High Court of Tripura

Sri Joubansen Tripura vs. The State Of Tripura

MANU/TR/0218/2021

01.04.2021

Criminal

Power to award fixed term sentences without remission is available only with the High Court and Supreme Court

Present appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 (CrPC) by the convict Appellant against the judgment of sentence and order of conviction passed by the learned Special Judge, whereunder the Appellant was sentenced to undergo rigorous imprisonment for LIFE which shall mean the remainder of his natural life and also shall pay a fine of Rs. 5,000 for the offence punishable under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

As per Sections 29 and 30 of the POCSO Act, prosecution will commence the trial with an additional advantage that there will be presumption of guilt against the accused person, but, such presumption cannot form the basis of conviction, if that be so, it would offend Article 20(3) and 21 of the Constitution of India. It is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act. The duty of the accused to rebut the presumption as arises only after the prosecution has established the foundational facts of the offence alleged against the accused.

If an accused is convicted only on the basis of presumption as contemplated in Sections 29 and 30 of the POCSO Act, then, it would definitely offend Articles 20(3) and 21 of the Constitution of India. Presumption of innocence is a human right and cannot per se be equated with the fundamental right under Article 21 of the Constitution of India. The Supreme Court in various decisions has held that, provisions imposing reverse burden must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the Statute.

The prosecution has been able to establish the foundational facts to substantiate the charge leveled/framed against the appellant. Age of the victim has also been proved that at the time of commission of offence she was under the age of '16' years and within the age of 11/12 years. PW-2 has specifically stated in her deposition that, at the time of adducing evidence, her victim daughter (PW-1) was 12 years old.

Since, all the foundational facts have been established and the Appellant has failed to rebut the presumption by way of rebuttable evidence, present Court cannot arrive at a different finding than that of the findings returned by the learned Special Judge in convicting the Appellant.

With regard to the sentencing part, present Court notices that, the learned Special Judge has provided that, the convict would suffer rigorous imprisonment for life which shall mean the remainder of his natural life. It is well settled through series of judgments of the Supreme Court that the power to award fixed term sentences without remission is available only with the High Court and Supreme Court.

The accused-convict has committed a serious offence and which must meet with punishment, which is commensurate with the nature of offence committed by him. The sentence in facts of the case is reduced to a period of 12 years which the convict shall serve without remissions. The sentence part of the judgment of the Special Court is modified to this extent. Appeal partly allowed.

Tags : Conviction Sentence Legality

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