Shatrughan Yadav @ Satrughan Yadav v. State of Bihar
2025-11-26
MOHIT KUMAR SHAH, SONI SHRIVASTAVA
body2025
DigiLaw.ai
Mohit Kumar Shah, J.—Heard the learned counsel for the appellants, the learned APP for the State and the learned Amicus Curiae, Ms. Surya Nilambari, Advocate. 2. The present appeal has been preferred against the judgment of conviction and order of sentence dated 09.09.2025, passed by the learned Court of Exclusive Special Judge (POCSO Act), Darbhanga in POCSO G.R. Case No.47 of 2016 (arising out of Bishanpur (Darbhanga) P.S. Case No.86 of 2016), whereby and whereunder while the appellant no. 1 Shatrughan Yadav @ Satrughan Yadav has been convicted under Section 10/17 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act, 2012”) read with Section 17 of the POCSO Act, 2012, the appellant no. 2, namely Anil Yadav has been convicted under Section 376 (2) (n) of the Indian Penal Code (hereinafter referred to as “the IPC”) and under Section 6 read with Section 5(l) and Section 10 of the POCSO Act, 2012. 3. By the order of sentence dated 09.09.2025, passed by the Ld. Court of Exclusive Special Judge (POCSO Act), Darbhanga, the appellant no. 1 Shatrughan Yadav @ Satrughan Yadav has been sentenced to undergo rigorous imprisonment (RI) for a term of seven years U/s. 10/17 of the POCSO Act, 2012 read with Section 17 of the POCSO Act, 2012 with fine of Rs. 10,000/- and in default of payment of the same, he has been directed to further undergo simple imprisonment (SI) for six months. As far as the appellant no. 2, namely Anil Yadav is concerned, he has been sentenced to undergo rigorous imprisonment for a term which shall not be less than 10 years under Section 376(2)(n) of the IPC with a fine of Rs.10,000/- and in default to pay the same, he has been further directed to undergo simple imprisonment for six months. The appellant no.
2, namely Anil Yadav is concerned, he has been sentenced to undergo rigorous imprisonment for a term which shall not be less than 10 years under Section 376(2)(n) of the IPC with a fine of Rs.10,000/- and in default to pay the same, he has been further directed to undergo simple imprisonment for six months. The appellant no. 2, namely Anil Yadav also been sentenced to undergo rigorous imprisonment for a term which shall not be less than 10 years under Section 6 read with Section 5(1) of the POCSO Act, 2012 with fine of Rs.10,000/- and in default of payment of the same, he has been further directed to undergo simple imprisonment for six months apart from the appellant no.2 having also been sentenced to undergo rigorous imprisonment for a term of 7 years under Section 10 of the POCSO Act, 2012 with fine of Rs.10,000/- and in default of payment of the same, he has been further directed to undergo simple imprisonment for six months. 4. The issue which has arisen in the present case is with regard to the sentence awarded by the learned Court of Exclusive Special Judge (POCSO Act), Darbhanga qua the appellant no. 2, namely Anil Yadav. We find from the impugned order of sentence dated 09.09.2025 that the appellant no.2 has been sentenced to undergo RI for a term which shall not be less than 10 years U/s. 6 R/w. Section 5(1) of the POCSO Act, 2012 as it stood prior to amendment of the year 2019 with fine of Rs.10,000/- and in default of payment of the same, he has been further directed to undergo SI for six months and similarly, he has also been sentenced to undergo RI for a term which shall not be less than 10 years U/s. 376(2)(n) of the IPC with a fine of Rs.10,000/- and in default to pay the same, he has been further directed to undergo SI for six months.
