5 Dec 2022 12:30 PM GMT
The Sikkim High Court has reiterated that minimum sentence prescribed by the statute has to be imposed on the guilty and it cannot be reduced by the Appellate Court.It clarified that courts cannot impose less than the 'minimum sentences' prescribed by the statutes while convicting persons for commission of offences. To buttress the position of law, the Division Bench of...
The Sikkim High Court has reiterated that minimum sentence prescribed by the statute has to be imposed on the guilty and it cannot be reduced by the Appellate Court.
It clarified that courts cannot impose less than the 'minimum sentences' prescribed by the statutes while convicting persons for commission of offences. To buttress the position of law, the Division Bench of Justices Meenakshi Madan Rai and Bhaskar Raj Pradhan placed reliance on the decision of the Supreme Court in Mohd. Hasim v. State of Uttar Pradesh & Ors., wherein it was held:
"We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court…Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed."
The appellant was convicted of the offences under Sections 376(2)(n) and 376(3) of the IPC along with Section 5(j)(ii) and Section 5(l), punishable under Section 6 of the POCSO Act by the Court of Special Judge (POCSO), West Sikkim, at Gyalshing. The Court had sentenced the appellant to different terms under different charges. Being aggrieved by the same, this appeal was preferred challenging only the 'length of incarceration' meted out to the appellant by the Trial Court under the various provisions of law for which he was convicted.
Contentions of Parties
Jorgay Namka, Senior Counsel for the appellant submitted that though he does not assail the judgment of conviction, he is only aggrieved by the sentence handed down to the appellant which is inequitable and harsh, considering that a child was born from the relationship. That, the child and the mother (the alleged victim) are suffering on account of the absence of the care and protection of the appellant as presently there is no one to support them.
He further submitted that the appellant then aged twenty-seven years and the victim who was sixteen years, were in love and the sexual act was consensual but the case arose only on account of the FIR lodged by the father of the victim, complaining of sexual assault on his daughter. He, therefore, sought for a reduction of the sentence to mitigate the sufferings of the victim.
The Additional Public Prosecutors for the State, however, objected to the contentions put forth by the Senior Counsel for the appellant on grounds that only the minimum sentence prescribed by law has been imposed. Apart from that, they argued, consent of a minor is no consent and the submissions deserve an outright rejection.
After hearing the arguments on behalf of both the parties, the Court noted that the Supreme Court in a plethora of cases has laid down that the minimum sentence prescribed by the statute has to be imposed on the guilty and that cannot be reduced using discretion of Courts. It placed reliance upon the rulings of the Apex Court in Mohd. Hasim (supra) and Harendra Nath Chakraborty v. State of West Bengal, wherein it was held that Courts cannot employ their discretion to impose less than the minimum sentences prescribed by the legislatures.
Justice Rai, speaking for the Bench, accordingly concluded:
"In light of the provisions of law, the principles of law enunciated and extracted above and having duly perused and considered the Sentences imposed by the Learned Trial Court, it is evident that only the minimum imprisonment prescribed by the Statute has been meted out by the Learned Trial Court to the Appellant. Any Order of this Court cannot fly in the face of the Statute or the settled position of law."
Consequently, the appeal was dismissed.
Case Title: Suman Gurung v. State of Sikkim
Case No.: Criminal Appeal No. 11 of 2021
Judgment Dated: 30th November 2022
Coram: Meenakshi Madan Rai & Bhaskar Raj Pradhan, JJ.
Judgment Authored By: Meenakshi Madan Rai, J.
Counsel for the Appellant: Mr. Jorgay Namka, Senior Advocate (Legal Aid Counsel)
Counsel for the State: Mr. Thinlay Dorjee Bhutia and Mr. Yadev Sharma, Additional Public Prosecutors
Citation: 2022 LiveLaw (Sik) 15
Click Here To Read/Download Judgment