2025 INSC 335
SUPREME COURT OF INDIA
(HON’BLE
VIKRAM NATH, J. AND HON’BLE SANDEEP MEHTA, JJ.)
GYANENDRA SINGH @ RAJA
SINGH
Petitioner
VERSUS
STATE OF UTTAR PRADESH
Respondent
Criminal
Appeal No(S). OF 2025 (Arising out of SLP(Criminal) No(s). of 2025) (Diary No.
36334 of 2024)-Decided on 07-03-2025
Criminal, Rape, POCSO
Penal Code, 1860,
Sections 376(2)(f) and 376(2)(i) - Protection of Children from
Sexual Offences Act, 2012, Sections 3, 4,
42A – POCSO – Offence under POCSO or IPC - Whether the
conviction of the appellant ought to have been recorded under
the IPC or whether the provisions of the Special law,
i.e., Section 42A of POCSO Act, would prevail thereby, vitiating the
sentence awarded to the appellant for the offences punishable
under Sections 376(2)(f) and 376(2)(i) of IPC?
Held
that the fields of operation of Section 42 and Section
42A are in completely different spheres - Section
42 specifically deals with the quantum of punishment mandating that when a
particular act or omission constitutes an offence, both under the POCSO
Act and also under the provisions of the IPC or the Information
Technology Act, 2000 then, the offender found guilty of the offence would
be liable to punishment under the POCSO Act or under the provisions
of the IPC whichever provides a punishment of a greater degree - Section 42A of POSCO Act, on the other hand,
deals with the procedural aspects and gives an overriding effect to the
provisions of the POCSO Act over any other law for the time being in
force where, the two acts are inconsistent with each other - Hence, the
provisions of Section 42A of POSCO Act, by no stretch of imagination, can be
interpreted so as to override the scope and ambit of enabling provision,
i.e., Section 42 of POCSO Act - Conviction of the appellant for the
offences punishable under Sections
376(2)(f) and 376(2)(i) of IPC and Sections 3/4 of
POCSO Act is wholly justified - High Court erred while directing that the
appellant would have to serve life imprisonment for remainder of his natural
life as provided under Sections 376(2)(f) and 376(2)(i) of
IPC - Ends of justice would be served by restoring the judgment of the trial
Court and directing that the sentence of life imprisonment awarded to the
accused, by the trial Court, for the offence under Sections 3/4 of
the POCSO Act shall stand revived - For
the offences punishable under Sections 376(2)(f) and 376(2)(i) of IPC, the
accused is sentenced to undergo imprisonment for life, as awarded by the trial
Court, without the stipulation that the life term will enure till the natural
life of the appellant and a fine of Rs. 5,00,000/- and in default, to further
undergo imprisonment of two years - Both the sentences shall run concurrently.
(Para
21 to 23, 30 and 31)
JUDGMENT
Mehta, J. :- Heard.
2.
Delay condoned.
3.
Leave granted.
4.
This appeal, preferred on behalf of the appellant-accused [For short, ‘appellant’.], takes an exception to the judgment dated
2 nd August, 2019, passed by the High Court of Judicature at Allahabad [Hereinafter, being referred to as the ‘High
Court’.] dismissing Jail Appeal No. 6590 of 2016 preferred by the
appellant.
5.
The Division Bench, while dismissing the appeal, affirmed the judgment and
order dated 16 th September, 2016, passed by the learned Additional Sessions
Judge Court No.2, Fatehpur [Hereinafter,
being referred to as the ‘trial Court’.] in Sessions Trial No. 06 of 2016,
arising out of Case Crime No. 236 of 2015 registered at Police Station
Chandpur, District Fatehpur, convicting the appellant for the offences
punishable under Sections 376(2)(f) and 376(2)(i) of the
Indian Penal Code, 1860 [Hereinafter,
being referred to as ‘IPC’.] and Sections 3/4 of Protection of
Children from Sexual Offences Act, 2012 [Hereinafter
referred to as ‘POCSO Act’.]. The appellant was awarded punishment of
imprisonment for life along with a fine of Rs. 25,000/-. In default of payment
of aforesaid fine, it was ordered that the appellant was to undergo two months
of additional imprisonment on each count.