However, we find from the pre-amended provision contained in Section 6(1) of the POCSO Act, 2012 that the sentence prescribed thereunder is “rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine” and more or less, similar sentence is provided for in Section 376(2)(n) of the IPC except that imprisonment for life has been explained to mean imprisonment for the remainder of that person’s natural life. Thus, apparently the sentence awarded to the appellant no. 2 has not been quantified in accordance with the provisions contained under Section 6(l) of the POCSO Act, 2012 and under Section 376(2) (n) of the IPC. In such view of the matter, we had appointed Ms. Surya Nilambari, Advocate as Amicus Curiae to assist this Court on the aforesaid issue. 5. At this juncture, the learned Amicus Curiae has referred to Sections 235, 354 and 386 (b) of the Code of Criminal Procedure, which are reproduced herein below:— “235. Judgment of acquittal or conviction.—(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the questions of sentence, and then pass sentence on him according to law. 354. Language and contents of judgment.—(1) Except as otherwise expressly provided by this Code, every judgment referred to in section 353,— (a) shall be written in the language of the Court; (b) shall contain the point or points for determination, the decision thereon and the reasons for the decision; (c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) other law under which, the accused is convicted and the punishment to which he is sentenced; (d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. (2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. (4) When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (6) Every order under section 117 or sub-section (2) of Section 138 and every final order made under section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision. 386. Powers of the Appellate Court.—After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (b) in an appeal from a conviction— (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;” 6.
The learned Amicus Curiae has submitted that in case an accused is convicted, the convict has to be heard on the question of sentence and then order of sentence has to be passed by the learned Trial Judge as is the mandate of Section 235 Cr.P.C. It is stated that as far as the language and content of judgment is concerned, Section 354 (1) (c) Cr.P.C provides that the same shall specify the offence (if any) of which, and the sections of the Indian Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced. Thus, it is submitted that order of sentence is also an essential part of the judgment of conviction and not a mere formality. It is also submitted that the judgment of conviction cannot be said to be complete unless the Court convicting the accused passes appropriate order of sentence. In this connection, reference has been made to a judgment rendered by the Hon’ble Apex Court in the case of Sukhpal Singh Khaira vs. The State of Punjab, reported in (2023) 1 SCC 289 [: 2023 (1) BLJ 1 (SC)] and it has been submitted that the Hon’ble Apex Court has held that if the conclusion of the trial in a criminal prosecution ends in conviction, then a judgment is considered to be complete in all respects only when the sentence is imposed on the convict, if the convict is not given the benefit of Section 360CrPC. Reference has also been made to a judgment rendered by the Hon’ble Apex Court in the case of Harshad Gupta vs. The State of Chhattisgarh, reported in (2024) 10 SCC 404 to submit that the Hon’ble Apex Court has held that Section 235 of the Cr.P.C. mandates that once the judgment of conviction is passed, the order of sentence is required to be passed after hearing the convict and the process and procedure contemplated under Section 235 (2) CrPC cannot annul the judgment of conviction recorded under sub-section (1) thereof, since both clauses operate in their respective fields, though sub-section (2) is contingent upon the outcome under sub-section (1) of Section 235CrPC. The occasion to comply with sub-section (2) of Section 235, thus, arises only when there is a judgment of conviction passed under Section 235 (1) CrPC. 7.
The occasion to comply with sub-section (2) of Section 235, thus, arises only when there is a judgment of conviction passed under Section 235 (1) CrPC. 7. The learned Amicus Curiae has also referred to a judgment rendered in the case of Deo Narain Mandal vs. The State of U.P., reported in (2004) 7 SCC 257 to submit that the Hon’ble Apex Court has held therein that the awarding of a sentence in a criminal case is not a mere formality and where the statute has given the Court a choice of sentence with maximum and minimum limit, though the said discretion is vested with the court but this discretion cannot be exercised arbitrarily or whimsically, however it has to be exercised taking into consideration the gravity of offence, the manner in which it is committed, the age, the sex of the accused and other facts of each case as also bearing in mind the principle of proportionality. Thus, it is submitted that where the penal provision instead of rigidly fixing the duration of the term of imprisonment, prescribes the maximum and minimum limit, the learned Trial Court, while passing the order of sentence, has to exercise its discretion taking into consideration the germane factors and fix the exact length of the term of imprisonment. The learned Amicus Curiae has next referred to the judgment rendered by the Ld. Full Bench of this Court in the case of Rajeshwar Prasad vs. The State of Bihar, reported in 1971 PLJR 414 to submit that though procedural irregularity committed by the Trial Court can be rectified by the Appellate Court, however the error of law and an illegality cannot be cured and for that purpose the case in hand ought to be remanded back to the learned Trial Court for the purposes of setting the illegality right by exercising its discretion. It would be relevant to reproduce paragraph nos. 14 and 15 of the said judgment herein below:— “14. Mr. K.P. Verma, learned Government Advocate, appearing in the other criminal revision, has urged that the legal position has been correctly enunciated in the case of (2) Alakh Singh that the non-award of sentence of imprisonment under Section 452 (or for the matter of that under Section 325) of the Code, however short, was an error of law and an illegality and not mere irregularity, as urged by Mr. Singh. 15.
