Sikkim High Court
Karan Chettri vs State Of Sikkim on 12 June, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 12th June, 2024
-----------------------------------------------------------------------------------
DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
-----------------------------------------------------------------------------------
Crl. A. No.07 of 2022
Appellant : Karan Chettri
versus
Respondent : State of Sikkim
Application under Section 374(2) of the
Code of Criminal Procedure, 1973
---------------------------------------------------------------------------
Appearance
Ms. Puja Lamichaney, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
---------------------------------------------------------------------------
and
Crl. A. No.08 of 2022
Appellant : Nima Sherpa @ Nani Ko Bau
versus
Respondent : State of Sikkim
Application under Section 374(2) of the
Code of Criminal Procedure, 1973
---------------------------------------------------------------------------
Appearance
Mr. S. S. Hamal, Senior Advocate (Legal Aid Counsel) with Mr. Tashi
Wongdi Bhutia, Advocate (Legal Aid Counsel) for the Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
---------------------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1. Crl. A. No.07 of 2022 (Karan Chettri vs. State of
Sikkim) and Crl. A. No.08 of 2022 (Nima Sherpa @ Nani Ko Bau vs.
State of Sikkim) are being taken up together and disposed of by
this common Judgment, the cases having arisen out of a common
FIR, Exhibit 1.
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 2
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
2. The Appellant, Karan Chettri in Crl. A. No.07 of 2022
and the Appellant, Nima Sherpa in Crl. A. No.08 of 2022, shall
hereinafter be referred to as "A2" and "A1" respectively.
3. The discontentment of the Appellants with the
impugned Judgment of the Court of the Learned Judge, Fast Track,
South and West Sikkim, at Gyalshing, dated 19-03-2022, in ST
(Fast Track) Case No.02 of 2021, whereby they were convicted of
the offences under Sections 450, 376D and 376(2)(l) read with
Section 34 of the Indian Penal Code, 1860 (hereinafter, "IPC") and
the consequent Order on Sentence, dated 26-03-2022, has led to
the instant Appeals.
4. It is imperative to briefly walk through the Prosecution
case before considering the merits of the Appeals.
(i) On 13-01-2021, Exhibit 1 was lodged before the
Yangang Police Station by PW-1, the Complainant, alleging that on
10-01-2021, a Sunday, at around midnight, when only his mother
PW-2 and sister-in-law PW-8 were in his house, A1 and A2 entered
therein, physically assaulted both women and sexually assaulted
his mother, hence the Complaint. Yangang PS Case No.01/2021,
dated 13-01-2021, under Sections 376D and 34 IPC was registered
against A1 and A2 and endorsed to PW-11 the Investigating Officer
(IO) of the case. The medical examination of PW-2 supported the
Prosecution case. On completion of investigation Charge-sheet
was submitted against A1 and A2 under Sections 376D and 34 of
the IPC.
(ii) The Learned Trial Court framed individual Charges
against A1 and A2 under Sections 376D, 376(2)(l) read with
Section 34 of the IPC and Section 450 read with Section 34 of the
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 3
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
IPC, to which they individually entered a plea of "not guilty" and
claimed trial. To buttress the Prosecution case and prove it
beyond a reasonable doubt, eleven witnesses were examined by
the Prosecution, thereafter A1 and A2 made their statements under
Section 313 of the Code of Criminal Procedure, 1973 (hereinafter,
"Cr.P.C."). Upon hearing the arguments and analysing the evidence
on record, the impugned Judgment and Order on Sentence were
pronounced. The Appellants were sentenced to undergo rigorous
imprisonment for a term of twelve years and to pay a fine of ₹
10,000/-(Rupees ten thousand) only, each, for commission of the
offence under Section 376D of the IPC; to undergo rigorous
imprisonment for a term of twelve years and to pay a fine of ₹
10,000/-(Rupees ten thousand) only, each, for commission of the
offence under Section 376(2)(l) of the IPC and to undergo rigorous
imprisonment for a term of seven years and to pay a fine of ₹
5,000/-(Rupees five thousand) only, each, for commission of
offence under Section 450 of the IPC read with Section 34 of the
IPC. The sentences of imprisonment were ordered to run
concurrently and bore default stipulations.