6.
Brief facts of the case are that the appellant, Gyanendra Singh @ Raja Singh,
is the father of victim (PW-2) who was of about 9 years at the time of the
incident. On 28 th October,2015, an FIR[(Exh.
Ka.1) FIR Case Crime No. 236 of 2015.] came to be lodged by the wife of the
appellant, Smt. Rajani, at P.S. Chandpur, District Fatehpur, alleging inter
alia, that she had gone to her parental house about two months ago with
her youngest son Krishna, aged about 2 years, leaving her minor daughter, the
victim herein, aged about 9 years, and a son named Vishnu, aged about 4 years
at her matrimonial house in the custody of her husband, i.e., the appellant. On
22nd October, 2015 at about 8:00 p.m., the appellant enticed the minor victim
(PW-2) and took her to the rooftop and committed sexual assault upon the child.
She was detained on the roof by threatening her. The minor victim came down
from the roof in the morning and narrated the whole incident to her
grandfather, Ram Naresh Singh (PW-3), who, in turn, telephonically informed the
informant about the occurrence. The appellant went absconding after the
incident. The informant (PW-1) got frightened because of the incident and did
not go to her matrimonial home. She somehow mustered the courage and approached
the police station along with her father Ranjeet Singh and father-in-law, Ram
Naresh Singh (PW-3), as well as the victim and filed the FIR[Supra note 4.] against the appellant.
It was, inter alia, urged in the FIR that the child victim should be medically
examined. It was also stated in the FIR that a day prior to the lodging of the
report, the informant had approached the District Headquarter, Fatehpur from
where she was redirected to approach P.S. Chandpur for lodging the FIR.
7.
Investigation was undertaken by Rajesh Kumar Singh (PW-7), Investigating
Officer (I.O.). The minor victim was subjected to medical examination by Dr.
Manisha Shukla (PW-4) who opined that no external injury was found on the body
of the victim. On internal examination, redness was seen present over the labia
minora in the vagina of the victim and her hymen was intact. Forensic material
was collected from the oral, vaginal, vulval and anal swab of the
minor victim, slide was prepared and sent for pathological examination,
D.N.A. mapping and examination of presence of spermatozoa. The place of the
incident was inspected, the site plan was prepared and accordingly, the
appellant was arrested.
8.
The certificate of date of birth was collected from the school. The child was
examined under Section 164 of Code of Criminal Procedure, 1973[‘CrPC’.] wherein she made an emphatic
allegation of penetrative sexual assault against the appellant.
9.
Investigation was concluded and the charge-sheet was filed against the
appellant in the trial Court for the offences punishable under Sections
376(2)(f) and 376(2)(i) of IPC and Sections 3/4/5 of
the POCSO Act. The trial Court framed charges against the appellant for the
said offences, who pleaded not guilty and claimed trial. As many as 9 witnesses
were examined and 8 documents were exhibited by the prosecution in its
evidence. After the completion of prosecution evidence, the appellant was
questioned under Section 313 CrPC and was confronted with the
allegations as appearing in the prosecution case, which the appellant denied
and claimed to have been falsely implicated. The appellant stated that he had
earlier lodged an FIR against his wife, the informant herein, and his father
(PW-3) and therefore, a false case had been registered against him. He further
stated that at the time of the incident, the child was residing with his
sister. No evidence was led from the side of the defence.
10.
Upon hearing the arguments advanced by the defence counsel and the public
prosecutor and appreciating the evidence available on record, the learned trial
Court convicted and sentenced the appellant Hereinafter, referred to as as stated above. [Refer, Para 5 of this judgment.] The appeal preferred by the
appellant was rejected by the High Court vide judgment dated 2nd August, 2019,
which is assailed in this appeal by special leave.
11.
While entertaining the special leave petition, notice limited to the question
of sentence was issued by this Court vide order dated 2nd September, 2024.
12.
