Article 20 | No Conviction U/S 376(3) IPC For Rape Of Woman Under 16 Yrs Age Committed Prior To 2018 Amendment: Karnataka High Court

The Karnataka High Court has upheld the conviction handed down to a man for raping his minor step daughter, but modified the sentence of 20 years imposed on him by the trial court to 10 years imprisonment.

A single judge bench of Justice K Natarajan partly allowed the appeal filed by 45 years old Abdul Khadar @ Rafiq, who was convicted to 20 years under section 376 (3) of the Indian Penal Code, for an offence committed in 2015.

The bench said, “It is worth to mention that the amended IPC came into force by adding Section 376(3), only from 21.04.2018 and prior to that the provisions of 376(3) of IPC was not all in the statute. The Trial Court committed an error in awarding the punishment for offence punishable under Section 376(3) of IPC when the said offence was not at all statute as on date prior to 13.10.2015.”

Further it referred to Article 20 of the Constitution of India, and said, “In view of the protection given by the Constitution of India under Article 20(1), the Court shall not award punishment or award the sentence only the law which is imposed during the year 2015 but not the amended IPC which was came into force from April-2018 onwards.”

Thus it held “Therefore, the said sentence of imprisonment awarded by the Trial Court required to be modified to Section 376(2) of IPC and Section 6 of the POCSO Act but not Section 376(3) of IPC.”

As per the complaint filed by the mother of the victim on 13.10.2015, she married the appellant/accused as her first husband died. The victim was stated to be born out of her first marriage. It is alleged that accused by taking advantage of absence of the complainant (while she was away bringing ration) sexually assaulted the victim girl.

The prosecution examined 20 witnesses to bring home the guilt of the accused and based on the testimony and other evidence produced by the prosecution the accused was convicted.

In appeal the accused argued that there is a delay in lodging the complaint and that Trial Court wrongly convicted him for the offence punishable under Section 376(3) of IPC as it came into force only in the year 2018 and at the time of incident, 376(3) of IPC was not a provision. Therefore it was contended that he was sentenced to 20 years punishment for offence committed under non-existing law.

The bench on going through the records and evidence of the witnesses said, “It is a settled position of law, that no woman use to make a such a false allegation against any person that too he has committed rape if he has not really committed rape...The victim girl is a grown up girl of 15 years and the accused misused the absence of PW.3 in the house and sexually assaulted her. Therefore, considering the entire evidence on record, the prosecution is successful in proving that the accused sexually assaulted her which falls under Section 376 (2) of IPC and Section 6 of the POCSO Act.”

However, on the provision under which he was convicted, Court said, “The findings of conviction under Section 376 and 506(2) and Section 6 of POCSO Act is hereby modified...The appellant is sentenced to undergo imprisonment of 10 years and to pay fine of Rs.5,000 and in default of payment of fine he shall undergo imprisonment for 15 days for the offence punishable under Section 376(2) of IPC read with Section 6 of POCSO.”

Case Title: Abdul Khadar @ Rafiq And State of Karnataka & ANR.

Case No: CRIMINAL APPEAL NO. 150 OF 2020

Citation: 2023 LiveLaw (Kar) 322

Date of Order: 28-07-2023

Appearance: Advocate Rajesh Rao K for Appellant.

HCGP S Vishwamurthy for R1.

Amicus Curiae Geeta Mishra for R2.

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