Sikkim High Court
Ram Nath Choudhary vs State Of Sikkim on 2 April, 2018
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK (Criminal Appellate Jurisdiction) DATED: 2™ April, 2018 SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHT MADAN RAI, JUDGE SO AS CA A. No. 20 of 2016 Appellant : fam Nath Choudhery, : Son of late Anantial Choudhary, Resident of Patna, Bihar, [Presently at State Cantral jail, Rongyek, East Sikkim] versus Respondent : -- State of Sikkim Appeal under Section 374(2) of the Code of Criminal Procedure, 1973. Appearance Mr. BUR. Gupta, {Advocate} Legal Aid Counsel for the Appellant. Mrs, Palin Rai, Assistant Government Advocate for the State- Respondent. | [ols sont a eee Meenakshi sain Rai, J.
i. The Appellant herein was charged and convicted for the heinous offence of incestuous rape, Challenging the Judgment dated 09.06.2016 and the Order on Sentence dated 13.16.2016, of the fearned Special Dude, Protection of Children frarm Sexual Offences Act, 2012, East Sikkim, at Gangtok, in S.T. (POCSQ) Case No. 21 of 2015, the Appetiant is before this Court, questioning both.
Crh A: No. 28 of 2016 2Ram Nath Choudhary vs. State of Sikkim er The learned Trial Court by the impugned Judgment convicted the Appellant under Sections 376(2)(f)(i}(n), 354A of the Indian Penal Code, 1860 {for short 'IPC'), under Sections 5{1) and Sin} of the protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act' punishable under Section 6 of the same Act and under Sections Q(1) and 9{n) of the POCSO Act punishable under Section 10 of the same Act. The Appellant was ordered to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of ps.2000/-(Rupees two thousand) only, under Section 376(2)(A)(n) of the LP.C. But the learned Court refrained from imposing Sentence under Section 6 of the POCSO Act in view of the provisions of Section 42 of the POCSO Act which provides for alternate penalty. For the offence under Sections 9(1) and 9(n) of the POCSO Act, he was to undergo rigorous imprisonment for 5 (five} years and to pay a fine of Rs.2000/- {Rupees two thousand) only. Under Section 354A of the IPC, he was sentenced to underga rigorous imprisonment for 3 {three} years. The Sentences of fine bore a default stipulation while the Sentences of imprisonment were ordered to run consecutively,
3. The grounds raised in the Appeal are that the learned Trial Court ought to have acquitted the Appellant as the Prosecution failed to prove ts case beyond a reasonable doubt. No satisfactory explanation was put forth for the delayed First Information Report (for short "FIR, Exhibit-23, which was lodged four years from the date of the alleged incident. That, the Medical Report indicated an old hymenal tear with no other associated Injuries on the person of the Victim and the vaginal wash of the Victim was devoid of tri, A. No. 20 Of 2016 3 Ram Nath Chaudhary vs. State of Sikkim spermatozoa, resulting in absence of evidence to implicate the Appeiiant. Drawing the attention of this Court to Section 42 of the POCSO Act, which provides for alternate punishment of the offender, viz. either under the IPC or the POCSO, it was contended that the Appellant was convicted and sentenced both under Secton S762 HC) in) of the IPC and also under the POCSO Act when the Sentences ought to have been in the alternative as provided under Section 42 of the pocso Act. Qn this count, relance was placed on the Judgment rendered by this Court in Bishal Lamgadey vs. State of Sikkim'.
