Sikkim High Court
Bindhyachal Baitha vs State Of Sikkim on 31 July, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 31st July, 2024
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.34 of 2023
Appellant : Bindhyachal Baitha
versus
Respondent : State of Sikkim
Application 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. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant was convicted under Section 9(m) of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter,
"POCSO Act"), for committing aggravated sexual assault on a child
below twelve years, punishable under Section 10 of the same Act.
He was sentenced to undergo simple imprisonment for a period of
five years and fined ₹ 5,000/- (Rupees five thousand) only, with a
default clause of imprisonment. The Learned Trial Court observed
that since Section 9(m) of the POCSO Act covers the offences
punishable under Sections 354 and 354B of the Indian Penal Code,
1860 (hereinafter, the "IPC"), the Appellant need not be penalised
twice for the same offence under different legislations. He was
acquitted of the offence under Section 5(m) of the POCSO Act for
which penalty is provided under Section 6 of the same Act.
Although charge was framed against the Appellant also under
Section 376AB of the IPC, the Learned Trial Court failed to refer to
or discuss this Section in the impugned Judgment.
(i) In the impugned Judgment, the Learned Trial Court in
Paragraphs 15 and 17 concluded inter alia as follows;
"15. It would be seen that the evidence of PW-5 and
7 and the allegation against the accused of having
inserted his finger into the victim's vagina is
corroborated by the medical evidence (supra). ......
.............................................................................................................
17. In light of the discussions made above, the
question whether on 30th September, 2018, the
accused touched and inserted his finger into the
victim's vagina is answered in affirmative."
[emphasis supplied]
Contrarily in the „ORDER‟, at the conclusion of the impugned
Judgment the Learned Trial Court proceeded to hold as follows;
"In the result, I have arrived at a finding that
the Prosecution have successfully brought home the
charge against the accused under Section 9(m)
punishable under Section 10 of the POCSO Act, 2012 .
Since this provision covers the offences punishable
under Section 354 and Section 354B of the I.P.C, the
accused need not be punished twice for the same
offence under two different legislation. However, he
stands acquitted from the charge under Section 5(m)
punishable under Section 6 of the POCSO Act, 2012.
......................................." [emphasis supplied]
Thus, the Appellant was convicted for the offence of
"aggravated sexual assault" simpliciter, despite the finding
extracted above, that an offence of "aggravated penetrative sexual
assault" had been perpetrated by him on the child.
(ii) Aggrieved by the Judgment and Order on Sentence of
the Court of the Learned Special Judge (POCSO Act, 2012)
Gangtok, Sikkim, dated 30-10-2023 and 31-10-2023 respectively,
in S.T (POCSO) Case No.18 of 2019, this Appeal has arisen.
2. The victim is a girl child, aged about three years and
two months at the time of the offence. The Prosecution case is
that the Appellant had inserted his finger into her vagina and
caused injuries therein. PW-5 the victim‟s mother, lodged Exhibit 2
the FIR, on 02-10-2018 complaining that the victim PW-1 had been
indicating to her by pointing at her genital that uncle (accused) had
inserted his finger into it. That, PW-5 paid scant attention to what
the child was communicating at the relevant time being
overwhelmed by the circumstance of the hospitalisation of both her
husband and father and she being the caregiver. However, on 01-
10-2018 when the child had the urge to urinate frequently, she
checked the genital of the child and found a cut therein, while the
genital was found to be reddish in colour. On her enquiry, the child
repeated the word "uncle" and pointed upwards. Later, when her
sister-in-law was with the child and the Appellant was descending
from the stairs, the child indicated that the Appellant, their
neighbour, was the perpetrator.
(i) The concerned Police Station registered the FIR against
unknown person under Section 376 of the IPC read with Section 10
the POCSO Act. On completion of investigation by the
Investigating Officer PW-8, Charge-Sheet came to be filed against
the Appellant under Section 10 of the POCSO Act.
(ii) The Learned Trial Court framed Charge against the
Appellant under the POCSO Act, viz.; (1) Section 5(m) punishable
under Section 6, (2) Section 9(m) punishable under Section 10 and
under (3) Sections 376AB, (4) Section 354 and (5) Section 354B of
the IPC. On his plea of "not guilty", to the aforementioned
charges, trial commenced with the Prosecution examining eight
witnesses. Thereafter, the Appellant was examined under Section
313 of the Code of Criminal Procedure, 1973 (hereinafter,
"Cr.P.C."), to enable him to explain the incriminating evidence
against him and his responses were recorded. The final arguments
were then heard.