Singh. 15. There cannot be any doubt on the express wordings of Sections 325 and 452 of the Code that the sentence to be imposed under these counts is one of imprisonment. The liability as to the fine is optional. In the decision relied upon by Mr. Singh (1) (A.I.R. 1933 Patna 179), no doubt, it is mentioned that it is ‘irregular’, but that decision does not specifically lays down that it is not illegal. In that case the reference was on the ground that the sentence of fine under Section 325 of the Code was illegal. Their Lordships, while declining to interfere in exercise of revisional jurisdiction in the matter of sentence, on the facts of that case, have, no doubt, used the expression that the sentence of fine was ‘irregular’. Nothing is said in that case that the view of the learned Sessions Judge that such a sentence was ‘illegal’ was not a correct one. The view taken in the case of (2) Alakh Singh (the latter Bench decision of this Court) is in consonance with the views of the other High Courts also, which I will have occasion to refer in other context hereinafter and, in my opinion, correctly lays down the law.” 8. The next judgment which has been referred to by the learned Amicus Curiae is the one rendered by the learned Division Bench of this Court in the case of Chandan Kumar @ Chandan Yadav vs. The State of Bihar, passed in Criminal Appeal (DB) No. 526 of 2023, paragraphs no. 17 to 31 whereof being relevant, are reproduced herein below:— “17. Section 235 of the Cr.P.C. lays down that:— “1. After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. 2. If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360 hear the accused on the question of sentence, and then pass sentence on him according to law.” 18. On the point of hearing the accused on a postconviction stage, the law stipulates that after completion of defence evidence, the prosecution and defence will be heard. On the question of sentence, the Parliament has clearly written in the law that the accused shall be heard on the question of sentence and then pass the sentence in accordance with law. 19.
On the question of sentence, the Parliament has clearly written in the law that the accused shall be heard on the question of sentence and then pass the sentence in accordance with law. 19. The Hon’ble Supreme Court of India has pointed out in Jagmohan Singh vs. The State of U.P., 1973 SCC (CRI) 169— “The court is primarily concerned with all the facts and circumstances insofar as they are relevant to the crime and how it was committed and since at the end of the trial he is liable to be sentenced, all the facts and circumstances bearing upon the crime are legitimately brought to the notice of the court. Apart from the cross-examination of the witnesses, the Criminal Procedure Code requires that the accused must be questioned with regard to the circumstances appearing against him in the evidences. He is also questioned generally on the case and there is an opportunity for him to say whatever he wants to say. He has a right to examine himself as a witness, thereafter, and give evidence on the material facts. Again he and his Counsel are at liberty to address the court not merely on the question of guilt but also on the question of sentence. In important cases like murder the court always gives a chance to the accused to address the court on the question of sentence.” (emphasis supplied) 20. Conviction of an accused is not a day to day exercise and, as such, sentencing of an accused is a very sensitive exercise of jurisdiction and merely giving a sentence on a mechanical prescription without taking into account the law, in vogue at the relevant time, whether it is a newly formed law or an old law. It is the duty of the Court to take into account the said law. The Court should always collect material necessarily to help award a just punishment. It is the duty of the Court to collect the facts bearing on punishment with rehabilitating approach. The said provision of Section 235(2) of the Cr.P.C. is mandatory and confers a right on the offender to be heard on question of sentence. 21.