4, Learned Assistant Public Prasecutor while refuting the arguments of the Appellant would contend that in fact there fs no reason for the Appeliant to be before this Court as the Prosecution case has been established. It is not in dispute that the Victim, P.Weon-d, is a minor aged about 14 years. It is also not disputed that PW.-2 is the brother of the Victim and an eye witness to the sexual assault perpetrated by the Appellant on his daughter, P.W.1, Besides, P.W.-15, the Victirn's neighbour, was told of the sexual assaults by the Victim herself. The Victim's School Teacher, P.W.-3, discussed the matter with the Head Mistress, P.W.-6, of the same School, who after confirming it from P.W.-15 informed P.W.-14, the Child Protection Officer in the Social Justice Empowerment and Welfare Department, Government of Sikkim, which led to the lodging of the FIR, That, although the Victim was being sexually assaulted by the Appellant over a period of time, the FIR was lodged '2078 Cri L343 Cri. Ao No, 20 of 2016 § Ram Nath Choudhary vs. State of Sikkim only oon 14.07.2015 after P.Wo.-14 took steps based on the information obtained by her (he. P.W.-14) fram the Victim herself.
Hence, the Appeal deserves a dismissal.
5. The arguments of fearned Counsel for the parties were heard in extenso and the evidence and documents on recard examined carefully.
&, Denuded of details, the facts af the Case are that on 14.07.2015, P.W.-14, the Child Protection Officer in the Social Justice, Empowerment and Welfare Department, Government of Sikkim, lodged an FIR Exhibit-23, informing therein that P.W.~-1, the Victim, aged about 14 years, studying in Class-V in a Junior High School, as per information from the Schoo! Authorities was being sexually abused by her father. During counselling, the Victim P.W.-1 confided to p.W.-14 that her father had been sexually assaulting her since she was in Class-IIt That, he would beat up her younger brother, P.W.-2, and send him out during the evenings after which he would sexually assault her. Both of them lived with their father wham they are afraid of, their mother having abandoned them when they were very young, The FIR also reported that the Victim had confided ta p.W.-15, her neighbour, about the incident and seemed to be mentally disturbed. Acting on such information, the Police registered a Case under Section 376 IPC read with Section 4 of the POCSO Act against the Appellant, viz. Sadar P.S. Case No. 193/2015 dated 14.07.2015 and endorsed it to the Investigating Officer (for short 'T.00). investigation would reveal that the Appellant was aged about 45 years, his wife had abandoned him and he was living with Cri. A. Na. 20 af 2016 5 Ram Nath Choudhary ws. State of Sikkim his minor children, the Victhn and a son, aged about 11 years, in a single rented room. The Appellant remained inebriated most of the time and would sexually abuse the Victim by committing various sexual acts on het person notwithstanding the presence of her brother whoa on protesting was sublected to beatings fram the Appellant. The Victim despite warnings from the Appellant of dire consequences if she disclosed the offence to anyone alse, did so to PAW.-15, her neighbour, who in turn brought if ta the notice of P.W.- 5, the Victim's relative. P.W.-5 took the Victim away for some time to her awn house, which was short-lived an the Appeliant's refusal to permit her to continue her stay. The neighbours thereafter became aware of the sexual assaults by the Appellant on the Victim. On 14.07.2015, P.W.3, the Teacher of the Schoo! which the Victim, PW.- 1, was attending, on learning of the alleged sexual assault on the Victhn, shared the information with P.W.-4 and P.W,-6. Thereafter, they summoned the Victim and enguired Inte the matter which she confirmed. PAW.-S then contacted the Legal Officer of the Social Justice, Empowerment and Welfare Department, who directed PAW.-14 to enquire and take necessary action, pursuant to which the above facts came to light. The Victim was subjected to medical examination as also the Appellant. The medico-legal report of the minor Victim suggested that she had been subjected to Sexual intercourse while the medical report of the Appellant indicated that he was not incapable of the sexual act. In the absence of a Birth Certificate of the Victim, an ossification test was conducted on her and her bone age estimated to be between 24 to 15 years. On completion of the. investigation, Charge-Sheet was submitted SSS MRarrrr'_I''MW0) Cri. A. No, 20 of 2646 & Rar Nath Choudhary vs. State of Sikkim against the accused under Section 376(1) IPC raad with Sections 4 and 8 of the POCSO Act.