(iii) The Learned Trial Court discussed the evidence of PW-1
the victim, PW-5 her mother, PW-7 the sister-in-law of PW-5, PW-6
the Gynaecologist and PW-4 the victim‟s father. It was concluded
that the evidence of the Prosecution witnesses corroborated each
other and that the accused had touched and inserted his finger into
the victim‟s vagina. Thus, the Learned Trial Court opined that it
was apparent that the victim comprehended that the act
perpetrated on her by the Appellant was not right and therefore
tried to tell her mother PW-5 and aunt PW-7 what "mathi ko uncle"
(uncle from upstairs) had done to her. It was also found that the
accused lived with his family on the terrace of the said building and
was thereby referred to as "mathi ko uncle". Hence, the impugned
Judgment of conviction and Order on Sentence were pronounced.
3. Learned Counsel for the Appellant contended that it
was erroneous to hold the Appellant guilty as the circumstances
could not even have permitted the offence to occur. The place
where the Appellant resided was on the top floor of a four storied
RCC building, while the victim lived on the immediate floor below
with other families also in occupation of the same floor. The
Appellant is employed in a private company, has a wife and two
grown up children and these facts are not disputed. That, the
injuries on the genital of the victim in all probability was on
account of the diaper worn by the victim, besides, she was left in
the constant care of PW-7 before the date of incident and she
deposed that she did not leave the child alone, ruling out any
opportunity for commission of such an offence. There was no eye-
witness to the incident. PW-7 in her evidence before the Court has
exacerbated her statement concerning the incident. That, the child
during her deposition was not able to identify the Appellant as the
alleged perpetrator, apart from which the Learned Trial Court
prompted her to depose against the Appellant by specifically
enquiring of the child "if the uncle had done any bad things to her
such as whether he had touched her private parts inappropriately".
It was only then, that the victim had stated that he had touched
her vagina. The victim admitted to being tutored by her mother to
state that the Appellant had inserted his finger into her vagina.
Thus, the victim‟s statement cannot be relied on. The cross-
examination of the IO was indicative of the fact that the male
members of the victim‟s own family were shielded as they were not
examined during the investigation. As the Learned Trial Court
failed to appreciate the evidence in its correct perspective, the
impugned Judgment deserves to be set aside and the Appellant
acquitted of the offences.
4. Per contra, the Learned Additional Public Prosecutor
submitted that the impugned Judgment and sentence suffers from
no shortfalls and the Appellant being the perpetrator of the offence
was correctly identified by PW-1 and rightly convicted and
sentenced by the Learned Trial Court.
5. Due consideration has been afforded to the
submissions put forth by Learned Counsel for the parties. The
evidence on record has been carefully perused.
6. Whether the finding of the Learned Trial Court suffered
from erroneous appreciation of the evidence is the question that
falls for determination. To answer the question, it is essential to
correctly examine the evidence on record.
7. The offence allegedly took place on 30-09-2018 and
the perpetrator, the Appellant, was aged around 42 years. PW-1
the victim was allegedly three years and two months old as per
PW-5, when she was subjected to the sexual assault. The victim‟s
statement under Section 164 Cr.P.C. was recorded on 02-11-2018
when she was three years and some months. She was six years
old when her evidence was recorded before the Learned Trial Court
on 26-11-2021. The delay in the recording of the victim‟s evidence
in contravention to the provision of Section 35 of the POCSO Act
was on account of the COVID-19 pandemic raging at the relevant
time. This circumstance, as required by law, was recorded in the
Order of the Learned Trial Court dated 23-03-2020.
(i) That having been said, Learned Counsel for the
Appellant did not contest the age of the victim. PW-4 the father,
identified Exhibit P-4/PW-4 as his daughter‟s Birth Certificate
obtained by him from Dehradun, Uttarakhand, his native place.
PW-5 the mother also identified the same document and denied the
suggestion put to her under cross-examination that her daughter
was not born on 09-08-2015. As per the IO, she collected Exhibit
P-4/PW-4 from PW-5 after preparing the handing and taking over
memo marked Exhibit P-11/PW-8. She also identified the
signatures on the seizure memo. The evidence supra not having
been decimated by cross-examination established the date of birth
of the victim.
(ii) On the day PW-1 deposed in Court, the Learned Trial
Court recorded that the child did not understand the meaning of
„oath‟ and as such oath could not be administered to her. In
immediate contradiction thereof, the Court has thereunder
recorded "OATH ADMINISTERED", thereby reflecting non-application
of judicial mind by the concerned Judicial Officer.
(iii) Be that as it may, in the context of „Oath‟ to minors,
apposite reference may be made to Section 4 of the Oaths Act,
1969, which provides as follows;
"4. Oaths or affirmations to be made by
witnesses, interpreters and jurors.--(1) Oaths or
affirmations shall be made by the following persons,
namely:--
(a) all witnesses, that is to say, all
persons who may lawfully be
examined or give, or be required
to give, evidence by or before any
court or person having by law or
consent of parties authority to
examine such persons or to
receive evidence;
(b) interpreters of questions put to,
and evidence given by, witnesses;
and
(c) jurors:
Provided that where the witness is a child
under twelve years of age, and the court or person
having authority to examine such witness is of
opinion that, though the witness understands the
duty of speaking the truth, he does not understand
the nature of an oath or affirmation, the foregoing
provisions of this section and the provisions of
section 5 shall not apply to such witness; but in any
such case the absence of an oath or affirmation shall
not render inadmissible any evidence given by such
witness nor affect the obligation of the witness to
state the truth.
