Sikkim High Court
Karna Bahadur Biswakarma @ Karnay vs State Of Sikkim on 4 June, 2025
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 4th June, 2025
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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.12 of 2024
Appellant : Karna Bahadur Biswakarma alias Karnay
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Sunil Baraily, Advocate (Legal Aid Counsel) for the Appellant.
Mr. S K. Chettri, Additional Public Prosecutor and Mr. Sujan Sunwar,
Assistant Public Prosecutor for the State-Respondent.
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JUDGMENT (ORAL)
Meenakshi Madan Rai, J.
1. The only challenge in the instant Appeal is to the
sentence meted out to the Appellant, which was for a period of
twenty years each, under Sections 5(l) and 5(j) punishable under
Section 6 of the Protection of Children from Sexual Offences Act,
2012, as amended in 2019 (hereinafter, "POCSO Act"), vide the
impugned Order on Sentence dated 08-09-2023.
2. Learned Counsel for the Appellant submits that, the FIR
Exbt-9 was lodged on 26-02-2020 and the child was delivered by the
victim of sexual assault, on 30-03-2020. If the dates are computed
backwards it is evident that the child was conceived in the month of
July, 2019. That, such a circumstance would indicate that, the
offence took place before the amendments were inserted in the
Protection of Children from Sexual Offences, 2012, vide the
Amendment Act, 2019, w.e.f. 16-08-2019. That prior to the said
amendment, the penalty provided under Section 6 of the POCSO Act
Karna Bahadur Biswakarma alias Karnay vs. State of Sikkim
for the offences under Sections 5(l) and 5(j) was ten years, whereas
the amendment of 2019 has enhanced it to twenty years. That, in
view of the fact that the Prosecution failed to specify the exact date
of the offence, and in view of the foregoing submissions, the penalty
may be reduced to ten years in terms of the POCSO Act, 2012,
instead of twenty years as meted out by the Learned Trial Court, in
terms of the 2019 amendment to the Act.
3. Per contra, Learned Additional Public Prosecutor submits
that there is no error in the findings and the penalty imposed by the
Trial Court.
4. We have heard the Learned Counsel for the parties and
perused the documents on record.
5. Vide the impugned Order on Sentence dated 08-09-2023,
in S.T. (POCSO) Case No.17 of 2020, the Court ordered as follows;
"3. I have considered the rival submissions and have
taken into consideration the facts and circumstances of
the case. In the facts and circumstances of this case, I
find that the purpose of justice would be served by
sentencing the convict as follows:-
(i) to undergo rigorous imprisonment for a term of
twenty (20) years and fine of ₹ 5,000 for the offence
under Section 5(l) punishable under Section 6 of the
POCSO Act, 2012. In default of the payment of fine, he
shall undergo additional term of two (2) months simple
imprisonment;
(ii) to undergo rigorous imprisonment for a term of
twenty (20) years and fine of ₹ 5,000 for the offence
under Section 5(j)(ii) punishable under Section 6 of the
POCSO Act, 2012. In default of the payment of fine, he
shall undergo additional term of two (2) months simple
imprisonment; and
(iii) to undergo rigorous imprisonment for a term of
five (05) years and fine of ₹ 5,000 for the offence under
Section 9(l) punishable under Section 6 of the POCSO
Act, 2012. In default of the payment of fine, he shall
undergo additional term of two (2) months simple
imprisonment.
4. The period of imprisonment already undergone by
the convict during investigation and trial shall be set off
against this sentence.
5. The fine, if recovered shall be made over to the
victim as compensation. Further, in terms of Schedule-II
to the Sikkim Compensation to Victims (or their
Dependents) Scheme, 2021 a sum ₹ 6 lakhs (Rupees Six
Karna Bahadur Biswakarma alias Karnay vs. State of Sikkim
Lakhs only) is recommended to be awarded to the victim
as compensation."