7. On hearing the rival contentions of the parties, the learned Trial Court framed Charge against the Appellant under Sections 515, 5(n), SU) and O{n) of the POCSO Act and under Sections 376(2)(C(n) and 354A of the IPC. The Charges having been read to the Appellant, on his plea of "not guilty", the trial commenced. The Prosecution examined 18 witnesses and on conclusion of the evidence, an opportunity was afforded to the Appellant in terms of Section 313 of the Code of Criminal Procedure, 1973, to explain the circumstances appearing in the evidence against him. Final arguments were heard and the Appellant was convicted and sentenced as detailed hereinabove. Was the learned Trial Court in error in convicting the Appellant? This is the question that requires determination by this Caurt.
&. The Victim, aged 14 years, was examined as P.W.-1 after certain questions were put to her by the learned Trial Court in terms of Section 33 of the POCSO Act and under Section 118 of the Indian Evidence Act, 1872 to assess her competence to testify. On being so satisfied, the Victim's evidence was recorded. The Victim would reveal that her mother passed away when she was an infant and hence she along with ber younger brother were living with the Appellant, which was 8 one room tenement and all three shared the same bed. In her words, the witness stated) "aty father used to feuch my body with sexual intent. He used to fondle my breast and Cri, A. Na, 20 of 2016 7 Ram Nath Choudhary vs. State of Sikkim my vagina. Whenever I objected he would ask me and my brother to sleep outside. He has been doing this to me occasionally since I was in Standard i. He used to shuse me with explicit language and would beat me when I resisted Ais sexual advances, My father also used fo forcefully have sexual intercourse wit me since f was in Standard , My younger brother alse knows about this. I used fo resist buf my father would forcibly fave sexual infercourse.
My vounger Brother alsa used fo object and used to shaut but my fether would alsa beat him whenever f resisted op father's sexual advances,"
As revealed during investigation, if was confirmed by the witness that she confided about such instances to P.W.-15 and later her teacher aiso came to learn of it. She has admitted to the fact of medical examination conducted on her. The prolix cross-examination she was subjected to could not make her a waver fram the testimony given by her in chief. The evidence of the Victim pertaining to sexual assaults perpetrated on her by the Appellant was corroborated by B.W.-2, her il year ofd brother, who also deposed after the Court was satisfied that he was competent to do so. He admitted to. having witnessed the sexual assaults on the Victim and would confirm of the assaults on him by the Appellant on his protesting the acts of the Appellant on the Victim. P.W.-5, the cousin of PW,-1 and: P.W.-2, came to learn of the sexual assaults on P.W.-1 by the Appellant from P.W.-15, her neighbour. She then took the Victim to her residence where she stayed for about three days and attended school. Thereafter, the child returned to her own house and refused to go with her while the Appellant also refused to send the child with the witness. According to the witness, the Victim NNW LQ QW WWW Cri. A. Na. 20 of 2016 8 Ram Nath Choudhary vs. State of Sikkim was reluctant to ive with her due to threats meted out by the Appellant and trepidation thereof. She then informed P.W.-14 of the incident and they both went to the Sadar Police Station where PLW.- 14 lodged Exhibit-23. These facts stood the test of cross-
examination.
9. From the avidence of P.W.-6, the Head Mistress of the Victim's Schoal, it emerges that P.W.-3 and P.W.-4 approached her while she was in her Office in the Schoo! and informed her that they had come to learn from the neighbours of the Victim, P.W.-1, that the Appellant had been sexually assaulting her. She called the Victim fo her Office in the presence of P.W.-3 and P.W.-4 but the Victim was reluctant to divulge anything. Consequently, she requested them to leave her Office for some time and in their absence, the Victim confided to her that her father used to fondle and touch her private parts. Thereupon, she telephonically contacted the Officer fram the Social Justice, Empowerment and Welfare Department, who sent the child to P.W.-14, the Child Protection Officer. This resulted in the lodging of the FIR, Exhibit-23 by PW. d4. P.w.-7 would vouch for the fact that the Victim was living with her brother and the Appellant, he being the son of the landlady who owned the house besides which he could shed no light on the incidents of sexual assaults.
