Page No.1 of 14 IN CRA-1673-2017 2025:CGHC:2549 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1673 of 20 17 [Arising out of judgment dated 26.09.2017, passed in Special Case (POCSO) No.02 of 2017 (State of Chhattisgarh v. Vinod Singh @ Mintu Sidar), by the Additional Sessions Judge (FTC)/Special Judge(POCSO Act), Korba (C.G.)] Vinod Singh @ Mintu Sidar, Son of Prem Singh Sidar, aged about 18 years, Resident of Pachripara, Purani Basti, Korba Permanent Resident of Purandih, District Korba (Chhattisgarh) ---- Appellant (In Jail) Versus State of Chhattisgarh, through Police Station Kotwali, District Korba (Chhattisgarh) ---- Respondent ----------------------------------------------------------------------------------------------- For Appellant : Mr. Vikas Pandey, Advocate For Respondent : Mr. Amit Buxy, Panel Lawyer ----------------------------------------------------------------------------------------------- Single Bench: Hon'ble Shri Justice Sanjay K. Agrawal (Judgment on Board) 15.01.2025 (1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 26.09.2017, passed in Special Case (POCSO) No.02 of 2017 (State of Chhattisgarh v. Vinod Singh @ Mintu Sidar), by the Additional Sessions Judge (FTC)/Special Judge, constituted under the provisions of the Protection of Children from SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.01.17 17:12:24 +0530 Page No.2 of 14 IN CRA-1673-2017 Sexual Offences Act, 2012 (for brevity the “POCSO Act”), Korba (C.G.), whereby he has been convicted and sentenced as under: Conviction Sentence U/s. 06 of POCSO Act r/w S.376(2)(f) of IPC [However, in light of S.42 of POCSO Act, sentenced only U/s. 06 of POCSO Act] Rigorous imprisonment for 10 years with fine of Rs.2,000/- and, in default of payment of fine amount, additional rigorous imprisonment for 02 years. U/s. 377 of IPC (on three counts) Rigorous imprisonment for 10 years with fine of Rs.2,000/- and, in default of payment of fine amount, additional rigorous imprisonment for 02 years. [Both the sentences are directed to run concurrently] (2) The case of the prosecution, in short, in that on 03.12.2016, at about 13:00 hours, at Old Basti, Pachripara, which comes within the ambit of Police Station Kotwali, Korba (CG), the accused-appellant committed aggravated penetrative sexual assault with minor victim (PW-02), aged about 09 years, against her will and consent and, thereby, said to have committed the aforesaid offences in question. (3) The further case of the prosecution is that when grand-mother of the victim (PW-03) reported the matter to the police, FIR (Ex.P/03) was registered against the appellant and wheels of investigation started running, in which, nazari naksha was prepared vide Ex.P/01. After obtaining necessary consent vide Ex.P/02, the victim (PW-02) were subjected to medical examination, which was conducted by Dr. S. Kujur (PW-07) and, as per her MLC report (Ex.P/04) it has been opined that the victim (PW-02) is subjected to Page No.3 of 14 IN CRA-1673-2017 sexual assault. Further, slides of the victim were prepared and handed over to the police alongwith her skirt/slekes for analysis, which was seized vide Ex.P/07. Thereafter, the accused-appellant was arrested vide Ex.P/03 and sent for medical examination. Appellant’s MLC report is Ex.P/06 and his slides were also prepared, which was handed over to the police alongwith his undergarment and pubic hair sample for analysis, which were seized vide Ex.P/10. The aforesaid seized articles were sent for chemical examination and, as per FSL report (though no exhibited but annexed at Page-62 of the record), it has been mentioned that no stains of human sperm/semen were found on any of the seized articles. Further, in order to ascertain the correct age of the victim (PW-02), copy of her school progress report was obtained, wherein her date of birth has been mentioned as 12.10.2006, meaning thereby, the victim (PW-02) was minor aged about 09 years (i.e. below 12 years) of age on the date of offence. Thereafter, statement of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 12 documents apart from other Page No.4 of 14 IN CRA-1673-2017 documents, whereas the appellant in support of his defence, though not examined any witness but exhibited 01 document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Sections 377 of IPC as also under Section 06 of the POCSO Act and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Vikash Pandey, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. In view of questions framed