The Court should always collect material necessarily to help award a just punishment. It is the duty of the Court to collect the facts bearing on punishment with rehabilitating approach. The said provision of Section 235(2) of the Cr.P.C. is mandatory and confers a right on the offender to be heard on question of sentence. 21. Section 376 and Section 376D of the IPC, both relates to committing the offence of rape, but both are very different to each other as one relates to rape by a single person and the other relates to gang rape committed by more than one person, which is very heinous and gravely affects the society at large. 22. If an accused person is not heard on the question of sentence in accordance with law and upon the correct provisions of the law, it gravely affects trial amounting to by-passing of an important stage of trial. It can be said that such deviation constitutes disobedience to the mandatory provision, i.e., Section 235(2) of the Code of Criminal Procedure, which result into illegality of such a character, which vitiates the sentence and further making the justice to be implicit. 23. The provisions of Section 235(2) is a clear and explicit provision and it contains cardinal features of natural justice i.e., Audi alteram partem, that the accused must be given an opportunity to represent himself against the sentence imposed on him. Principles of natural justice is the most fundamental part of criminal procedure and non-compliance of it will vitiate the order of sentence. It is a not a mere irregularity, but, affects the fundamental right of the accused person, his personal liberty and opportunity to represent himself before the Court, resulting into serious failure of justice. Hearing the accused, on a wrongly stated provision of law and later on changing the same citing clerical error when the said laws are different to each other, vitiates the fundamental right of the accused and it is on the exact footing of not hearing the accused on the question of sentence and then passing the sentence on him according to law. 24.
24. The landmark judgment of the two-Judge bench decision of Hon’ble Supreme Court in Santa Singh vs. State of Punjab, (1976) 4 SCC 190 laying down that— “3....Moreover it was realised that sentencing is an important stage in the process of administration of criminal justice as important as the adjudication of guilt and it should not be consigned to a subsidiary position as if it were a matter of not much consequence. It should be a matter of some anxiety to the court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serious attention of the court... The reason is that a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused. Hence the new provision in Section 235(2). 4. ………...We are, therefore, of the view that the hearing contemplated by Section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same.
Of course, care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonised with the requirement of expeditious disposal of proceedings." (emphasis supplied) 25. Hon’ble Supreme Court in Allauddin Mian vs. State of Bihar, (1989) 3 SCC 5 — "10.... The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the court in determining the correct sentence to be imposed the legislature introduced sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality. Mr Garg was, therefore, justified in making a grievance that the trial court actually treated it as a mere formality as is evident from the fact that it recorded the finding of guilt on 31.3.1987, on the same day before the accused could absorb and overcome the shock of conviction they were asked if they had anything to say on the question of sentence and immediately thereafter the decision imposing the death penalty on the two accused was pronounced.
In a case of life or death as stated earlier, the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this case, without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the court, the court's decision on the sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has far more serious consequences on the offender and his family members than in the case of a purely administrative decision; a fortiori, therefore, the principle of fair play must apply with greater vigor in the case of the former than the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violation of the rule of natural justice. Likewise, a sentencing decision taken without following the requirements of sub-section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing court must approach the question seriously and must endeavor to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. We think as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender." 26. In Muniappan vs. State of Tamil Nadu, (1983) 2 SCC 277 , a two-judge bench of the Hon’ble Supreme Court held that section 235(2) was not a formality which could be dispensed with, but required consideration after conviction was confirmed.— “2.... The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence.
