KUMAR GHIMIREYversusTHE STATE OF SIKKIM

                           [2019] 6 S.C.R. 203                              203


                        KUMAR GHIMIREY                                      A
                                   v..
                      THE STATE OF SIKKIM
                  (Criminal Appeal No. 719 of 2019)
                           APRIL 22, 2019                                   B
        [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
                                                                            C
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            D
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 –
                                                                            E
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          F
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:                G
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
                                                                            H
                                  203
204            SUPREME COURT REPORTS                      [2019] 6 S.C.R.


A     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
B
      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
C     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.
D           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
E     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
F     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
G     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
H
        KUMAR GHIMIREY v.. THE STATE OF SIKKIM                       205


exercise its power under Section 401 of Cr.P.C. in an appropriate    A
case. Section 401 of Cr.P.C. provides for the power of revision to
the High Court. The High Court under Section 401 of Cr.P.C.
can exercise any of the powers conferred on a Court of Appeal by
Sections 386, 390 and 391 or on a Court of Session by Section
307 of Cr.P.C. The High Court could have very well exercised
                                                                     B
power under Section 401 of Cr.P.C. read with Section 386(b)(iii),
could have enhanced the sentence but the said course is
permissible only after giving notice of enhancement. The
judgment of the High Court in sofaras it enhanced the sentence
from seven years to ten years is not in accordance with the
procedure prescribed. The judgment of the High Court to the          C
extent it has enhanced the sentence from seven years to ten
years is set aside. [Paras 12, 15][210-F-H; 211-A; 213-F-G]
      2. The victim herself appeared as PW.1. She was thoroughly
cross-examined by the accused, the evidence of victim has
proved, the charge levelled against the accused which evidence       D
was corroborated by evidence of PW.6 and PW.7 who were also
students studying in the same school and returning from the
school at the time when victim was returning from the school.
The medical evidence also fully corroborated the charge on the
appellant. The High Court has rightly affirmed the finding of the
conviction of the appellant. There is no ground to interfere with    E
the finding of conviction and in fact the appellant has not very
seriously challenged the conviction of the appellant. His
submission was that he could have been awarded only sentence
of five years under Section 10. The Special Judge after
considering the factors imposed the sentence of seven years.         F
The Special Judge has noted that the offence committed against
the minor girl child (7 years) cannot be viewed lightly. The view
of the Special Judge is enclosed and considering the serious
nature of the offence the conviction of seven years RI need no
interference in this appeal. The submission for the appellant
that the sentence awarded ought to be reduced to five years is       G
rejected. [Para 17][214-A-D]
     Surjit Singh and others v. State of Punjab 1984 (Supp)
     SCC 518 ; Sahab Singh and others v. State of Haryana
     (1990) 2 SCC 385 : [1990] 1 SCR 512 ; Ramji Jadhav
                                                                     H
206            SUPREME COURT REPORTS                          [2019] 6 S.C.R.


A           v. State of Maharashtra (1990) 4 SCC 718 : [1990] 1
            SCR 855 ; Surendra Singh Rautela @ Surendra Singh
            Bengali v. State of Bihar (Now State of Jharkhand)
            (2002) 1 SCC 266 : [2001] 5 Suppl. SCR 340
            – referred to.
B                             Case Law Reference
      (1984) Supp SCC 518               referred to              Para 12
      [1990] 1 SCR 512                  referred to              Para 13
      [1990] 1 SCR 855                  referred to              Para 14
C     [2001] 5 Suppl. SCR 340           referred to              Para 14
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 719 of 2019.
            From the Judgment and Order dated 20.09.2016 of the High Court
      of Sikkim at Gangtok in Crl. Appeal No. 19 of 2015.
D
            Harinder Mohan Singh, Ms. Shabana, Ajay Gupta, Rishi Chawla,
      Advs. for the Appellant.
           A. Mariarputham, Adv. Gen., Ms. Aruna Mathur, Avneesh
      Arputham, Ms. Anuradha Arputham, Ms. Geetanjali (for M/S. Arputham
E     Aruna And Co.), Advs. for the Respondent.
            The Judgment of the Court was delivered by
            ASHOK BHUSHAN, J. 1. Leave granted.
             2. This appeal has been filed by the appellant against the judgment
F     of Sikkim High Court dated 20.09.2016 dismissing Criminal Appeal No.19
      of 2015 filed by the appellant questioning the order of conviction and
      sentence dated 31.01.2014 passed by the Special Judge(POCSO Act,
      2012)convicting the appellant under Section 9/10 of the Protection of
      Children from Sexual Offences Act, 2012(POCSO Act, 2012), Section
      341 of IPC. The appellant was to undergo simple imprisonment for a
G     period of seven years and to pay fine of Rs.50,000/- under Section 9/10
      of POCSO Act, 2012 and under Section 341 of IPC he was sentenced
      to undergo simple imprisonment for a period of one month.
             3. The appellant aggrieved by the judgment of the Special Judge
      filed an appeal which though has been dismissed by the High Court but
H
         KUMAR GHIMIREY v.. THE STATE OF SIKKIM                             207
                 [ASHOK BHUSHAN, J.]