6. The Prosecution case in the instant matter was that the
Appellant, aged about fifty-four years had sexually assaulted the
minor victim, aged about fifteen years, resulting in her pregnancy
and delivery of a child on 30-03-2020. We find that the evidence of
the victim, PW-1, is to the effect that "The incidents relating to this
case took place in August, 2019 onwards". This evidence stood
undecimated in her cross-examination. There is no other evidence to
establish that the offence took place prior to the month of August,
2019.
7. In such circumstances, we are not inclined to consider the
arguments put forth by the Learned Counsel for the Appellant as
there is no error in the term of penalty meted out to the Appellant in
the impugned Order on Sentence under Sections 5(l) and 5(j)
punishable under Section 6 of the POCSO Act, which is accordingly
upheld.
8. We however notice that in Paragraph 3(iii) of the Order on
Sentence, the Trial Court has erroneously recorded inter alia that
"............ for the offence under Section 9(l) punishable under Section 6
of the POCSO Act, 2012 ............". By no stretch of the imagination is
an offence under Section 9(l), punishable under Section 6 of the
POCSO Act, which is rather erroneously recorded by the Trial Court.
However, considering that the penalty for the offence has been
handed out as five years, as prescribed under the correct provision,
i.e., Section 10 of the POCSO Act, we say no further.
9. The POCSO Court has also failed to clarify whether the
sentences imposed under Section 6 of the POCSO Act for the offence
under Sections 5(l) and 5(j) shall run concurrently or consecutively.
Karna Bahadur Biswakarma alias Karnay vs. State of Sikkim
In State of Sikkim vs. Ram Nath Choudhary1, one of us sitting singly
(Meenakshi Madan Rai, J.) had inter alia observed as follows;
"6. ............................. This Court while upholding
the Judgment and Order on Sentence of the Learned
Trial Court modified the sentence to the extent that the
various sentences of imprisonment imposed on the
Appellant shall run concurrently and not consecutively
relying on the ratio of the Hon'ble Supreme Court in
O.M. Cherian alias Thankachan v. State of Kerala [(2015) 2
SCC 501] wherein it was held as follows;
"17. This Court in Mohd. Akhtar Hussain v.
Collector of Customs [(1988) 4 SCC 183], recognised the
basic rule of conviction arising out of a single
transaction justifying the concurrent running of
the sentences. The following passage in this
regard is relevant to be noted: (SCC p. 187, para
10)
"10. The basic rule of thumb over the
years has been the so-called single
transaction rule for concurrent sentences. If
a given transaction constitutes two offences
under two enactments generally, it is wrong
to have consecutive sentences. It is proper
and legitimate to have concurrent
sentences. But this rule has no application
if the transaction relating to offences is not
the same or the facts constituting the two
offences are quite different."
....................................................................."
10. We now turn to the provisions of Section 386 of the Code
of Criminal Procedure, 1973, which deals with powers of the Appellate
Court which at Section 386(e) provides as follows;
"386. Powers of the Appellate Court.--..................
.............................................
(e) make any amendment or any
consequential or incidental order that may
be just or proper;
............................................................"
The role of the High Court as an Appellate Court is to mete out even
handed justice and in such circumstances where errors are detected
in the Judgment of the Learned Trial Court, purely in the interest of
justice, the errors can be rectified. Hence, sentences imposed under
Section 5(l) and Section 5(j) punishable under Section 6 of the
2018 SCC OnLine Sikk 181
Karna Bahadur Biswakarma alias Karnay vs. State of Sikkim
POCSO Act vide the impugned Order are hereby ordered to run
concurrently.
11. Criminal Appeal dismissed and disposed of accordingly.
12. No order as to costs.
13. Copy of this Judgment be forwarded to the Learned Trial
Court for information, along with its records.
14. A copy of this Judgment be made over to the
Appellant/convict through the Jail Superintendent, Central Prison,
Rongyek and to the Jail Authority for information.
(Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
04-06-2025 04-06-2025
Approved for reporting : Yes
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