and answers given by the victim in her statements before the Court, the learned trial Court has erred in law while holding the appellant guilty for offences in question. Learned counsel for the appellant by placing reliance on a decision of the Bombay High Court rendered in the matter of Manoj v. State of Maharashtra 1 would submit that though the learned trial Court has convicted the appellant for offences under Section 377 of IPC and Section 06 of POCSO Act, but in light of the provisions contained under Section 26 of the General Clauses Act, 1897 (for brevity the “GC Act”) as also under Section 71 of IPC (i.e. Section 09 of Bhartiya Nyaya Sanhita, 2023), the appellant cannot be punished twice for 1 2023 SCC Online Bom 2339 Page No.5 of 14 IN CRA-1673-2017 the same offence and, therefore, the learned trial Court has committed grave legal error while doing so and imposed sentence of imprisonment for 10 years’ RI for both the offences separately. Hence, the present appeal be allowed in full or in part. (7) Per-contra, learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW- 02), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question, coupled with other evidence available on record i.e. MLC Report of the victims (Ex.P/04), the learned trial Court has rightly convicted the appellant for the offences mentioned herein-above and, therefore, the present appeal is liable to be dismissed. (8) I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) In the instant case, considering the statement of victim (PW- 02), wherein he has clearly narrated the incident and implicated the appellant herein to be the author of the crime by stating that on the date and time of the offence, while she playing, the accused- appellant herein came and sexually assaulted her, due to which she suffered pain. The said statement of the victim (PW-02) is also supported by her grand-mother (PW-03), who reported the matter to Page No.6 of 14 IN CRA-1673-2017 the police and lodged FIR (Ex.P/03). Further, the victim (PW-11) was also subjected to lengthy cross-examination, but she remained consistent in her version and, therefore, her testimony inspires confidence and can be relied upon to hold the appellant herein guilty for the offence in question. Furthermore, the aforesaid stand of the victim No.3 (PW-11), mush less the prosecution, is also corroborated by medical evidence available on record in shape of MLC report (Ex.P/04) of the victim, wherein it has been opined that the victim is subjected to sexual assault, which is duly proved and supported by Dr. S. Kujur (PW-07), who has medically examined the victim (PW- 02). Moreover, according to school progress report of the victim, her date of birth has been recorded as 12.10.2006, meaning thereby, the victim (PW-02) was minor aged about 09 years (i.e. below 12 years) of age on the date of offence. As such, on the basis of aforesaid evidence available on record, I am of the considered opinion that the findings recorded by the learned trial Court that the appellant is guilty of committing aggravated penetrative sexual assault only on the minor victim (PW-02), is strictly in accordance with law and, for which, he has rightly been convicted. I hereby affirm the said finding and hold accordingly. (10) Now the argument raised on behalf of the appellant, which needs consideration is that though the learned trial Court has convicted and sentenced the appellant for offences under Section 377 of IPC and Section 06 of POCSO Act, but in light of Section 26 of Page No.7 of 14 IN CRA-1673-2017 the GC Act and under Section 71 of IPC (i.e. Section 09 of Bhartiya Nyaya Sanhita, 2023), the appellant cannot be punished twice for the same offence and, in light of the decision of Manoj (supra), the learned trial Court has committed grave legal error while doing so and imposing sentence of 10 years’ RI for both the aforesaid offences separately. (11) In order to consider the plea raised at the bar, it would be first appropriate to notice Section 26 of the GC Act as under: “26. Provision as to offences punishable under two or more enactments:- where an act or omission constitutes an offence under to or more enactments, then the offender shall liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.” (12) The object of the above-quoted Section 26 of the GC Act is that if a person is made to undergo punishment more than once for the same act, there would be harassment beyond limits. Therefore, taking into account the consideration of avoiding oppression, this