10. The Doctor, P.W.-9, who examined the Appellant would state thet there was nothing to suggest that he was incapable of performing sexual intercourse. PwW.-10, another Doctor examined Gril A. Noe 28 of 2016 8 Ram Nath Choudhary vs. State of Sikkim the Victim on 14.07.2015 at around 4 p.m. She identified Exhibit-13 as the medical examination report conducted by her, Exhibit-13, the Doctor's report, reads as follows;
cay PERI KARE RCE E EERE RACE EER SUN OEE RANE EEE ETRE aA Brief History The alleged victim fname withheld) who is a student of class V fname of the schoo! withheld), She states that her father used to sexually assault her since she was in Class If. Further she states that the fast gesual assault on her By her father was 3 days back, She gives a Aistory of taking bath, change of dothes after the said incident.
OfE Canscious, co-operative ~Orianted to time and place P/A Soff, so organomegaly "fe perineal injury seen L/E Aymen had old tear where remenant (sic 'reamnant') seen at fourchette No any {sic} offer associated injuries or swelling seen over the perineum at the Ume af examination, Vaginal Wash was taken {2 sample) for presence of spermatozoa Opinion from the abave elicited history and physical examination of the alleged victim there Was fo new or recent signs of injury fhough sexual intercourse in the past cannat be ruled Her evidence in Court was an elucidation of Exhibit-13 qualified with the explanation that when a person takes a bath immediately after sexual intercourse most of the motile spermatezoa are washed away. The vaginal wash of the Victim was examined by P.W-11 who negatived the presence of motile or non-
matie spermatozoa in the sample, while P.W.-12, the Senior Cri. A. No. 20 of 2046 10 Ram Nath Choudhary vs. State of Sikkim Radiologist, would testify for the fact that the bone age of the Victim was between 14 to 415 years.
id. The evidence af P.W.-14 corroborates the evidence of PW.-6, that on receiving a telephanic call from P.W.-6, she went to the School, ret the child who during counselling In a separate room confided to her that her father was sexually assaulting her which was also witnessed by her brother, P.W.-2, who was living with them In the sarne room. The witness aiso found the Victim's brother to be mentally disturbed as an outcorne of the assaults on PAW.-1. The Victim, P.W.-1, further told the witness that she had talked about the incident to P.W.-L5, her neighbour. On receiving such information she lodged Exhibit-23. The Victim had confided to P.AW.- 1S about the incident as stated by P.W.14. This was duly corroborated by P.W.-15, who stated that the Victim fad tald her that the Appellant used to sexually abuse her and molest her and that she disliked what the Appellant used to do to ker. P.Wo-15 along with the neighbours confronted him about Als immoral conduct which he denied. The LO., P.W.-18, would corroborate the evidence of the foregoing witness and he would depose that he interviewed the Victim ina room in the presence of the Child Protection Officer and recorded her statement. The deposition of the witness withstood the cross-examination.
2. The delay in the lodging of the FIR needs no explanation as it can be culled out from the evidence on record. The Victim faced threats fram the Appellant as did her brother and the incidents of tt tT. ELLE EEEEToEoETETETETEETEECESS OEE MMMMMLMLLILEL IPP PE; ELE IIE Cri. A. Ne. 20 af 2036 32 Ram Nath Chaudhary vs. State of Sikkim sexual abuse remained under wraps until P.W.-1 being pushed to the wall disclosed it to her neighbour, P.W.-15, It must be borne in mind that the perpetrator is the father of the Victim and indubitably it was a continuing offence. The Appellant was taking care of her needs, apart from. which she obviously weighed the options of exposing his deeds evidently with the fear of being stiqmatised. That, she was a helpless minor needs no reiteration and it was only with the intervention of the good Samaritans that the obnoxious offence saw the ight of day. These are adequate grounds for the delayed FIR.
