2020 Supreme(All) 936

IN THE HIGH COURT OF ALLAHABAD
VIRENDRA KUMAR SRIVASTAVA, J.
Ramu – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 309 of 2015
Decided On : 18-12-2020

Point of law: The first part of the Section provides that the Act is in addition to and not in derogation of any other law. Therefore, the provisions of POCSO are in addition to and not above any other law. However, the second part of Section 42A provides that in case of any inconsistency between the provisions of POCSO and any other law, then it is the provisions of POCSO, which will have an overriding effect to the extent of inconsistency. POCSO defines a child to be a person below the age of 18 years. Penetrative sexual assault and aggravated penetrative sexual assault have been defined in Section 3 and Section 5 of POCSO. Provisions of Section 3 and 5 are by and large similar to Section 375 and Section 376 of IPC. Section 3 of the POCSO is identical to the opening portion of Section 375 of IPC whereas Section 5 of POCSO is similar to Section 376(2) of the IPC. Exception 2 to Section 375 of IPC, which makes sexual intercourse or acts of consensual sex of a man with his own “wife” not being under 15 years of age, not an offence, is not found in any provision of POCSO. Therefore, this is a major inconsistency between POCSO and IPC. As provided in Section 42A, in case of such an inconsistency, POCSO will prevail. Moreover, POCSO is a special Act, dealing with the children whereas IPC is the general criminal law. Therefore, POCSO will prevail over IPC and Exception 2 in so far as it relates to children, is inconsistent with POCSO

Headnote:

Protection of Children from Sexual Offences Act, 2012 – Section 4 – Code of Criminal Procedure, 1973 – Sections 374, 164, 313 – Penal Code, 1860 – Sections 71, 376 – Order of Conviction – Rape – Instant appeal, under Section 374(2) of Code of Criminal Procedure, 1973 has been preferred by appellant Ramu against the judgment and order dated 28.02.2015, passed by Special Judge, Protection of Children from Sexual Offences Act, 2012 /Additional Sessions Judge, Court No. 9, Barabanki, in Session Trial arising out of Case Crime No. 181 of 2013, Police Station Ramsanehi Ghat, District Barabanki whereby the appellant has been convicted for offence under Section 376 IPC and Section 4 of POCSO Act and has been sentenced for offence under Section 376 IPC for 14 years rigorous imprisonment and fine of Rs. 10,000/- with further direction that in default of payment of fine, the appellant has to further undergo one year additional rigorous imprisonment and again has been sentenced for offence under Section 4 of POCSO Act for same sentence i.e. 14 years rigorous imprisonment and fine of Rs. 10,000/- with further direction that in default of payment of fine, the appellant has to further undergo one year additional rigorous imprisonment.

Finding of the court:

A person who commits penetrative sexual assault punishable under Section 4 of POCSO Act, 2012 shall be punished with imprisonment of either description for a term which shall not be less than 7 years but it may extend to imprisonment for life and shall also be liable to fine, whereas, a person who has been found guilty for offence under Section 376 (2) I.P.C. is liable to be punished with rigorous imprisonment for a term which shall not be less than 10 years but it may extend to imprisonment for life which shall mean imprisonment for the remainder of that persons natural life and shall also be liable to the fine. – It appears that a single/same act of sexual offence/rape has been declared as offence under Section 375 read with Section 376 I.P.C. and under also Section 4 of POCSO Act, if victim is aged about below 16 years. – It is settled principle of law that no person can be punished twice for one offence. – Normally a criminal court, by virtue of Section 71 I.P.C. in such cases, where any criminal act is punishable in two or more Statute or in different provision of same statutes, convicts and sentence in such provision of such statutes where lesser punishment has been provided. – Parliament was aware to this situation. – It is clear that if offence of sexual assault is punishable in relevant provision of POCSO Act and also in relevant provision of I.P.C. like 376 I.P.C. – Trial Court is bound to punish the accused either in the relevant provision of POCSO Act, or under I.P.C. which is greater in degree. – Judgment and order passed by the trial Court, in Session Trial so far as it relates to conviction of appellant, is maintained and affirmed but the sentence is modified. His sentence under Section 376 IPC is maintained. – The appellant Ramu has to undergo 14 years rigorous imprisonment, with fine of Rs. 10,000/- and in default of payment of fine, he has to undergo additional one year imprisonment. – No separate sentence is required for offence under Section 4 of POCSO Act, 2012.

Result – Appeal Partly Allowed.