# Rahul (In Jail) v. State of U.P - **Citation:** (2023) 6 ILRA 351 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-05-30 - **Case number:** Criminal Appeal No. 2818 of 2019 - **Bench:** Ashwani Kumar Mishra, Vinod Diwakar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-in-jail-v-state-of-u-p-50470 - **Pages:** 20 ## Headnote Law - appeal against conviction - Indian Penal Code, 1860 - Sections 376(2)(i) & 323 - Rape , The Protection of Children from Sexual Offences Act, 2012 - Section 5(m)/6 , 42 , Criminal Law (Amendment) Act, 2018, The General Clauses Act, 1897 - Section 6 - Effect of repeal - evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof, which are admissible in law, can be used by the prosecution or the defence - a man can tell a lie, but the circumstances do not.(Para -57, 60,) (B) Constitution of India, 1950 - article 20(1) - ex post facto - retrospective consequence on any act committed, which is not prohibited by law, before the enactment of a preceding law - provisions have to be strictly construed and cannot be given retrospective effect unless the legislative intent and expression are clear beyond ambiguity - a statute that affects substantive rights is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment. (Para - 36, 43) (C) Criminal Law - levy of appropriate sentence - all punishments must be directly proportionate to the crime committed - normal sentence in a case of aggravated penetrative sexual assault is 10 years, and in exceptional cases may go to life imprisonment - Court's discretionary power to impose a sentence should not be used indiscriminately in a routine, casual and cavalier manner - special and adequate reasons must be 352 INDIAN LAW REPORTS ALLAHABAD SERIES recorded for awarding life imprisonment.(Para - 78, 79, 82) Aggravated penetrative assault on a child below 12 years - accused sentenced under Section 376(2)(i) of IPC - no longer part of penal code on the incident date - trial court should have tried and sentenced under Section 376(2) IPC under new law - which came into existence on date of incident - minimum sentence for rape with a woman under sixteen - increased to 20 years in new law - trial court convicted accusedappellant for life imprisonment - No prejudice caused - life sentence was already in existence in the pre and post-Criminal Law Ordinance, 2018.(Para - 47, 54, 55) HELD:- Trial court's findings confirm ingredients of rape under IPC . Penetrative aggravating sexual assault under POCSO Act, 2012 established for accused-appellant. Trial court failed to record reason for awarding life imprisonment. Nothing on record to rule out probability of reformation and rehabilitation of appellant. Man of clean antecedents. Sentence modified to 20 years imprisonment. Punishment not awarded under Section 5 (m)/6 of POCSO Act 2012 due to mandate of Section 42. (Para - 77, 83, 84) Criminal appeal partly allowed. (E-7) List of Cases cited: ## Text _Characters 0–39,660 of 65,179. This is a partial read: ask again with offset=39660 for what follows._ 6 All. Rahul Vs. State of U.P. 351 to the oral dying declaration made to PW-1. There have been instances where the conviction has been based solely upon a dying declaration when it has been found to be totally acceptable. In this case, we are not prepared to attach that kind of importance to the oral dying declarations. 70. In light of the evidence discussed above and being mindful of the principles governing appreciation of the evidence related to dying declarations, we find it difficult to endorse the conclusion arrived at by the trial court. The evidence of PW-1 and PW-3 cannot be treated as stellar enough to hold the appellants guilty of the offence of rape, attempt to rape and set the victim on fire. 71. Hence, the accused-appellants Chintoo @ Kuldeep and Monti @ Ravindra are entitled to the benefit of the doubt. 72. The aforesaid discussion results in the impugned judgment being quashed and set aside. Accordingly, the appeals are allowed. Consequently, the accused-appellants Chintoo @ Kuldeep and Monti @ Ravindra are acquitted of the charges framed against them. The accused-appellants are directed to be set at liberty forthwith subject to compliance of Section 437-A Cr.P.C., if not required in connection with any other case. ---------- (2023) 6 ILRA 351 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 30.05.2023 BEFORE THE HON'BLE ASHWANI KUMAR MISHRA, J. THE HON'BLE VINOD DIWAKAR, J. Criminal Appeal No. 2818 of 2019 Rahul ...Appellant (In Jail) Versus State of U.P. ...Respondent Counsel for the Appellants: Sri Sunil Kumar, Sri Akhilesh Singh, Sri Brajesh Kumar, Sri Shivam Yadav, Sri Ajay Yadav Counsel for the Respondent: G.A. (A) Criminal Law - appeal against conviction - Indian Penal Code, 1860 - Sections 376(2)(i) & 323 - Rape , The Protection of Children from Sexual Offences Act, 2012 - Section 5(m)/6 , 42 , Criminal Law (Amendment) Act, 2018, The General Clauses Act, 1897 - Section 6 - Effect of repeal - evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof, which are admissible in law, can be used by the prosecution or the defence - a man can tell a lie, but the circumstances do not.