43. The absence of injuries on the person of the Victim on the date of examination also does not absolve the Appellant of his abhorrent acts towards the innocent, as the evidence of P.AW.-1 with regard to the offence heing committed for a number of years prior to it being out in the open has been consistent. The old hymenal tear would perhaps stand testimony to the ongaing sexual assaults for some years prior to the lodging of Exhibit-23. It goes without saying that it is naw established law that mere absence of physical injuries on the Victim does not tantamount to absence of sexual assault.
id, A careful consideration of the evidence led before the learned Trial Court undoubtedly paints to the fact of sexual assault by the Appellant on the Victim. In my considered opinion when the evidence of the Victim and her brother are cogent and consistent, as also the evidence of the Prosecution witnesses, which have been MOM EETTESEEEEEEEELEEEEEERBB99DBDB9D9DBDB9Q99DS--=@$ _ _. _ _EBEEEEEESSESETESTECSSEMMILLVATLAL LEA EEA A Ab tddbadbbenncees nnn ne ES SAA MANN Cri, A. No. 28 of 2016 a2 Ram Nath Choudhary vs. State of Sikkim unwavering, jt emanates with no further argument that the child was a victim of the profane acts committed on her by the Appellant. There fis no reason to doubt the veracity of the evidence of the Victim nor is there any reason for her to falsely implicate her father, the sole bread winner of the family, who in normal circurnstances would have besn the emotional anchor both for her brother and herself. In Bhupinder Sharma y. State of Himachal Pradesh', the Hon'bie Supreme Court of india whie dealing with a similar matter would observe as follows;
"ii. The physical scar may heal up, but the mental scar will always remain. When a waman is ravished, whaf is inflicted is not merely physical injury but the deep sense of some deathiess shame. An accused cannot cling te @ fossi formula and insist on corroborative spoken te by the victim strikes a judicial mind as urobable. Judicial response to human rights eannot be blunted by legal jugglery. A similar view was expressed by this Court in Rafig v. State of ULF. £4980) 4 Sco 282} with same anguish, The same was echoed again in Bhanwade Bhoginbhal HirNishai vo State of Gujarat. Tt _ was abserved in the sald case that In the Indian _ setting refusal to act on the testimany of the victim of sexual assault In the absence of _ rorroborstion as a rule, is adding insult to injury. A girl or a woman in the tradition-hound non- _ permissive society of India would be extremely reluctant even to admit that any incident which is fikety to reflect on her chastity had ever occurred. She would be conscious of the danger _of being ostracized by the society and when in the face of these factors the crime is brought to fight, there Js an inbullf assurance that the charge {s genuine rather than fabricated. Just as _a witness who has sustained an injury, which is "not shawn or belleved to be self-inflicted, is the "best witness in the sense that he is least Hkely to
-excuipate the real offender, the evidence of a "ietim of sex offence is entitled te great weight, 'absence of corroboration notwithstanding, A woman or a girl who ie raped is not an accomplice, Carreboration is mat the sine qua Cri. A. Ne. 20 of 2016 a3 Rant Nath Choudhary vs, State of Sikkim hon for conviction in a rape case, The observations of Vivian Bose, J, in Rameshwar ve State of Rajasthan [ain 1952 sc say were: (AIR p.5?, para 19) oo "The rufe, which according ta the cases has hardened into one of law, is not that corroboration is essential before thera can be a conviction but thet the necessity | ar corroboration, &3 a@ matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge ...,°"
is. Now, addressing the question on Sentence raised by learned Counsel for the Appellant, the learned Special Judge has, inter alia, ordered as follows;
4. Since the offences punishable under | « BFEC2}AU(n) of the LP.C. and Section 6 of the : POCSO Act, 2012 are of the same nature, it
-- would mot be proper to sentence the convict _ individually under both the offences. Keeping in mind the provisions of alternative punishment _ provided under section 42 of the POCSO Act, 2012 I find that it would be proper to impose the _ punishment under Section 376(2)(A Un} LPC. _which is greater In degree."
