The appellate court cannot enhance a convict's sentence when the appeal is filed by the convict and no appeal for enhancement has been filed by the state or victim, violating rights under natural justice.

JUDGMENT :

NAGARATHNA, J.

Leave granted.

2. This is an unfortunate case where the appellant herein, instead of suffering a sentence of rigorous imprisonment for seven years has been incarcerated for eleven years simply owing to the fact that Criminal Appeal No.30/2015 preferred by him before the High Court of Judicature at Bombay, Nagpur Bench, Nagpur, the matter was remitted to the Special Court for enhancement of sentence without even adhering to the salient principles of natural justice.

3. The appellant herein faced trial pursuant to FIR No. 154/2013 registered with P.S. Bhadrawati District, State of Maharashtra under Sections 3 (a) and 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”) and Section 3 63-A, 376 of the INDIAN PENAL CODE , 1860 (for short, “IPC”) and Sections 3 (1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Charges were framed against the appellant under the aforesaid sections.

4. The case of the prosecution is that the appellant was a neighbour of the family of the minor victim, aged four years. On 15.09.2013, while the father of the minor victim was away for work and the mother had gone out for cooking, the appellant induced the minor victim to his house, undressed her and committed the offence of rape on her. Two independent witnesses residing in the same neighbourhood informed the minor victim’s mother about the incident. Later, the minor victim narrated the incident to the complainant who took his daughter to a doctor. After gathering courage, the complainant registered Crime No.154/2013 on 23.09.2023 under the aforesaid provisions.

5. By judgment dated 24.11.2014, the Special Judge, Warora, concluded that the prosecution had proved that the accused had committed penetrative sexual assault on the minor victim. Thereby, the Special Court convicted the appellant herein for the offences punishable under Sections 3 (a) and 4 of the POCSO Act and Section 3 76 of IPC. Consequently, the appellant was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.2,000/- and in default to undergo rigorous imprisonment for two months. As offence under Section 3 76 IPC was merged in the aforesaid offences, no separate punishment was awarded by the Special Court.

6. Aggrieved by his conviction and sentence, the accused- appellant herein preferred Criminal Appeal No.30/2015 before the High Court. It is pertinent to note that the State had not assailed by way of an appeal the sentence of rigorous imprisonment for seven years imposed by the Special Court on the appellant herein. Neither was any appeal filed by the complainant or on behalf of the victim.

7. On the other hand, the appellant – accused assailed the judgment of conviction and sentence before the High Court. By impugned judgment dated 26.02.2016, the High Court affirmed the finding of the Special Court to the effect that the victim was present in the house of the accused at the time of incident and there was no one else in the house except the accused and the victim. Pertinently, the High Court was of the view that this exceptional fact had not been sufficiently explained by the appellant. Relying on the evidence of Dr. Dipti Vinay Shrirame (P.W.6) and the medical examination report of the victim issued by the General Hospital, Chandrapur, the High Court concluded that the fact of penetrative