The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the judge to cast aside the formalities of the court scene and approach the question of sentence from a broad, sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. The Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section entirely different order than those which come into play on the question of conviction. The Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation." 27. From the above provisions, one can come to the conclusion that fulfillment of Section 235(2) of the Cr.P.C., is a vital part when the accused is being convicted in a trial and if not followed, the principle of natural justice, on which the law of the land is based upon, is vitiated. Thus, an effective hearing is only fulfilled after the trial is commenced, the deposition of witnesses has been recorded, the submissions of learned counsel for both the parties are heard and, as if the case may be, resulting into conviction of the accused, opportunity shall be prescribed for hearing the accused on the point of sentence.
Thus, an effective hearing is only fulfilled after the trial is commenced, the deposition of witnesses has been recorded, the submissions of learned counsel for both the parties are heard and, as if the case may be, resulting into conviction of the accused, opportunity shall be prescribed for hearing the accused on the point of sentence. The effective hearing is the basis of principles of natural justice and it co-relates to Audi alteram partem, which means that the other party shall also be heard. On the point of effective hearing, if not done, the trial cannot be said to have been done in a correct manner and the order of sentence is liable to be set aside on and should be heard afresh, otherwise the accused would be deprived of his lawful right. The High Court has the authority and jurisdiction to contemplate whether effective hearing in a trial on the order of sentence has been done or not and if the appellant does not take plea that the effective hearing (on order of sentence) has not been done, the said aspect cannot be gone into in the present case, effective hearing of sentence has not been done as the provision of Section 235(2) of the Cr.P.C. has not been fulfilled. The Ld. trial Court has cited a typographical error after petition was filed by the prosecution stating that Sections have been wrongly mentioned as ‘376D/34’ in place of ‘376/34’ of the IPC & the counsel for the accused (before the learned trial Court) has given no objection to the said petition. 28. In earlier times, the law was based on punishing as accused but in the modern times, the approach of the court and justice is of rehabilitation of the accused and the aim of the law is to give them social and economic justice which is necessarily to be weighed in favour of the weak and exposed. Section 235 of Cr.P.C. is a provision, which is used as a tool. 29. It is surprising to note here that the learned trial Court has awarded punishment under Section 376D of the IPC and later changed it to Section 376 citing clerical error. The minimum punishment under the Section 376D of IPC is 20 years which may extend [to life].
29. It is surprising to note here that the learned trial Court has awarded punishment under Section 376D of the IPC and later changed it to Section 376 citing clerical error. The minimum punishment under the Section 376D of IPC is 20 years which may extend [to life]. The learned trial Court must have taken into account, the minimum punishment, i.e., 20 years and must not have requested for a minimum punishment to be awarded to the present appellant at the stage of sentence in the trial, but if the sentence was under Section 376 of the IPC, the minimum punishment comes to seven years which may extend up to life. If the minimum punishment under Section 376 of the IPC is seven years, the convicted person in the trial Court would have requested the trial Court to award the minimum sentence, which is there in the provisions. The trial Court made an apparent error while passing the sentence of 20 years, without considering that minimum punishment under Section 376 of IPC which shows that the sentence was passed mechanically, keeping in mind the provisions and punishment under Section 376D and not Section 376 of the IPC. It is a case where the trial Court has passed a sentence without effectively hearing the appellant (convict) on the order of sentence. 30. The learned trial Court has awarded the above said punishment without effectively hearing the convict (appellant) and not fulfilling the provision of Section 235(2) Cr.P.C. Before awarding the said punishment, the convict (appellant) ought to have been given opportunity of effective hearing which is vital and fundamental to the trial. The learned trial Court has awarded the said punishment to the convict (appellant) under section 376D of the Indian Penal Code, but the provision was later changed to 376/34 of the Indian Penal Code. 31. In view of the aforesaid facts and circumstances of the present case, the present appeal is partly allowed to the extent the order of sentence is concerned. The order of sentence dated 29.03.2023 and correction order dated 17.05.2023 are hereby set aside.