while dismissing the appeal sentence under Section 9/10 of POCSO            A
Act, 2012 has been converted into sentence under Section 5(m) of the
POCSO Act read with Section 6 of the POCSO Act and sentence has
been enhanced from seven years to ten years with fine of Rs.5,000/-.
       4. As per the prosecution case, on 20.02.2014 at 1700 hours,
Mangal Das Rai, PW.2 (father of Anjali Rai) resident of Lower Namphing,     B
South Sikkim gave a written complaint to Temi Police Station that the
accused-appellant, Kumar Ghimirey had attempted to sexually assault
his seven year old daughter, Anjali Rai, PW.1, at around 1330 hours in a
jungle. The FIR No.05(02) 14 under Section 376/511 of IPC was
registered on the same day against the accused-appellant and the matter
was taken up for investigation by the Officer-in-Charge of the PS i.e.,     C
Sub-Inspector(SI).
      5. A chargesheet was submitted under Section 376/511/341/342
of IPC read with Section 4 of POCSO Act, 2012. Learned Special Judge
framed charges under Section 341 of IPC and under Section 5 of POCSO
Act, 2012, punishment under Section 6 of POCSO Act, 2012 and also           D
under Section 376(2) of IPC. Statement of PW.1, (Child ) Anjali Rai
was recorded. The mother of victim, PW.3 was examined. Father of the
victim appeared as PW.2. PW.5 and PW.6 were the girls who before
attending the school with the victim were returning at the same time.
They also appeared in the witness box corroborating the incident. PW.9,     E
Gynecologist, who examined the victim has also appeared in the witness
box.
       6. Learned Special Judge after considering the entire evidence
convicted the appellant under Section 9/10 of POCSO Act, 2012 as well
as Section 341 of IPC. In paragraph 25, the Special Judge while recording   F
conviction held under Section 9/10 of POCSO Act, 2012 imposed simple
imprisonment for a period of seven years and fine of Rs.50,000/-. Under
Section 341 of IPC sentence imposed was simple imprisonment for a
period of one month. The appeal was filed by the appellant in the High
Court which appeal though has been dismissed by the High Court vide
its judgment dated 20.09.2016 but while dismissing the appeal the High      G
Court altered the conviction imposed by the Special Judge under Section
9/10 of POCSO Act, 2012 to Section 5(m) read with Section 6 and
enhanced the punishment to rigorous imprisonment of ten years and a
fine or Rs.5,000/-. Paragraph 25 of the judgment of the High Court is as
follows:                                                                    H
208            SUPREME COURT REPORTS                         [2019] 6 S.C.R.


