NDLI: Kumar Ghimirey Vs. The State of Sikkim

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	POSCO Act convicted for 7 years Sexual assault on seven year old girl sentence enhanced. Power of the Appellate Court under s.386 Appeal against conviction
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Indian Penal Code (45 of 1860) Protection of Children from Sexual Offences Act, 2012 (32 of 2012) Code of Criminal Procedure, 1973 (2 of 1974)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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 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.
Judge	Hon'ble Mr. Justice Ashok Bhushan
Neutral Citation	2019 INSC 549
Petitioner	Kumar Ghimirey
Respondent	The State Of Sikkim
SCR	[2019] 6 S.C.R. 203
Judgement Date	2019-04-22
Case Number	719

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