we LL EEEEEETLEEELIELEEELEELLELELELELELELLEDLLLLELEELLEEELEEEEEEEEELLEEEO On this aspect, we may beneficially consider Section 42 of the POCSO Act which provides fer alternate punishment inasmuch as when the offence is both under the IPC and the POCSO Act, then the guilty offender shall be sentenced to imprisonment either under the POCSO Act ar IPC, whichever is greater in degree. The Section 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, 3540, 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 Hable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree."
SESS AA 0Wwwwwy/ °vn,»1p2" : IW QQ OQ KKK \\\\\ Cri, A. Na. 20 of 2016 is Ram Nath Choudhary vs. State of Sikkim
16. Each of the offences of the IPC, viz. 376(2)(())(n) entails rigoraus imprisonment for not fess than 10 (ten) years but which may extend to fife and shall also be liable to fine. The Appellant was also convicted oF the offence under Section 5d} and Stn) of the POCSO Act, punishable under Section 6 of the same Act, which envisages rigorous imprisonment which shall not be fess than iQ (en) years but may extend to imprisonment for fe and shall aiso be lable to fine. The learned Trial Court adhering to the mandate of Section 42 of the POCSO Act handed out Sentence to the Appellant only under Section 376(2})A0)in} of the IPC but refrained fram doing so under Section 5(/) and 5(n} of the POCSO Act, the Sentences for both offences being identical. Although, Sentence was meted out under Section 10 of the POCSD Act, this entails a lesser degree of imprisonment, viz. not less than 5 (five) years but which may extend to 7 (seven) years and also fine, and thus had to be handed out separately. Resultant, the argument of learned Counsel for" the Appellant on this count, merits no consideration.
qi. That having heen said, it is but absolutely imperative to point out that the learned Thal Court was in error in framing one consolidated Charge under Section 376(2)(Pi}(n) of the IPC as well as under Sections ati and 9{n} of the POCSO Act and under Sections SC) and 5(9) of rhe POCSO Act. The offence under each of the sub-sections is a distinct and individual offence committed by the offender and the charge ought to have been framed separately for each offence. For clarification it may be pointed out that the EER PEE Crl. A. Ne. 20 ef 2016 is Ram Nath Choudhary vs. State af Sitddm offence under Section DU) of the POCSO Act is penstrative sexual assault on the child more than once or repeatedly, while that under Section 5{n)} of the POCSO Act provides for penetrative sexual assawt on a child by a relative through blood, adaption, marriage, guardianship, foster care or a domestic relationship with a parent of @ child or living in the same or shared household. They absolutely cannot be lumped and tagged together. Likewise, the offence under Sections 8() and 9(n) of the POCSO Act, being two different offences, the charges are required to be framed separately. Similar is the situation for the offences under Section 376(2)(f)(/}(n) of the IPC, Now, in this situation would the trial be vitiated? To answer this, we mey turn £0 the provisions of Section 464 of the Code of Criminal Procedure, 1973, which is as hereunder;
"464. Effect of ornigssion to frame, or absence of, or error in, charge. (1) No finding, sentence or order by a Court af _ competent jurisdiction shall be deamed invalid _merely an the ground that no charge was framed or an the ground of any errer, omission or irregularity in the charge including any _misjoinder of charge, untess, in the opinion of the Court of appeal, confirmation or revision, 4 failure of justice has In fact been occasioned thereby.
: {2} If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, if may--
fa} In the case of an omission to frame a ' charge, order that a charge be framed and that the trial be recommenced fram the point immediately after the framing of the charges.
