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R.K. GAUBA, J:

1. The appellant stands convicted and is aggrieved by judgment dated 15th October, 2015 (in Sessions Case No. 163/2013) on the charge with the gravamen of he having assaulted and committed forcible sexual intercourse with his less-than-14 years‟ old step-

daughter making her pregnant with his child and subjecting her to criminal intimidation. The trial held in the court of Additional Sessions Judge, also designated as Special Court under Section 28 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for New Delhi district, had arisen out of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C), submitted by Station House Officer (SHO) of Police Station Vasant Vihar (the police station) on 12.11.2013, upon conclusion of investigation into first information report (FIR) No. 458/2013. The Special Court, by its order dated 12.11.2013, upon perusal of the complaint and other documents submitted with the said report (charge-sheet), had taken cognizance of offences punishable under Sections 354A, 376 and 506 of Indian Penal Code, 1860 (IPC) read with Sections 4 and 5 of POCSO Act. The trial judge by proceedings recorded on 10.01.2014 put the appellant on trial on charge for offences under Sections 354,376,506 IPC read with Section 4 of POCSO Act. On the conclusion of trial, the impugned judgment dated 15 th October, 2015 was passed holding the appellant guilty, as charged, for offences punishable under Sections 354 and 506 IPC besides under Section 4 of POCSO Act read with Section 376 IPC. By subsequent order dated 5th January, 2016, separate punishments were awarded against the appellant for offences punishable under Section 376 IPC, Section 6 POCSO Act, Section 354 IPC and Section 506 IPC. In addition, the trial judge directed compensation to be paid specifying the amounts at ₹ 13 lakhs payable with reference to Section 33 (8) of POCSO Act read with Rule 7 (2) of Protection of Children from Sexual Offences Rules, 2012 (POCSO Rules) besides ₹2 lakhs recommended under Section 357-A Cr.P.C. read with POCSO Rules.

35. The POCSO Act came into force with effect from 14.11.2012. The provision contained in Section 354 IPC was amended by Criminal Law (Amendment) Act, 2013 (Act 13 of 2013) brought into force with effect from 3.2.2013. Prior to the said amendment, the offence under Section 354 IPC attracted punishment of imprisonment of either description for a term which could extend to two years, or with fine, or with both. Under the amended law, the offence under Section 354 IPC (committed on or after 3.2.2013) may be visited with punishment of either description which shall not be less than one year but may extend to five years, and with fine. In contrast, the offence of "sexual assault" punishable under Section 8 of POCSO Act attracts the punishment of imprisonment of either description for a term which cannot be less than three years but which may extend to five years and with fine.

could still have been framed in terms of the provision contained in Section 221 (1) Cr.P.C. There was no consideration of this aspect at any stage. Undoubtedly, the offence under Section 8 of POCSO Act is a graver offence as compared to the offence under Section 354 IPC (even after amendment of 2013) for the reason the law provides imprisonment for three years in the minimum for the former.

66. For reasons we cannot fathom, relatively minor offence under Section 354 IPC was invoked. It is too late in the day for the omission to be rectified. It is trite that without formal charge under Section 8 POCSO Act being framed, the punishment under the said law cannot be awarded. Since no charge under Section 8 POCSO Act was laid, the appellant will get away with the conviction for the lesser crime (Section 354 IPC) having been proved.

(i) and (k) IPC.

ON PUNISHMENT

72. The learned trial judge passing the order on sentence on 05.01.2016 imposed the following punishment for offence under Section 354 IPC:

―(3a) Convict is directed to undergo rigorous imprisonment for the period of 5 years for offence u/Sec. 354 IPC and (3b) Convict is further directed to pay fine of Rs.10,000/- in default of payment of fine simple imprisonment of 3 months‖.

73. Since the punishment is in accord with the punishment prescribed for the offence under Section 354 IPC as amended with effect from 03.02.2013 and given the background facts wherein this offence was followed by penetrative sexual assault by a step father against the prosecutrix (also amounting to rape) we do not see any reason to interfere with the order to the extent of punishment awarded for offence under Section 354 IPC. We, however, reserve, for later part of this judgment, our decision on the question as to how the sentences for different offences are to run.