5. Learned Senior Counsel for A1 urged that the Learned
Trial Court found the victim to be somewhat mentally slow and thus
put some questions to her to assess her mental aptitude and
concluded that it was clearly somewhat under developed as
compared to others. That, she suffers from mild retardation but at
the same time found her competent to depose. That, the IO of the
case deposed that the victim had mental illness. Thus, there were
two views one of the Court viz., of mental retardation and that of
the IO (supra). Neither the Court nor the IO had the benefit of the
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 4
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
opinion of a mental health expert to buttress their observations
and consider whether their conclusions fell within the ambit of
Section 2(1)(s) of the Mental Healthcare Act, 2017 (hereinafter, the
"Mental Healthcare Act"), despite which, they foisted their own
opinions, which are therefore unreliable. That, the process
prescribed by Section 105 of the Mental Healthcare Act was not
complied, with instead of which, the Court expressed a unilateral
opinion of mental illness which was prejudicial to the Appellant's
case. That, the examination of PW-2 by PW-7, the Doctor, found
her to be well-oriented and she did not deem it essential to refer
PW-2 for psychiatric evaluation, which thereby established the non-
existence of any mental deficiency nor did she find signs of physical
struggle on PW-2. The doctor's evidence being expert opinion
gains precedence over other opinions expressed.
(i) That, the evidence of PW-2 revealed that it was only A2
who had committed the offence and no proof emerged against A1
which the Learned Trial Court chose to ignore.
(ii) That, the time of offence is also anomalous. As per PW-
2 the offence was committed when the "rooster crowed", indicating
it was around dawn, contrarily as per Exhibit 1, it was in the
midnight of 10-01-2021.
(iii) That, further anomalies in the Prosecution case are;
(a) as per PW-2, A1 caught hold of the hand of PW-8, but as
per PW-8, A2 caught hold of her hand and enquired
whether she was alright.
(b) as per PW-2, A2 raped her, but as per PW-8, A1 raped PW-
2. That, A2 who was drunk just sat in the room.
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 5
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
(iv) That, the incident allegedly occurred on 10-01-2021,
whereas the FIR was lodged on 13-01-2021, with no explanation
for the delay. That, the Appellant must also be protected against
the possibility of false implications as there is no basis for
assuming that the statement of such a witness is always correct or
devoid of embellishment. On this aspect reliance was placed on
Santosh Prasad alias Santosh Kumar vs. State of Bihar .
(v) That, PW-2 wrongly identified the villages that the
Appellants belonged to and the Prosecution failed to examine
Pushpa Lal Chettri who allegedly informed PW-1 of the incident, nor
the wife of Pushpa Lall Chettri, who is said to have informed her
husband. In contradiction to the above evidence PW-2 deposed
that, they told PW-9, the daughter of PW-8 of the incident, who
narrated it to PW-1. That, thereafter PW-2 and PW-8 themselves
also informed PW-1 of the incident. Thus, there is no cogency as
to who the informants were. That, PW-6 and PW-10 allegedly did
not enter the victim's house, but PW-2 stated that four boys had
come to her house that night. The Prosecution evidence is thus
unreliable and therefore A1 deserves an acquittal.
6. Learned Counsel for A2, while endorsing the
submissions put forth by Learned Senior Counsel with regard to the
mix up in the identification of A1 and A2 supra, contended that, in
the first instance A2 has been falsely implicated in the instant case
as PW-8 was categorical in her assertion that A2 was drunk and
just sat in the room. That, A1 raped PW-2.
(i) That, no test identification parade of A1 and A2 was
conducted by the Prosecution and in view of the contradictory
AIR 2020 SC 985
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 6
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
depositions (supra) of PW-2 and PW-8, it would be perilous to rely
on their evidence.
(ii) That, the investigation was defective and although
every defective investigation need not result in acquittal, extra
caution is required to be exercised by the Courts while evaluating
the evidence. On this aspect strength was drawn from Visveswaran
vs. State Rep. by S.D.M.
(iii) That, the circumstances of the instant case are
unbelievable as PW-2 has deposed that both she and PW-8 are
physically able but strangely lacked the effort to defend themselves
rendering an improbability in the Prosecution case.
7. Per contra, Learned Additional Public Prosecutor
contended that the Learned Trial Court examined the evidence in
detail and no error arises in the conviction and sentencing of both
convicts, in terms of the impugned Judgment and Order on
Sentence.
