IMPORTANT POINT
Enhancement of sentence without notice to accused cannot be sustained.

JUDGMENT :

ASHOK BHUSHAN, J.

1. 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 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 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.(father of Anjali Rai) resident of Lower Namphing, South Sikkim gave 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 jungle. The FIR No.05(02) 14 under Section 376/511 of IPC was registered on the same day against the accused-appellant and the matter was taken up for investigation by the Officer-in-Charge of the PS i.e., Sub-Inspector(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 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 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 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 of the POCSO Act. The appellant is 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 fine of Rs.5,000/-(Rupees five thousand) only, under Section 5(m) punishable under Section 6