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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.

56. Yet another illustration, more germane to the discussion required to follow in the case, would be of a case where there has been penetrative sexual assault by the offender against a female human being who appears, on the basis of material available at the threshold, to be less than 18 years‟ old. In such case, it would be permissible, in terms, inter alia, of Section 220 (3) and Section 221(1) Cr.P.C. to put the accused on trial on the charge for offences both under Section 4 POCSO Act (or its aggravated form, if so made out) and under Section 376 IPC. If the acts alleged to have been committed by the accused are proved at the trial and if it is also established that the victim was a female human being less than 18 years in age on the relevant date, the accused would be liable to be convicted and punished for the offence under the POCSO Act. Conversely, if the victim were to be found to be more than 18 years‟ in age, provided the absence of her consent is also proved, the accused may be punished instead on the charge of "rape" under Section 376 IPC. But, if the ingredients of both the offences (penetrative sexual assault under POCSO Act and rape under IPC) are brought home, the law would not permit the convicted person to be punished for both the offences. The acts committed by him being common, he can be punished only for one of such offences;

74. The learned trial judge who passed the order on sentence, to our mind, has unfortunately exceeded his jurisdiction in a manner which cannot be countenanced. The punishment awarded in the context of the second head of charge by him in the impugned order on 05.01.2016 is in the following terms:-

―(1a) Convict is directed to undergo rigorous imprisonment for life for offence u/sec. 376 IPC and (1b) Convict is further directed to pay fine of Rs.

50,000/-. In default of payment of fine simple imprisonment of 3 months for offence u/sec. 376 IPC. (2a) Convict is directed to undergo rigorous imprisonment for life for offence u/sec. 6 of the Protection of Children From Sexual Offences Act, 2012. AND (2b) Convict is further directed to pay fine of Rs.

50,000/-. In default of payment of fine simple imprisonment of 3 months.‖

75. Since the appellant was neither put to trial nor was held guilty nor convicted for the offence under Section 6 of the POCSO Act, it was wholly impermissible - rather, it was illegal - for punishment for such offence to be also awarded.

76. The learned trial judge also seems to have overlooked the basic precept of criminal law that a person may not be punished twice over for the same set of acts of commission or omission which collectively constitute an offence covered by two different provisions of law. Though the law permits trial on alternative charge to be held for both the offences, the punishment may be awarded only for one of them, the one which is graver in nature. Section 71 IPC, quoted earlier, concludes with the command that 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. The charge under the corresponding provision of POCSO Act (Section 4) on which the appellant has been found guilty is in addition to his conviction for the offence under Section 376 IPC. Since the circumstances attendant on the acts committed by the appellant attract Section 376(2) IPC, the punishment under the corresponding (alternative) offence under Section 4 of POCSO Act 2002 would be rendered lesser in degree in as much as, unlike the latter provision, the former - 376(2) IPC - prescribes punishment which may extend to "imprisonment for life"