KUMAR GHIMIREY versus THE STATE OF SIKKIM

KUMAR GHIMIREY versus THE STATE OF SIKKIM

Enhancement of sentence by the High Court in appeal filed by the accused is permissible only if notice is given to the accused as per Section 386 Cr.P.C.; since in the present case no notice was issued, the enhanced sentence is set aside and the original sentence of seven years is restored.

Parties
Appellant: Kumar Ghimirey; Respondent: The State of Sikkim
Jurisdiction
India
Judgment Date
22 April 2019
Procedural Posture
Criminal Appeal / Final Judgment
Outcome
Appeal partly allowed
Legal Topics
Sexual Assault, Sentencing Enhancement, Protection of Children From Sexual Offences Act, Procedural Rights
Criminal Law Child Protection Law Sexual Assault Sentencing Enhancement Protection of Children From Sexual Offences Act Procedural Rights

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Parties

Kumar Ghimirey

Appellant

The State of Sikkim

Respondent

Procedural Posture

Criminal Appeal / Final Judgment

Legal Issues

  1. 1 Whether the High Court was correct in enhancing the sentence in appeal without issuing notice to the accused
  2. 2 Whether the sentence imposed under Section 9/10 of POCSO Act was excessive

Ratio Decidendi

Enhancement of sentence by the High Court in appeal filed by the accused is permissible only if notice is given to the accused as per Section 386 Cr.P.C.; since in the present case no notice was issued, the enhanced sentence is set aside and the original sentence of seven years is restored.

Court Disposition

Appeal partly allowed

Orders

  • High Court's enhancement of sentence from seven years to ten years set aside
  • Original sentence of seven years under POCSO Act and one month under Section 341 IPC maintained