Kerala High Court: In suo motu proceedings against order dated 10-07-2019 challenging the accused’s conviction and sentence for offences punishable under Section 376 of Penal Code, 1860 (‘IPC’) and Section 4 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), the Division Bench of P.B. Suresh Kumar and C.S. Sudha, JJ. clarified that punishment of life imprisonment was greater punishment under IPC.
The accused was the father of the victim, and the victim was living at a Child Care Home with her younger sister after her mother’s death, who would visit the accused during holidays. The accused was sentenced to life imprisonment for an offence punishable under Section 4 of the POCSO Act. The Court expressed through order dated 10-07-2019 that the suo motu proceedings were initiated on the ground that the decision was against the provision under Section 42 of POCSO Act, which provides for punishment of a higher degree in case of alternative punishment in any other law for the same act.
The Court pointed towards the allegations against the accused in the instant matter, who committed rape on victim on two occasions, i.e., September 2011 and December 2013. However, the POCSO Act came into force on 14-11-2012.
The Court in the Criminal appeal against sentence held about insufficiency of evidence on record to hold the accused having committed sexual assault on the victim in September 2011.
POCSO Act at the time of commitment of offence provided for “punishment with imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life and shall also be liable to fine.” On the other hand, in 2013, Penal Code, 1860 (‘IPC’) provided for “a punishment with rigorous imprisonment for a term which shall not be less than ten years, but which may be for life as well and shall also be liable to fine.”
The Court expressed that even though the punishment under Section 376, IPC was greater in degree at the relevant time, the accused being sentenced to rigorous imprisonment for life which was the maximum under IPC. The Court refused to proceed with the case further and closed it accordingly.
[Suo Motu proceedings v. State of Kerala, Criminal Reference Case No. 5 of 2019, Order dated 16-06-2023]
Order by: Justice P.B. Suresh Kumar
Advocates who appeared in this case :
For Complainants: Special Government Pleader Ambika Devi S., Advocate M.P. Madhavankutty, Advocate Anoop Sathyan, Advocate Mathew Devassi, Advocate Ananthakrishnan A. Kartha, Advocate Remya M. Menon.
Buy Penal Code, 1860 HERE
Buy Protection of Children from Sexual Offences Act, 2012 HERE