........................................" [emphasis supplied]
(iv) It is evident that the proviso (supra) dictates that it is
not necessary to administer oath to a child under twelve years of
age, if the Court is of the opinion that, although the witness
understands the duty of speaking the truth, she does not
understand the nature of an oath or affirmation. It is also evident
that the absence of an oath or affirmation shall not render
inadmissible any evidence given by such witness nor affect the
obligation of the witness to state the truth. As the Learned Trial
Court has noted that the child understood the nature of activities
around her, her evidence is considered admissible.
(v) The victim in her evidence unequivocally stated that
the Appellant had inserted his finger inside her genital. This
statement withstood her cross-examination. On a suggestion put
to her that her mother had told her that the accused had put his
finger inside her genital, she admitted it to be true, but
immediately voluntarily asserted that the Appellant had actually
done it.
(vi) The evidence of the victim is supported by the evidence
of PW-2 the Medico-Legal Consultant, who examined the Appellant
on 03-10-2018, on the day following the alleged incident. It may
be recapitulated here that, Exhibit 2, the FIR, was lodged on 02-
10-2018. PW-2 deposed as follows:
"... On 03.10.2018, one B... B... was produced
before me at the SXXX hospital with an alleged
history of having touched/sexually assaulted a minor
victim on her private part. As a matter of fact, he
himself disclosed before me that he had touched the
genitals (sic) of the concerned victim. Since the
incident had taken place more than 24 hours back
and since he had reportedly washed his hands several
times after that I did not consider it necessary to
obtain his finger swab. ............." [emphasis supplied]
His evidence regarding the voluntary statement made by the
Appellant to him stood the test of cross-examination.
(vii) The evidence of the foregoing two witnesses is
corroborated by the evidence of PW-6 the Doctor, who examined
the victim on 02-10-2018 itself. The Doctor deposed as follows;
" ....................................................
On 02.10.2018, when I was on duty in Labour
Room of Gynae Department, ......... Hospital, a POCSO
survivor girl, 3 year old was brought for medical
examination at around 10:15 pm by her aunty .....
accompanied by SI Chomu Lachungpa of ......... PS.
When I asked the survivor girl what happened she
answered to me using her own lips saying mathi ko
uncle le yaa chhuyo and said it is paining and pointed
towards her vulval area.
On examination, she was conscious, oriented
and cooperative. Vitally she was found stable. There
was no injury mark on her neck, back, chest,
abdomen and limbs.
On local examination there was no injury on
the perineum mons, urethral area. Her vaginal
mucosa on the right side had a laceration of around 1
cm which was tender to touch. No bleeding, hymen
was intact and inflamed. There was vaginal
discharge. Anal area had no injury, no tenderness.
Her hygiene was good. Had taken bath twice.
Changed her clothes twice before coming to the
hospital.
....................................................
My conclusion at the time of the examination
was 3-year old girl with injury in her vagina. ........."
[emphasis supplied]
In her cross-examination PW-6 deposed that, the mucosal
laceration and tenderness can be caused due to itching, use of a
diaper by a child and urinary tract infection.
(viii) PW-5 was told of the incident by her daughter PW-1
with words and gestures upon which she lodged Exhibit 2. She
categorically stated that the child was 3 years and 2 months at the
time of the incident, could use the toilet herself and was not using
diapers at the relevant time. She denied having told the Police that
the abrasion was due to diapers. Her child, she stated, did not use
diapers during that time nor did she suffer at that time from rash
or itching in the genital. Her further evidence was that around
29/30-09-2018, her minor daughter showed her forefinger to her
and stated that "mathi ko uncle lay" (the uncle from upstairs) and
moved her forefinger around. When the victim kept repeating the
statement to PW-5, she asked if the uncle had touched her and
whether it was "good touch" or "bad touch", as she had taught her
daughter about the difference between the two. She had also told
her to report to PW-5 if anyone placed their hands under her dress.
The victim told her that „uncle‟ had put his finger in her private part
and pointed to her groin and told her that he had done so when
she was on the terrace. PW-5 accordingly checked the genital of
the victim and found it was bruised and had scratch marks. She
then went with PW-7, her sister-in-law, to the concerned PS and
reported the matter.
(ix) Her sister-in-law PW-7 corroborated the evidence of
PW-5 and added that when she and the victim were standing
outside their room, the Appellant descended the stairs. That, on
seeing him, the victim appeared frightened. PW-7 asked her
whether he was the one who had caused the injury on her genital
and the child nodded in confirmation and pointed her finger at him.