(Para -57, 60,) (B) Constitution of India, 1950 - article 20(1) - ex post facto - retrospective consequence on any act committed, which is not prohibited by law, before the enactment of a preceding law - provisions have to be strictly construed and cannot be given retrospective effect unless the legislative intent and expression are clear beyond ambiguity - a statute that affects substantive rights is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment. (Para - 36, 43) (C) Criminal Law - levy of appropriate sentence - all punishments must be directly proportionate to the crime committed - normal sentence in a case of aggravated penetrative sexual assault is 10 years, and in exceptional cases may go to life imprisonment - Court's discretionary power to impose a sentence should not be used indiscriminately in a routine, casual and cavalier manner - special and adequate reasons must be 352 INDIAN LAW REPORTS ALLAHABAD SERIES recorded for awarding life imprisonment.(Para - 78, 79, 82) Aggravated penetrative assault on a child below 12 years - accused sentenced under Section 376(2)(i) of IPC - no longer part of penal code on the incident date - trial court should have tried and sentenced under Section 376(2) IPC under new law - which came into existence on date of incident - minimum sentence for rape with a woman under sixteen - increased to 20 years in new law - trial court convicted accusedappellant for life imprisonment - No prejudice caused - life sentence was already in existence in the pre and post-Criminal Law Ordinance, 2018.(Para - 47, 54, 55) HELD:- Trial court's findings confirm ingredients of rape under IPC . Penetrative aggravating sexual assault under POCSO Act, 2012 established for accused-appellant. Trial court failed to record reason for awarding life imprisonment. Nothing on record to rule out probability of reformation and rehabilitation of appellant. Man of clean antecedents. Sentence modified to 20 years imprisonment. Punishment not awarded under Section 5 (m)/6 of POCSO Act 2012 due to mandate of Section 42. (Para - 77, 83, 84) Criminal appeal partly allowed. (E-7) List of Cases cited: 1. L.R. Brothers Indo Flora Ltd. Vs C.C.E. , (2020) SCC Online SC 705 2. Hitendra Vishnu Thakur Vs St. of Maha., (1994) 4 SCC 602 3. U.O.I. Vs Zora Singh , (1992) 1 SCC 673 4. Soni Devrajbhai Babubhai Vs St. of Guj. & ors. , (1991) 4 SCC 298 5. Kalpnath Rai Vs St. (through CBI), (1997) 8 SCC 732 6. Re: Barattero, (1994) 1 ALL ER 447 (CA) 7. St. of U.P. Vs Shubhash @ Pappu , (2022) 6 SCC 508 8. Fainul Khan , (2019) 9 SCC 549 9. Rajesh Yadav & ors. Vs The St. of U.P. , (2022) 12 SCC 200 10. Vinod Kumar Vs St. of Punj., (2015) 3 SCC 220 11. Mahendra Singh & ors. Vs St. of M.P., (2022) 7 SCC 157 12. Gulam Sarbar Vs St. of Bihar , (2014) 3 SCC 401 13. Vadivelue Thevar Vs St. of Madras, AIR 1957 SC 614 14. Kunju Vs St. of T.N., (2008) 2 SCC 151 15. Bipin Kumar Mondal Vs St. of W.B, (2010) 12 SCC 91 16. Mahesh Vs St. of M.P, (2011) 9 SCC 626 17. Prithipal Singh Vs St. of Punj. , (2012) 1 SCC 10 18. Kishan Chand Vs St. of Har. , (2013) 2 SCC 502 19. Shimbhu & Anr. Vs St. of Har. , (2014) 13 SCC 318 (Delivered by Hon'ble Vinod Diwakar, J.) 1. We have heard Shri Sunil Kumar, learned counsel for the appellant and Shri Arunendra Kumar Singh, learned AGA for the state. 2. This appeal has been filed against the impugned judgment and order dated 18.12.2018 passed by Ist Additional Sessions Judge, Orai, District Jalaun, in Session Trial No. 56 of 2018 (State vs. Rahul), arising out of Case Crime No.20 of 2018, U/S 376(2)(i), 323 IPC read with Section 5(m)/6 of The Protection of Children from Sexual Offences Act, 2012, by which the trial court has convicted the 6 All. Rahul Vs. State of U.P. 353 accused-appellant Rahul for life imprisonment under Section 376(2)(i) IPC and to pay a fine of Rs. 50,000/-, and in default of payment of fine two years additional imprisonment. 