8. We have heard the arguments advanced by Learned
Counsel in extenso and carefully perused the documents, evidence
on record, impugned Judgment and citations made at the Bar.
9. The questions that fall for determination are;
(i) Whether the Prosecution has established that PW-2
suffered from any mental illness or retardation?
(ii) Whether A1 or A2 or both committed the offence of
rape on the victim?
10. Dealing with the first question, although the Learned
Trial Court observed that PW-2 was somewhat mentally slow and
put some questions to assess her mental aptitude, the provisions
(2003) 6 SCC 73
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 7
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
of Section 118 of the Indian Evidence Act, 1872 (hereinafter, the
"Evidence Act"), were not resorted to.
(i) Section 118 of the Evidence Act reads as follows;
"118. Who may testify.--All persons shall be
competent to testify unless the Court considers that
they are prevented from understanding the questions
put to them or from giving rational answers to those
questions, by tender years, extreme old age, disease,
whether of body or mind, or any other cause of the
same kind.
Explanation.--A lunatic is not incompetent to
testify, unless he is prevented by his lunacy from
understanding the questions put to him and giving
rational answers to them."
(ii) The Court did not record whether PW-2 was prevented
from understanding the questions put to her, in terms of the legal
provision or whether she was incapable of giving rational answers
to those questions on account of any mental retardation. The
questions put by the Court which have been extracted in Paragraph
37 of the impugned Judgment do not suffice to test the
competence or otherwise of PW-2 to testify. Mental retardation is a
condition of arrested or incomplete development of mind of a
person especially characterised by sub-normality of intelligence as
defined in Section 2(1)(s), of the Mental Healthcare Act. No
evidence fortifies the observation made by the Court of mental
retardation of PW-2 nor was expert opinion solicited. PW-7 is
categorical in her evidence that she would have sought psychiatric
evaluation if she had found mental deficiency in PW-2 but during
the examination of PW-2 she found her well-oriented. The Learned
Trial Court in Paragraph 2 of the impugned Judgment recorded as
follows;
"2. The facts of the case in brief is
that on 13.01.2021 at 15:00 hours SI
Chandra Kumar Subba (PW-11) of
Yangang PS received a written FIR from
S***B***C*** (PW-1), son of the victim
M***M***C**** (PW-2) to report that
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 8
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
his 52 years old mother who is mentally
childlike was raped by the two accused
persons on 10.01.2021 at around 00:00
hours in her house." (emphasis supplied)
(iii) However, on perusal of Exhibit 1, the contents thereof
makes no mention of PW-2 being "mentally childlike" nor has PW-1
made any mention of mental illness or retardation of PW-2. When
we carefully peruse the evidence of PW-2, it is prolix evidence
given by her, which includes her cross-examination, and appears to
be made with a rational thought process. Indeed, we are
conscious and aware that the Learned Trial Court had the
advantage of observing the demeanour of PW-2, nonetheless the
legal aspect of it as discussed above, cannot be thrown out by this
Court as being irrelevant.
(iv) PW-11, the IO in his evidence has glibly stated that as
per the guardian of PW-2 she had mental illness, the said guardian
was not examined as a Prosecution witness. He had the option of
seeking the assistance of Mental Health Experts to buttress this
point but failed to do so during the entirety of the investigation.
(v) PW-1 during his evidence deposed that although his
mother could speak and understand them, she was almost childlike
and mentally a little slow. Cross-examination did not decimate this
statement, but a reading of the statement would reveal its
relativity as no yardstick was prescribed for such assessment. PW-
8 a relative of PW-2 made no mention of the mental status of PW-
2. PW-9 is the daughter of PW-8 she has also thrown no light on
the mental condition of PW-2. In the teeth of such nebulous
evidence for the point under discussion and considering the lucid
testimony given by PW-2, there can be no finding that she was
suffering from any mental condition, much less mental retardation.
