Separate Punishments Under IPC & POCSO For Same Act Of Penetrative Sexual Assault Upon Child Is Illegal: Allahabad High Court

The Allahabad High Court has ruled that a Trial Court commits a grave legal error by sentencing an accused separately under both Section 376 of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act for the exact same criminal act.

The Court emphasized that such double sentencing directly violates Section 42 of the POCSO Act, which was specifically enacted to prevent double jeopardy by ensuring that an offender is only punished under the provision attracting the greater degree of punishment.

While re-appreciating the evidence, the Court clarified that although a minor's consent is entirely non-est in law, the courts must still maintain a fair balance in sentencing by separating the grain from the chaff. 

The Court said that the Trial Court committed an error in law in sentencing the Appellant separately under Section 376 IPC and Section 6 POCSO Act, instead of applying Section 42 of the POCSO Act and imposing punishment only under the appropriate aggravated provision, namely Section 376(2)(i) IPC.

The Division Bench of Justice Rajan Roy and Justice Rajeev Bharti observed, "Therefore, once the conviction arose out of the same act of penetrative sexual assault upon a child, separate punishments under both provisions could not legally be imposed...The object of section 42 of the POCSO Act is to avoid duplication of punishment where the same act constitutes offences under both enactments and to ensure that the offender is not subjected to double punishment for the same criminal act. The provision does not mandate the imposition of maximum punishment in every case, nor does it curtail the judicial discretion of the Court to determine an appropriate sentence within the statutory limits prescribed by law."

Advocates Sanjay Kumar Yadav, Rohit Upadhyay and Jay Narayan Mishra appeared for the Appellants-Accused, while AGA Ravish Mishra appeared for the State.

Brief Facts

The informant submitted a written complaint at a Police Station alleging that his minor daughter, aged about 14 years, had been enticed away by the principal accused, Anku alias Parshuram, who fled with her in a motor vehicle. It was further alleged that the friends of the principal accused were also actively involved in the commission of the said offence.

Based on the written complaint, a First Information Report (FIR) was registered under Sections 363 and 366 of the Indian Penal Code (IPC) alongside Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, and the statutory investigation commenced. Upon completion of the investigation, the police found sufficient incriminatory evidence and submitted a charge sheet against the principal accused under Sections 363, 366, 376 IPC, and Section 6 of the POCSO Act, while the co-accused persons, Santosh Kumar Gautam and Pintu alias Dinesh, were charge-sheeted under Sections 363 and 366 IPC.

During the trial, the prosecution examined several material witnesses, including the informant, the brother of the victim, the prosecutrix herself, and the medical officers who conducted the medico-legal examination and determined the age of the victim. In their statements recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.), the accused persons pleaded innocence, denied all the prosecution's allegations, and claimed false implication owing to deep-seated malice.

The Trial Court, upon assessing the ocular and documentary evidence, concluded that the prosecution had proved its case beyond a reasonable doubt, thereby convicting and sentencing the principal accused to life imprisonment for rape and aggravated penetrative sexual assault, while sentencing the co-accused persons to rigorous imprisonment for kidnapping.

Contentions of the Parties

The principal accused contended that there was an inordinate and unexplained delay in lodging the FIR, which cast a serious shadow of doubt on the veracity of the prosecution's narrative. It was submitted that no independent public witnesses were joined by the investigating agency during the recovery of the victim or the general course of the investigation.

The Co-accused contended that these appellants resided in the same village as the principal accused and were falsely implicated due to rancorous village politics. It was submitted that these appellants had absolutely no motive to kidnap the prosecutrix.

The State submitted that the testimony of the prosecutrix was wholly reliable, unimpeachable, and inspired absolute confidence. It was contended that any minor contradictions in the evidence were natural variations due to the passage of time and did not dent the core of the prosecution's case. The State argued that the minority of the prosecutrix stood fully established by the medical reports, and since she was a minor, her consent, if any, was entirely immaterial and non-est in the eyes of law.

Observations of the Court

The Court observed that while exercising powers under Section 374(2) of the Code of Criminal Procedure (Cr.P.C.), the Appellate Court was fully entitled to re-appreciate the evidence, but interference with a conviction was warranted only when the findings of the Trial Court were perverse, manifestly illegal, or wholly unsupported by the evidence on record.

It was noted that the delay in lodging the First Information Report (FIR) was satisfactorily explained, as the strict rule requiring the prosecution to explain every delay did not apply per se to sexual offences, where family members of a minor victim naturally search for her first due to emotional trauma and social stigma before approaching the authorities.

The Court observed that the legislative objective behind the POCSO Act was the protection of children from sexual exploitation, and a child in the eyes of the law was utterly incapable of giving valid consent for sexual intercourse.

It was held that once the prosecutrix was proved to be below eighteen years of age, any plea of consent or consensual relationship raised by the defence became entirely insignificant, invalid, and could not be treated even as a mitigating circumstance.

