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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 719 OF 2019 (Arising out of SLP (Criminal) No.1948 of 2017)

KUMAR GHIMIREY … APPELLANT(S)

VERSUS

THE STATE OF SIKKIM … RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. This appeal has been filed by the appellant against

the judgment of Sikkim High Court dated 20.09.2016

dismissing Criminal Appeal No.19 of 2015 filed by the

appellant questioning the order of conviction and

sentence dated 31.01.2014 passed by the Special

Judge(POCSO Act, 2012)convicting the appellant under

Section 9/10 of the Protection of Children from Sexual

Offences Act, 2012(POCSO Act, 2012), Section 341 of

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IPC. The appellant was to undergo simple imprisonment

for a period of seven years and to pay fine of

Rs.50,000/­ under Section 9/10 of POCSO Act, 2012  and

under Section 341 of IPC he was sentenced to undergo

simple imprisonment for a period of one month.

3. The appellant aggrieved by the judgment of the

Special  Judge filed  an appeal which  though has been

dismissed by the High Court but while dismissing the

appeal sentence under Section 9/10 of POCSO Act, 2012

has been converted into sentence under Section 5(m) of

the POCSO Act read with Section 6 of the  POCSO Act and

sentence has been enhanced from seven years to ten

years with fine of Rs.5,000/­.

4. As per the prosecution case, on 20.02.2014 at 1700

hours, Mangal Das Rai, PW.2 (father of Anjali Rai)

resident of Lower Namphing, South Sikkim gave a written

complaint to Temi Police Station that the accused­

appellant, Kumar Ghimirey had attempted to sexually

assault his seven year old daughter, Anjali Rai, PW.1,

at around 1330 hours in a jungle. The FIR No.05(02) 14

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under Section 376/511 of IPC was registered on the same

day against the accused­appellant and the matter was

taken up for investigation by the Officer­in­Charge of

the PS i.e., Sub­Inspector(SI).

 5. A chargesheet was submitted under Section

376/511/341/342  of IPC read  with Section 4  of POCSO

Act, 2012. Learned Special Judge framed charges under

Section 341 of IPC and under Section 5 of POCSO Act,

2012, punishment under Section 6 of POCSO Act, 2012 and

also under Section 376(2)   of IPC. Statement of PW.1,

(Child ) Anjali Rai was recorded. The mother of victim,

PW.3 was examined. Father of the victim  appeared as

PW.2. PW.5 and PW.6 were the girls who before attending

the school with the victim were returning at the same

time. They also appeared in the witness box

corroborating the incident. PW.9, Gynecologist, who

examined the victim has also appeared in the witness

box.

6. Learned Special Judge after considering the entire

evidence convicted the appellant under Section 9/10 of

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POCSO Act, 2012 as well as Section 341 of IPC. In

paragraph 25, the Special Judge while recording

conviction held under Section 9/10 of POCSO Act, 2012

imposed simple imprisonment for a period of seven years

and fine of Rs.50,000/­. Under Section 341 of IPC

sentence imposed was simple imprisonment for a period

of one month. The appeal was filed by the appellant in

the High Court which appeal though has been dismissed

by the High Court vide its judgment dated 20.09.2016

but while dismissing the appeal the High Court altered

the conviction imposed by the Special Judge under

Section 9/10 of POCSO Act, 2012 to Section 5(m) read

with Section 6 and enhanced the punishment to rigorous

imprisonment of  ten  years and a  fine or  Rs.5,000/­.

Paragraph 25 of the judgment of the High Court is as

follows:

"25. Having regard to the entirety of the facts and circumstances, the evidence on record and the discussions supra, I cannot bring myself to agree with the finding of the Learned Trial Court that the offence was one under Section 9 punishable under Section 10 of the POCSO Act. IT is undoubtedly commission of an offence under Section 5(m) of the POCSO Act punishable under Section 6 of the POCSO Act. The appellant is

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convicted accordingly, duly altering the conviction imposed by the learned Trial Court under Sections 9/10 of the POCSO Act. Accordingly, he is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/­(Rupees five thousand) only, under Section 5(m) punishable under Section 6 of the POCSO Act, in default of fine to undergo simple imprisonment of six months. For the offence under Section 341 of IPC the sentence of the Learned Trial Court is upheld. The Sentences of imprisonment shall run concurrently.”

7. The victim was also directed to be paid

compensation of Rs.1,00,000/­(Rupees one lakh) by the

High Court under Sikkim Compensation to Victim Scheme.