3. In brief, the prosecution case is that on 21.04.2018 at about 07:46 p.m., the complainant Raghvendra Singh filed a written complaint at PS Kotra, District Jalaun, stating that his son went to school at 7:00 a.m., after that Rahul, son of Ramphal Singh, had come to his house on the date of incident and told his wife that he is taking his daughter aged two years (hereinafter referred to as victim "X") to the temple. Accused-appellant Rahul took his daughter to the temple after combing her hair and putting a frock on her. When Rahul did not return till 9:00 a.m. with the baby girl, the complainant's wife asked Udaypal Singh whether he had seen Rahul in the temple. Udaypal Singh said he was coming from the temple but could not find them. After that complainant's wife and his father reached Rahul's house in search of the victim "X". Accused Rahul is the first cousin of the complainant. On reaching the house of Rahul, the wife of the complainant, and his father saw that Rahul was on top of her daughter, and her daughter, victim "X", was crying. Seeing the complainant's wife and his father, Rahul left victim "X" and fled away. The complainant's wife and father of the complainant picked victim "X" and saw that X's genitalia was swollen and blood was coming out of her private parts. Rahul has committed rape upon the daughter of the complainant. The complainant's wife and his father told the entire incident over the telephone to the complainant, and after that, the complainant reached home and saw her daughter "X" weeping. She was scared, and her face was also swollen. 4. On the basis of the written report, an FIR was registered on 21.04.2018 at 19:46 under Sections 376(2) (i), 323 IPC read with Section 5 (m)/ 6 of the Prevention of Children from Sexual Offences Act, 2012 at PS Kotra, District Jalaun, U.P. against the accused Rahul. As there was an allegation of sexual exploitation in the FIR, Medico-Legal Examination of Sexual Violence was conducted on 21.04.2018 at 10.45 p.m. by Sr. Medical Officer posted at District Women Hospital, Jalaun. 5. After registration of the FIR, the police conducted the investigation and recorded the statement under Section 161 Cr. P.C of (i) Raghvendra Singh, (ii) Udaypal Singh; (iii) Virendra Singh; (iv) Smt. Deepa; (v) Head Constable Chandra Kumari; (vi) Dr. Sunita Banojha; CMO Jalaun; and (vii) Constable Ram Bihari Pandey, and (viii) Inspector Ashok Kumar Pandey. 6. After collecting all the materials and upon culmination of investigation against the accused Rahul, the police filed the charge sheet on 25.05.2018, under Section 376(2)(i) and Section 323 IPC read with Section 5 (m)/ 6 of POCSO Act, 2012 against the accused-appellant. The CJM took cognizance and after complying with the requirements of section 207 Cr.P.C., committed the case to the Court of Sessions for trial. 7. The trial court framed the charges under Section 376(2)(i) read with Section 323 IPC and Section 5(M)/6 of POCSO Act, 2012. The order of charge dated 11.07.2018 was read out to the accused, and the accused-appellant denied the charges and demanded trial. 354 INDIAN LAW REPORTS ALLAHABAD SERIES 8. In order to prove its case, the prosecution has produced the following documentary evidence. (i) Written Report dated 21.04.2018, Exhibited as Ka.1 (ii) FIR dated 21.04.2018, Exhibited as Ka. 4 (iii) Medico-Legal Examination Report dated 21.04.2018, Exhibited as Ka. (iv) Charge sheet dated 25.04.2018, Exhibited as Ka.6. 9. Besides the above documentary evidence, the prosecution has examined complainant Raghvendra Singh as (PW-1); The victim's mother Smt. Deepa as PW-2; Dr. Sunita Banojha as (PW-3); Constable Ram Bihari Pandey as PW-4; Inspector Ashok Kumar as (PW-5). 10. Complainant Raghvendra Singh- the father of the victim- was examined as PW-1; in examination-in-chief, he reiterated the facts as stated in FIR;, he stated that on 21.04.2018 at about 7.00 a.m., he was at village Hematpur, Jila Parishad Barier, when his wife Deepa telephonically informed that Rahul had come to his house and told her that he is taking victim "X" to Akshara Devi Temple. As Rahul is the complainant's first cousin, his wife allowed the child to go with Rahul. When Rahul did not return till 9.00 a.m. with the baby girl, his wife asked Udaypal Singh- the complainant's nephew- whether he had seen Rahul and victim "X" in the temple. Udaypal said he was coming from the temple but could not find them. Then his wife and his father -Virendra Singh reached Rahul's house and saw that Rahul was naked and was lying on top of his daughter, who was crying; on his wife's challenge, Rahul fled, leaving his daughter crying. His wife noticed that blood was coming out from the daughter's private part, and there was swelling on the genitals. Rahul had raped his daughter "X". His wife informed the complainant about the incident from his father's phone. After coming home, the complainant went to the police station with his wife and father, and registered the FIR against Rahul. 