(b) In the case of an error, omission or irregularity in the charge, direct @ new trial to be had upon a charge framed in whatever manner it thinks ff:
: Provided that if the Court is of opinion that che facts of the case are such that no yalid EL SHic">H~b)MHrjHn»--mMie---"--''--"'|--@""--@--@--@--@@--@|[]]|H]|/7J/|/e,-°XQ"/0! |") 7"©€=W@™47- Waa sentence by a Court of competent jur invalid only on the ground of fail misjoinder of charge unless the Appell The provision renders wi Crh A. No. 20 oF 2036 26 Ram Nath Choudhary vs. State of Sikkim charge could be preferred agains respect of the facts proved, conviction,"
i tthe accused in if shall quash the th clarity, inter alia, that no finding or isdiction shall be deemed ure to frame charge including ate Court opines that the error has occasioned a failure of Justice, No such finding has stemmed herein thereby warranting no such inference.
18. It is now apposite te refer to the Sentence meted by the learned Thal Court. It has been ordered, inter afia, as follows;
19. VETS RAN RAS NCCE ERE ED REN RTE PE RP PARAS TEE SARS SENT CEES OSE ERD EIN ERE
5. Considering the above factors, the purpose of justice will be served by sentencing the convict as under:
(} He shall undergo rigorous imprisonment for ten (10) years and pay a fine of Rs.2,000/- under Section 376 (2) GY) of the LPC. In default of the payment of fine, he shall undergo further simple imprisonment for six manths under Section 376 (2), L.P.C. {if} He shall undergo rigorous imprisonment for five {5} years and pay a fine of Rs. 2,000/- under Section 10 of the POCSO Act, 2012. In default of the payment of fine, he shall undergo further simple imprisonment for six months under Section 10 of the POCSO Act, 2012. .
(i) He shall undergo nigorous imprisenment for three (3) years under Section 3544 of the LP.C. &. The period of imprisonment already undergene by the convict during investigation and trial shall be set off against this sentence, The above sentences shall run consecutively.
ee What can be elicited from the above is that the learned Trial Court has instead of sentencing the Appellant for each of the nee ( 0 6 GGGUUV444jfj;####;/'/|$/'##|'$|/'|$--|@@:w Wii Do i iii it i ttibtetroninssernniiveteototenenetee Gri A. No. 20 af ZOL6 i?
Ram Nath Choudhary ve. State of Sikkim offences committed by hire separately under Section 376(2)(fU}in) of the IPC and under Sections 5(/) and 5¢n} of the POCSO Act, has handed out one. compasite Sentence of imprisonment for the offences under the IPC and the POCSO Act, respectively, as can be seen hereinabove, The High Court of Allahabad way back in 1952 In Murlidhar Daimia vs. State', beset with the same predicament wauld order as follows;
argued fer the appli icant that the sentence awarded ostensibly for the various offences should be taken to be an aggregate sentence of the various sentences which the Court intended to award with respect to each offence and thst, therefore, when an accused is acquitted of same of the offences the sentence originally awarded must be reduced to sanve extent as a token of the fact thet his sentence had not been enhanced as otherwise maintaining the same sentence for fewer offence would mean that the accused was to underdo some sentence which must be taken fo have been passed by the Court far the offences of which he had been acquitted and which went to make up the aggregate sentence passed, Such a view does find support fram some cases, but we do not agree with that view and are of opinion that such @ compasite sentence of imprisonment should be taken to mean that thet identical sentence was awarded for each of the offences of which the accused was canvicted and that all such identical sentences for all the offences were ordered te run. concurrently. This cannot be 0 a position to determin ne the. specific punishments which the trial Court is supposed to have contemplated to award for each offence and whase total was simply mentioned as the sentence awarded to the accused. If can be said that ordinarily Courts do make the separate sentences concurrent and that it fs only in special cases that the Courts order sentences to run consecutively. Section 35, Criminal P. C., provides that when a person is convicted af one trial of bye or more offences, the Court may sentence him for such offences ta the several * AIR TOS2 AN SAA Cri. A No. 20 of 2016 28 Ram Nath Choudhary vs. State of Sikkim ounishments prescribed therefore which such Caurt was competent to inflict and that such punishments, wher consisting of imprisanment ar transportation, shall commence the one after the expiration of the other In such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