A           “25. Having regard to the entirety of the facts and circumstances,
            the evidence on record and the discussions supra, I cannot bring
            myself to agree with the finding of the Learned Trial Court that
            the offence was one under Section 9 punishable under Section 10
            of the POCSO Act. IT is undoubtedly commission of an offence
            under Section 5(m) of the POCSO Act punishable under Section
B
            6 of the POCSO Act. The appellant is convicted accordingly, duly
            altering the conviction imposed by the learned Trial Court under
            Sections 9/10 of the POCSO Act. Accordingly, he is sentenced to
            undergo rigorous imprisonment for a period of ten years and to
            pay a fine of Rs.5,000/-(Rupees five thousand) only, under Section
C           5(m) punishable under Section 6 of the POCSO Act, in default of
            fine to undergo simple imprisonment of six months. For the offence
            under Section 341 of IPC the sentence of the Learned Trial Court
            is upheld. The Sentences of imprisonment shall run concurrently.”
            7. The victim was also directed to be paid compensation of
D     Rs.1,00,000/-(Rupees one lakh) by the High Court under Sikkim
      Compensation to Victim Scheme. The appellant aggrieved by the
      judgment of the High Court has come up in the appeal.
              8. Learned counsel for the appellant challenging the judgment of
      the High Court contends that the High Court erred in enhancing the
E     punishment whereas no appeal was filed for enhancement of the
      punishment. In his submission, the High Court ought not to have enhanced
      the sentence. It is further submitted that the punishment awarded by the
      trial court was the maximum punishment under Section 9/10 of POCSO
      Act, 2012 whereas in the facts and circumstances of the case, the
      appellant could have been at best awarded punishment of five years
F     only under Section 10.
             9. Learned counsel appearing for the State supported the order of
      the High Court. It is contended that under Section 386 sub-clause (b)of
      Cr.P.C. the High Court has right to alter the finding and the High Court
      having found that offence was covered under Section 5(m) of POCSO
G     Act, 2012, the punishment of ten years rigorous imprisonment was rightly
      imposed. It is submitted that the offences under Section 5(m) of POCSO
      Act have been fully proved. It is submitted that the High Court after
      analysing the evidence has rightly concluded that the offence was
      aggravated penetrative sexual assault minimum punishment for which
H
        KUMAR GHIMIREY v.. THE STATE OF SIKKIM                                 209
                [ASHOK BHUSHAN, J.]

was ten years RI. Hence, this Court may not interfere with punishment          A
awarded.
       10. We have considered the submissions of the learned counsel
for the parties and perused the records.
       The first submission of the learned counsel for the appellant is
that the High Court ought not to have enhanced the punishment from             B
seven years to ten years. The enhancement has been made by the High
Court in appeal filed by the appellant under Section 386 of Cr.P.C.
challenging his conviction order. Powers of the Appellate Court under
Section 386 are to the following effect:
      “Section 386. After perusing such record and hearing the                 C
      appellant or his pleader, if he appears, and the Public Prosecutor,
      if he appears, and in case of an appeal under section 377 or section
      378, the accused, if he appears, the Appellate Court may, if it
      considers that there is no sufficient ground for interfering, dismiss
      the appeal, or may                                                       D
      (a) in an appeal from an order of acquittal, reverse such order
      and direct that further inquiry be made, or that the accused be re-
      tried or committed for trial, as the case may be, or find him guilty
      and pass sentence on him according to law;
      (b) in an appeal from a conviction-                                      E
         (i)reverse the finding and sentence and acquit or discharge the
         accused, or order him to be re-tried by a Court of competent
         jurisdiction subordinate to such Appellate Court or committed
         for trial, or
                                                                               F
         (ii) alter the finding, maintaining the sentence, or
         (iii) with or without altering the finding, alter the nature or the
         extent, or the nature and extent, of the sentence, but not so as
         to enhance the same;
      (c) in an appeal for enhancement of sentence                             G
         (i) reverse the finding and sentence and acquit or discharge
         the accused or order him to be re-tried by a Court competent
         to try the offence, or
         (ii) alter the finding maintaining the sentence, or
                                                                               H
210            SUPREME COURT REPORTS                            [2019] 6 S.C.R.


A               (iii) with or without altering the finding, alter the nature or the
                extent, or the nature and extent, of the sentence, so as to
                enhance or reduce the same;
            (d) in an appeal from any other order, alter or reverse such order;
            (e) make any amendment or any consequential or incidental order
B           that may be just or proper;
               Provided that the sentence shall not be enhanced unless the
            accused has had an opportunity of showing cause against such
            enhancement;

C              Provided further that the Appellate Court shall not inflict greater
            punishment for the offence which in its opinion the accused has
            committed, than might have been inflicted for that offence by the
            Court passing the order or sentence under appeal.”
            11. As per Section 386 clause (b) of Cr.P.C. in an appeal from a
D     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
E     sentence also. The proviso to Section 386, further, provids that the
      sentence shall not be enhanced unless the accused had an opportunity
      of showing cause against such enhancement.
            12. Present is a case where the High Court has enhanced the
      sentence in appeal filed by the accused challenging his conviction. The
F     submission of the learned counsel 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 learned counsel for 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 exercise its
G
      power under Section 401 of Cr.P.C. in an appropriate case. Section 401
      of Cr.P.C. provides for the power of revision to the High Court. The
      High Court under Section 401 of Cr.P.C. can exercise any of the powers
      conferred on a Court of Appeal by Sections 386, 390 and 391 or on a
      Court of Session by Section 307 of Cr.P.C. The High Court could have
H     very well exercised power under Section 401 of Cr.P.C. read with Section
        KUMAR GHIMIREY v.. THE STATE OF SIKKIM                              211
                [ASHOK BHUSHAN, J.]