11. In his cross-examination, PW-1 stated that he is 12th pass and Kahtampur village- the place of his work, is about 90 km away from his village. His wife informed him about the incident at 10 a.m. over the telephone. The wife has studied till class V and his wife has a mobile. His uncle's son Udaypal had informed him on the phone about the incident. When he reached home, he found the girl at home. The girl could not speak as she was two years old. Rahul was alone at home at the time of the incident. The girl was wearing a frock. There was blood on the frock. He further stated that the blood had not reached her legs, and her mother gave a statement as the girl could not speak. The complainant was not at home, and his wife waited for him to reach home so that FIR could be lodged. 12. The mother of victim "X" was examined as PW-2; she has supported the prosecution case in examination-in-chief, which was recorded on 31.08.2018 but resiled from her statement during crossexamination, which was recorded on 07.09.2018- nine days thereafter. This witness stated that she saw that the accused-appellant Rahul was lying naked on her daughter, and on her challenge, the accused Rahul fled. 13. In cross-examination, PW-2 stated that her earlier statement recorded on 31.08.2018 was based on what the police 6 All. Rahul Vs. State of U.P. 355 and the lawyer had told her. The police told the witness that if she did not state as they suggested, her husband would go to jail, so out of fear, she stated facts based on the suggestion given by the police and the advocate on the prosecution's line in the examination-in-chief. 14. The witness further stated that on the date of the incident, at around 6-7:00 a.m., when the victim woke up, she was made to urinate, but the victim "X" faced difficulty in urinating and started crying. She noticed that she had redness on her genitals. On this, she gave the victim "X" to her father-in-law, who was working outside the house and got busy with work. When she came out, she could not see victim "X", and on asking about the victim, he said she must be playing somewhere, and after that, her father-in-law went to find her. After 10-15 minutes, he brought her home and said that she was playing on the way - at some distance from their house- and the victim had some difficulty in passing urine and developed redness over her private parts. Meanwhile, someone called the police, and on the villager's complaint, the police took Rahul with them. The victim had also suffered an infection in the vagina on earlier occasions, and after local treatment, the same was cured. 15. Dr. Sunita Banojha, who had prepared the Medico-Legal Examination Report on Sexual Violence, was examined as PW-3. She deposed that the mother and father of victim "X", aged about two years, had brought her to the hospital for internal and external examination. On external examination, it was found there was no fluid discharge or swelling on the opening part of the vagina, but there was a 01-inch injury and redness on her private parts, and, on the suggestion, she stated that the redness could come from rubbing or forceful entry of hard objects. 16. Constable Ram Bihari Pandey was examined as PW-4, who assigned Constable Muharir to register the FIR against the accused-appellant Rahul as Case Crime No. 20 of 2018 under Section 376(2)(i), 323 IPC read with Section 5(m)/6 POCSO Act, 2012 and proved the Chik FIR. 17. Inspector Ashok Kumar was examined as PW-5, who, after registration of F.I.R conducted the investigation and collected the oral and documentary evidence, and after that, filed the charge sheet against the accused-appellant under Section 376(2)(i), 323 IPC read with Section 5(m)/6 POCSO Act,2012 and proved the contents of the charge sheet. 18. Virendra Singh was examined as DW-1, who has stated that the victim is his grand-daughter, and the prosecution has developed a concocted story to implicate Rahul at the instance of one Vijay Gupta, who had enmity with the accused. The accused-appellant, Rahul, did not support Vijay Gupta in the village election, and therefore, he started carrying malice against the accused-appellant, Rahul and framed him in a false case in connivance with police and villagers. 19. On the basis of the material produced by the prosecution during the trial, the accused was confronted for recording his statement under section 313 Cr.P.C. The accused has stated that he has been falsely implicated at the behest of one Vijay Gupta, with whom the complainant's father works. He had opposed his candidature in the Pradhan election. 356 INDIAN LAW REPORTS ALLAHABAD SERIES 20. On the basis of the evidence produced, the trial court has concluded that the guilt of the accused-appellant has been proved beyond reasonable doubt and, accordingly, convicted the accusedappellant for the offence under section 376(2)(i), 323 IPC read with Section 5(m)/6 POCSO Act and awarded life imprisonment with lesser sentences. 