She also denied that the victim at the relevant time was using
diaper. PW-7 came to the house of PW-5 on 28-09-2018 to assist
her in the household chores as the husband of PW-5 was admitted
in the hospital and the father of PW-5 was unwell. That, on 29-09-
2018 PW-5 told her of the victim‟s complaint. That, when she
along with PW-5 checked the private part of the victim they found
some bruises and redness there. On enquiring from the victim, she
kept repeating "mathi mathi" (upstairs) and that the uncle had put
his finger in her private part.
(x) PW-4 the father of the victim who was hospitalised at
the said time denied that the child was using diaper at the relevant
time and that his child was instructed by his wife not to let any
person touch her private part.
(xi) The Appellant after his examination under Section 313
Cr.P.C. sought to examine his wife as his witness but instead his
daughter deposed as his witness and denied the allegations against
the Appellant.
8. On careful consideration of the evidence on record it is
evident that the fact of sexual assault has been made out by the
cogent and consistent testimony of the victim. Her evidence finds
support from the testimony of PW-6 the Doctor supra.
(i) Pausing here momentarily, it is pertinent to examine
what "vaginal mucosa", which PW-6 deposed had a laceration
around 1 cm and was tender to touch, actually is. In an Article1
detailed below, "vaginal mucosa" has been explained as follows;
Vaginal mucosa refers to the innermost layer of tissue
lining the vagina, which is composed of an epithelium
and covered with a layer of mucus. This layer serves
multiple functions, including providing a protective
barrier against pathogens, lubricating and enhancing
wet ability, preventing desiccation, and retarding
enzymatic degradation. The mucus lining of the
vagina also acts as a physical barrier for drug
permeation and provides a crucial first line of defense
against various pathogens.
From : Drug Delivery and Development of Anti-HIV Microbicides
[2019], Vaginal multipurpose prevention technologies: promising
approaches for enhancing women's sexual and reproductive
health [2020], Vulvar Disease [2019]
(ii) In Butterworths Medical Dictionary - Second Edition -
Editor-in-Chief Macdonald Critchley, at Page 1112, „mucosa‟ has been
defined as hereunder;
mucosa (mew˙ko˙sah). Mucous membrane; the
moist membrane lining the alimentary canal,
glandular ducts, the respiratory, urinary and genital
passages. It consists of a superficial layer of
epithelium supported on a connective-tissue layer
which contains nerves, blood vessels and lymphatics,
and often plain muscle, glands and lymphoid tissue.
The membrane may be smooth, corrugated, or
provided with villous projections. Cobblestone
mucosa. Red and swollen intestinal mucous
membrane in Crohn‟s disease. [L Mucus.]
[emphasis supplied]
(iii) From the above literature and explanation, it is evident
that the vaginal mucosa is situated inside the vagina and not
outside it. It thus concludes that the vaginal mucosa lines the
vagina and a laceration was found therein by PW-6 on 02-10-2018
and also seen by PW-2 and PW-5.
From (i) a Book -- "Drug Delivery and Development of Anti-HIV Microbicides" edited by José das Neves, Bruno
Sarmento; (ii) an Article -- "Vaginal multipurpose prevention technologies : promising approaches for enhancing
women's sexual and reproductive health" by Trinette Fernandes, Krishna Baxi, Sujata Sawarkar, Bruno Sarmento
& José das Neves; and (iii) a Book -- "An Atlas of Vulval Diseases A Combined Dermatological, Gynaecological
and Venereological Approach" by Michèle Leibowitch, Richard Staughton, Sallie Neill, Simon Barton, Roger
Marwood.
(iv) As per PW-6 the hymen was intact, but inflamed. In
this context, Modi A Textbook of Medical Jurisprudence and Toxicology
- Twenty Seventh Edition - K Kannan -- Lexis Nexis, at Page 840,
states that the hymen is situated more deeply in children and so it
more often escapes injury in an attempted rape on children.
9. The evidence of PW-6 is supported by PW-2 who was
told by the Appellant himself that, he had touched the genital of
the victim. Indeed, it is settled law that an extra-judicial confession
cannot form the basis of a conviction. This Court is also conscious
and aware that the settled principle of law is that extra-judicial
confession is a weak piece of evidence. It has further been
observed in a catena of decisions that as a rule of caution the
Court would generally look for independent reliable corroboration
before placing reliance upon extra-judicial confession. However, on
the flip side it is also a settled legal position that a conviction can
be sustained on the basis of extra-judicial confession, provided
that, the confession is proved to be voluntary, truthful and free of
inducement. The cross-examination of PW-2 does not reveal that
he had induced the accused or for that matter coerced him or put
him under any kind of duress to make any self-incriminating
statement. The witness appears to have voluntarily made the
statement, disclosing to PW-2 that he had touched the genital of
the victim. It is assumed that PW-2 being employed as a Doctor in
the Government hospital would have reproduced the statement not
only on Oath but in full faith and credit, commensurate to the
dignity of his profession and office. That apart, the conviction in
this matter is not based solely on the extra-judicial confession.
