KUMAR GHIMIREY versus THE STATE OF SIKKIM on 22 April 2019

[2019] 6 S.C.R. 203

KUMAR GHIMIREY

v..

THE STATE OF SIKKIM

(Criminal Appeal No. 719 of 2019)

APRIL 22, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Protection of Children from Sexual Offences Act, 2012:ss.9/10 – Sexual assault on seven year old girl – Appellant convictedunder ss.9/10 of POSCO Act and under s.341 IPC and awardedsimple imprisonment for a period of 7 years and imposed fine ofRs.50,000/- and imprisonment of one month for offence under s.341IPC – Appeal against conviction under s.386 Cr.P.C. before HighCourt – High Court though dismissed the appeal but while dismissingthe appeal converted sentence under ss.9/10 of POSCO Act intosentence under s.5(m) r/w s.6 of POSCO Act and enhanced sentencefrom seven years to ten years with fine of Rs.5000 – In the instantappeal, plea of appellant-convict was that High Court erred inenhancing the sentence as no appeal was filed for enhancement ofsentence – Held: There can be no doubt with regard to the power ofthe High Court to enhance the sentence in an appropriate case –However, the proviso to s.386 provides that the sentence shall notbe enhanced unless the accused had an opportunity of showingcause against such enhancement – In the instant case, the procedureprescribed under s.386 proviso was not followed by the High Courtsince no notice for enhancement was issued to the appellant –Therefore, the judgment of the High Court in so far as it enhancedthe sentence from seven years to ten years is not in accordance withthe procedure prescribed and is set aside – Code of CriminalProcedure, 1973 – s.386, proviso – Penal Code, 1860 – s.341 –Crime against children.

Protection of Children from Sexual Offences Act, 2012:ss.9/10 – Sexual assault on seven year old girl – Accused convictedunder ss.9/10 of POSCO Act and awarded simple imprisonment fora period of 7 years – Plea of the appellant was that the sentenceimposed on the appellant was excessive; that under s.10, minimumsentence is five years, therefore, in the facts of the case, the sentence

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Aought to have been imposed of five years only to the appellant –Held: The victim was thoroughly cross-examined by the accused –The evidence of victim proved the charge levelled against theaccused which was corroborated by evidence of two students whowere studying in the same school and returning from the school atthe time when victim was returning from school – The medicalBevidence also fully corroborated the charge on the appellant – HighCourt rightly affirmed the finding of the conviction of the appellant– There was no ground to interfere with the finding of conviction –Special Judge had noted that the offence committed against theminor girl child (7 years) cannot be viewed lightly – In view of theCserious nature of the offence, no interference with the sentence ofseven years is called for – The prayer of the appellant that thesentence be reduced to five years is, therefore, rejected.

Code of Criminal Procedure, 1973: s.386(b) – Power of theAppellate Court under s.386, scope of – Discussed.

DPartly allowing the appeal, the Court

HELD: 1.1 As per Section 386 clause (b) of Cr.P.C. in anappeal from a conviction although the Appellate Court can alterthe finding, maintaining the sentence, or with or without alteringthe finding, alter the nature or the extent, of the sentence, butEnot so as to enhance the same. Under Section 386(b)(iii), in anappeal from a conviction, for enhancement of sentence, theAppellate Court can exercise the power of enhancement. TheAppellate Court in an appeal for enhancement, can enhance thesentence also. The proviso to Section 386, further, provides thatthe sentence shall not be enhanced unless the accused had anFopportunity of showing cause against such enhancement.[Para 11][210-D-E]

1.2 Present is a case where the High Court has enhancedthe sentence in appeal filed by the accused challenging hisGconviction. The submission for the appellant that the procedureprescribed under Section 386 proviso has not been followed bythe High Court since no notice for enhancement was issued tothe appellant has not been refuted by the State. There can be nodoubt with regard to the power of the High Court to enhancethe sentence in an appropriate case. The High Court can alsoH

exercise its power under Section 401 of Cr.P.C. in an appropriatecase. Section 401 of Cr.P.C. provides for the power of revision tothe High Court. The High Court under Section 401 of Cr.P.C.can exercise any of the powers conferred on a Court of Appeal bySections 386, 390 and 391 or on a Court of Session by Section307 of Cr.P.C. The High Court could have very well exercisedpower under Section 401 of Cr.P.C. read with Section 386(b)(iii),could have enhanced the sentence but the said course ispermissible only after giving notice of enhancement. Thejudgment of the High Court in sofaras it enhanced the sentencefrom seven years to ten years is not in accordance with theprocedure prescribed. The judgment of the High Court to theextent it has enhanced the sentence from seven years to tenyears is set aside. [Paras 12, 15][210-F-H; 211-A; 213-F-G]