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 9
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
(vi) Now, while addressing question no(ii) and the
consequent identification of A1 and A2, we are aware that when
identification of an accused by a witness is made for the first time
in Court, it should not form the basis of conviction. This has also
been observed by the Supreme Court in Mulla and Another vs. State
of U.P. . The object of an identification parade is to enable the
witnesses who claim to have seen the culprits at the time of
occurrence to identify them, from an array of other persons, not
known to the witnesses. The test identification parade is
necessitated to establish the veracity of the witnesses and whether
the identification of the accused persons were correctly made. In
Shyamal Ghosh vs. State of West Bengal , the Supreme Court opined
that the main object of holding an identification parade during the
investigation stage is to test the memory of the witnesses based
upon first impression and also to enable the Prosecution to decide
whether all or any of them could be cited as eye-witnesses to the
crime. Pertinently, it must be recapitulated here that it was not the
first time that PW-2 and PW-8 had seen A1 and A2. It is seen from
the evidence that both the PW-2 and PW-8 that they had previous
acquaintance with A1 and A2. PW-11, the IO deposed that A1 was
well acquainted with the victim and this statement remained
undecimated under cross-examination. Hence, test identification
parade as provided under Section 9 of the Evidence Act, in our
considered opinion was not a necessity, in the facts of the instant
case.
(vii) The evidence of PW-2 and PW-8 being the only persons
at the time of the offence are thereby of utmost importance.
AIR 2010 SC 942
AIR 2012 SC 3539
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 10
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
(viii) The evidence of PW-2, aged about fifty years at the
time of the incident, commences inter alia as follows;
"................... Witness is shown the two accused
persons on the screen (Accused Nima in the red shirt
and accused Karan in the white shirt)."
What can be gleaned about the unfolding of the incident from
her evidence is that, when she and PW-8 were together in the
house that night they heard knocking at the door. PW-2 opened it
and found four drunken boys outside, of which A1 and A2 entered
the house carrying bottles of Rum. They demanded to watch
television and when PW-2 told them her son would be angry with
her, they switched it off. That, the red shirt (A1) caught PW-8's
hand, but she hit him with her chappal. Thereafter, A1 came to her
and pulled down her pants while A2, raped her having removed his
own trousers at that time. Thereafter, A1 came and slept on the
bed next to her but she kicked him and he went away. PW-8
pleaded with them not to do such things to PW-2. The cross-
examination of PW-2 could not decimate the fact that Nima (A1)
disrobed her by pulling down her Pyjamas and Karan (A2) raped
her. She has described the act of rape explicitly in her evidence.
(ix) During her deposition when she was required to
identify A1 and A2, she identified A1 (Nima) as Karan, while Karan
was addressed by her as Kamal. Regardless of her confusion with
the names of A1 and A2, this Court finds that her consistent
evidence is that when A1 and A2 entered her house, the offence of
rape was perpetrated on her.
(x) The evidence of PW-2 is to be considered along with
that of PW-8. On the day the evidence of PW-8 was recorded it
appears that A1 was dressed in a black jacket. Her evidence
recorded inter alia is as follows;
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 11
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
".............................................
I have seen both the persons shown to me on
the screen. The person is black jacket (witness points
to accused Nima) lives at Namphok and although I do
not know where the other one (witness points to
accused Karan) lives, I have seen him. ...................."
(xi) This witness stated that the accused in the black jacket
lifted PW-2 and put her on the other bed, opened his pants and
pulled the quilt over himself and the victim and thereafter rubbed
himself against her. He then also switched off the lights. A2 being
drunk just sat in the room.
(xii) It is relevant at this juncture to notice that the
evidence of PW-2 and PW-8 point to the rape of PW-2. Both have
testified that both A1 and A2 together entered the house where
PW-2 and PW-8 were living and PW-2 was raped. Apart from the
evidence of PW-2 and PW-8, PW-6 on entering the house saw A2
on top of PW-2. According to PW-6 when he pulled A2 out of the
house, A1 returned into the room and bolted it from inside and
despite A2 banging the door A1 refused to open it. PW-10 also
saw A2 sleeping with PW-2 covered with a blanket.
11. PW-7 the doctor who examined PW-2 has augmented
the Prosecution case. On examination of PW-2 her findings inter
alia were as follows;
".............................................
On local examination: I found vaginal tear
present with a mild laceration measuring 0.2 x 3,
active bleed present, hymen broken as she is a
mother of 3 children, perinneal tear present over
posterior fourchette, no swelling and scratch mark
upon the anal opening. .........
She had sustained injury over her private area.