The evidence gathered from the victim and witnesses is the crucial
Bindhyachal Baitha vs. State of Sikkim 13
aspect leading to the conviction. The extra-judicial confession
referred to is merely an appendage to the other evidence on
record.
10. The evidence of PWs 5 and 7 have also been consistent
and cogent. Pertinently, even if, the evidence of the victim PW-1
before the Court is to be disregarded in totality, considering the
lapse of time and the fragility of human memory to recall every
singular detail of a past experience, more especially in view of the
age of the victim, however the fact that immediately after the
complaint was lodged the victim was medically examined, where
she narrated to PW-6 the cause of her discomfort, duly recorded by
PW-6, who found the injuries on the vagina of the victim cannot be
ignored and undoubtedly confirms the child‟s complaints.
11. As seen from the conclusion in the impugned Judgment
extracted at the commencement of this Judgment, the Learned
Trial Court, despite the evidence on record indicating "aggravated
penetrative sexual assault" as defined in Section 5 of the POCSO
Act, however proceeded to convict the Appellant under Section
9(m) punishable under Section 10 of the POCSO Act for the offence
of "aggravated sexual assault" only. This conclusion of the Learned
Trial Court is perverse, being against the weight of evidence.
12. Relevantly, the provisions of Section 5(m) and Section
9(m) of the POCSO Act are being extracted hereinbelow to
distinguish the offences as detailed therein, as also the penalty
sought to be imposed;
SECTION 5 AND SECTION 6
"5. Aggravated penetrative sexual assault.--....
(m) whoever commits penetrative sexual
assault on a child below twelve years; or
.....................................................................
6. Punishment for aggravated penetrative
sexual assault.--(1) Whoever commits aggravated
penetrative sexual assault shall be punished with
rigorous 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, or with death.
(2) 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." [emphasis supplied]
SECTION 9 AND SECTION 10
"9. Aggravated sexual assault.--....................
(m) whoever commits sexual assault on a child
below twelve years; or
.....................................................................
10. Punishment for aggravated sexual
assault.--Whoever, commits aggravated sexual
assault shall be punished with imprisonment of either
description for a term which shall not be less than five
years but which may extend to seven years, and shall
also be liable to fine." [emphasis supplied]
(i) In this context, it is essential to notice that Section 3 of
the POCSO Act deals with penetrative sexual assault while Section 4
provides for its penalty reads as follows;
"3. Penetrative sexual assault.--A person is said to
commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or
makes the child to do so with him or any other
person; or
(b) he inserts, to any extent, any object or a part
of the body, not being the penis, into the
vagina, the urethra or anus of the child or
makes the child to do so with him or any other
person; or
(c) he manipulates any part of the body of the
child so as to cause penetration into the vagina,
urethra, anus or any part of body of the child or
makes the child to do so with him or any other
person; or
(d) he applies his mouth to the penis, vagina,
anus, urethra of the child or makes the child to
do so to such person or any other person.
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."
Penetrative sexual assault on a victim is committed when
penetration either by the genital of the accused or insertion of any
object, part of body and other details as described in Section 3
supra occurs.
(ii) Section 7 of the POCSO Act deals with sexual assault
and Section 8 which deals with the penalty thereof, reads as
follows;
"7. Sexual Assault.--Whoever,
with sexual
intent touches the vagina, penis, anus or breast of the
child or makes the child touch the vagina, penis, anus
or breast of such person or any other person, or does
any other act with sexual intent which involves
physical contact without penetration is said to commit
sexual assault.
8. Punishment for sexual assault.--Whoever,
commits sexual assault, shall be punished with
imprisonment of either description for a term which
shall not be less than three years but which may
extend to five years, and shall also be liable to fine."
(iii) Thus, the parameters for an offence of penetrative
sexual assault and that of sexual assault have been lucidly
described and defined in the two Sections extracted supra. The
measure of the gravity of the offence and the penalty prescribed
for the offences vary in terms of its severity or acuteness. Sexual
and penetrative sexual assault are described as „aggravated‟
offences, as defined in Section 5 and Section 9 of the said Act, if
the offences are committed in terms of the description provided in
the Sub-Sections of the said two provisions.