The Court found that though the prosecution did not produce any educational certificate of the prosecutrix, the radiological and medical examinations substantially supported the prosecution's case, thereby establishing that she was a minor aged about 14 years on the date of the occurrence.

The Court also noted that a statement recorded under Section 164 Cr.P.C. was not substantive evidence by itself but was a valuable tool to preserve the version of a witness free from police influence, which could be legally utilized for corroboration under Section 157 or contradiction under Section 145 of the Evidence Act.

It was observed that the broad consistency between the statement of the prosecutrix recorded under Section 164 Cr.P.C. and her subsequent deposition before the Trial Court lent substantial assurance to the prosecution's version, and minor variations regarding peripheral details were natural as human memory was not expected to possess photographic precision, particularly in traumatic sexual offences.

It was further observed that the maxim "falsus in uno, falsus in omnibus" was not a sound rule of law and did not apply in India; instead, it was merely a rule of caution requiring the Court to separate the grain from the chaff and maintain a conviction based on the residual credible evidence, even if other co-accused persons were acquitted.

The Court observed that the Trial Court committed a grave legal error by awarding separate substantive sentences under Section 376 IPC and Section 6 of the POCSO Act for the very same act of sexual assault.

It was held that such an approach directly violated the mandate of Section 42 of the POCSO Act, which was specifically enacted to prevent double jeopardy and duplication of punishment, prescribing that the offender shall be liable to punishment only under the provision that provides for a punishment greater in degree.

The Court held, "Further, the learned Trial Court awarded separate substantive sentences under Section 376 IPC and Section 6 of POCSO Act. Such an approach is contrary to Section 42 of the POCSO Act, which mandates that where the same act constitutes an offence punishable under the POCSO Act as well as under Section 376 IPC and its aggravated forms, the offender shall be liable to punishment only under the enactment providing punishment greater in degree. The object of Section 42 of POCSO Act is to prevent duplication of punishment for the same act."

The Court noted that based on the minority of the victim, the offence was squarely covered under the aggravated provision of Section 376(2)(i) IPC, which prescribed a minimum of ten years extending to imprisonment for the remainder of natural life, but the Trial Court had erroneously recorded the conviction under Section 376 IPC simpliciter.

"Therefore, while mentioning the conviction of the appellant- Anku @ Parshuram under both Sections 376(2) (i) IPC and Section 6 of the POCSO Act, this Court is required to impose a sentence that satisfies the mandate of Section 42 of the POCSO Act and remains proportionate to the facts and circumstances of the case. This Court is of the opinion that the convict shall remain in prison for the remainder of his natural life, amounts to a punishment qualitatively more severe than ordinary life imprisonment, as it extinguishes the possibility of release through remission or commutation under the statutory regime", the Court said.

In balancing the scales of justice, the Court observed that while the nature of the offence was grave, there were clear mitigating circumstances as the principal accused was a first-time offender of young age with no prior criminal antecedents and had a dependent family.

Finding that the case lacked exceptional aggravating circumstances or extreme depravity to justify ordinary life imprisonment—which qualitatively extinguishes statutory remission—the Court modified the sentence to 14 years of rigorous imprisonment, noting that the convict had already spent more than 14 years in actual custody.

The Court directed the principal accused, Anku alias Parshuram, to deposit the entire remaining fine amount of ₹30,000/- before the learned Trial Court, clarifying that a failure to deposit the same would attract the default sentences in accordance with law.

With respect to the co-appellants, Santosh Kumar Gautam and Pintu alias Dinesh, the Court categorically observed that the prosecution had failed to adduce any cogent and reliable evidence to establish their guilt beyond reasonable doubt. Consequently, the Court extended the benefit of doubt to them, set aside their convictions and sentences, and acquitted them of all the charges.

The Court accordingly allowed the Appeals and ordered the immediate release of the acquitted co-appellants from jail, provided they were not required in connection with any other case. 

Cause Title: Anku @ Parshuram v. State of U.P. and Connected appeal. [Neutral Citation: 2025:AHC-LKO:42623-DB]

Appearances:

Appellants: Advocate Abhinav Pankaj, Advocate Anjali Dubey, Advocate Archana Rawat, Advocate Arshad Hafeez Khan, Advocate Dinesh Kr. Sharma, Advocate Manoj Kumar Dubey, Advocate Jay Narayan Mishra, Advocate Jyoti Rawat, Advocate Mukesh Singh, Advocate Pramod Kumar, Advocate Pranvesh Awasthi, Advocate Rajiv Mishra, Advocate Ravi Prakash Yadav, Advocate Rohit Upadhyay, Advocate Roopani Mishra, Advocate Sanjay Kumar Yadav, Advocate Shikha Srivastava, Advocate Vishwa Nath Singh.

Respondent: AGA Ravish Mishra

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