Chandigarh: In a first, the Punjab and Haryana High Court has virtually passed strictures on a local court for convicting a rape accused under a wrong Section of the Indian Penal Code, resulting in a milder sentence. The High Court also admonished the Administration for not seeking the enhancement of the sentence awarded to him.
Taking suo motu cognisance of the matter, Justice RP Nagrath set aside the order awarding a seven-year sentence to the convict, before remanding the matter back to the UT Sessions Judge “for a fresh decision on the question of sentence”.
The developments took place on an appeal filed by Rasheed against the UT Administration and another respondent. He had faced trial for charges under Sections 366-A and 376 of the IPC for kidnapping and raping a six-year-old. However, the trial court held him guilty of rape, while acquitting him of the second charge with the observations that there was no authentic evidence to prove kidnapping.
The victim was living with her maternal grandmother at Dadu Majra Colony when the incident took place in May 2010. During the course of the appeal, his counsel failed to refer to any material on record for establishing that the conviction recorded by the trial court was faulty. His only submission was that the fine of Rs 50,000 imposed by the trial court was “quite exorbitant” and may be reduced.
Taking up the matter, Justice Nagrath upheld the finding of guilt but added that the charge framed against the appellant clearly stated that the victim’s age was six. As such “the conviction was supposed to have been recorded specifically under Section 376 (2) (f) of the IPC”. The section deals with rape of an under-12 girl.
Justice Nagrath added that he, as such, was altering the conviction by “correctly describing the section as Section 376 (2) (f)”, instead of Section 376 of the IPC. In his detailed order, Justice Nagrath asserted: “The trial court awarded the sentence to the appellant to undergo rigorous imprisonment for seven years under Section 376 of the IPC.
It seems that the trial court was not alive to the proviso of Section 376 (2) (f) of the IPC, which says that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years….
“The legislature has provided minimum sentence in the case of offence of rape with a girl of less than 12 years as in the case of gang rape. If the trial court has not adverted to the mandatory provisions of law, this court should in the circumstances of the case invoke its suo motu revisional jurisdiction to set aside the order awarding the sentence.
“It is quite astonishing that even the state has not cared to come up before this court for seeking enhancement of the sentence…. I am, however, of the view that the accused should be heard before any order of enhancement of sentence is to be passed…. The matter is remitted to the Sessions Judge….
Taking suo motu cognisance of the matter, Justice RP Nagrath set aside the order awarding a seven-year sentence to the convict, before remanding the matter back to the UT Sessions Judge “for a fresh decision on the question of sentence”.
The developments took place on an appeal filed by Rasheed against the UT Administration and another respondent. He had faced trial for charges under Sections 366-A and 376 of the IPC for kidnapping and raping a six-year-old. However, the trial court held him guilty of rape, while acquitting him of the second charge with the observations that there was no authentic evidence to prove kidnapping.
The victim was living with her maternal grandmother at Dadu Majra Colony when the incident took place in May 2010. During the course of the appeal, his counsel failed to refer to any material on record for establishing that the conviction recorded by the trial court was faulty. His only submission was that the fine of Rs 50,000 imposed by the trial court was “quite exorbitant” and may be reduced.
Taking up the matter, Justice Nagrath upheld the finding of guilt but added that the charge framed against the appellant clearly stated that the victim’s age was six. As such “the conviction was supposed to have been recorded specifically under Section 376 (2) (f) of the IPC”. The section deals with rape of an under-12 girl.
Justice Nagrath added that he, as such, was altering the conviction by “correctly describing the section as Section 376 (2) (f)”, instead of Section 376 of the IPC. In his detailed order, Justice Nagrath asserted: “The trial court awarded the sentence to the appellant to undergo rigorous imprisonment for seven years under Section 376 of the IPC.
It seems that the trial court was not alive to the proviso of Section 376 (2) (f) of the IPC, which says that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years….
“The legislature has provided minimum sentence in the case of offence of rape with a girl of less than 12 years as in the case of gang rape. If the trial court has not adverted to the mandatory provisions of law, this court should in the circumstances of the case invoke its suo motu revisional jurisdiction to set aside the order awarding the sentence.
“It is quite astonishing that even the state has not cared to come up before this court for seeking enhancement of the sentence…. I am, however, of the view that the accused should be heard before any order of enhancement of sentence is to be passed…. The matter is remitted to the Sessions Judge….
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