31. In view of the aforesaid facts and circumstances of the present case, the present appeal is partly allowed to the extent the order of sentence is concerned. The order of sentence dated 29.03.2023 and correction order dated 17.05.2023 are hereby set aside. The present matter is remanded back to the concerned Trial Court with a direction to pass appropriate order of sentence under Section 376 of the Indian Penal Code after giving opportunity of hearing to the convict with regard to the question of sentence in accordance with the provisions of Section 235(2) of the Cr.P.C. The trial Court is further directed to pass a fresh order of sentence within a period of sixty days from the date of receipt of this judgment. 31.1. At this stage, it is clarified that we have not examined the merits of the case of the appellant/convict and the judgment of trial Court with regard to conviction recorded under Section 376 of the Indian Penal Code and other provisions of the Indian Penal Code, as stated in the said order. Thus, we grant liberty to the appellant to challenge the order dated 29.03.2023 as well as correction order dated 17.05.2023 on its own merits after the fresh order which may be passed by the trial Court on the point of sentence. Thus, it is further clarified that we have interfered with the order of sentence passed by the learned trial Court against the appellant/convict with regard to the offence punishable under Section 376 of the Indian Penal Code only.” 9. It is submitted by the learned Amicus Curiae by referring to the aforesaid judgment rendered by a Coordinate Bench of this Court in the case of Chandan Kumar (supra) that in a case where the learned Trial Court had committed illegality in awarding sentence, the matter was remitted back to the learned Trial Court by quashing the order of sentence, for passing appropriate order of sentence under the penal provision under which the accused has been convicted, however without examining the merit of the case of the convict and the judgment of conviction rendered by the learned Trial Court. 10. It is next contended by the learned Amicus Curiae that the sentence which has been awarded in the present case qua the appellant no.
10. It is next contended by the learned Amicus Curiae that the sentence which has been awarded in the present case qua the appellant no. 2 under Section 376 (2) (n) of the IPC and Section 6 read with Section 5(1) of the POCSO Act, 2012 is vague inasmuch as though the said penal provisions provide for the minimum and maximum sentence, however the learned Trial Judge has not exercised his discretion and left the sentence indeterminate, unspecified as also vague which is a fatal vice and amounts to depriving the liberty of the convict which can only be deprived in accordance with the procedure established by law and by a court of competent jurisdiction. Lastly, it is submitted that as far as the powers of the Appellate Court, as postulated under Section 386 (b) of the Code of Criminal Procedure, 1973 is concerned, since the error committed by the learned Trial Judge, while passing the order of sentence qua the appellant no. 2, is not an irregularity but an error of law and an illegality, hence the same can be corrected not by the Appellate Court but only by the learned Trial Court inasmuch as it is the Trial Court which has omitted to specify/quantify the term of imprisonment, though the penal provisions contained in Section 6 of the POCSO Act, 2012 and Section 376(2)(n) of the IPC provide for the minimum and maximum sentence, rendering the sentence erroneous and illegal. 11. At this juncture, the learned Amicus Curiae has also contended that there is no need to issue any notice to the informant/victim at this stage since no prejudice is going to be caused to the informant/victim inasmuch as this Court, at the moment is not adjudging the legality of the impugned judgment of conviction and is only remanding the matter to the learned Trial Court for passing an appropriate order of sentence qua the appellant no. 2 by correcting the illegality which has crept in the order of sentence dated 09.09.2025. 12. Having regard to the facts and circumstances of the case and having considered the elaborate submissions advanced by the learned Amicus Curiae, we find that Section 235 Cr.P.C. mandates that in case an accused is convicted, the convict has to be heard on the question of sentence and then order of sentence has to be passed by the learned Trial Judge in accordance with law.
