Comment on the Supreme Court Judgment “

Shekara v. State of Karnataka ”

P.R. Thakur, Advocate
Former Addl. District & Sessions Judge, Delhi

The two-Judge Bench of the Supreme Court (Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.) in the decision reported as Shekara v. State of Karnataka, JT 2009 (4) SC 360, was dealing with the appeal against the judgment of the learned Single Judge of the Karnataka High Court whereby the conviction of the appellant for the offence under Section 376 IPC as also the sentence of five years' rigorous imprisonment imposed by the Additional Sessions Judge had been upheld. The Bench, after examining the merits of the case, in the paragraph 8 of the judgment, held that the trial court and the High Court had found the accused guilty of the offence punishable under Section 376 IPC but the offence made out was under Section 354 IPC. Therefore, the conviction of the appellant was altered from Section 376 IPC to Section 354 IPC. In the ultimate paragraph, the Bench observed that the appeal was without merit and deserved dismissal, and the same was accordingly dismissed, which means that although the conviction was altered from the offence under Section 376 IPC to the offence under Section 354 IPC, the sentence of five years' rigorous imprisonment as awarded by the trial court and upheld by the High Court of Karnataka, was maintained.

The question for consideration is that whether a sentence of five years imprisonment could be awarded for the offence punishable under Section 354 IPC. The bare reading of Section 354 IPC brings out that if any person is found guilty of outraging the modesty of a woman punishable under Section 354 IPC, the punishment may extend to imprisonment of either description for a term which may extend to two years or with fine or with both. There is thus no question of imposing the sentence of imprisonment for five years in case of an offence under Section 354 IPC. The maximum term of imprisonment which could be awarded under Section 354 is two years. It appears that the sentence aspect escaped the attention of the Bench, and consequently, the appeal of the appellant was dismissed in toto, maintaining the sentence of five years' R.I. which had been awarded by the trial court and upheld by the High Court of Karnataka in respect of the offence under Section 376 IPC. Once the Supreme Court altered the conviction from Section 376 IPC to one under Section 354 IPC, the punishment could not exceed in the maximum beyond two years.

It is very likely that the appellant might have already undergone the full sentence of two years, or even more by the time his appeal was decided by the Supreme Court. If that was so, he was entitled to be released from jail forthwith.

The error in the judgment under consideration is apparent on the face of the record and it should be rectified suo motu by the Supreme Court if there has been filed no review petition by the appellant, or the review petition has already been dismissed for any reason. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.