2. The victim herself appeared as PW.1. She was thoroughlycross-examined by the accused, the evidence of victim hasproved, the charge levelled against the accused which evidencewas corroborated by evidence of PW.6 and PW.7 who were alsostudents studying in the same school and returning from theschool at the time when victim was returning from the school.The medical evidence also fully corroborated the charge on theappellant. The High Court has rightly affirmed the finding of theconviction of the appellant. There is no ground to interfere withthe finding of conviction and in fact the appellant has not veryseriously challenged the conviction of the appellant. Hissubmission was that he could have been awarded only sentenceof five years under Section 10. The Special Judge afterconsidering the factors imposed the sentence of seven years.The Special Judge has noted that the offence committed againstthe minor girl child (7 years) cannot be viewed lightly. The viewof the Special Judge is enclosed and considering the seriousnature of the offence the conviction of seven years RI need nointerference in this appeal. The submission for the appellantthat the sentence awarded ought to be reduced to five years isrejected. [Para 17][214-A-D]

Surjit Singh and others v. State of Punjab 1984 (Supp)SCC 518 ; Sahab Singh and others v. State of Haryana(1990) 2 SCC 385 : [1990] 1 SCR 512 ; Ramji Jadhav AB

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Av. State of Maharashtra (1990) 4 SCC 718 : [1990] 1SCR 855 ; Surendra Singh Rautela @ Surendra SinghBengali v. State of Bihar (Now State of Jharkhand)(2002) 1 SCC 266 : [2001] 5 Suppl. SCR 340– referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 719 of 2019.

From the Judgment and Order dated 20.09.2016 of the High Courtof Sikkim at Gangtok in Crl. Appeal No. 19 of 2015.D

Harinder Mohan Singh, Ms. Shabana, Ajay Gupta, Rishi Chawla,Advs. for the Appellant.

A. Mariarputham, Adv. Gen., Ms. Aruna Mathur, AvneeshArputham, Ms. Anuradha Arputham, Ms. Geetanjali (for M/S. ArputhamEAruna And Co.), Advs. for the Respondent.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. Leave granted.

2. This appeal has been filed by the appellant against the judgmentFof Sikkim High Court dated 20.09.2016 dismissing Criminal Appeal No.19of 2015 filed by the appellant questioning the order of conviction andsentence dated 31.01.2014 passed by the Special Judge(POCSO Act,2012)convicting the appellant under Section 9/10 of the Protection ofChildren from Sexual Offences Act, 2012(POCSO Act, 2012), Section341 of IPC. The appellant was to undergo simple imprisonment for aGperiod of seven years and to pay fine of Rs.50,000/- under Section 9/10of POCSO Act, 2012 and under Section 341 of IPC he was sentencedto undergo simple imprisonment for a period of one month.

3. The appellant aggrieved by the judgment of the Special Judgefiled an appeal which though has been dismissed by the High Court butH

while dismissing the appeal sentence under Section 9/10 of POCSOAct, 2012 has been converted into sentence under Section 5(m) of thePOCSO Act read with Section 6 of the POCSO Act and sentence hasbeen enhanced from seven years to ten years with fine of Rs.5,000/-.

4. As per the prosecution case, on 20.02.2014 at 1700 hours,Mangal Das Rai, PW.2 (father of Anjali Rai) resident of Lower Namphing,South Sikkim gave a written complaint to Temi Police Station that theaccused-appellant, Kumar Ghimirey had attempted to sexually assaulthis seven year old daughter, Anjali Rai, PW.1, at around 1330 hours in ajungle. The FIR No.05(02) 14 under Section 376/511 of IPC wasregistered on the same day against the accused-appellant and the matterwas taken up for investigation by the Officer-in-Charge of the PS i.e.,Sub-Inspector(SI).

5. A chargesheet was submitted under Section 376/511/341/342of IPC read with Section 4 of POCSO Act, 2012. Learned Special Judgeframed charges under Section 341 of IPC and under Section 5 of POCSOAct, 2012, punishment under Section 6 of POCSO Act, 2012 and alsounder Section 376(2) of IPC. Statement of PW.1, (Child ) Anjali Raiwas recorded. The mother of victim, PW.3 was examined. Father of thevictim appeared as PW.2. PW.5 and PW.6 were the girls who beforeattending the school with the victim were returning at the same time.They also appeared in the witness box corroborating the incident. PW.9,Gynecologist, who examined the victim has also appeared in the witnessbox.