As far as the language and content of judgment is concerned, Section 354 (1) (c) Cr.P.C provides that the same shall specify the offence (if any) of which, and the sections of the Indian Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced. Thus, it is submitted that order of sentence is also an essential part of the judgment of conviction and not a mere formality and a judgment of conviction cannot be said to be complete unless the Court convicting the accused passes appropriate order of sentence. 13. Thus, we find that as per the mandate of Section 235 Cr.P.C., if the conclusion of the trial in a criminal prosecution ends in conviction, then a judgment is considered to be complete in all respects only when the sentence is imposed on the convict, if the convict is not given the benefit of Section 360 CrPC. We also find from the provision contained under Section 354 (1) (c) of the Cr.P.C. that a judgment passed in a criminal trial has to specify the offence and the Section of the IPC/the relevant law under which the accused is convicted and the punishment to which he is sentenced. Thus, it is mandatory that a judgment of conviction is followed by an appropriate order of sentence. The awarding of a sentence in a criminal case is not a mere formality and where the statute has given the Court a choice of sentence with maximum and minimum limit, though the said discretion is vested with the court but this discretion cannot be exercised arbitrarily or whimsically, however it has to be exercised taking into consideration the germane factors. Thus, where the penal provision instead of rigidly fixing the duration of the term of imprisonment, prescribes the maximum and minimum limit, the learned Trial Court, while passing the order of sentence, has to exercise its discretion taking into consideration the germane factors and fix the exact length of the term of imprisonment by quantifying the term of imprisonment and not leaving the sentence indeterminate, unspecified as also vague which is a fatal vice. Therefore, in such cases where the learned Trial Court omits to quantify the term of imprisonment, the same would render such order of sentence illegal and not irregular. 14.
Therefore, in such cases where the learned Trial Court omits to quantify the term of imprisonment, the same would render such order of sentence illegal and not irregular. 14. At this juncture it would be relevant to quote Section 376(2)(n) of the IPC and Section 6 of the POCSO Act, 2012, herein below:— Section 376. Punishment for rape (2) Whoever,— (n) commits rape repeatedly on the same woman, 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. Section 6 of the POCSO Act, 2012 (as is stood prior to amendment in the year 2019)-Punishment for aggravated penetrative sexual assault.— Whoever, commits aggravated penetrative sexual assault, 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 and shall also be liable to fine. 15. Now coming back to the facts and circumstances of the present case, the appellant no. 2, namely Anil Yadav has been convicted U/s. 376 (2) (n) of the IPC and U/s. 6 R/w. Section 5(l) and Section 10 of the POCSO Act, 2012 and he has been sentenced to undergo RI for a term which shall not be less than 10 years U/s. 376(2)(n) of the IPC with fine of Rs.10,000/- as also he has been sentenced to undergo RI for a term which shall not be less than 10 years U/s. 6 R/w. Section 5(1) of the POCSO Act, 2012 with fine of Rs.10,000/- apart from the appellant no.2 being sentenced to undergo RI for a term of 7 years U/s. 10 of the POCSO Act, 2012 with fine of Rs.10,000/-. In default of payment of the same, the appellant no. 2 has been further directed to undergo simple imprisonment for six months. As far as the order of sentence, passed by the Ld. Trial judge under Section 10 of the POCSO Act, 2012 is concerned, the same being legal does not require any interference. However, as far as the impugned order of sentence dated 09.09.2025, passed by the Ld. Trial judge qua the appellant no.
As far as the order of sentence, passed by the Ld. Trial judge under Section 10 of the POCSO Act, 2012 is concerned, the same being legal does not require any interference. However, as far as the impugned order of sentence dated 09.09.2025, passed by the Ld. Trial judge qua the appellant no. 2 namely Anil Yadav U/s. 376 (2) (n) of the IPC and U/s. 6 of the POCSO Act, 2012 is concerned, we find that the learned Trial Judge has not only committed illegality but also grave error of law by not quantifying the term of imprisonment and has instead merely sentenced the appellant no. 2 to undergo RI for a term which shall not be less than 10 years U/s. 376(2)(n) of the IPC with fine of Rs. 10,000/- apart from sentencing the appellant no. 2 to undergo RI for a term which shall not be less than 10 years U/s. 6 of the POCSO Act, 2012, with fine of Rs. 10,000/-. 16. Thus, we find that the order of sentence dated 09.09.2025, passed by the Ld. Trial judge qua the appellant no. 2 namely Anil Yadav U/s. 376 (2) (n) of the IPC and U/s. 6 of the POCSO Act, 2012 is vague inasmuch as though the said penal provisions provide for the minimum and maximum sentence, however the learned Trial Judge has not exercised his discretion and left the sentence indeterminate, unspecified as also vague which is a fatal vice and amounts to depriving the liberty of the convict which can only be deprived in accordance with the procedure established by law and by a court of competent jurisdiction. 17. Therefore, considering the entirety of the facts and circumstances of the case as also the order of sentence dated 09.09.2025 passed by the learned Trial Court qua the appellant no. 2 under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act, 2012, we find that the learned Trial Court has omitted to quantify the term of imprisonment, thus rendering the order of sentence dated 09.09.2025 passed under Section 376(2) (n) of the IPC and Section 6 of the POCSO Act, 2012 qua the appellant no. 2 illegal, which cannot be cured by this Court, hence the matter is required to be remanded back to the learned Trial Court for hearing the appellant no.