21. The trial court has concluded that the testimony of PW-3 is consistent, and there is no reason for the doctor to implicate the accused-appellant, falsely. As per the opinion of the Doctor, there was sexual assault by the aggressor on the child victim "X", and the trial court found the testimony of PW-1 and chief examination of PW-2 reliable and trustworthy. 22. Shri Sunil Kumar, learned counsel for the accused-appellant, has argued that the evidence was so scanty that there was no evidence of a minor child being put to aggravated sexual assault by the accusedappellant. The conviction can't be based on scanty testimonies, and that learned trial court had committed patent illegality in appreciation the evidence. 23. Referring to certain portions of the testimony of PW-1, PW-2 and PW-3 on the subject, learned counsel has argued that the trial court erroneously failed to appreciate the following arguments. 23.1 PW-1- The first informant- is not the eyewitness of the incident; the entire evidence that comes forth from the PW-1 is hearsay evidence; the same is not admissible under the law. 23.2 PW-2, the mother of the victim, who is a witness to the fact, has resiled in the cross-examination; hence, her testimony recorded under examination-inchief needs corroboration with medical evidence with precision. 23.3 The prosecution has failed to produce Shri Udaypal Singh- the nephew of the complainant, even though he was a police witness in the charge sheet, whose name was also revealed in the FIR. He could be a potential witness of the prosecution, who could shed light on the prosecution's case about how the offence was committed. 23.4 The statement of PW-3, Dr. Sunita Banojha, who had prepared the Medico-Legal Examination Report of Sexual Violence, mentioned that no bleeding, tear, swelling or discharge from the vagina was detected. 23.5 Sexual assault is an independent offence viz a viz aggravated sexual assault. 23.6 The Court has also erred in discarding the testimony of DW-1, who was a witness of fact and had gone with PW-1 to the house of the accused-appellant and allegedly seen the incident. 23.7 There are inconsistencies and improvements in the statement of the prosecution witness. The ocular testimony of the witness does not corroborate the medical reports, and the medical reports do not substantiate the ingredients of Section 5(m)/6 of the POCSO Act,2012 and 375 IPC. 23.8 The trial court has failed to appreciate the statement of the accused recorded under Section 313 Cr.P.C. in which he has stated that he has been falsely implicated because of enmity. 23.9 The ingredients of an offence under Section 376(2)(i), 323 IPC read with Section 5(m)/6 POCSO Act are not made out in the facts of the case as no evidence of penetrative sexual assault and rape has been substantiated against the accused-appellant during the trial. 6 All. Rahul Vs. State of U.P. 357 23.10 As Section 376(2)(i) had been omitted with effect from 21.04.2021 from the Penal Code through the Criminal Law (Amendment) Act, 2018, hence, the punishment awarded to the accusedappellant is hit by restrictions placed by Article 20(1) of the Constitution of India. 24. Learned counsel for the accusedappellant has drawn the attention of the Court succinctly on four points; (i) No case against the accusedappellant is made out, as the testimonies of PW-1 and PW-3 are highly unreliable, and the cumulative effect of PW-2, and DW-1 makes the medical evidence unreliable, and therefore, the testimony of PW-3 be discarded. The trial court has committed patent illegality in discarding the testimony of DW-1, who is an eyewitness of the incident and has been dropped by the prosecution for the reason best known to them. (ii) The ingredients of an offence under section 5(m)/6 of the POCSO Act has not been proved in the factscircumstances of the case. (iii) The punishment awarded to the accused-appellant is hit by Article 20(1) of the Constitution of India as section 376(2)(i) was not in existence on the date of the incident. (iv) The punishment is disproportionate to the alleged offence, and the sentencing policy has not been followed in letter and spirit. 25. Per contra, learned A.G.A submits that the evidence on record proves the commission of rape punishable under section 376(2)(i), read with section 5(m)/6 of POCSO Act, 2012. The statement of the complainant, who was examined as PW-1 is definite with respect to the commission of the offence. The PW-2, the mother of the victim and the eyewitness of the case, is the sterling witness of the prosecution; this witness has supported the prosecution's case in examination-in-chief, even though she has resiled in her cross-examination. The examination-in-chief of PW-2 proves the allegation of rape against the accusedappellant. Dr. Sunita Banojha, who medically examined the victim, supported the case of the prosecution and stated that there was a patch of redness on the private parts of the victim and referred to the Medico-Legal Examination Report of Sexual Violence prepared by PW-3, which proved the commission of the offence of rape. The learned A.G.A urges that the cumulative effect of testimony of PW-1, PW-2 and PW-3 proves the guilt of accused-appellant beyond reasonable doubt. 