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  • Writer's pictureTrivedi and Parashar (Advocates and Solicitors)

Judicial Updates -



In the case of Sri Subramani v. State of Karnataka [Criminal Appeal No. 2097 of 2018], the Complainant had filed a missing person’s report regarding the disappearance of her daughter. During the course of the investigation, the Complainant’s daughter was found and was subsequently subjected to a medical examination, wherein it was found that she had been sexually assaulted. Thereafter, an FIR was registered against the Appellant under Sections 363 and 376 of the Indian Penal Code, 1860 (“IPC”) along with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO”).

After hearing the arguments, the Trial Court reached the determination that the Appellant was culpable for transgressions actionable under Sections 363 and 376 of the IPC along with Section 6 of the POCSO Act, instead of Section 4. Subsequently, the Appellant was sentenced to serve 7 years in prison and pay a monetary fine amounting to Rs. 2000 for the offences punishable under Sections 363 of the IPC. Furthermore, the Appellant was sentenced to an additional seven years of imprisonment, along with a fine of Rs. 5000, for the offences punishable under Section 376 of the IPC. Finally, for the offence outlined in Section 6 of the POCSO Act, a term of ten years of imprisonment, accompanied by a fine of Rs. 5000, was imposed upon the Appellant. Aggrieved by the judgement of the Trial Court, the Appellant filed an appeal in accordance with Section 374(2) of the Criminal Procedure Code, 1973 (“CrPC”) challenging the conviction. In his appeal, he argued that the initial charges had been for less serious violations under Section 4 of the POCSO, however, the conviction of the Trial Court was for a major violation under Section 6 of the POCSO, which is against the law.

The Court determined, based on the testimonies of the mother, prosecutrix, police officials, and the Investigation Officer, that the prosecution successfully demonstrated that the accused had kidnapped the young girl and transported her to Andhra Pradesh, where he unlawfully detained her. These actions are punishable under Sections 363 and 342 of the Indian Penal Code (IPC). Given that the Appellant has been imprisoned for more than seven years, Section 363 of the IPC stipulates a seven-year sentence, while Section 342 of the IPC imposes a one-year sentence and a fine, the bench said: “The Appellant is in custody for more than 7 years 6 months, he is entitled to set off under Section 428 of CrPC and adjusted the sentences already undergone.”

The Court observed that the trial court had filed charges against the defendant for an offence covered by Section 4 of the Act (Punishment for Penetrative Sexual Assault). However, the trial court judged him guilty of the offence covered by Section 6 of the Act (Punishment for Aggravated Penetrative Sexual Assault) and sentenced him to 10 years in jail.

The bench held, “The charges could have been altered from Section 4 to Section 6 of the POCSO Act and it is the duty of the Court to provide a right of further examination and cross-examination by both sides, once the charges were altered. The Court has the power to alter the charges before passing the judgment. Such being the case, the trial court, without framing the charge under Section 6 of the POCSO Act, found him guilty and sentenced him to undergo imprisonment for 10 years for the offence punishable under Section 6 of the POCSO Act, where charges were framed for only under Section 4 are not sustainable under the law.”

The High Court deemed the trial court's imposition of sentences pursuant to Section 376 of the IPC and Section 6 of the POCSO Act to be unmistakably unconstitutional and erroneous. Referring to Section 42 of the Act, the bench said: “It empowers the Court to give alternative punishment if the accused found guilty for the offence which is punishable with both the provisions of Section 376 of IPC as well as POCSO Act which is greater in a degree.”

Consequently it held that, “The Trial Court cannot award double sentences for the same offence convicted which are punishable both under Section 376 of IPC and Section 6 of POCSO Act. The Court can find guilty in both the offences but punishment shall be awarded in any one of the offences which is greater in degree.”

Accordingly, it allowed the appeal in part.


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