Her two vaginal swabs collected and handed over to
the Police for forensic examination. ......... "
She identified both A1 and A2 on the screen and stated that
they were the same persons who were brought before her for
medical examination. The cross-examination of this witness
revealed the fact that the active bleeding found on the victim was
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 12
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
not due to menstruation but was from the site of laceration found
on her vagina, which could not be self inflicted. Her evidence
thereby establishes that undoubtedly rape was perpetrated on PW-
2.
12. Section 376D of the IPC provides as follows;
"376D. Gang rape.--Where a woman is raped
by one or more persons constituting a group or acting
in furtherance of a common intention, each of those
persons shall be deemed to have committed the
offence of rape and shall be punished with rigorous
imprisonment for a term which shall not be less than
twenty years, but which may extend to life which shall
mean imprisonment for the remainder of that person's
natural life, and with fine:
Provided that such fine shall be just and
reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any fine imposed under
this section shall be paid to the victim."
13. Thus, it is essential to notice that under the said
provision of law, where a woman is raped by one or more persons
constituting a group or acting in furtherance of a common
intention, each of these persons shall be deemed to have
committed the offence of rape. In other words, even if one of
them, in the instant case, did not commit the physical act of rape,
it shall be deemed that he did so under the said law.
14. It thus emerges that both A1 and A2 having entered
the house of PW-1 were complicit in the commission of the offence,
consequently the shackles of Section 376D of the IPC bind both A1
and A2 for the offence of "gang rape". Notwithstanding the fact
that PW-2 called A1 and A2 by different names and gave wrong
addresses, or that PW-8 deposed that A1 was the offender and not
A2, these circumstances are inconsequential to the Prosecution
case, which pivots on the offence of "gang rape", perpetrated on
PW-2 and has been proved by the cogent and consistent evidence
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 13
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
of PW-2 and PW-8 substantiated by that of PWs 6, 7 and 10.
Circumstances which do not shake the foundation of the
Prosecution case are of no consequence and we disregard the
minor discrepancies accordingly. For the foregoing reasons we
have no hesitation in holding A1 and A2 guilty of the offence of
"gang rape" perpetrated on PW-2.
15. We cannot bring ourselves to agree with the conclusion
of the Learned Trial Court as regards Section 376(2)(l) of the IPC,
in the absence of evidence to indicate that PW-2 was suffering from
any mental deficiency.
16. However, we see no reason to disagree with the finding
of the Learned Trial Court on the aspect of house trespass as
provided under Section 450 of the IPC and the consequent penalty
imposed.
17. In the end result, we uphold the Order of conviction
handed out individually to A1 (Nima Sherpa) and A2 (Karan
Chettri) under Section 376D and Section 450 read with Section 34
of the IPC in ST (Fast Track) Case No.02 of 2021.
18. We acquit A1 and A2 of the offence under Section
376(2)(l) of the IPC.
19. Now, addressing the aspect of Sentence imposed on A1
and A2, the Order of Sentence, dated 26-03-2022, inter alia reads
as follows;
"7. Therefore, having regard to all of the facts and
circumstances of the case, to meet the ends of justice
as far as possible, both the convicts are hereby
sentenced as under:-
a) to undergo rigorous imprisonment (RI) for a term
of 12 years and to pay a fine of Rs.10,000/-(Rupees
Ten Thousand) each, for commission of the offence
under Section 376D. In default of payment of fine,
both the convicts shall undergo simple imprisonment
(SI) for two years.
b)........................................................................
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 14
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
c) for commission of offence of house tress-pass in
order to commit rape, both the convicts are hereby
sentenced under Section 450, IPC read with Section
34, IPC to undergo RI for a term of 7 years and to
pay a fine of Rs.5,000/-(Rupees Five Thousand)
each. In default of payment of fine, both the
convicts shall undergo SI for six months."
(i) Section 376D of the IPC inter alia provides that the
convicts "................ shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years, but which
may extend to life which shall mean imprisonment for the
remainder of that person's natural life and with fine. ................."
Thus, the sentence of twelve years meted out by the Learned Trial
Court on A1 and A2, for the offence under Section 376D of the IPC
is erroneous being alien to the legal provision and flies in the face
of the mandate of law.
(ii) In State of Punjab vs. Prem Sagar and Others5, 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. 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.
