Court May Sentence Accused To Lesser Offence Than Charged But Can't Sentence For Higher Offence Without Altering Charge: Karnataka High Court

The Karnataka High Court has held that the trial court has the power to find an accused guilty for the lesser offence even though the charges were framed for major offences. But when the charges are framed for lesser offence, the Court cannot convict and sentence for the major offence punishable with imprisonment more than the offence which were charged, without altering the charges as per Section 216 of CrPC.

A single judge bench of Justice K Natarajan set aside the conviction handed down by the trial court under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, to accused Subramani.

The trial Court had framed charges against the accused for offence punishable under Section 4 (Punishment for penetrative sexual assault) of the Act. But the trial Court found him guilty and convicted and sentenced him to undergo 10 years imprisonment for the offence punishable under Section 6 (Punishment for aggravated penetrative sexual assault) of the Act.

The bench held, “The charges could have been altered from Section 4 to Section 6 of the POCSO Act and it is the duty of the Court to provide right of further examination and cross-examination by both sides, once the charges were altered. The Court has power to alter the charges before passing the judgment. Such being the case, the trial court, without framing the charge under Section 6 of POCSO Act, found him guilty and sentenced to undergo imprisonment for 10 years for the offence punishable under Section 6 of POCSO Act, where charges were framed for only under Section 4 are not sustainable under the law.”

It was alleged that in 2016, the accused had abducted the victim girl in his motorcycle when she was proceeding to home from school and taken her to his relative's house where he sexually assaulted her.

The High Court held the trial court had committed patent illegality and error in passing sentence under Section 376 of IPC, and Section 6 of POCSO Act. Referring to Section 42 of the Act the bench said “It empowers the Court to give alternative punishment, if the accused found guilty for the offence which are punishable with both the provisions of Section 376 of IPC as well as POCSO Act which is greater in decree.”

It added, “The Trial Court cannot award double sentences for the same offence convicted which are punishable both under Section 376 of IPC and Section 6 of POCSO Act. The Court can find guilty in both the offences but punishment shall be awarded in any one of the offences which is greater in degree.”

Acquitting the accused for charges of sexual assault the court took into account the evidence of the victim and the medical evidence. It said “By considering the evidence on record, especially the evidences of PWs.1 (mother) and 2 (victim), the 164 statement of the victim and the evidence of PW.9 (medical officer), the prosecution failed to prove the sexual assault on the victim on 24.11.2016 or till 26.11.2016. Therefore, the judgment of conviction and sentence passed by the Trial Court in respect of Section 376 of IPC and Section 6 of POCSO Act are liable to be set aside."

However, the court held that from the evidence of mother, prosecutrix, police official witnesses, and the Investigation Officer the prosecution was able to prove that the accused abducted the victim girl and taken her to Andhra Pradesh and detained her which is punishable under Sections 363 and 342 of IPC.

Considering that the convict is in prison for over seven years and the punishment prescribed under Section 363 of IPC is 7 years and the offence punishable under Section 342 of IPC is one year with fine, the bench said “The appellant is in custody for more than 7 years 6 months, he is entitled for set off under Section 428 of Cr.P.C. and adjusted the sentences already undergone.”

Accordingly it allowed the appeal in part.

Case Title: Subramani And State of Karnataka

Case No: CRIMINAL APPEAL NO. 2097 OF 2018

Citation: 2023 LiveLaw (Kar) 235

Date of Order: 30-05-2023

Appearance: Advocate K B Monesh Kumar for appellant.

HCGP S Vishwa Murthy

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