Shri R. Balasubramanian, learned senior counsel appearing for the appellant
advanced a solitary submission urging that the trial Court ought not to have
convicted the appellant for the offences punishable under Sections
376(2)(f) and 376(2)(i) IPC because the acts alleged are defined
as offences in both category of laws, i.e., the general laws, i.e.,
the IPC, as well as in the special law, i.e., the POCSO Act. Since
the offences are overlapping, the special law would prevail over the general
law and hence, conviction of the appellant could not have been recorded by the
trial Court for both the offences. He placed reliance on Section
42A of the POCSO Act and urged that the said provision makes it clear that
the provisions of the POCSO Act are not in derogation of any other
law and that the provisions of the POCSO Act have an overriding
effect on the provisions of any other law to the extent of inconsistency.
13.
Shri R. Balasubramanian, learned senior counsel, further urged that the trial
Court awarded sentence of life imprisonment to the appellant for the offences
punishable under Sections 376(2)(f) and 376(2)(i) of IPC,
but the High Court in the appeal against conviction, has modified the judgment
of the trial Court and has increased the rigor of the punishment by directing
that the appellant would have to undergo life imprisonment for the
remainder of his natural life as provided under Sections
376(2)(f) and 376(2)(i) of IPC and that there would be no
requirement of a separate sentence for the offence punishable
under Sections 3/4 of the POCSO Act. The learned counsel submitted
that without there being any appeal for enhancement of sentence, the High
Court, in an appeal against conviction filed by the appellant, ought not to
have enhanced the rigor of the punishment awarded to the appellant and, to this
extent, the judgment of the High Court is illegal and deserves to be set aside.
14.
Per contra, learned counsel appearing for the respondent-State vehemently and
fervently opposed the submissions advanced by the appellant’s counsel. He urged
that the appellant has been convicted for a reprehensible act and the heinous
offence of subjecting his own minor daughter to forcible sexual assault and as
such, the High Court[Vide its order dated
02.08.2019, in the case no. Jail Appeal No. 6590 of 2016] was fully
justified in awarding the enhanced punishment to the appellant
under Sections 376(2)(f) and 376(2)(i) of IPC. On these
grounds, he implored this Court to dismiss the appeal and affirm the judgment
of the High Court.
15.
We have gone through the submissions advanced at the Bar and have gone through
the material placed on record.
16.
Shri R. Balasubramanian, learned senior counsel for the appellant, fairly did
not assail the guilt of the appellant as recorded by the trial Court and
affirmed by the High Court but in spite thereof, we have carefully scrutinized
the material available on record and find that there is wholesome evidence
justifying the conviction of the appellant for the offences as alleged.
17.
The only moot question which thus, requires adjudication is whether the
conviction of the appellant ought to have been recorded under
the IPC or whether the provisions of the Special law, i.e., Section
42A of POCSO Act, would prevail thereby, vitiating the sentence awarded to
the appellant for the offences punishable under Sections
376(2)(f) and 376(2)(i) of IPC.
18. Sections
42 and 42A of the POCSO Act would be relevant to adjudicate this
issue and are reproduced herein below for ready reference: -
“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, 376AB, 376B, 376C, 376D, 376DA, 376DB], [376E, section
509 of the Indian Penal Code or section 67B of the Information
Technology Act, 2000 (21 of 2000)], 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 only under this Act or under the Indian
Penal Code as provides for punishment which is greater in degree.
42A. Act not in
derogation of any other law.— The provisions of this Act shall be in addition
to and not in derogation of the provisions of any other law for the time being
in force and, in case of any inconsistency, the provisions of this Act shall
have overriding effect on the provisions of any such law to the extent of the
inconsistency.”
19.
A bare perusal of Section 42 of the POCSO Act, would make it clear
that when the alleged acts or omissions constitute offence both under the IPC
and the POCSO Act then, the law which prescribes the punishment of greater
degree would have to be applied.
20.