section adopts a restrictive attitude and, while allowing double prosecution for the same offence, it prohibits double punishment. Section 26 envisages the possibility of the same act or omission not only being an offence under different enactments, but of the accused being charged under either or any of them, though he shall not be punished twice for the same offence. Section 26 protects the guilty parties against double jeopardy or double penalty. This section lays down that where an act or omission constitutes an offence under two Page No.8 of 14 IN CRA-1673-2017 or more enactments than the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence (See: Municipal Corporation of Delhi v. Shiv Shanker 2 ). The opening words of Section 26 are very specific “an act or omission constitutes an offence under two or more enactments”. The test would be whether two offence are the same is not identity of the allegations, but the identity of the ingredients of offence. This principle is based upon well known maxim “nemo debet bis vexari si constat curiae quod sit pro una et eadem causa” which means that no one ought to be vexed twice if it appears to the Court that it is for one and the same cause. (13) It is also well settled in criminal jurisprudence that where an act constitutes an offence under two or more enactments then the offender remains liable to be prosecuted and punished under any one of these enactments. Section 26 of the GC Act came up for consideration before their Lordships of the Supreme Court in the matter of T.S. Baliah v. T.S. Rangachari 3 , wherein while dealing with identical situation whether the appellant therein can be prosecuted both under Section 177 of IPC and under Section 52 of the Income Tax Act, 1922 at the same time, have held that Section 26 of the GC Act provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be 2 AIR 1971 SC 815 : (1971) 1 SCC 442 3 1968 SCC Online SC 68 Page No.9 of 14 IN CRA-1673-2017 liable to be punished twice for the same offence and observed in Para-6 as under: “6. We proceed to consider the next question arising in this case viz. whether the appellant can be prosecuted both under Section 177 of the Indian Penal Code and Section 52 of the 1922 Act at the same time. It was argued on behalf of the appellant that in view of the provisions of Section 26 of the General clauses Act (Act 10 of 1897) the appellant can be prosecuted either under Section 52 of the 1922 Act or under Section 177 of the Indian Penal Code and not under both the sections at the same time. We are unable to accept this argument as correct. Section 26 of the General clauses Act states: “26. Provision as to offences punishable under two or more enactments.— Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.” A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case.” (14) Similarly, in the matter of State of Maharashtra v. Sayyed Hassan Sayyed Subhan 4 , their Lordships of the Supreme Court while dealing with the same issue, relying upon the decision of T.S. 4 (2019) 18 SCC 145 Page No.10 of 14 IN CRA-1673-2017 Baliah (supra), have held that there is no bar in prosecuting person under both the law, but shall not be liable to be punished twice for the same offence and observed in Para-07 as under: “7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. [T.S. Baliah v. T.S. Rangachari, (1969) 3 SCR 65 : AIR 1969 SC 701] The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under IPC and at the same time, an offence under any other law. [State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655 : 1989 SCC (Cri) 27]” (15) Thereafter, in the matter of Kanwar Pal Singh v. State of Uttar Pradesh 5 , their Lordships of the Supreme Court have held that Section 26 of the GC Act permits prosecution for “different offences” but bars prosecution and punishment twice for the “same offence” under two or more enactments. (16) At this stage, it would also be appropriate to notice Section 71 of IPC (i.e. Section 09 of the Bhartiya Nyaya Sanhita, 2023), which provides for limit of punishment of offence made up of several offences and reads as under: “Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly 5 (2020) 14 SCC 331 Page No.11 of 14 IN CRA-1673-2017 provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.” (17) Section 71 of IPC deals with the limit of punishment of offence made up of several offences. It has been provided therein that where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences. As such, Section 71 of IPC lays down the limits of the punishment to which offender can be sentenced. (18) The Supreme Court in the matter of Sangeetaben Mahendrabhai Patel v. State of Gujarat & anr 6 has held that in order to attract the provisions of Section 71 of IPC, ingredients of the offences in earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of allegations but the identity of the ingredients of the offences. 