KUMAR GHIMIREY versus THE STATE OF SIKKIM

Citation: [2019] 6 S.C.R. 203 · Decided: 22-04-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Case Partly allowed

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Judgment (excerpt)

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KUMAR GHIMIREY
v..
THE STATE OF SIKKIM
(Criminal Appeal No. 719 of  2019)
APRIL 22, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Protection of Children from Sexual Offences Act, 2012:
ss.9/10 – Sexual assault on seven year old girl – Appellant convicted
under ss.9/10 of POSCO Act and under s.341 IPC and awarded
simple imprisonment for a period of 7 years and imposed fine of
Rs.50,000/- and imprisonment of one month for offence under s.341
IPC – Appeal against conviction under s.386 Cr.P.C. before High
Court – High Court though dismissed the appeal but while dismissing
the appeal converted sentence under ss.9/10 of POSCO Act into
sentence under s.5(m) r/w s.6 of POSCO Act and enhanced sentence
from seven years to ten years with fine of Rs.5000 – In the instant
appeal, plea of appellant-convict was that High Court erred in
enhancing the sentence as no appeal was filed for enhancement of
sentence – Held: There can be no doubt with regard to the power of
the High Court  to enhance the sentence in an appropriate case –
However, the proviso to s.386 provides that the sentence shall not
be enhanced unless the accused had an opportunity of showing
cause against such enhancement – In the instant case, the procedure
prescribed under s.386 proviso was not followed by the High Court
since no notice for enhancement was issued to the appellant –
Therefore, the judgment of the High Court in so far as it enhanced
the sentence from seven years to ten years is not in accordance with
the procedure prescribed and is set aside – Code of Criminal
Procedure, 1973 – s.386, proviso – Penal Code, 1860 – s.341 –
Crime against children.
Protection of Children from Sexual Offences Act, 2012:
ss.9/10 – Sexual assault on seven year old girl – Accused convicted
under ss.9/10 of POSCO Act  and awarded simple imprisonment for
a period of 7 years – Plea of the appellant was that the sentence
imposed on the appellant was excessive; that under s.10, minimum
sentence is five years, therefore, in the facts of the case, the sentence
   [2019] 6 S.C.R. 203
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SUPREME COURT REPORTS
[2019] 6 S.C.R.
ought to have been imposed of five years only to the appellant –
Held: The victim was thoroughly cross-examined by the accused –
The evidence of victim proved the charge levelled against the
accused which was corroborated by evidence of two students who
were studying in the same school and returning from the school at
the time when victim was returning from school – The medical
evidence also fully corroborated the charge on the appellant – High
Court rightly affirmed the finding of the conviction of the appellant
– There was no ground to interfere with the finding of conviction –
Special Judge had noted that the offence committed against the
minor girl child (7 years) cannot be viewed lightly – In view of the
serious nature of the offence, no interference with the sentence of
seven years is called for – The prayer of the appellant that the
sentence be reduced to five years is, therefore, rejected.
Code of Criminal Procedure, 1973: s.386(b) – Power of the
Appellate Court under s.386, scope of – Discussed.
Partly allowing the appeal, the Court
HELD: 1.1 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, provides that
the sentence shall not be enhanced unless the accused had an
opportunity of showing cause against such enhancement.
[Para 11][210-D-E]
1.2 Present is a case where the High Court has enhanced
the sentence in appeal filed by the accused challenging his
conviction. The submission 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 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
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exercise its power under Section 401 of Cr.P.C. in an appropriate
case. Section 401 of Cr.P.C. provi

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