13. Undoubtedly, the above observation of the Learned
Trial Court of finding the commission of an offence of aggravated
penetrative sexual assault but convicting the Appellant only for
aggravated sexual assault has certainly put this Court in a
predicament but nothing that cannot be rectified by application of
the appropriate law. As a consequence, at this juncture, it would
be apposite to consider the Judgment of the Hon‟ble Supreme
Court in Nadir Khan vs. The State (Delhi Administration)2. The
question raised by the Learned Counsel therein was that the High
Court in revision under Section 401 Cr.P.C. has no jurisdiction or
power to enhance the sentence in the absence of an appeal against
the inadequacy of sentence under Section 377 Cr.P.C. The
Supreme Court observed that;
"4. It is well known and has been ever
recognised that the High Court is not required to act
in revision merely through a conduit application at the
instance of an aggrieved party. The High Court, as an
effective instrument for administration of criminal
justice, keeps a constant vigil and wherever it finds
that justice has suffered, it takes upon itself as its
bounden duty to suo motu act where there is flagrant
abuse of the law. The character of the offence and
the nature of disposal of a particular case by the
subordinate court prompt remedial action on the part
of the High Court for the ultimate social good of the
community, even though the State may be slow or
silent in preferring an appeal provided for under the
new Code. ............................. It is true the new Code
has expressly given a right to the State under Section
377 Cr.P.C. to appeal against inadequacy of sentence
which was not there under the old Code. That
however does not exclude revisional jurisdiction of the
High Court to act suo motu for enhancement of
sentence in appropriate cases. What is an appropriate
case has to be left to the discretion of the High Court.
....................................
5. Section 401 expressly preserves the power
of the High Court, by itself, to call for the records
without the intervention of another agency and has
kept alive the ancient exercise of power when
something extraordinary comes to the knowledge of
the High Court. The provisions under Section 401
read with Section 386(c)(iii) Cr.P.C. are clearly
supplemental to those under Section 377 whereby
(1975) 2 SCC 406
appeals are provided for against inadequacy of
sentence at the instance of the State Government or
Central Government, as the case may be. There is
therefore absolutely no merit in the contention of the
learned Counsel that the High Court acted without
jurisdiction in exercising the power of revision suo
motu, for enhancement of the sentence in this case.
The application stands rejected." [emphasis supplied]
(i) In Eknath Shankarrao Mukkawar vs. State of Maharashtra3
the Supreme Court held that;
"6. We should at once remove the misgiving
that the new Code of Criminal Procedure, 1973, has
abolished the High Court's power of enhancement of
sentence by exercising revisional jurisdiction, suo
motu. The provision for appeal against inadequacy of
sentence by the State Government or the Central
Government does not lead to such a conclusion. High
Court's power of enhancement of sentence, in an
appropriate case, by exercising suo motu power of
revision is still extant under Section 397 read with
Section 401, Criminal Procedure Code, 1973,
inasmuch as the High Court can "by itself" call for the
record of proceedings of any inferior criminal court
under its jurisdiction. The provision of Section 401(4)
is a bar to a party, who does not appeal, when appeal
lies, but applies in revision. Such a legal bar under
Section 401(4) does not stand in the way of the High
Court's exercise of power of revision, suo motu, which
continues as before in the new Code."
(ii) In Surendra Singh Rautela alias Surendra Singh Bengali vs.
State of Bihar (Now State of Jharkhand) , the argument advanced
before the Supreme Court was that the High Court was not justified
in enhancing the punishment awarded against the Appellant from
imprisonment for life, to death sentence, as no appeal under
Section 377 of the Cr.P.C. was filed by the State for enhancement
of sentence. The Supreme Court held as follows;
"8. ................... It is well settled that the High
Court, suo motu in exercise of revisional jurisdiction
can enhance the sentence of an accused awarded by
the trial court and the same is not affected merely
because an appeal has been provided under Section
377 of the Code for enhancement of sentence and no
such appeal has been preferred. ......................"
(1977) 3 SCC 25
(2002) 1 SCC 266
(iii) In Prithipal Singh and Others vs. State of Punjab and
Another the Supreme Court observed as follows;
"37. In Jayaram Vithoba v. State of Bombay
[AIR 1956 SC 146] this Court held that the suo motu
powers of enhancement under revisional jurisdiction
can be exercised only after giving notice/opportunity
of hearing to the accused.
38. In view of the above, the law can be
summarised that the High Court in exercise of its
power under Section 386(e) CrPC is competent to
enhance the sentence suo motu. However, such a
course is permissible only after giving opportunity of
hearing to the accused."
(iv) In Sadhu Saran Singh vs. State of Uttar Pradesh and
Others the Supreme Court opined as follows;
"20. ...................... In an appeal against acquittal
where the presumption of innocence in favour of the
accused is reinforced, the appellate court would
interfere with the order of acquittal only when there is
perversity of fact and law. However, we believe that
the paramount consideration of the Court is to do
substantial justice and avoid miscarriage of justice
which can arise by acquitting the accused who is
guilty of an offence. A miscarriage of justice that may
occur by the acquittal of the guilty is no less than
from the conviction of an innocent. ...................
