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Sikkim High Court

Bishal Lamgadey vs State Of Sikkim on 1 April, 2016

Author: Meenakshi Madan Rai

Bench: Meenakshi Madan Rai

HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)

Dated: 01.04.2016

SINGLE BENCH: HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

Crl. A. No. 05 of 2016

APPELLANT: Bishal Lamgadey,

S/o Late Dal Bahadur Lamgadey,
R/o Sawadin, Ward No.06,
District Tapleyjung,

Nepal.

Presently at Rongyek State Jail.

VERSUS

RESPONDENTS: State of Sikkim.

Application under Section. 374(2) of
the Code of Criminal Procedure, 1973

APPEARANCE;
Mr. Jorgay Namka, Legal Aid Counsel for the Appellant.
Mr. Karma Thinlay Namgyal, Additional Public

Prosecutor with Mr. S.K. Chettri and Mrs. Pollin Rai,
Assistant Public Prosecutors for the State-Respondent.

JUDGMENT

Meenakshi Madan Rai, J.

(1) _ By filing this Appeal, the Appellant assails the Judgment and Sentence dated 11.12.2015 of the Court of Special Judge, Protection of Children from Sexual Offences Act, 2012 (hereinafter 'POCSO'), _/ East Sikkim at Gangtok, in S.7.( POCSO) Case No. 17 of 2014 and prays a . therein that the impugned Judgment and Order be set aside. Wa:

ov, 2 Cri. A. No. 05 of 2016 Bishal Lamgadey vs. State of Sikkim (2) Although, while filing the Appeal, the grounds averred thereto were that the Learned Trial Court failed to appreciate the facts and circumstances and the documentary evidence on record and reached an erroneous finding and hence the above prayer, however, while placing his verbal arguments before this Court, Learned Counsel for the Appellant, submitted that he had no quarrel with the impugned Judgment, but he only sought to assail the Sentences meted out since imprisonment was imposed both under Section 376(2)(i) of the Indian Penal Code, 1860 (Hereinafter 'IPC') and under Section 4 of the POCSO, for the offence of rape.

(3) There being no challenge to the Judgment, therefore, the facts are not discussed in detail, suffice it to say that the Appellant, a man of 40 years, was found guilty of having sexually assaulted a minor Victim of 14 years and was consequently convicted and sentenced as detailed in the impugned Order on Sentence which reads as follows;

(i) He shall undergo rigorous imprisonment for five years and pay a fine of Rs.5000/- under Section 450 IPC. In default of the payment of fine, he shall undergo further simple imprisonment for six months under Section 450 IPC,

(ii) He shall undergo rigorous imprisonment for ten years and pay a fine of Rs.5000/- under Section 376(2)(i) of the IPC.

In default of the payment of fine, he shall undergo further simple imprisonment for six months under Section 376(2)(i) IPC.

(iii) He shall undergo rigorous imprisonment for ten years and pay a fine of Rs.5000/- under Section 4 of the Protection of Children from Sexual Offences Act, 2012. In default of the payment of fine, he shall undergo further simple imprisonment for six months.

(4) It was submitted by Learned Counsel for the Appellant that he has no objection to the Sentence under Section 450 of the IPC, but 3 Cr. A. No. 05 of 2016 Bishal Lamgadey vs. State of Sikkim urges that the Sentence under Section 376(2){i) of the IPC, be set aside as the Appellant was sentenced twice over for the same offence ie. under Section 376(2)(i) of the IPC and Section 4 of POCSO, both of which pertain to sexual assault and is impermissible in Law. That, the Sentence of imprisonment be confined to the offence under the POCSO supra, duly reducing it to seven years, which is the minimum imprisonment prescribed, in view of the fact that the act was consensual between the Victim and the Appellant. To buttress this submission, he has placed reliance on Section 71 of the IPC, which provides as follows:-

"71, Limit of punishment of offence made up of several offences. - Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences."

(5) Further, he has also placed reliance on Article 20(2) of the Constitution of India, wherein it has been specifically rendered by Law that no person shall be prosecuted and punished for the same > offence more than once.

, walk - (6) ~~ Per contra, it was argued by Learned Additional Public PRAT us Prosecutor, that in the first instance since the Victim was 14 years old, the question of the act being consensual does not arise in the 4 Cri. A. No. 05 of 2016 Bishal Lamgadey vs. State of Sikkim face of the relevant provisions of Law. Moreover, since the finding of the Learned Trial Court is not being assailed this argument is superfluous and ought not to be agitated herein. That, the Sentence meted out by the Learned Trial Court should not be disturbed being commensurate to the gravity of the offence.

(7) Thave heard the rival contentions put forth. As pointed out by Learned Additional Public Prosecutor, the Appellant has admitted that he is not assailing the Judgment, thus, the findings thereof will not be delved into. This Court is aware and conscious of the fact that as per the Constitutional provision, no person can be convicted twice for the same offence. It is also true that the offender cannot be punished for more than once for a similar offence, however, it would be useful to note that the relevant portion of Section 71 of the IPC, is qualified with the words "unless it be so expressly provided", In this regard one may refer to Section 42 of the POCSO, which reads as follows;

"42. Alternate punishment. - Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree."

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° Thus, the Section has a non obstante clause which provides 4 a (ale . that regardless of anything contained in any Law for the time being aN in force, the offender found guilty of offences as described above, shall be liable to punishment either under the POCSO or under the 5 Crl. A. No. 05 of 2016 Bishal Lamgadey vs. State of Sikkim Indian Penal Code as provides for punishment which is greater in degree.

(3) The Sentences were ordered to run concurrently and both the Sentences of imprisonment imposed under Section 376(2)(i) of the IPC and under Section 4 of the POCSO were for ten years each, however, since there is also an imposition of fine under Section 4 of the POCSO, for the ends of justice I am of the considered opinion that the imposition of Sentence only under Section 376(2)(i) of the IPC, will adequately serve the purpose. Consequently, the Sentence of imprisonment imposed by the Learned Trial Court is modified and confined only to the Sentence under Section 376(2)(i) of the IPC, which reads as follows;

"He shall undergo rigorous imprisonment for ten years and pay a fine of Rs.5000/- under Section 376(2)(i) of the IPC. In default of the payment of fine, he shall undergo further simple imprisonment for six months under Section 376(2)(i) IPC."

(9) The Sentence imposed under Section 4 of the POCSO, is hereby set aside.

(10) Fine, if paid under Section 4 of the POCSO, as ordered by the Learned Trial Court, be refunded to the Appellant.

(11) Appeal partly allowed.

> (12) Noorder as to costs.

a yar ;

ad 6 Cri. A. No. 05 of 2016 Bishal Lamgadey vs. State of Sikkim (11) Copy of this Judgment be transmitted to the Learned Trial Court for information and compliance.

on tye awe ( Meenakshi Madan Rai ) Judge 01.04.2016 Index: Yes/No Internet : Yes / Ne bp