26. He has urged that there is no reason for PW-3 to falsely implicate the accused-appellant, and from the opinion of the Doctor, it could safely be made out that there was a penetrative sexual assault by the aggressor on the child victim. 27. Before coming to the case in hand, it would be in the fitness of the case to go into the brief history of post-Nirbhaya case amendments in criminal law. 28. The brutal gang rape of a 23 years old physiotherapist on a bus in Delhi on 16 December 2012, shocked the entire nation and led to widespread outrage and protest. The Criminal Law (Amendment) Act, 2013 was introduced in the Parliament, which made significant changes in the Indian Penal Code 1860, Indian Evidence Act 1860, Code of Criminal Procedure 1973 and Protection of Children from Sexual Offence Act 2012, and received the 358 INDIAN LAW REPORTS ALLAHABAD SERIES Presidential assent on 02.04.2013, and deemed to come into force w.e.f 03.02.2013, when The Criminal Law (Amendment) Ordinance, 2013 came to effect. It was initially an Ordinance promulgated by the President of India on 03.02.2013 and became an Act w.e.f 03.02.2013. 29. Post- Nirbhaya case, in the wake of the Kathua Case-as a consequence of the public uproar, the Cabinet approved the Criminal Law (Amendment) Ordinance 2018, and the President of India signed the Ordinance on April 21, 2018. Subsequently, to fulfil the constitutional obligation, the Ordinance became Act by the act of Parliament, which received the Presidential assent on August 11, 2018, and came into existence as the Criminal Law (Amendment) Act, 2018 with retrospective effect. 30. One of the salient features of the Criminal Law Amendment Act 2018, is that if a person rapes a woman under sixteen years of age, he be punished with not less than 20 years, which may extend to imprisonment for life, imprisonment for life means for the remainder of persons natural life. 31. Now the question that arises before this Court is whether the trial court was justified in convicting the accusedappellant for committing the offence punishable under Section 376 (2)(i) IPC despite the same having been omitted by the promulgation of Criminal Law (Amendment) Ordinance, 2018 on the date of incident/ commission of the offence. 32. To avert this legal issue, we would, therefore, like to extract the relevant portion of the Criminal Law Ordinance, 2018, which received the Presidential assent on 21.04.2018: "THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 No. 2 OF 2018 Promulgated by the President in the Sixty-nine Year of the Republic of India. An Ordinance further amended the Indian Penal Code, the Indian Evidence Act, of 1872, the Code of Criminal Procedure 1973 and the Protection of Children from Sexual Offences Act 2012. WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action; NOW, THEREFORE, in the exercise of the powers conferred by clause (1) of article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:- 4. In section 376 of the Penal Code,- (a) in sub-section (1), for the words "shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine", the words "shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine" shall be substituted; (b) in sub-section (2), clause (i) shall be omitted; (c) after sub-section (2), the following sub-section shall be inserted, namely:- "(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that 6 All. Rahul Vs. State of U.P. 359 person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim." 33. In this regard, it is also necessary to extract the relevant portion of The Criminal Law (Amendment) Act, 2018, which was notified in the official Gazette on 21.04.2018: "THE CRIMINAL LAW (AMENDMENT) ACT, 2018 NO. 22 OF 2018 [August 11, 2018.] An Act further to amend the Indian Penal Code, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012. Be it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows:- CHAPTER I PRELIMINARY 1. (1) This Act may be called the Criminal Law (Amendment) Act, 2018. (2) It shall be deemed to have come into force on April 21, 2018. ----------------------------------------- --------------------------------------------------- 4. In Section 376 of the Penal Code- ----------------------------------------- --------------------------------------------------- (b) in sub-section (2), clause (i) shall be omitted; (c) after sub-section (2), the following sub-section shall be