in the appeal filed by accused against his conviction, The appeallant court can not enhance the sentence – Even though under Sec.10(POCSO Act, 2012) the sentence is 5 years, due to seriousness of the case , the trial court can impose 7 years punishment.

1
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.

  1. 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
    2
    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.
  2. 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/­.
  3. 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 accusedappellant, 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
    3
    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).
  4. 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.
  5. Learned Special Judge after considering the entire
    evidence convicted the appellant under Section 9/10 of
    4
    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
    5
    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.”
  6. 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.
  7. 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
    6
    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.
  8. 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.
  9. 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
    7
    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 retried 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
    8
    (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;
    9
    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
    10
    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
    11
    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
    12
    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:
    13
    “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
    14
    on a Court of appeal by Sections
    386,389, 390 and 391 of the Code. Sub­section 2
    of Section 401 provides that no order under this
    Section shall be made to the prejudice of the
    accused or other person unless he has had an
    opportunity of being heard either personally or
    by Pleader in his own defence. Sub­section
    4 next provides that where under this Code an
    appeal lies and no appeal is brought, no
    proceeding by way of revision shall be
    entertained at theinstance of the party who
    could have appealed. It is clear from a conjoint
    reading of Section 377, 386, 397 and 401 that
    if the State Government is aggrieved about the
    inade quacy of the sentence it can prefer an
    appeal under Section 377(1) of the Code. The
    failure on the part of the State Government to
    prefer an appeal does not, however, preclude the
    High Court from exercising suo motu power of
    revision under Section 397 read with Section
    401 of the Code since the High Court itself is
    empowered to call for the record of the
    proceeding of any court subordinate to it. Subsection 4 of Section 401 operates as a bar to
    the party which has a right to prefer an appeal
    but has failed to do so but that sub­section
    cannot stand in the way of the High Court
    exercising revisional jurisdiction suo motu. But
    before the High Court exercises its suo motu
    revisional jurisdiction to enhance the sentence,
    it is imperative that the convict is put on
    notice and is given an opportunity of being
    heard on the question of sentence either in
    person or through his advocate. The revisional
    jurisdiction cannot be exercised to the
    prejudice of the convict without putting him on
    guard that it is proposed to enhance the
    sentence imposed by the Trial Court.”
  14. The same proposition has been laid down in Govind
    15
    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
    16
    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
    17
    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.