(2008) 7 SCC 550
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 15
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
(iii) In Mohd. Hasim vs. State of Uttar Pradesh and Others6, in
Paragraph 19 it was 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 Sinha [(1974) 4 SCC 222] and Ratan Lal
Arora [(2004) 4 SCC 590].
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 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."
(emphasis supplied)
(iv) In Harendra Nath Chakraborty vs. State of West Bengal7,
the Supreme Court in Paragraphs 27 and 28 held as follows;
"27. The appellant was dealing with an
essential commodity like kerosene. 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 Sagar
[(2008) 7 SCC 550]. Ordinarily, the legislative
sentencing policy as laid down in some special
Acts where the parliamentary intent has been
expressed in unequivocal terms should be
(2017) 2 SCC 198
(2009) 2 SCC 758
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 16
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
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."
(emphasis supplied)
(v) In State of Uttar Pradesh vs. Sonu Kushwaha8, the
Supreme Court inter alia held that;
"13. ................. When a penal provision uses
the phraseology "shall not be less than....", the
courts cannot do offence to the section and impose a
lesser sentence. The courts are powerless to do that
unless there is a specific statutory provision enabling
the court to impose a lesser sentence. ................"
(emphasis supplied)
(vi) In Suman Gurung vs. State of Sikkim9, this Court while
considering an Appeal for decreasing the sentence imposed by the
Court of Learned Special Judge (POCSO), West Sikkim, at
Gyalshing opined that sentence to be imposed has to be the
minimum prescribed by the statute. It was observed as follows;
"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."
(vii) That, having been said, as per Section 377 of the
Cr.P.C., the State-Government can direct the Public Prosecutor to
present an Appeal to the High Court against the sentence on
grounds of its inadequacy. The State-Respondent in the instant
matter has failed to exercise the prerogative granted by the
legislature and to take advantage of the provisions of Section 377
of the Cr.P.C.
(viii) Notwithstanding such remissness of the State-
Respondent, while considering Section 386 of the Cr.P.C. which
deals with powers of the Appellate Court, it reads as follows;
(2023) 7 SCC 475
MANU/SI/0089/2022
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 17
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
"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 the 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 of 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)
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 18
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
(ix) It is thus clear from the first proviso that the sentence
shall not be enhanced unless the accused has had the opportunity
of showing cause against such enhancement. The Appellate Court
shall also not inflict greater punishment for the offence which in its
opinion has been committed by the accused, than might have been
inflicted for that offence by the Court passing the sentence.
(x) In Prithipal Singh and Others vs. State of Punjab and
Others , the Supreme Court while discussing the scope of Section
386(e) of the Cr.P.C. observed as follows:
"36. In Surendra Singh Rautela v. State of
Bihar [(2002) 1 SCC 266 : 2002 SCC (Cri) 165 : AIR 2002 SC 260] this
Court reconsidered the issue and held : (SCC p. 271, para 8)
"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."
[See also Nadir Khan v. State (Delhi Admn.) [(1975) 2
SCC 406 : 1975 SCC (Cri) 622 : AIR 1976 SC 2205 ] , Govind Ramji
Jadhav v. State of Maharashtra [(1990) 4 SCC 718 : 1991 SCC
(Cri) 33] and K. Pandurangan v. S.S.R. Velusamy [(2003) 8
SCC 625 : 2004 SCC (Cri) 48 : AIR 2003 SC 3318].]."
37. In Jayaram Vithoba v. State of Bombay [AIR
1956 SC 146 : 1956 Cri LJ 318]
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." (emphasis supplied)
(xi) It is relevant to remark that the neglect and laxity of
the State-Respondent in not preferring an Appeal against the
erroneous sentence does not preclude the High Court from
exercising its powers of revision under Section 397 read with
Section 401 of the Cr.P.C. to enhance the sentence. The convict is
of course required to be put to notice and to be extended an
(2012) 1 SCC 10
Crl.A. No.07 of 2022 : Karan Chettri vs. State of Sikkim 19
Crl.A. No.08 of 2022 : Nima Sherpa @ Nani Ko Bau vs. State of Sikkim
opportunity of being heard on the question of sentence, either in
person or through his Advocate.
20. Resultant, Appeal is partly allowed.
21. Issue Notice to the convicts for hearing on
enhancement of Sentence.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
12-06-2024 12-06-2024
Approved for reporting : Yes
ds/sdl