inserted, namely:- "(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim." 34. The contention of Shri Arunendra Kumar Singh, learned counsel for the state, is that all of the cases pending investigation/ trial on the date when this amendment came into effect were deemed to be covered by this amendment and to substantiate his argument has relied upon Section 6 of the General Clauses Act, 1897. Section 6 of the General Clauses Act, 1897 is reproduced hereinbelow for ready reference: "6. Effect of repeal. - Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or 360 INDIAN LAW REPORTS ALLAHABAD SERIES (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 35. In the light of the Criminal Law (Amendment) Act, 2018, as extracted hereinabove, we proceed to avert the legal arguments of Shri Sunil Kumar. 36. It is a settled principle of interpretation of Criminal Law that the provisions have to be strictly construed and cannot be given retrospective effect unless the legislative intent and expression are clear beyond ambiguity. There is a plethora of judicial pronouncements on consideration of ex post facto law, a few of which need to be noted at this stage. L.R. Brothers Indo Flora Ltd. v. Commissioner of Central Excise; Hitendra Vishnu Thakur v. State of Maharashtra; Union of India v. Zora Singh 37. In Hitendra Vishnu Thakur v. State of Maharashtra and Ors., the Apex Court dwelled upon the ambit and scope of the amending Act and the retrospective effect of the Act/ Statute and eventually, ruled thus: (i) A statute that affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly- defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to the right of action and right of appeal, even though remedial, is substantive in nature. (iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law. (iv) A procedural statute should not, generally speaking, be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties regarding transactions already accomplished. (v) A statute that changes the procedure and creates new rights and liabilities shall be construed as prospective in operation unless otherwise provided, either expressly or by necessary implication. From the aforesaid analysis of law, it is graphically clear that there is a presumption against the retrospective operation of a statute, and further, a greater retrospective cannot be conferred on a statute than the language makes it necessary....." 38. The Hon'ble Supreme Court in the case of Soni Devrajbhai Babubhai vs. State of Gujarat and others has occasioned to examine the applicability of Section 304-B of IPC where the dowry death had occurred prior to the insertion of Section 304-B of IPC and held that penal statute, which creates offences or which 6 All. Rahul Vs. State of U.P. 361 have the effect of increasing penalties for existing offences, would only be prospective because of the constitutional restriction imposed by Article 20 of the Constitution, because it manifestly shock's one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment. 39. As held in Kalpnath Rai vs. State (through CBI) all legal ingredients of the offence must happen before the new offence comes into existence. 40. The defence counsel argued that the punishment awarded under Section 376(2)(i) IPC is hit by the restrictions placed under Article 20(1) of the Constitution of India as the penal provision has no applicability in the factscircumstances of this case. The relevant portion of the Article 20(1) of the Constitution of India is extracted hereinbelow: "20. Protection in respect of conviction for offences- (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." 41. The Criminal Law (Amendment) Ordinance, 2018 came into existence on 21.04.2018, i.e., on the fateful date of the incident and subsequently, the Ordinance got the approval of the Parliament and became Criminal Law (Amendment) Act, 2018 retrospectively. Therefore, on the date of the incident, the Ordinance had already been notified after receipt of Presidential assent. As a consequence, Section 376(2)(i) IPC had been omitted from the penal code. The object of bringing the Criminal Law (Amendment) Ordinance, 2018 was to rationalize the sentencing structure of offences against women and children by providing graded sentences linked to the age of the victim and the nature of the crime. It has not brought any change in the ingredients of the offence of rape under I.P.C and aggravated penetrative sexual assault in POCSO Act, 2012. 