6 AIR 2012 SC 2844 Page No.12 of 14 IN CRA-1673-2017 (19) The Bombay High Court in the matter of Manoj (supra) taking into consideration the above-quoted Section 71 of IPC has clearly held that the offender tried for an offence punishable under Section 377 with Sections 376 of IPC and Section 06 of POCSO Act, cannot be separately punished, as such an act is an offence falling in two definitions i.e. the Penal Code, 1860 and Section 06 of POCSO Act, 2012 and observed in Para- 38 as under: “38. …... In view of the definition of “rape” under Section 375 of the Penal Code, 1860, the accused may be punished for carnal sexual assault under Section 376 of the Penal Code, 1860 as well as under Section 06 06 of the POCSO Act. Therefore, the court is of the view that the offender tried for an offence punishable under Section 377 with Section 376 of the Penal Code, 1860 and Section 06 of the POCSO Act cannot be separately punished as such an act is an offence falling in two definitions i.e. in the Penal Code, 1860 and POCSO Act. Therefore, the learned Sessions Judge has correctly not imposed a separate sentence for the offence punishable under Section 377 of the Penal Code, 1860.” (20) Reverting to the facts of the present case in light of the above legal position and in light of Section 26 of the GC Act and Section 71 of IPC it is necessary to consider where a common act is made penal by two or more statutory provisions/enactments, which constitutes offence in those provisions/enactments, in that situation, though the legal labels are different but their ingredients are identical, the punishment should be one. Essentially, there is only one culpable act and different legal labels may lead to two different “offences”. It is by the reason of two different legislation, an act happens to fall Page No.13 of 14 IN CRA-1673-2017 under two different enactments, but the ingredients of such act/offence, in both the enactments, are one and same and, therefore, the offender should not receive punishment for more than one of them. As such, in the present case, the learned trial Court has committed error of law while sentencing the appellant separately to undergo imprisonment for 10 years’ RI for having committed offences punishable under Section 377 of IPC as also under Section 06 of POCSO Act for the reason that the ingredients of said offence/act, which made it penal under Section 6 of the POCSO Act and further under Section 377 of IPC are same, for which, in light of Section 26 of GC Act and Section 71 of IPC, the appellant cannot be punished twice. Since the appellant has been sentenced for offence punishable under Section 06 of the POCSO Act, no separate sentence is required to be awarded to him for having committed offence punishable under Section 377 of IPC, though he has been held guilty for both the offences. Consequently, while affirming the conviction of the appellant for offences punishable under Section 377 of IPC and under Section 06 of POCSO Act, the singular punishment/sentence is being awarded to him i.e. only for offence punishable under Section 06 of the POCSO Act. We hereby hold accordingly. (21) Resultantly, in view of foregoing analysis, the conviction and sentence of the appellant for offence under Section 06 of the POCSO Act, as imposed by the learned trial Court, is hereby affirmed being well merited. However, the conviction of the appellant for offence Page No.14 of 14 IN CRA-1673-2017 punishable under Section 377 of IPC is also hereby affirmed, but in view of the findings arrived at herein above, considering the fact that the appellant has also been punished for offence under Section 06 of POCSO Act, as above, no separate sentence is awarded to him for having committed offence under Section 377 of IPC and, as such, the sentence of 10 years’ RI awarded to him by the learned trial Court for offence under Section 377 of IPC is hereby set aside. (22) Consequently, with aforesaid modification, this criminal appeal stands finally disposed of to the extent indicated herein-above. (23) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action. Sd/- (Sanjay K. Agrawal) Judge s@if