21. This Court, in several cases, has taken the
consistent view that the appellate court, while dealing
with an appeal against acquittal, has no absolute
restriction in law to review and relook the entire
evidence on which the order of acquittal is founded. If
the appellate court, on scrutiny, finds that the
decision of the court below is based on erroneous
views and against settled position of law, then the
interference of the appellate court with such an order
is imperative." [emphasis supplied]
(v) In Harijan Bhala Teja vs. State of Gujarat7 the Supreme
Court held as follows;
"12. No doubt, where, on appreciation of
evidence on record, two views are possible, and the
trial court has taken a view of acquittal, the appellate
court should not interfere with the same. However,
this does not mean that in all the cases where the
trial court has recorded acquittal, the same should not
be interfered with, even if the view is perverse. Where
the view taken by the trial court is against the weight
of evidence on record, or perverse, it is always open
for the appellate court to express the right conclusion
(2012) 1 SCC 10
(2016) 4 SCC 357
(2016) 12 SCC 665
after reappreciating the evidence if the charge is
proved beyond reasonable doubt on record, and
convict the accused. ................................."
(vi) As far back as in 1956 in Jayaram Vithoba and Another
vs. The State of Bombay8 the Supreme Court was considering a
matter in which the Presidency Magistrate who tried the case found
the first Appellant guilty under Section 4(a) of the Bombay
Prevention of Gambling Act (Bombay Act IV of 1887) and
sentenced him to three months' rigorous imprisonment. He was
also found guilty under Section 5 of the Act, but awarded no
separate sentence under that Section. The second Appellant was
found guilty under Section 5 and sentenced to three months'
rigorous imprisonment. The Appellants took the matter in revision
to the High Court, which set aside the conviction of the first
Appellant under Section 4(a) of the Act but confirmed that under
Section 5, and awarded a sentence of three months' rigorous
imprisonment under that section. As regards the second Appellant,
both the conviction and sentence were confirmed. Against that
order, the Appeal by Special Leave was preferred. The question
before the Supreme Court was that as the High Court had set aside
the conviction of the first Appellant under Section 4(a) of the Act, it
should set aside the sentence passed on him under that Section
and that it had no power under the Criminal Procedure Code to
impose a sentence under Section 5 when none such order had
been passed by the Magistrate. The contention was based on the
terms of Section 423 of the Criminal Procedure Code, 1898
(Section 386 of the Code of Criminal Procedure, 1973). The
Supreme Court after examining the legal point observed that;
AIR 1956 SC 146
"(6) The question still remains whether apart
from section 423(1)(b), the High Court has the power
to impose the sentence which it has. When a person
is tried for an offence and convicted, it is the duty of
the court to impose on him such sentence, as is
prescribed therefor. The law does not envisage a
person being convicted for an offence without a
sentence being imposed therefor. When the trial
Magistrate convicted the first appellant under Section
5, it was plainly his duty to have imposed a sentence.
Having imposed a sentence under section 4(a),
he obviously considered that there was no need to
impose a like sentence under Section 5 and to direct
that both the sentences should run concurrently. But,
in strictness, such an order was the proper one to be
passed. The appellants then took the matter in
revision to the High Court, and contended that their
conviction under section 5 was bad. The High Court
went into the question on the merits, and found them
guilty under that section. It was the duty of the High
Court to impose a sentence under section 5, and that
is precisely what it has done.
The power to pass a sentence under those
circumstances is derived from the law which enacts
that on conviction a sentence shall be imposed on
the accused, and that is a power which can and
ought to be exercised by all the courts which, having
jurisdiction to decide whether the accused is guilty
or not, find that he is. We are of opinion that this
power is preserved to the appellate court expressly
by section 423(1)(d), which enacts that it can "make
any amendment or any consequential or incidental
order that may be just or proper".
............................................." [emphasis supplied]
In the ultimate result, the order of the High Court was sustained
with the observation that it could be maintained under Section 439
of the Criminal Procedure Code, 1898, even if it were to be
regarded as an enhancement of the sentence and the Appeal was
dismissed.
14. After careful perusal of the entire law as laid down in
the various pronouncements of the Supreme Court extracted
above, it would be apposite to peruse Section 386 of the Cr.P.C.
