Supreme Court: In an appeal filed by the convict against the judgment passed by the Allahabad High Court, wherein the Court affirmed the conviction order of the Trial Court, for the offences punishable under Sections 376(2)(f) and 376(2)(i) of the Penal Code, 1860 and Sections 3 read with Section 4 of Protection of Children from Sexual Offences Act, 2012, (‘POCSO Act’) the division bench of Vikram Nath and Sandeep Mehta* , JJ. clarified that when the alleged acts or omissions constitute offence both under the IPC and the POCSO Act then, the law which prescribes the punishment of greater degree would have to be applied. Hence, it viewed that conviction for the offences punishable under Sections 376(2)(f) and 376(2)(i) of IPC and Section 3 read with Section 4 of POCSO Act was wholly justified. However, the High Court erred while directing that the convict would have to serve life imprisonment for remainder of his natural life as provided under Sections 376(2)(f) and 376(2)(i) of IPC.
Background
The convict is the father of the victim who was of about 9 years at the time of the incident. In 2015, an FIR was lodged by the convict’s wife alleging that the convict enticed the minor victim and took her to the rooftop and committed sexual assault upon the child. She was detained on the roof by threatening her. The minor victim came down from the roof in the morning and narrated the whole incident to her grandfather, who, in turn, telephonically informed the informant about the occurrence. The convict went absconding after the incident. Thereafter, an FIR was lodged, and an investigation was undertaken. The minor victim was subjected to a medical examination. The place of the incident was inspected, the site plan was prepared and accordingly, the convict was arrested. The child was also examined under Section 164 of Code of Criminal Procedure, 1973, wherein she made an emphatic allegation of penetrative sexual assault against the convict.
The Trial Court convicted and sentenced the convict. The High Court by the impugned judgment upheld the conviction and has increased the rigor of the punishment by directing that the convict would have to undergo life imprisonment for the remainder of his natural life. Thus, the present appeal was filed.
Contentions of the Convict
The convict contended that the Trial Court ought not to have convicted him for the offences punishable under Sections 376(2)(f) and 376(2)(i) IPC because the acts alleged are defined as offences in both category of laws, i.e., the general laws, i.e., the IPC, as well as in the special law, i.e., the POCSO Act. Since the offences are overlapping, the special law would prevail over the general law and hence, conviction of the appellant could not have been recorded by the trial Court for both the offences.
He placed reliance on Section 42A of the POCSO Act and urged that the said provision makes it clear that the provisions of the POCSO Act are not in derogation of any other law and that the provisions of the POCSO Act have an overriding effect on the provisions of any other law to the extent of inconsistency.
Further, he contended that the High Court in the appeal against conviction, has increased the rigor of the punishment by directing that the convict would have to undergo life imprisonment for the remainder of his natural life. He submitted that without there being any appeal for enhancement of sentence, the High Court, in an appeal against conviction ought not to have enhanced the rigor of the punishment awarded to him and, to this extent, the judgment of the High Court is illegal and deserves to be set aside.
Issue
Whether the conviction ought to have been recorded under the IPC or whether the provisions of the Special law, i.e., Section 42A of POCSO Act, would prevail thereby, vitiating the sentence awarded to the convict for the offences punishable under Sections 376(2)(f) and 376(2)(i) of IPC.
Analysis and Decision
The Court took note of Sections 42 and 42A of the POCSO Act and observed that when the alleged acts or omissions constitute offence both under the IPC and the POCSO Act then, the law which prescribes the punishment of greater degree would have to be applied.
The Court highlighted that the fields of operation of Section 42 and Section 42A are in completely different spheres. Section 42 specifically deals with the quantum of punishment mandating that when a particular act or omission constitutes an offence, both under the POCSO Act and also under the provisions of the IPC or the Information Technology Act, 2000 then, the offender found guilty of the offence would be liable to punishment under the POCSO Act or under the provisions of the IPC whichever provides a punishment of a greater degree.
Additionally, the Court said that Section 42A of POCSO Act, on the other hand, deals with the procedural aspects and gives an overriding effect to the provisions of the POCSO Act over any other law for the time being in force where, the two acts are inconsistent with each other.
Hence, the Court concluded that the provisions of Section 42A of POCSO Act, cannot be interpreted so as to override the scope and ambit of enabling provision, i.e., Section 42 of POCSO Act.
The Court viewed that conviction for the offences punishable under Sections 376(2)(f) and 376(2)(i) of IPC and Section 3 read with Section 4 of POCSO Act was wholly justified. However, the High Court erred while directing that the convict would have to serve life imprisonment for remainder of his natural life as provided under Sections 376(2)(f) and 376(2)(i) of IPC.
The Court noted that the above said direction was passed in an appeal against conviction filed by the convict.
After taking note of Sections 376(2)(f) and 376(2) (i) of IPC, the Court said that under this provision, the Courts have been given discretion to award punishment for a term sentence of minimum 10 years or of imprisonment for life. Where the sentence awarded in the discretion of the Court is for life, the same shall mean imprisonment for the remainder of that person’s natural life. Hence, there is no mandate of law that under these provisions, the convict must be awarded life imprisonment. The Trial Court, however, had awarded imprisonment for life to the convict while convicting him for the offences punishable under Sections 376(2)(f) and 376(2)(i) of IPC. Since, the said Sections of IPC provides for a higher sentence as compared to Section 3 read with Section 4 of POCSO Act, the Trial Court was justified in choosing the former to award punishment in terms of Section 42 of POCSO Act.
However, the Court considered whether the award of imprisonment for life, which means imprisonment for remainder of person’s natural life, was warranted in the facts and circumstances of the present case.
The Court noted that the High Court’s direction was merely a clarification to align the sentence with the language of the sentencing provision. However, due to this clarification, the rigour of the sentence awarded had been increased, such that the convict would have to spend the remainder of his natural life in prison without any possibility of early release.
The Court took note of Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, wherein it was held that “often it happens that a case that falls short of the rarest of the rare category may also be one where a mere sentence of 14 years (the normal benchmark for life imprisonment) may be grossly disproportionate and inadequate. The Court may find that while death penalty may not be warranted keeping in mind the overall circumstances, a proportionate penalty would be to fix the period between 14 years and for the imprisonment till rest of the life without remission”.
The Court further referred to Veerendra v. State of M.P., (2022) 8 SCC 668 wherein, while considering a case involving offences under the POCSO Act as well as under Section 376(2)(i) of the IPC, the Court had confined the life imprisonment to mean actual imprisonment for a period of 30 years. This decision was made while relying on the principles established in Swamy Shraddananda (2) (supra).
Keeping in view the aforesaid exposition of the law, the Court directed that the ends of justice would be served by restoring the judgment of the Trial Court. It further directed that the sentence of life imprisonment, awarded to the accused by the Trial Court for the offence under Sections 3 read with Section 4 of the POCSO Act, shall stand revived.
The Court clarified that for the offences punishable under Sections 376(2)(f) and 376(2)(i) of the IPC, the convict was sentenced to life imprisonment, as awarded by the Trial Court. However, the life imprisonment was not stipulated to extend until the natural life of the convict. Additionally, a fine of Rs. 5,00,000/- was imposed, and in default of payment, the convict was to undergo further imprisonment for a period of two years. Both sentences were to run concurrently. The fine, upon deposit, was to be paid to the victim.
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Vikram Nath, J.
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