Shri R. Balasubramanian, learned senior counsel, tried to draw a distinction by
urging that Section 42A of the POCSO Act, provides that where there
is an inconsistency between the provisions of the POCSO Act and any
other law, the provisions of the special law would have an overriding effect to
the extent of the inconsistency. He submitted that since the offence
under Sections 3/4 of the POCSO Act does not carry punishment of
imprisonment for life, which means imprisonment for remainder of person’s
natural life, the accused could only have been punished under the said
provision and not under Sections 376(2)(f) and 376(2)(i) of
IPC, looking to the inconsistency in the sentence provided.
21.
We feel that the said submission lacks merit. On the face of it, the fields of
operation of Section 42 and Section 42A are in completely
different spheres. Section 42 specifically deals with the quantum of
punishment mandating that when a particular act or omission constitutes an
offence, both under the POCSO Act and also under the provisions of
the IPC or the Information Technology Act, 2000 then, the
offender found guilty of the offence would be liable to punishment under
the POCSO Act or under the provisions of the IPC whichever
provides a punishment of a greater degree.
22.
Section 42A of POSCO Act, on the other hand, deals with the procedural aspects
and gives an overriding effect to the provisions of the POCSO
Act over any other law for the time being in force where, the two acts are
inconsistent with each other. Hence, the provisions of Section 42A of POSCO
Act, by no stretch of imagination, can be interpreted so as to override the
scope and ambit of enabling provision, i.e., Section 42 of POCSO Act.
23.
Consequently, we are of the view that conviction of the appellant for the offences
punishable under Sections 376(2)(f) and 376(2)(i) of IPC
and Sections 3/4 of POCSO Act is wholly justified. However, we feel
that the High Court erred while directing that the appellant would have to
serve life imprisonment for remainder of his natural life as provided
under Sections 376(2)(f) and 376(2)(i) of IPC.
24.
We may note that the said direction was passed in an appeal against conviction
filed by the appellant. Sections 376(2)(f) and 376(2)
(i), are punishable as
below: -
“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 ten years, but which may
extend to imprisonment for life, and shall also be liable to fine].
(2) Whoever,—
(a)-(e )….
(f) being a relative,
guardian or teacher of, or a person in a position of trust or authority towards
the woman, commits rape on such woman; or
(g)-(h)….
(i) [Clause (i) omitted by Act 22 of
2018 S.4. (w.e.f. 21-4-2018).] commits rape, on a woman incapable of
giving consent; or 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, which shall mean imprisonment for the remainder of that person’s natural
life, and shall also be liable to fine.”
(emphasis
supplied)
25.
Thus, under this provision, the Courts have been given discretion to award
punishment for a term sentence of minimum 10 years or of imprisonment for life.
Where the sentence awarded in the discretion of the Court is for life, the same
shall mean imprisonment for the remainder of that person’s natural life. Hence,
there is no mandate of law that under these provisions, the convict must be
awarded life imprisonment.
26.
The trial Court, however, had awarded imprisonment for life to the appellant
while convicting him for the offences punishable under Sections
376(2)(f) and 376(2)(i) of IPC. Since, the said Sections
of IPC provides for a higher sentence as compared to Sections
3/4 of POCSO Act, the trial Court was justified in choosing the former to
award punishment in terms of Section 42 of POCSO Act. However, we
have to consider whether the award of imprisonment for life, which means
imprisonment for remainder of person’s natural life, was warranted in the facts
and circumstances of the case. This Court in case of Shiva Kumar @ Shiva @
Shivamurthy v. State of Karnataka [(2023)
9 SCC 817.], held as below:-
“14. Hence, we have no
manner of doubt that even in a case where capital punishment is not imposed or
is not proposed, the Constitutional Courts can always exercise the power of
imposing a modified or fixed-term sentence by directing that a life sentence,
as contemplated by "secondly" in Section 53 of the IPC,
shall be of a fixed period of more than fourteen years, for example, of twenty
years, thirty years and so on. The fixed punishment cannot be for a period less
than 14 years in view of the mandate of Section 433-A CrPC."
27.
