted of the offences under
Section 376(2)(n) and Section 376(3) of the Indian Penal Code,
1860 (hereinafter, the "IPC"), with Section 5(j)(ii) and Section 5(l),
punishable under Section 6 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter the "POCSO" Act), vide the
Judgment dated 15-07-2021, in Sessions Trial (POCSO) Case
No.07 of 2020, by the Court of Learned Special Judge (POCSO),
West Sikkim, at Gyalshing.
2. The Order on Sentence dated 16-07-2021, meted out
the following to the Appellant;
"a. For commission of the offence under Section
376(2)(n), IPC, 1860, the convict is sentenced to
undergo RI of the minimum sentence prescribed, of a
term of 10 years and to pay a fine of Rs.5,000/-. In
Suman Gurung vs. State of Sikkim
default of payment of fine, the convict shall undergo
RI for one year.
b. for commission of the offence under Section
376(3), IPC, 1860 the convict is sentenced to undergo
RI for the minimum sentence prescribed, of a term of
20 years and to pay a fine of Rs.10,000/-. In default
of payment of fine, the convict shall undergo RI for
two years.
c. for commission of offence as defined under Section
5(j)(ii) punishable under Section 6 of POCSO
(Amendment) Act, 2019 the convict is sentenced to
undergo RI for the minimum sentence prescribed, of a
term of 20 years and to pay a fine of Rs.10,000/-. In
default of payment of fine, the convict shall undergo
RI for two years.
d. for commission of offence as defined under Section
5(l) punishable under Section 6 of the POCSO
(Amendment) Act, 2019, the convict is sentenced to
undergo RI for the minimum sentence prescribed, of a
term of 20 years and to pay a fine of Rs.5,000/-. In
default of payment of fine, the convict shall undergo
RI for one year.
6. All of the above sentences shall run
concurrently. However, the period of sentence
already undergone by the convict during investigation
and trial shall be set off against this sentence of
imprisonment as provided under Section 428, Cr.PC,
1973.
7. The fine paid shall be paid to the victim to meet
the medical expenses incurred during the pregnancy
and birth of the child by the victim and for her
rehabilitation, as provided under sub-section (2) of
Section 6 of the POCSO (Amendment) Act, 2019."
3. The limited challenge in this Appeal is to the length of
incarceration meted out to the Appellant by the Learned Trial Court
under the various provisions of law for which he was convicted.
Learned Senior Counsel for the Appellant submits that he does not
assail the Judgment of conviction but is only aggrieved by the
Sentence handed out to the Appellant which is inequitable and
harsh, considering that a child was born from the relationship as
proved by Exhibit 19. That, the child and the mother the alleged
victim, are suffering on account of the absence of the care and
protection of the Appellant as presently there is no one to provide
for them. That, infact both, the Appellant then aged twenty seven
years and the victim who was sixteen years, were in love and the
Suman Gurung vs. State of Sikkim
sexual act was consensual but the case arose only on account of
the First Information Report (hereinafter, the "FIR"), Exhibit 7, that
the father of the victim lodged, complaining of sexual assault on his
daughter. Learned Senior Counsel for the Appellant sought for a
reduction of the sentence to mitigate the sufferings of the victim.
4. Learned Public Prosecutor for the State-Respondent
objected to the contentions put forth by Learned Senior Counsel for
the Appellant on grounds that only the minimum sentence
prescribed by law has been imposed, apart from which, consent of
a minor is no consent and the submissions deserve an outright
rejection.
5(i). Having heard Learned Counsel for the parties it would
be apposite to remark here that the Hon'ble Supreme Court in a
plethora of cases has laid down that the minimum sentence
prescribed by the statute has to be imposed on the guilty and
cannot be reduced.
(ii) In Mohd. Hasim vs. State of Uttar Pradesh and Others1, the
Hon'ble Supreme Court in Paragraph 19 held as follows;
"19. The learned counsel would submit that the
legislature has stipulated for imposition of sentence of
imprisonment for a term which shall not be less than
six months and the proviso only states that sentence
can be reduced for a term of less than six months
and, therefore, it has to be construed as minimum
sentence. The said submission does not impress us in
view of the authorities in Arvind Mohan Sinha2 and
Ratan Lal Arora3. We may further elaborate that
when the legislature has prescribed minimum
sentence without discretion, the same cannot be
reduced by the courts. In such cases, imposition of
minimum sentence, be it imprisonment or fine, is
mandatory and leaves no discretion to the court.
However, sometimes the legislation prescribes a
minimum sentence but grants discretion and the
courts, for reasons to be recorded in writing, may
award a lower sentence or not award a sentence of
imprisonment. Such discretion includes the discretion
(2017) 2 SCC 198
(1974) 4 SCC 222
(2004) 4 SCC 590
Suman Gurung vs. State of Sikkim
not to send the accused to prison. Minimum sentence
means a sentence which must be imposed without
leaving any discretion to the court. It means a
quantum of punishment which cannot be reduced
below the period fixed. If the sentence can be reduced
to nil, then the statute does not prescribe a minimum
sentence. A provision that gives discretion to the
court not to award minimum sentence cannot be
equated with a provision which prescribes minimum
sentence. The two provisions, therefore, are not
identical and have different implications, which should
be recognised and accepted for the PO Act.
(iii) In Harendra Nath Chakraborty vs. State of West Bengal4,
the Hon'ble Supreme Court in Paragraphs 27 and 28 held as
follows;
"27. The appellant was dealing with an
essential commodity like kerosense. If Parliament has
provided for a minimum sentence, the same should
ordinarily be imposed save and except some
exceptional cases which may justify invocation of the
proviso appended thereto.
28. In India, we do not have any statutory
sentencing policy as has been noticed by this Court in
State of Punjab vs. Prem Sagar5. Ordinarily, the
legislative sentencing policy as laid down in some
special Acts where the parliamentary intent has been
expressed in unequivocal terms should be applied.
Sentence of less than the minimum period prescribed
by Parliament may be imposed only in exceptional
cases. No such case has been made out herein."
6. In light of the provisions of law, the principles of law
enunciated and extracted above and having duly perused and
considered the Sentences imposed by the Learned Trial Court, it is
evident that only the minimum imprisonment prescribed by the
Statute has been meted out by the Learned Trial Court to the
Appellant. Any Order of this Court cannot fly in the face of the
Statute or the settled position of law.
7. Consequently, the prayers of the Appellant cannot be
considered and are thereby rejected.
8. The Appeal is dismissed and disposed of accordingly.
(2009) 2 SCC 758
(2008) 7 SCC 550
Suman Gurung vs. State of Sikkim
9. Pending applications, if any, stand disposed of.
10. No order as to costs.
11. Copy of this Judgment be forwarded to the Learned
Trial Court along with its records.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
30-11-2022 30-11-2022
Approved for reporting : Yes
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