which provides as follows;
"386. Powers of the Appellate Court.--After
perusing such record and hearing the appellant or his
pleader, if he appears, and the Public Prosecutor, if he
appears, and in case of an appeal under section 377
or section 378, the accused, if he appears, the
Appellate Court may, if it considers that there is no
sufficient ground for interfering, dismiss the appeal,
or may--
(a) in an appeal from an order or acquittal,
reverse such order and direct that
further inquiry be made, or that the
accused be re-tried or committed for
trial, as the case may be, or find him
guilty and pass sentence on him
according to law;
(b) in an appeal from a conviction--
(i) reverse the finding and sentence
and acquit or discharge the
accused, or order him to be re-
tried by a Court of competent
jurisdiction subordinate to such
Appellate Court or committed for
trial, or
(ii) alter the finding, maintaining the
sentence, or
(iii) with or without altering the
finding, alter the nature or the
extent, or the nature and extent,
of the sentence, but not so as to
enhance the same;
(c) in an appeal for enhancement of
sentence--
(i) reverse the finding and sentence
and acquit or discharge the
accused or order him to be re-
tried by a Court competent to try
the offence, or
(ii) alter the finding maintaining the
sentence, or
(iii) with or without altering the
finding, alter the nature or the
extent, or the nature and extent,
of the sentence, so as to enhance
or reduce the same;
(d) in an appeal from any other order, alter
or reverse such order;
(e) make any amendment or any
consequential or incidental order that
may be just or proper;
Provided that the sentence shall not be
enhanced unless the accused has had an opportunity
of showing cause against such enhancement:
Provided further that the Appellate Court shall
not inflict greater punishment for the offence which in
its opinion the accused has committed, than might
have been inflicted for that offence by the Court
passing the order or sentence under appeal.
[emphasis supplied]
(i) As held in Jayaram Vithoba (supra) the provision of
Section 386(e) of the Cr.P.C. is relevant to the instant case which
has been extracted hereinabove.
15. The long and short of it is that, the role of the High
Court as an Appellate Court is to mete out even handed justice and
in such circumstances it can intervene when perversity is found in
the Judgment of the Learned Trial Court.
16. In State of Punjab vs. Prem Sagar and Others9, the
Supreme Court observed that there are certain offences which
touch our social fabric, and we must remind ourselves that even
while introducing the doctrine of plea bargaining in the Code of
Criminal Procedure, certain types of offences have been kept out of
the purview thereof. While imposing sentences the said principles
should be borne in mind. That, a sentence is a Judgment on
conviction of a crime. It is resorted to after a person is convicted
of the offence. It is the ultimate goal of any justice-delivery
system.
(i) In Dhananjoy Chatterjee alias Dhana vs. State of W.B.10
the Supreme Court observed that imposition of appropriate
punishment is the manner in which the Courts respond to the
society‟s cry for justice against the criminals. That, justice
demands that Courts should impose punishment befitting the crime
so that the Courts reflect the public abhorrence of the crime. That,
it requires application of mind and the purpose of imposition of
sentence must also be kept in mind.
17. It thus follows that in the teeth of the incriminating
evidence against the Appellant under Section 5(m) of the POCSO
(2008) 7 SCC 550
(1994) 2 SCC 220
Act as also concluded unequivocally by the Learned Trial Court
itself in Paragraphs 15 and 17 of the impugned Judgment, it would
be a travesty of justice to uphold the conviction of the Appellant
under Section 9(m) of the POCSO Act handed out by the Trial
Court, when in fact the entire evidence on record points to the guilt
of the Appellant for an offence which is far more serious and with
higher penalty, i.e., Section 5(m) of the POCSO Act. The conviction
of the Appellant under Section 9(m) of the POCSO Act is set aside.
18. Consequently, invoking the powers of this Court under
Sections 397, 401 and 386(e) of the Cr.P.C. the Appellant is
convicted of the offence under Section 5(m) punishable under
Section 6 of the POCSO Act.
19. As already remarked hereinabove, the Learned Trial
Court had failed to discuss Section 376AB of the IPC, presumably
as the offence under Section 9(m) of the POCSO Act deals with
sexual assault on a child below twelve years and had been
convicted for it, therefore, the Learned Trial Court was remiss in
not discussing this aspect. Mentioning such circumstances is the
requirement of the law and the correct procedure and cannot be
ignored by the Learned Trial Court.
20. In view of the conviction of the Appellant under Section
5(m) of the POCSO Act, there is no requirement to convict him
under Section 376AB of the IPC. Apart from which it may be
mentioned that the penalty provided in the above two Sections are
identical.
21. In light of the above facts and circumstances, the
Appeal is dismissed.
Bindhyachal Baitha vs. State of Sikkim 24
22. The Appellant is put to notice of his conviction under
Section 5(m) of the POCSO Act punishable under Section 6 of the
same Act.
23. List for hearing on sentence.
24. Issue Notice accordingly.
25. A copy of this Judgment be made over to the convict
through the Jail Superintendent, Central Prison, Rongyek and to
the Jail Authority for information and necessary steps.
26. Copy of this Judgment be forwarded to all the Special
Judges (POCSO Act, 2012) in the Districts of Gangtok, Gyalshing,
Mangan, Namchi, Soreng and Pakyong for perusal.
( Meenakshi Madan Rai )
Judge
31-07-2024
Approved for reporting : Yes
ds