6. Learned Special Judge after considering the entire evidenceconvicted the appellant under Section 9/10 of POCSO Act, 2012 as wellas Section 341 of IPC. In paragraph 25, the Special Judge while recordingconviction held under Section 9/10 of POCSO Act, 2012 imposed simpleimprisonment for a period of seven years and fine of Rs.50,000/-. UnderSection 341 of IPC sentence imposed was simple imprisonment for aperiod of one month. The appeal was filed by the appellant in the HighCourt which appeal though has been dismissed by the High Court videits judgment dated 20.09.2016 but while dismissing the appeal the HighCourt altered the conviction imposed by the Special Judge under Section9/10 of POCSO Act, 2012 to Section 5(m) read with Section 6 andenhanced the punishment to rigorous imprisonment of ten years and afine or Rs.5,000/-. Paragraph 25 of the judgment of the High Court is asfollows:

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A“25. Having regard to the entirety of the facts and circumstances,the evidence on record and the discussions supra, I cannot bringmyself to agree with the finding of the Learned Trial Court thatthe offence was one under Section 9 punishable under Section 10of the POCSO Act. IT is undoubtedly commission of an offenceunder Section 5(m) of the POCSO Act punishable under SectionB6 of the POCSO Act. The appellant is convicted accordingly, dulyaltering the conviction imposed by the learned Trial Court underSections 9/10 of the POCSO Act. Accordingly, he is sentenced toundergo rigorous imprisonment for a period of ten years and topay a fine of Rs.5,000/-(Rupees five thousand) only, under SectionC5(m) punishable under Section 6 of the POCSO Act, in default offine to undergo simple imprisonment of six months. For the offenceunder Section 341 of IPC the sentence of the Learned Trial Courtis upheld. The Sentences of imprisonment shall run concurrently.”

7. The victim was also directed to be paid compensation ofDRs.1,00,000/-(Rupees one lakh) by the High Court under SikkimCompensation to Victim Scheme. The appellant aggrieved by thejudgment of the High Court has come up in the appeal.

8. Learned counsel for the appellant challenging the judgment ofthe High Court contends that the High Court erred in enhancing theEpunishment whereas no appeal was filed for enhancement of thepunishment. In his submission, the High Court ought not to have enhancedthe sentence. It is further submitted that the punishment awarded by thetrial court was the maximum punishment under Section 9/10 of POCSOAct, 2012 whereas in the facts and circumstances of the case, theappellant could have been at best awarded punishment of five yearsFonly under Section 10.

9. Learned counsel appearing for the State supported the order ofthe High Court. It is contended that under Section 386 sub-clause (b)ofCr.P.C. the High Court has right to alter the finding and the High Courthaving found that offence was covered under Section 5(m) of POCSOGAct, 2012, the punishment of ten years rigorous imprisonment was rightlyimposed. It is submitted that the offences under Section 5(m) of POCSOAct have been fully proved. It is submitted that the High Court afteranalysing the evidence has rightly concluded that the offence wasaggravated penetrative sexual assault minimum punishment for which H

was ten years RI. Hence, this Court may not interfere with punishmentawarded.

10. We have considered the submissions of the learned counselfor the parties and perused the records.

The first submission of the learned counsel for the appellant isthat the High Court ought not to have enhanced the punishment fromseven years to ten years. The enhancement has been made by the HighCourt in appeal filed by the appellant under Section 386 of Cr.P.C.challenging his conviction order. Powers of the Appellate Court underSection 386 are to the following effect:

“Section 386. After perusing such record and hearing theappellant or his pleader, if he appears, and the Public Prosecutor,if he appears, and in case of an appeal under section 377 or section378, the accused, if he appears, the Appellate Court may, if itconsiders that there is no sufficient ground for interfering, dismissthe appeal, or may (a) in an appeal from an order of acquittal, reverse such orderand 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 guiltyand pass sentence on him according to law; (b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge theaccused, or order him to be re-tried by a Court of competentjurisdiction subordinate to such Appellate Court or committedfor trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or theextent, or the nature and extent, of the sentence, but not so asto enhance the same;

(c) in an appeal for enhancement of sentence

(i) reverse the finding and sentence and acquit or dischargethe accused or order him to be re-tried by a Court competentto try the offence, or

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[2019] 6 S.C.R.

A(iii) with or without altering the finding, alter the nature or theextent, or the nature and extent, of the sentence, so as toenhance 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 orderBthat may be just or proper; Provided that the sentence shall not be enhanced unless theaccused has had an opportunity of showing cause against suchenhancement; CProvided further that the Appellate Court shall not inflict greaterpunishment for the offence which in its opinion the accused hascommitted, than might have been inflicted for that offence by theCourt passing the order or sentence under appeal.”