386(b)(iii), could have enhanced the sentence but the said course is        A
permissible only after giving notice of enhancement. The power of the
High Court has been accepted and reiterated by this Court in a large
number of cases. Reference is made to the case in Surjit Singh and
others vs. State of Punjab, 1984 (Supp)SCC 518. In the above case
the appellants were convicted under Section 302 of IPC. They preferred
                                                                            B
a criminal appeal before the High Court of Punjab and Haryana. The
High Court while dismissing the appeal has passed order which amounted
to enhancement of sentence. This Court held that the High Court could
not have enhanced the sentence before following the prescribed
procedure. In paragraph 3 following has been held:
      “3. While dismissing the appeal of the appellants a division Bench    C
      of the High Court observed ‘that Surjit Singh and Harjinder Singh
      who had been proved to have committed the murder of Bachan
      Singh in quite a ruthless manner as is apparent from the number
      of injuries found on the person of the deceased’. The High Court
      further observed that it is a fit case in which over and above the    D
      sentence of imprisonment for life imposed by the trial court a fine
      of Rs. 5,000/- in default to suffer further rigorous imprisonment
      for two years must be imposed on the appellants. This additional
      sentence imposed by the High Court unquestionably constitutes
      an enhancement of sentence. The High Court did not issue notice
      calling upon the appellants to show cause why the sentence            E
      imposed upon them be not enhanced before doing so. Rules of
      natural justice as also the prescribed procedure require that the
      sentence imposed on the accused cannot be enhanced without
      giving notice to the appellants and the opportunity to be heard on
      the proposed action. The record does not show that such a notice      F
      and opportunity were given to the appellants and in the absence
      of notice the appellants had no opportunity to contest the proposed
      action. Therefore, we allow this appeal limited to the question
      that the sentence of fine of Rs. 5,000/- and the default sentence
      imposed on each appellant by the High Court is quashed and set
      aside confirming the sentence of imprisonment for life imposed        G
      by the trial court. The appeal is allowed to the extent herein
      indicated.”
      13. In the case of Sahab Singh and others vs. State of Haryana,
(1990) 2 SCC 385, also after considering the procedure prescribed by
Cr.P.C. including Sections 386 and 401 High Court held that the High        H
212            SUPREME COURT REPORTS                             [2019] 6 S.C.R.


A     Court even if no appeal is filed by the State for enhancement of sentence
      can exercise suo motu power of revision under Section 397 read with
      Section 401 of Cr.P.C. but before the High Court can exercise its
      revisional jurisdiction to enhance the sentence, it is imperative that the
      convict is put on notice. In paragraph 4 this Court laid down following:
B             “4.Section 374 of the Code of Criminal Procedure (‘the Code’
            hereinafter) provides for appeals from conviction by a Sessions
            Judge or an Additional Sessions Judge to the High Court. Section
            377 entitles the State Government to direct the Public Prosecutor
            to present an appeal to the High Court against the sentence on
            the ground of its inadequacy. Sub- section 3 of Section 377 says
C           that when an appeal has been filed against the sentence on the
            ground of its inadequacy, the High Court shall not enhance the
            sentence except after giving to the accused a reasonable
            opportunity of showing cause against such enhancement and while
            showing cause the accused may plead for his acquittal or for the
D           reduction of the sentence. Admittedly no appeal was preferred
            by the State Government against the sentence imposed by the
            High Court on the conviction of the appellants under Section
            302/149, I.P.C. Section 378 provides for an appeal against an order
            of acquittal. Section 386 enumerates the powers of the appellate
            court. The first proviso to that section states that the sentence
E           shall not be enhanced unless the accused has had an opportunity
            of showing cause against such enhancement. Section 397 confers
            revisional powers on the High Court as well as the Sessions Court.
            It, inter alia, provides that the High Court may call for and examine
            the record of any proceeding before any inferior criminal court
F           situate within its jurisdiction for the purposes of satisfying itself as
            to the correctness, legality or propriety of any finding, sentence or
            order recorded or passed and as to the regularity of any
            proceedings of any inferior court. Section 401 further provides
            that in the case of any proceedings, the record of which has been
            called for by itself or which otherwise comes to its knowledge,
G           the High Court may, in its discretion, exercise any of the powers
            conferred on a Court of appeal by Sections 386,389, 390 and
            391 of the Code. Sub-section 2 of Section 401 provides that no
            order under this Section shall be made to the prejudice of the
            accused or other person unless he has had an opportunity of being
H           heard either personally or by Pleader in his own defence. Sub-
        KUMAR GHIMIREY v.. THE STATE OF SIKKIM                                213
                [ASHOK BHUSHAN, J.]