2 illegal, which cannot be cured by this Court, hence the matter is required to be remanded back to the learned Trial Court for hearing the appellant no. 2 and the informant/ victim on the point of sentence to be awarded to the appellant no. 2 under Section 376(2)(n) and Section 6 read with Section 5(l) of the POCSO Act, 2012 and passing a fresh order of sentence under the said penal provisions by quantifying the term of imprisonment for the conviction already handed out to the appellant no. 2 under Section 376(2)(n) and Section 6 read with Section 5(l) of the POCSO Act, 2012 by the impugned judgment of conviction dated 09.09.2025. 18. Accordingly, the order of sentence dated 09.09.2025 passed by the learned Trial Judge qua the appellant no. 2, so far as the same pertains to the sentence awarded under Section 376(2)(n) of the IPC and Section 6 read with Section 5(l) of the POCSO Act, 2012 is set aside and the present matter is remanded back to the concerned Trial Court with a direction to pass appropriate order of sentence U/s. 376(2)(n) of the IPC and Section 6 R/w. Section 5(l) of the POCSO Act, 2012 after giving opportunity of hearing to the convict, i.e the appellant no. 2 namely Anil Yadav as also the informant/victim with regard to the question of sentence in accordance with the provisions of Section 235(2) of the Cr.P.C. The concerned trial Court is further directed to pass a fresh order of sentence within a period of 45 days from the date of receipt of this judgment. 19. At this stage, it is clarified that we have neither examined the merits of the case of the appellant No. 2/convict nor the judgment of conviction dated 09.09.2025, passed by the Ld. Trial Court nor we have expressed any opinion on the merits of the same. Thus, the impugned judgment of conviction dated 09.09.2025 would stand as it is qua the appellants. Nonetheless, we grant liberty to the appellant No.2 to challenge the fresh order of sentence to be passed by the learned Trial Court qua him by filing appropriate amendment petition in the present appeal.
Thus, the impugned judgment of conviction dated 09.09.2025 would stand as it is qua the appellants. Nonetheless, we grant liberty to the appellant No.2 to challenge the fresh order of sentence to be passed by the learned Trial Court qua him by filing appropriate amendment petition in the present appeal. Thus, it is further clarified that we have only interfered with the order of sentence dated 09.09.2025 passed by the learned trial Court against the appellant No.2/convict with regard to the offence punishable U/s. 376(2)(n) of the IPC and Section 6 R/w. Section 5(l) of the POCSO Act, 2012. 20. The registry of this Court is directed to send a copy of this order to the learned Court of Exclusive Special Judge (POCSO Act), Darbhanga in connection with POCSO G.R. Case No.47 of 2016 (arising out of Bishanpur (Darbhanga) P.S. Case No.86 of 2016) forthwith, for needful compliance. 21. Re-notify this case on 17.12.2025 under the same heading. 22. Before parting, we place on record our appreciation for the learned Amicus Curiae, Ms. Surya Nilambari Advocate, in extending her able and invaluable assistance to the Court on the issue under consideration.