KUMAR GHIMIREY v. THE STATE OF SIKKIM

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 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 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. 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 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 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 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 A B C D E F G H KUMAR GHIMIREY v.. THE STATE OF SIKKIM 205 exercise its 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 very well exercised 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 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]

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 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 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. 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 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 A B C D E F G H 206 SUPREME COURT REPORTS [2019] 6 S.C.R.