      section 4 next provides that where under this Code an appeal lies       A
      and no appeal is brought, no proceeding by way of revision shall
      be entertained at theinstance of the party who could have
      appealed. It is clear from a conjoint reading of Section 377, 386,
      397 and 401 that if the State Government is aggrieved about the
      inade quacy of the sentence it can prefer an appeal under Section
                                                                              B
      377(1) of the Code. The failure on the part of the State Government
      to prefer an appeal does not, however, preclude the High Court
      from exercising suo motu power of revision under Section 397
      read with Section 401 of the Code since the High Court itself is
      empowered to call for the record of the proceeding of any court
      subordinate to it. Sub-section 4 of Section 401 operates as a bar       C
      to the party which has a right to prefer an appeal but has failed to
      do so but that sub-section cannot stand in the way of the High
      Court exercising revisional jurisdiction suo motu. But before the
      High Court exercises its suo motu revisional jurisdiction to enhance
      the sentence, it is imperative that the convict is put on notice and
                                                                              D
      is given an opportunity of being heard on the question of sentence
      either in person or through his advocate. The revisional jurisdiction
      cannot be exercised to the prejudice of the convict without putting
      him on guard that it is proposed to enhance the sentence imposed
      by the Trial Court.”
      14. The same proposition has been laid down in Govind Ramji             E
Jadhav vs. State of Maharashtra, (1990) 4 SCC 718 and Surendra
Singh Rautela @ Surendra Singh Bengali vs. State of Bihar (Now
State of Jharkhand), (2002) 1 SCC 266.
      15. We, thus, are of the view that the judgment of the High Court
insofar as it enhanced the sentence from seven years to ten years is not      F
in accordance with the procedure prescribed. The judgment of the High
Court to the extent it has enhanced the sentence from seven years to
ten years is set aside.
       16. Now, we come to the submission of the appellant that the
sentence imposed on the appellant is excessive. He submits that under         G
Section 10 minimum sentence is five years, hence, in the facts of the
present case, the sentence ought to have been imposed of five years
only to the appellant. Hence, the sentence be reduced by this Court to
five years which submission has been refuted by the counsel for the
State.                                                                        H
214              SUPREME COURT REPORTS                         [2019] 6 S.C.R.


A            17. The learned Special Judge has marshalled the evidence. The
      victim herself appeared as PW.1. She was thoroughly cross-examined
      by the accused, the evidence of victim has proved, the charge levelled
      against the accused which evidence was corroborated by evidence of
      PW.6 and PW.7 who were also students studying in the same school
      and returning from the school at the time when victim was returning
B
      from the school. The medical evidence also fully corroborated the charge
      on the appellant. The High Court has rightly affirmed the finding of the
      conviction of the appellant. We do not find any ground to interfere with
      the finding of conviction and in fact learned counsel for the appellant has
      not very seriously challenged the conviction of the appellant. His
C     submission was that he could have been awarded only sentence of five
      years under Section 10. The Special Judge after considering the factors
      imposed the sentence of seven years. The Special Judge has noted that
      the offence committed against the minor girl child (7 years) cannot be
      viewed lightly, we fully endorse the view of the learned Special Judge
      and considering the serious nature of the offence the conviction of seven
D
      years RI need no interference in this appeal. We, thus, reject the
      submission of the learned counsel for the appellant that the sentence
      awarded ought to be reduced to five years.
            18. In the result, the appeal is partly allowed. The direction of the
      High Court in paragraph 25 of the judgment in sofaras it has enhanced
E     sentence from seven years to 10 years RI is set aside. The sentence
      awarded by the Special Judge i.e. seven years under POCSO Act, 2012
      and one month under Section 341 of IPC is maintained. The rest of
      judgment of the High Court is affirmed.

F
      Devika Gujral                                           Appeal partly allowed.




G




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