42. Any provision which increases the penalty, particularly if coupled with an additional liability to imprisonment, cannot be construed as retrospective when all the ingredients of the offence happened as per the existing law, as held in Re: Barattero, needless to say, by bringing Criminal Law Ordinance 2018, the minimum sentence has been increased from ten to twenty years for the commission of the offence of rape with a girl under sixteen years of age, whereas the maximum sentence is unchanged. The appellant's conviction was held under the old sentencing system; therefore, the provisions of the Criminal Law Ordinance 2018 have not been invoked against the accused-appellant. The maximum sentence, post and after the Criminal Law (Amendment) Act, 2018 is the same; its only minimum sentence for rape which is increased to twenty years. So, in the instant case, whether the accused-appellant is awarded a sentence under Section 376(2)(i) IPC or Section 376(2) IPC has no bearing on his sentence as he has been awarded the maximum sentence of life imprisonment. 43. Thus, the legal position is that a statute that affects substantive rights is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment. Indian Penal Code is a substantive law that cannot have 362 INDIAN LAW REPORTS ALLAHABAD SERIES a retrospective operation unless otherwise provided, either expressly or by necessary implication, The same is valid subject to the restrictions placed by Article 20(1) of the Constitution of India. 44. Regrettably, the trial court has failed to notice the effect of the Criminal Law (Amendment) Ordinance, 2018, in the facts-circumstances of this case. 45. We may observe, straightaway, that we are not impressed by the argument of defence counsel that by omitting Section 376(2)(i) IPC through the Criminal Law (Amendment) Act, 2018, the ingredients of the offence of rape would ipso-facto be omitted. It is conspicous that, there was no change in the definition of rape under the Indian Penal Code and aggravated penetrative sexual assault under POCSO Act 2012 by the Amendment Act of 2018. The ingredients required for convicting the accused-appellant under rape with the minor are intact in pre and postAmendment 2018, in criminal law. Only the punishment has been increased by inserting Section 376 (3) in IPC, resulting in the enhancement of the minimum punishment to twenty years. 46. As per The Criminal Law (Amendment), 2018, the words "shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine" has been substituted by "whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment of life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine." in section 376 IPC. 47. The conviction of the accusedappellant under Section 5(m)/6 of the Protection of Children from Sexual Offence Act, 2012. Section 5(m) of the POCSO Act, 2012 deals with an aggravated penetrative assault on a child below 12 years, and Section 6 prescribed the punishment for aggravated penetrative sexual assault with rigorous imprisonment not less than ten years, which may extend to imprisonment for life and fine. 48. Now, we will test the legality of the implications in awarding the sentence under section 376(2)(i) IPC to the accusedappellant in view of the law discussed herein above, in preceding para's. 49. The trial court has sentenced the accused-appellant under Section 376 (2) (i) IPC because of the provision of Section 42 of the POCSO Act, 2012. Section 42 of the POCSO Act provides that where the specified offence is punishable both under the IPC and the POCSO then the accused shall be punished where it is greater in degree. 50. Reliance is placed on State of Uttar Pradesh vs. Shubhash @ Pappu where the Apex Court while dealing with omission to frame, or absence of or error in charge has reiterated that the accused has to show failure of justice/prejudice caused to him. Mere defect in framing of charge would not render the conviction unsustainable, if the ingredients of the Section/Sections concerned are obvious or implicit in the incharge. 51. The trial court has framed the charge under Section 376(2)(i) and read 6 All. Rahul Vs. State of U.P. 363 over and explained the same to the accused-appellant of the said charge. From the aforesaid charge framed it can safely be said that the ingredients for the offence of rape were specifically brought to the notice of the accused. Therefore, at the most, it can be said to be a defective framing of charge by not specifically charging the accused under Section 376(3) of IPC. 52. While interpreting Section 464 of Cr.P.C., the Apex Court in Fainul Khan case has observed and held that in case of omission or error in framing a charge, the accused has to show failure of justice/prejudice caused thereby. 53. In the light of the aforementioned principle of law stated by Apex Court which is now fairly settled, we have to examine the evidence of this case with a view to find out as to whether the trial court was justified in convicting the accused under Section 376(2)(i) of IPC which was not in-existence on the date when the Criminal Law (Amendment) Ordinance, 2018 came into effect. 54.