MOHD. FIROZ versus STATE OF MADHYA PRADESH on 21 October 2022

1. The instant application has been filed by the applicant-appellantDseeking the following prayers:

(a) Pass an order clarifying that pursuant to the Judgment ofthis Hon’ble Court dated 19.04.2022 in Criminal AppealNo.612 of 2018, the sentence to be served by the Applicantis life imprisonment simplicitor for the offence under SectionE302, 5(m),(i) and 6 of the Protection of Children underSexual Offences Act, 2012 (POCSO), imprisonment for aterm of 20 years for the offence under Section 376A, IPC,rigorous imprisonment for 10 years for the offence underSection 366, IPC and rigorous imprisonment for 7 years forthe offence under Section 363, IPC.

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(b) Pass an order clarifying that the sentence imposed by theLd. Sessions Judge, Seoni under Sections 376(2)(m) and376(2)(i), IPC has been substituted/subsumed by thisHon’ble Court in Judgment dated 19.04.2022 in CriminalAppeal 612 of 2018 by imposing a sentence of imprisonmentGfor 20 years under Section 376A, IPC.

(c) Pass an order clarifying that the sentence to be served bythe applicant for the offence under Sections 5(m) and (i), 6,POCSO is life imprisonment and not life imprisonment forthe reminder of natural life.

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(d) Pass an order directing the Ld. Sessions Judge Seoni toAmodify the order of supersession in accordance with thePrayers A to C.

(e) Pass any other orders as this Hon’ble Court may deem fitin the facts and circumstances of the case.

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2. The Court after hearing the learned counsel for the partiespassed the following order on 19.10.2022:

“Instant Miscellaneous Application is treated as ReviewPetition and be registered as one by the Registry.

Oral hearing in the matter is permitted.

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Mr. B.H. Marlapalle, learned Senior Advocate, who has beenassisting this Court as Amicus Curiae on behalf of theaccused submits that- (A)In paragraph 43 of the Order, this Court (i) modifiedthe sentence of death for the offence punishable underDSection 302 of the Indian Penal Code (forshort,‘IPC’)to that of imprisonment for life; (ii)awarded sentence of twenty years instead ofimprisonment “for remainder part of his life” for theoffence punishable under Section 376A of the IndianEPenal Code; and (iii) affirmed the conviction andsentence recorded by the Courts below for the otheroffences under the IPC and Protection of Children fromSexual Offences Act, 2012 (for short, ‘POCSO Act’)

(B)The other offences, referred to above, comprised ofoffences punishable under Sections 376 (2)(i) and 376(2)(m) of the IPC as well as under Section 6 of thePOCSO Act. In respect of these three offences, thepunishment awarded to the appellant- accused on eachcount was life imprisonment with the qualification that“it shall be for the remainder part of his natural life”.

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(C)Though, the amendments to Section 376 werebrought in force before the offence was committed bythe appellant-accused, the amendment to theprovisions of POCSO Act was brought into force, wellafter the offence was committed.

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A(D)In the circumstances, the sentence of lifeimprisonment with qualification for “remainder of hisnatural life” could not have been awarded in respectof offence punishable under Section 6 of the POCSOAct.

B(E)Having granted benefit of reduction of sentence toterm sentence of twenty years instead of imprisonmentfor the “remainder of his natural life” for the offenceunder Section 376A of the IPC, the case of theappellant be considered on same lines with respectto offences punishable under Section 376 (2) (i) andC376 (2) (m) of the IPC.

Mr. P.V. Yogeshwaran, learned Advocate appearing for theState, has fairly accepted the submission with respect tothe punishment to be awarded for the offence punishableunder Section 6 of the POCSO Act, but has left the matterDto the discretion of this Court with respect to thepunishment for the offences punishable under Sections376(i) and 376(m) of the IPC are concerned.

Heard learned counsel for the parties. Order reserved.”