The High Court, while deciding the appeal against conviction preferred by the
appellant, observed that the sentence of life imprisonment awarded by the trial
Court for the offences punishable under Sections
376(2)(f) and 376(2)(i) of IPC would extend to the remainder of
the natural life of the appellant. This direction was merely a clarification to
keep the sentence in tune with the language of the sentencing provision.
Nevertheless, the fact remains that because of this clarification, the rigour
of the sentence awarded has been increased to the effect that the appellant
would have to spend the remainder of his natural life in prison without
any possibility of early release.
28.
Hon’ble Shri K.V. Vishwanathan, J., speaking for a three-Judge Bench of this
Court, in Navas @ Mulanavas v. State of Kerala[2024 SCC Online SC 315.] considered the issue of sentencing
beyond the period of 14 years and held as below:-
“17. The question
before us is what should be the appropriate sentence and whether the High Court
was justified in adopting the Swamy Shraddhananda v. State of Karnataka,
(2008) 13 SCC 767 line of cases and even it was justified whether the fixing of
the quantum at 30 years without remission was the appropriate sentence, in the
facts and circumstances of the case?
...
25. Swamy
Shraddananda (supra), since affirmed subsequently in Union of India
v. V. Sriharan alias Murugan, (2016) 7 SCC 1, resolved a judge's dilemma.
Often it happens that a case that falls short of the rarest of the rare
category may also be one where a mere sentence of 14 years (the normal
benchmark for life imprisonment) may be grossly disproportionate and
inadequate.
The Court may find
that while death penalty may not be warranted keeping in mind the overall
circumstances, a proportionate penalty would be to fix the period between 14
years and for the imprisonment till rest of the life without remission.
Addressing this issue felicitously in Swamy Shraddananda (supra)
Justice Aftab Alam speaking for the court, held as follows:
“92. The matter may be
looked at from a slightly different angle. The issue of sentencing has two
aspects. A sentence may be excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to this Court carrying a
death sentence awarded by the trial court and confirmed by the High Court, this
Court may find, as in the present appeal, that the case just falls short of the
rarest of the rare category and may feel somewhat reluctant in endorsing the
death sentence. But at the same time, having regard to the nature of the crime,
the Court may strongly feel that a sentence of life imprisonment subject to
remission normally works out to a term of 14 years would be grossly
disproportionate and inadequate. What then should the Court do? If the Court's
option is limited only to two punishments, one a sentence of imprisonment, for
all intents and purposes, of not more than 14 years and the other death,
the Court may feel tempted and find itself nudged into endorsing the
death penalty. Such a course would indeed be disastrous. A far more just,
reasonable and proper course would be to expand the options and to take over
what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus
between 14 years' imprisonment and death. It needs to be emphasised that the
Court would take recourse to the expanded option primarily because in the facts
of the case, the sentence of 14 years' imprisonment would amount to no
punishment at all.”
(emphasis
supplied)
29. In
the case of Veerendra v. State of Madhya Pradesh, this Court, while
considering the case involving the offences under the POCSO Act as
well as under 376(2)(i) of the IPC, confined the life imprisonment to mean
actual imprisonment for a period of 30 years. While doing so, the Bench
relied upon the celebrated judgment of this Court in the case of Swamy
Shraddananda v. State of Karnataka.
[(2008) 13 SCC 767.]
30.
Keeping in view the aforesaid exposition of the law, we thus, direct that the
ends of justice would be served by restoring the judgment of the trial Court
and directing that the sentence of life imprisonment awarded to the accused, by
the trial Court, for the offence under Sections 3/4 of the POCSO Act
shall stand revived.
31.
For the offences punishable under Sections 376(2)(f) and 376(2)
(i) of IPC, the
accused is sentenced to undergo imprisonment for life, as awarded by the trial
Court, without the stipulation that the life term will enure till the natural
life of the appellant and a fine of Rs. 5,00,000/- and in default, to further
undergo imprisonment of two years. Both the sentences shall run concurrently.
32.
The fine, upon being deposited, shall be paid to the victim.
33.
The appeal is partially allowed in these terms.
34.
Pending application(s), if any, shall stand disposed of.
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