VERO LEANN N USE ROD RAS EOE ESE Soe KK ELE Bod > dae AM SUU TEER EEA AR ES Qe asec ccceceee ne ranececeesenmasnueeeesa ee « No case ether than the one reported in Sri} Nandan v. Emperor 1947 ALL. |. 3, 593, Is referred to in support of the contention that the mere passing of one sentence in cases in which an accused was convicted of several offences would vitlate the tral. We, therefore, hold thet the single sentence of Imorisanment for the various offences for which an secused is convicted does not viblate the trial, unless there had been e@ failure of justice and that the maintenance of that sentence by an appellate or revisional Court, even when the accused is acquitted of the offences convicted of, WH not amount to an enhancement af the sentence and that such ae sentence should be Interpreted to mean that the trial Court awarded identically the same sentence for each of the offences of which the accused was convicted, provided of course that such a sentence was within the maximum limits of the sentence provided by law for that offence, and that the trial Court hed ardered the sentences fo run concurrently and thet in cases where such a sentence went beyond the maximum limit of imprisonment provided for any of the offences of which the accused wes canvicted, the sentence for that offence would be deemed to be the maximum provided by law for that offence. We further hold that a camposite sentence of fine should be treated to be made up of separate sentences of fine, equal in amount, for each of the offences of which the accused had been convicted, provided that such amount is not more than the maximum atowed under that offence."
emphasis suppiedy
20. Consequently, drawing strength from this ratiocination, it would be appropriate to observe herein that the error in sentencing does not vitlate the trial, although it has to be spelt out that the learned tial Court has to consider the provisions of law and ensure that sentence is handed out as per the individual provision of Gr A. No. 28 of FOL 1% Ram Nath Choudhary vs. State of Sikkim law under which the Appellant is convicted, subject of course to the provisions of Section 31 of the Code of Criminal Procedure and bearing in mind the ratio in OM. Cherian alias Thankachan vs. State of Kerala and others', wherein the Hon'ble Supreme Court held as follows; 2 "427. This Court in the case of Mohd.
Akhtar Hussain alias Ibrahim Ahmed v. Asstt. Collector of Custams ffrevention) Ahmedabad and Anr. (1988) 4 SCC 183) ; (AIR 1988 SC 2i43}, recognized the basic rule of canvictian arising out of @ single transaction justifying the concurrent running of the sentences. The following passage in this reaard is relevant to be noted:-
"iO. The basic rule of thumb over the i years has been the so-called single transaction rule for concurrent sentences. [If a given transaction constitutes two offences under two enactments generally, & js wrong fo have consecutive sentences. it ig proper and legitimate to have cancurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different."
2d. In view of the above rationale, the Sentence imposed by the learned Trial Court is madified to the extent that the various Sentences of Imprisonment imposed on the Appellant shall run concurrently and not consecutively. The composite Sentence of fine shall be treated as separate Sentence of fine, equal in amount, for each of the offences of which the Appellant had been convicted.
aa: In the end result, I am of the considered opinion that the learned Trial Court has correctly examined and analysed the evidence on record, There is nothing te mar the case of the & ast et "
S{2GTS} PSC S01 bp Cri, A. Ma. 20 of 2016 20 Ram Nath Choudhary vs. State of Sikkim Prosecution which in my considered opinion has been proved beyand 8 reasonable doubt and thus, warrants no interference whatsoever.
aa. Appeal fails and is dismissed.
24, No order as to casts, 28, Copy of this Judgment be transmitted to the Court of the Learned Special Judge (POCSO) East Sikkim, at Gangtok, for information.
26. Records be remitted forthwith.
Sd/-
{ Meenakshi Madan Rai ) Judge 82.04.2028 Approved for reporting : Yes Internet ; Yes