The  appellant aggrieved  by the judgment  of the High

Court has come up in the appeal.

8. Learned counsel for the appellant challenging the

judgment of the High Court contends that the High Court

erred in enhancing the punishment whereas no appeal was

filed for enhancement of the punishment. In his

submission, the High Court ought not to have enhanced

the sentence. It is further submitted that the

punishment awarded by the trial court was the maximum

punishment under Section 9/10 of POCSO Act, 2012

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whereas in the facts and circumstances of the case, the

appellant could have been at best awarded punishment of

five years only under Section 10.

9. Learned counsel appearing for the State supported

the order of the High Court. It is contended that under

Section 386 sub­clause (b)of Cr.P.C. the High Court has

right to alter the finding and the High Court having

found that offence was covered under Section 5(m) of

POCSO Act, 2012, the punishment of ten years rigorous

imprisonment was rightly imposed. It is submitted that

the offences under Section 5(m) of POCSO Act have been

fully proved. It is submitted that the High Court after

analysing the evidence has rightly concluded that the

offence was aggravated penetrative sexual assault

minimum punishment for which was ten years RI. Hence,

this Court may not interfere with punishment awarded.

10. We have considered the submissions of the learned

counsel for the parties and perused the records.  

10. The first submission of the learned counsel for the

appellant is that the High Court ought not to have

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enhanced the punishment from seven years to ten years.

The enhancement has been made by the High Court in

appeal filed by the appellant under Section 386 of

Cr.P.C. challenging his conviction order. Powers of the

Appellate Court under Section 386 are to the following

effect:

“Section 386. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377  or section 378,   the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re­ tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction­

(i)reverse the finding and sentence and acquit or discharge the accused, or order him to be re­tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

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(ii)alter the finding, maintaining the sentence, or  

(iii)with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence (i)reverse the finding and sentence and acquit or discharge the accused or order him to be re­tried by a Court competent to try the offence, or

(ii)alter the finding maintaining the sentence, or

(iii)with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d)in an appeal from any other order, alter or reverse such order;

(e)make any amendment or any consequential or incidental order that may be just or proper;

 Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement;

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Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.”

11. As  per  Section  386  clause (b) of  Cr.P.C.  in  an

appeal from a conviction although the Appellate Court

can alter the finding, maintaining the sentence, or

with or without altering the finding, alter the nature

or the extent, of the sentence, but not so as to

enhance the same. Under Section 386(b)(iii), in an

appeal from a conviction, for enhancement of sentence,

the Appellate Court can exercise the power of

enhancement. The Appellate Court in an appeal for

enhancement, can enhance the sentence also. The proviso

to Section 386, further, provids that the sentence

shall not be enhanced unless the accused had an

opportunity of showing cause against such enhancement.

12. Present is a case where the High Court has enhanced

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the sentence in appeal filed by the accused challenging

his conviction. The submission of the learned counsel

for the appellant that the procedure prescribed under

Section 386 proviso has not been followed by the High

Court since no notice for enhancement was issued to the

appellant has not been refuted by the learned counsel

for the State. There can be no doubt with regard to the

power of  the High Court  to enhance the sentence in an

appropriate case. The High Court can also exercise its

power under Section 401 of Cr.P.C. in an appropriate

case. Section 401 of Cr.P.C. provides for the power of

revision to the High Court. The High Court under

Section 401 of Cr.P.C. can exercise any of the powers

conferred on a Court of Appeal by Sections 386, 390 and

391 or on a Court of Session by Section 307 of Cr.P.C.

The  High Court could have very well  exercised power

under Section 401 of Cr.P.C. read with Section 386(b)

(iii), could have enhanced the sentence but the said

course is permissible only after giving notice of

enhancement. The power of the High Court has been

accepted and reiterated by this Court in a large number

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of cases. Reference is made to the case in Surjit Singh

and others vs. State of Punjab, 1984 (Supp)SCC 518. In

the above case the appellants were convicted under

Section 302 of IPC. They preferred a criminal appeal

before the High Court of Punjab and Haryana. The High

Court while dismissing the appeal has passed order

which amounted to enhancement of sentence. This Court

held that the High Court could not have enhanced the

sentence before following the prescribed procedure. In

paragraph 3 following has been held:

