Naresh @ Lalo Rayaji Rathod vs State Of Gujarat

S.V. Pinto, J

The appeal is filed by the appellant – original accused under Section 374 of the Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Special & Additional Sessions Judge, Bharuch (hereinafter referred to as “the learned Trial Court”) in Special POCSO Case No. 56/2015 on 27.07.2017, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Sections under Sections 363, 366, 376 of Indian Penal Code, 1860 and Section 4 and 6 of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act” for short). The appellant was sentenced to simple imprisonment for three years and fine of Rs. 2000/- and in default, simple imprisonment for six months for the offence under Section 363 of IPC, simple imprisonment for three years and fine of Rs. 2000/- and in default, simple imprisonment for six months for the offence under Section 366 of IPC, simple imprisonment for seven years and fine of Rs. 10,000/- and in default, simple imprisonment for one year for the offence under Section 376 of IPC, simple imprisonment for seven years and fine of Rs. 10,000/- and in default, simple imprisonment for one year for the offence under Section 4 of POCSO Act and simple imprisonment for ten years and fine of Rs. 10,000/- and in default, simple imprisonment for one year for the offence under Section 6 of POCSO Act. All the sentences were ordered to run concurrently.

Heard learned advocate Mr. Aamir Pathan appearing from the High Court Legal Services Committee for the appellant and learned APP Ms. C.M. Shah for the respondent State.

Learned advocate Mr. Aamir Pathan for the appellant submits that the appellant has been convicted under Sections 363, 366, 376 of Indian Penal Code, 1860 and Section 4 and 6 of the POCSO Act. Learned advocate submits that Section 376 of Indian Penal Code, 1860 before the amendment Act No. 22 of 2018 w.e.f. 21.04.2018 i.e. on the date of offence reads as under: 376. Punishment for rape.—

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine].

Learned advocate further submits that Section 6 of the POCSO Act before the amendment by Act 25 of 2019 w.e.f 16.08.2019 i.e. on the date of offence reads as under:

Punishment for aggravated penetrative sexual assault.—

(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine.

Learned advocate for the appellant has not pressed the appeal on merits so far as the conviction is concerned, however, he has submitted that the learned Trial Court has committed an apparent error while imposing sentence for the offences under Section 376 of IPC and Section 6 of the POCSO Act by awarding “Simple Imprisonment”, though the statutory provisions, as applicable on the date of the offence i.e. 08.06.2015, mandate “Rigorous Imprisonment”. It is further submitted that the default sentences awarded for non-payment of fine, when aggregated, operate harshly and deserve to be suitably reduced. Learned advocate for the appellant further submits that the award of Simple Imprisonment for the offences punishable under Section 376 of the IPC and Section 6 of the POCSO Act is contrary to the statutory mandate prevailing on the date of commission of the offence. It is submitted that both the provisions, as applicable at the relevant time, prescribed Rigorous Imprisonment as the minimum punishment and, therefore, the imposition of Simple Imprisonment is ex facie erroneous and not in consonance with law. Learned advocate submits that the said discrepancy appears to be an inadvertent error on the part of the learned Trial Court and, therefore, this Court, in exercise of its appellate jurisdiction, may be pleased to correct the same by passing appropriate orders in the interest of justice.

Learned APP Ms. C.M. Shah for the respondent State has submitted that the learned Trial Court has appreciated the evidence and passed the impugned judgement and order but there is an apparent error in the sentence which is required to be corrected and necessary order may be passed.

Considering the submission of learned advocate for the applicant it is not in dispute that the offence in question occurred on 08.06.2015. On the said date:

Section 376(1) IPC (prior to its substitution by Act No. 22 of 2018 w.e.f. 21.04.2018) prescribed punishment of rigorous imprisonment for a term not less than seven years, which may extend to life, and fine.

Section 6 of the POCSO Act (prior to its substitution by Act 25 of 2019 w.e.f. 16.08.2019) prescribed punishment of rigorous imprisonment for a term not less than ten years, which may extend to imprisonment for life, and fine.

Therefore, the award of Simple Imprisonment for the offences under Section 376 IPC and Section 6 of the POCSO Act is contrary to the statutory mandate as it stood on the date of commission of the offence. The same appears to be an inadvertent error on the part of the learned Trial Court and deserves to be corrected in exercise of appellate jurisdiction. Accordingly, while maintaining the conviction and the substantive quantum of sentence imposed by the learned Trial Court, it is directed that:

The sentence awarded for the offence under Section 363 IPC shall stand modified to Simple Imprisonment for three years with fine of Rs.1000/-, and in default, simple imprisonment for two months;

The sentence awarded for the offence under Section 366 IPC shall stand modified to Simple Imprisonment for three years with fine of Rs.1000/-, and in default, simple imprisonment for two months;

The sentence of Simple Imprisonment awarded for the offence under Section 376 IPC shall stand modified to Rigorous Imprisonment for seven years with fine of Rs.5,000/-, and in default, simple imprisonment for five months;

The sentence of Simple Imprisonment awarded for the offence under Section 4 of the POCSO Act shall stand modified to Simple Imprisonment for seven years with fine of Rs.5,000/-, and in default, simple imprisonment for five months;

The sentence of Simple Imprisonment awarded for the offence under Section 6 of the POCSO Act shall stand modified to Rigorous Imprisonment for ten years with fine of Rs.5,000/-, and in default, simple imprisonment for five months.

The substantive sentences shall continue to run concurrently as ordered by the learned Trial Court.

So far as the default sentences are concerned, the learned Trial Court has imposed default sentences which, if aggregated, would result in a cumulative default imprisonment of four years. Considering the overall facts and circumstances of the case, and in order to balance the ends of justice, the default sentences for non-payment of fine under all the counts are modified and the total default imprisonment is reduced and shall not exceed 1 year and 7 months in aggregate.

On perusal of the jail remarks, the appellant has undergone the substantive sentence and, upon recalculation in light of the above modification, the appellant would be entitled to be released, if not required in any other case.

The Registry is directed to communicate this order forthwith to the concerned Jail Authority for necessary compliance and recalculation of sentence

The appeal stands partly allowed to the aforesaid extent. The conviction is confirmed. The sentence is modified as above.