The court's decision emphasized the application of the non obstante clause in POCSO Section 42 and the constitutional provision against double jeopardy in modifying the sentence and setting aside the sentence under POCSO Section 4.

MEENAKSHI MADAN RAI, J.

1. By filing this Appeal, the Appellant assails the Judgment and Sentence dated 11.12.2015 of the Court of Special Judge, Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO’), East Sikkim at Gangtok, in S.T. (POCSO) Case No. 17 of 2014 and prays therein that the impugned Judgment and Order be set aside.

2. Although, while filing the Appeal, the grounds averred thereto were that the Learned Trial Court failed to appreciate the facts and circumstances and the documentary evidence on record and reached an erroneous finding and hence the above prayer, however, while placing his verbal arguments before this Court, Learned Counsel for the Appellant, submitted that he had no quarrel with the impugned Judgment, but he only sought to assail the Sentences meted out since imprisonment was imposed both under Section 376(2)(i) of the Indian Penal Code, 1860 (Hereinafter ‘IPC’) and under Section 4 of the POCSO, for the offence of rape.

3. There being no challenge to the Judgment, therefore, the facts are not discussed in detail, suffice it to say that the Appellant, a man of 40 years, was found guilty of having sexually assaulted a minor Victim of 14 years and was consequently convicted and sentenced as detailed in the impugned Order on Sentence which reads as follows;

(i) He shall undergo rigorous imprisonment for five years and pay a fine of Rs.5000/- under Section 450 IPC. In default of the payment of fine, he shall undergo further simple imprisonment for six months under Section 450 IPC.

(ii) He shall undergo rigorous imprisonment for ten years and pay a fine of Rs.5000/- under Section 376(2)(i) of the IPC. In default of the payment of fine, he shall undergo further simple imprisonment for six months under Section 376(2)(i) IPC.

(iii) He shall undergo rigorous imprisonment for ten years and pay a fine of Rs.5000/- under Section 4 of the Protection of Children from Sexual Offences Act, 2012. In default of the payment of fine, he shall undergo further simple imprisonment for six months.

4. It was submitted by Learned Counsel for the Appellant that he has no objection to the Sentence under Section 450 of the IPC, but urges that the Sentence under Section 376(2)(i) of the IPC, be set aside as the Appellant was sentenced twice over for the same offence i.e. under Section 376(2)(i) of the IPC and Section 4 of POCSO, both of which pertain to sexual assault and is impermissible in Law. That, the Sentence of imprisonment be confined to the offence under the POCSO supra, duly reducing it to seven years, which is the minimum imprisonment prescribed, in view of the fact that the act was consensual between the Victim and the Appellant. To buttress this submission, he has placed reliance on Section 71 of the IPC, which provides as follows:-

“71. Limit of punishment of offence made up of several offences.-Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence.

The offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.”

5. Further, he has also placed reliance on Article 20(2) of the Constitution of India, wherein it has been specifically rendered by Law that no person shall be prosecuted and punished for the same offence more than once.

6. Per contra, it was argued by Learned Additional Public Prosecutor, that in the first instance since the Victim was 14 years old, the question of the act being consensual does not arise in the face of the relevant provi