“3. While dismissing the appeal of the appellants a division Bench of the High Court observed 'that Surjit Singh and Harjinder Singh who had been proved to have committed the murder of Bachan Singh in quite a ruthless manner as is apparent from the number of injuries found on the person of the deceased'. The High Court further observed that it is a fit case in which over and above the sentence of imprisonment for life imposed by the trial court a fine of Rs. 5,000/­ in default to suffer further rigorous imprisonment for two years must be imposed on the appellants. This additional sentence imposed by the High Court unquestionably constitutes an enhancement of sentence. The High Court did not issue notice calling upon the appellants to show cause why the sentence imposed upon them be not enhanced before doing so. Rules of natural justice as also the prescribed procedure require

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that the sentence imposed on the accused cannot be enhanced without giving notice to the appellants and the opportunity to be heard on the proposed action. The record does not show that such a notice and opportunity were given to the appellants and in the absence of notice the appellants had no opportunity to contest the proposed action. Therefore, we allow this appeal limited to the question that the sentence of fine of Rs. 5,000/­ and the default sentence imposed on each appellant by the High Court is quashed and set aside confirming the sentence of imprisonment for life imposed by the trial court. The appeal is allowed to the extent herein indicated.”

13. In the case of Sahab Singh and others vs. State of

Haryana, (1990) 2 SCC 385,  also after considering the

procedure prescribed by Cr.P.C. including Sections 386

and 401 High Court held that the High Court even if no

appeal is filed by the State for enhancement of

sentence  can exercise suo motu power of revision under

Section 397 read with Section 401 of Cr.P.C. but

before the   High Court can exercise its revisional

jurisdiction   to enhance   the sentence, it is

imperative that the convict   is put on notice. In

paragraph 4 this Court laid down following:

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"4.Section 374  of the Code of Criminal Procedure ('the Code' hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377  entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub­ section 3 of Section 377 says that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence. Admittedly no appeal was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Section 302/149, I.P.C. Section 378 provides for an appeal against an order of acquittal. Section 386 enumerates the powers of the appellate court. The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court. It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any inferior court. Section 401 further provides that in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred

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Ramji Jadhav vs. State of Maharashtra, (1990) 4 SCC 718

and Surendra Singh Rautela @ Surendra Singh Bengali vs.

State of Bihar (Now State of Jharkhand), (2002) 1 SCC

266.

15. We, thus, are of the view that the judgment of the

High Court in sofaras it enhanced the sentence from

seven years to ten years is not in accordance with the

procedure prescribed. The judgment of the High Court to

the extent it has enhanced the sentence from seven

years to ten years is set aside.

16. Now, we come to the submission of the appellant

that the sentence imposed on the appellant is

excessive. He submits that under Section 10 minimum

sentence is five years, hence, in the facts of the

present case, the sentence ought to have been imposed

of five years only to the appellant. Hence, the

sentence be reduced by this Court to five years which

submission has been refuted by the counsel for the

State.

17. The learned Special Judge has marshalled   the

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evidence. The victim herself appeared as PW.1. She was

thoroughly cross­examined by the accused, the evidence

of victim has proved, the charge levelled against the

accused which evidence was corroborated by evidence of

PW.6 and PW.7 who were also students studying in the

same school and returning from the school at the time

when victim was returning from the school. The medical

evidence also fully corroborated the charge on the

appellant. The High Court has rightly affirmed the

finding of the conviction of the appellant. We do not

find any ground to interfere with the finding of

conviction and in fact learned counsel for the

appellant has not very seriously challenged the

conviction of the appellant. His submission was that he

could have been  awarded  only sentence of five years

under Section 10. The Special Judge after considering

the factors imposed the sentence of seven years. The

Special Judge has noted that the offence committed

against the minor girl child (7 years) cannot be viewed

lightly, we fully endorse the view of the learned

Special Judge and considering the serious nature of the

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offence the conviction of seven years RI need no

interference in this appeal. We, thus, reject the

submission of the learned counsel for the appellant

that the sentence awarded ought to be reduced to five

years.  

18. In the result, the appeal is partly allowed. The

direction of the High Court in paragraph 25 of the

judgment in sofaras it has enhanced sentence from seven

years to 10 years RI is set aside. The sentence awarded

by the Special Judge i.e. seven years under POCSO Act,

2012 and one month under Section 341 of IPC is

maintained. The rest of judgment of the High Court is

affirmed.

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( K.M. JOSEPH )

New Delhi,  April 22, 2019.