11. As per Section 386 clause (b) of Cr.P.C. in an appeal from aDconviction although the Appellate Court can alter the finding, maintainingthe sentence, or with or without altering the finding, alter the nature orthe extent, of the sentence, but not so as to enhance the same. UnderSection 386(b)(iii), in an appeal from a conviction, for enhancement ofsentence, the Appellate Court can exercise the power of enhancement.The Appellate Court in an appeal for enhancement, can enhance theEsentence also. The proviso to Section 386, further, provids that thesentence shall not be enhanced unless the accused had an opportunityof showing cause against such enhancement.

12. Present is a case where the High Court has enhanced thesentence in appeal filed by the accused challenging his conviction. TheFsubmission of the learned counsel for the appellant that the procedureprescribed under Section 386 proviso has not been followed by the HighCourt since no notice for enhancement was issued to the appellant hasnot been refuted by the learned counsel for the State. There can be nodoubt with regard to the power of the High Court to enhance thesentence in an appropriate case. The High Court can also exercise itsGpower under Section 401 of Cr.P.C. in an appropriate case. Section 401of Cr.P.C. provides for the power of revision to the High Court. TheHigh Court under Section 401 of Cr.P.C. can exercise any of the powersconferred on a Court of Appeal by Sections 386, 390 and 391 or on aCourt of Session by Section 307 of Cr.P.C. The High Court could haveHvery well exercised power under Section 401 of Cr.P.C. read with Section 386(b)(iii), could have enhanced the sentence but the said course ispermissible only after giving notice of enhancement. The power of theHigh Court has been accepted and reiterated by this Court in a largenumber of cases. Reference is made to the case in Surjit Singh andothers vs. State of Punjab, 1984 (Supp)SCC 518. In the above casethe appellants were convicted under Section 302 of IPC. They preferreda criminal appeal before the High Court of Punjab and Haryana. TheHigh Court while dismissing the appeal has passed order which amountedto enhancement of sentence. This Court held that the High Court couldnot have enhanced the sentence before following the prescribedprocedure. In paragraph 3 following has been held:

“3. While dismissing the appeal of the appellants a division Benchof the High Court observed ‘that Surjit Singh and Harjinder Singhwho had been proved to have committed the murder of BachanSingh in quite a ruthless manner as is apparent from the numberof injuries found on the person of the deceased’. The High Courtfurther observed that it is a fit case in which over and above thesentence of imprisonment for life imposed by the trial court a fineof Rs. 5,000/- in default to suffer further rigorous imprisonmentfor two years must be imposed on the appellants. This additionalsentence imposed by the High Court unquestionably constitutesan enhancement of sentence. The High Court did not issue noticecalling upon the appellants to show cause why the sentenceimposed upon them be not enhanced before doing so. Rules ofnatural justice as also the prescribed procedure require that thesentence imposed on the accused cannot be enhanced withoutgiving notice to the appellants and the opportunity to be heard onthe proposed action. The record does not show that such a noticeand opportunity were given to the appellants and in the absenceof notice the appellants had no opportunity to contest the proposedaction. Therefore, we allow this appeal limited to the questionthat the sentence of fine of Rs. 5,000/- and the default sentenceimposed on each appellant by the High Court is quashed and setaside confirming the sentence of imprisonment for life imposedby the trial court. The appeal is allowed to the extent hereinindicated.”

13. In the case of Sahab Singh and others vs. State of Haryana,(1990) 2 SCC 385, also after considering the procedure prescribed byCr.P.C. including Sections 386 and 401 High Court held that the High A

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ACourt even if no appeal is filed by the State for enhancement of sentencecan exercise suo motu power of revision under Section 397 read withSection 401 of Cr.P.C. but before the High Court can exercise itsrevisional jurisdiction to enhance the sentence, it is imperative that theconvict is put on notice. In paragraph 4 this Court laid down following:

“4.Section 374 of the Code of Criminal Procedure (‘the Code’hereinafter) provides for appeals from conviction by a SessionsJudge or an Additional Sessions Judge to the High Court. Section377 entitles the State Government to direct the Public Prosecutorto present an appeal to the High Court against the sentence onthe ground of its inadequacy. Sub- section 3 of Section 377 saysthat when an appeal has been filed against the sentence on theground of its inadequacy, the High Court shall not enhance thesentence except after giving to the accused a reasonableopportunity of showing cause against such enhancement and whileshowing cause the accused may plead for his acquittal or for thereduction of the sentence. Admittedly no appeal was preferredby the State Government against the sentence imposed by theHigh Court on the conviction of the appellants under Section302/149, I.P.C. Section 378 provides for an appeal against an orderof acquittal. Section 386 enumerates the powers of the appellatecourt. The first proviso to that section states that the sentenceshall not be enhanced unless the accused has had an opportunityof showing cause against such enhancement. Section 397 confersrevisional powers on the High Court as well as the Sessions Court.It, inter alia, provides that the High Court may call for and examinethe record of any proceeding before any inferior criminal courtsituate within its jurisdiction for the purposes of satisfying itself asto the correctness, legality or propriety of any finding, sentence ororder recorded or passed and as to the regularity of anyproceedings of any inferior court. Section401 further providesthat in the case of any proceedings, the record of which has beencalled for by itself or which otherwise comes to its knowledge,the High Court may, in its discretion, exercise any of the powersconferred on a Court of appeal by Sections 386,389, 390 and391 of the Code. Sub-section 2 of Section 401 provides that noorder under this Section shall be made to the prejudice of theaccused or other person unless he has had an opportunity of beingheard either personally or by Pleader in his own defence. Sub- B

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section 4 next provides that where under this Code an appeal liesand no appeal is brought, no proceeding by way of revision shallbe entertained at theinstance of the party who could haveappealed. It is clear from a conjoint reading of Section 377, 386,397 and 401 that if the State Government is aggrieved about theinade quacy of the sentence it can prefer an appeal under Section377(1) of the Code. The failure on the part of the State Governmentto prefer an appeal does not, however, preclude the High Courtfrom exercising suo motu power of revision under Section 397read with Section 401 of the Code since the High Court itself isempowered to call for the record of the proceeding of any courtsubordinate to it. Sub-section 4 of Section 401 operates as a barto the party which has a right to prefer an appeal but has failed todo so but that sub-section cannot stand in the way of the HighCourt exercising revisional jurisdiction suo motu. But before theHigh Court exercises its suo motu revisional jurisdiction to enhancethe sentence, it is imperative that the convict is put on notice andis given an opportunity of being heard on the question of sentenceeither in person or through his advocate. The revisional jurisdictioncannot be exercised to the prejudice of the convict without puttinghim on guard that it is proposed to enhance the sentence imposedby the Trial Court.”

14. The same proposition has been laid down in Govind RamjiJadhav vs. State of Maharashtra, (1990) 4 SCC 718 and SurendraSingh Rautela @ Surendra Singh Bengali vs. State of Bihar (NowState of Jharkhand), (2002) 1 SCC 266.

15. We, thus, are of the view that the judgment of the High Courtinsofar as it enhanced the sentence from seven years to ten years is notin accordance with the procedure prescribed. The judgment of the HighCourt to the extent it has enhanced the sentence from seven years toten years is set aside.

16. Now, we come to the submission of the appellant that thesentence imposed on the appellant is excessive. He submits that underSection 10 minimum sentence is five years, hence, in the facts of thepresent case, the sentence ought to have been imposed of five yearsonly to the appellant. Hence, the sentence be reduced by this Court tofive years which submission has been refuted by the counsel for theState.

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A17. The learned Special Judge has marshalled the evidence. Thevictim herself appeared as PW.1. She was thoroughly cross-examinedby the accused, the evidence of victim has proved, the charge levelledagainst the accused which evidence was corroborated by evidence ofPW.6 and PW.7 who were also students studying in the same schooland returning from the school at the time when victim was returningBfrom the school. The medical evidence also fully corroborated the chargeon the appellant. The High Court has rightly affirmed the finding of theconviction of the appellant. We do not find any ground to interfere withthe finding of conviction and in fact learned counsel for the appellant hasnot very seriously challenged the conviction of the appellant. HisCsubmission was that he could have been awarded only sentence of fiveyears under Section 10. The Special Judge after considering the factorsimposed the sentence of seven years. The Special Judge has noted thatthe offence committed against the minor girl child (7 years) cannot beviewed lightly, we fully endorse the view of the learned Special Judgeand considering the serious nature of the offence the conviction of sevenDyears RI need no interference in this appeal. We, thus, reject thesubmission of the learned counsel for the appellant that the sentenceawarded ought to be reduced to five years.

18. In the result, the appeal is partly allowed. The direction of theHigh Court in paragraph 25 of the judgment in sofaras it has enhancedEsentence from seven years to 10 years RI is set aside. The sentenceawarded by the Special Judge i.e. seven years under POCSO Act, 2012and one month under Section 341 of IPC is maintained. The rest ofjudgment of the High Court is affirmed.

FDevika Gujral

Appeal partly allowed.

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