E3. At the outset, it may be noted that though the applicant/appellanthad filed the application seeking clarification of the judgment dated19.04.2022 passed in the captioned appeal, the applicant had in factsought a review of the said judgment as regards the sentences imposedby the court for the offences under Sections 376(2)(i) and 376(2)(m) ofFIPC and Section 5 (i) and 5 (m) read with Section 6 of the POCSO Act.Having regard to the submissions made by the learned counsel for theparties, the application was treated as Review Petition by the Court andthe Registry was directed to register as such, vide the aforestated Orderdated 19.10.2022.G

4. Mr. B.H. Marlapalle, the learned Senior Advocate appearingas an amicus curiae on behalf of the petitioner has drawn the attentionof the Court to the provisions contained in Section 376(2) of the IPC andSection 6 of the POCSO Act to submit that the punishment prescribedfor the offence under Sections 376(2)(i) and 376(2)(m) of IPC is rigorousHimprisonment for a term which shall not be less than 10 years and for

the offence under Section 6 of the POCSO Act shall not be less than 20years, but in both cases it may extend to imprisonment for life, whichshall mean imprisonment for the remainder of that person’s natural life.According to him, this Court consciously imposed punishment for twentyyears and not for life imprisonment for the offence under Section 376(A)of IPC, which otherwise would have meant imprisonment for theremainder of the appellant’s natural life, for the reasons stated in thejudgment, and therefore the said purpose would be frustrated if thesentences of imprisonment for life confirmed by this Court for the offenceunder Sections 376(i) and 376(2)(m) of IPC and under Section 5 (i) readwith Section 6 and Section 5 (m) read with Section 6 of POCSO ACTare not suitably modified.

5. Mr. P.V. Yogeshwaran, learned Advocate appearing for theState of Madhya Pradesh has fairly accepted the said submissions,however has left the matter to the discretion of the Court.

6. Having given anxious consideration to the submissions madeby the learned counsels for the parties and to the punishments prescribedfor the offences under Sections 376(2)(i), 376(2)(m) and under Section376(A) of IPC as also for the offence under Section 5 (i) and Section5 (m) read with Section 6 of the POCSO Act, for which the petitioner-accused has held guilty and punished, and to the observations made bythis Court in the judgment dated 19.04.2022, it appears that the Court,while commuting the sentence of death for the sentence of lifeimprisonment for the offence punishable under Section 302 of IPC,and while imposing sentence to undergo imprisonment for 20 yearsand not imprisonmentfor the remainder of his natural life for the offenceunder Section 376A, IPC, had tried to balance the scales of retributivejustice and restorative justice. The Court, at the same time hadconfirmed the conviction and sentence recorded by the Courts belowfor the other offences under the IPC and the POCSO Act whichincluded offence under Sections 376(i) and 376(m) of IPC and Section5 (i) and 5 (m) read with Section 6 of POCSO Act. Hence, as rightlysubmitted by the learned Senior Advocate Mr. Marlapalle, if thesentence of life imprisonment imposed by the Sessions Court andconfirmed by the High Court, is also confirmed by this Court for theoffence under Sections 376(2)(i) and 376(2)(m), IPC and for theoffence under Section 5 (i) and 5 (m) read with Section 6 of POCSOAct, then the life imprisonment would mean imprisonment for the AB

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Aremainder of the petitioner’s (original appellant’s) natural life, and inthat case, the very purpose of the court in not imposing the sentenceof life imprisonment for the remainder of petitioner’s life for the offenceunder Section 376(A) of IPC, would be frustrated. The Court hadconsciously imposed the sentence of twenty years for the offence underSection 376A for the reasons stated in the judgment. The CourtBtherefore is inclined to accept the submissions of Mr. Marlapalle, andto modify the sentence imposed for the offence under Sections 376(2)(i)and 376(2)(m) of IPC and for the offence under Section 5 (i) and 5(m) read with Section 6 of the POCSO Act, so as to commensuratethe said sentences with the sentence imposed for the offence underCSection 376(A) of IPC, and accordingly imposes sentence directingthe appellant/petitioner to undergo imprisonment for a period of twentyyears instead of life imprisonment for the said offences.

7. The upshot of this order would be that the appellant-petitionershall undergo rigorous imprisonment for a period of 20 years for theDoffence under Sections 376(2)(i) and 376(2)(m) of IPC, and for a periodof 20 years for the offence under Section 5 (i) and 5 (m) read withSection 6 of the POCSO Act. The judgment and order dated 19.04.2022passed by this Court in Criminal Appeal No. 612 of 2019 stands correctedand modified to the aforesaid extent. The rest of the judgment shallremain unchanged.E

8. The review petition stands allowed accordingly.

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Devika Gujral(Assisted by : Mahendra Yadav, LCRA)

Petition allowed.

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