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Gaya Prasad Pal @ Mukesh Vs State (2016): Even Though The Law Allows For A Trial On An Alternative Charge For Both Offences, The Punishment Can Only Be Given For One Of Them, The One That Is More Serious

Rupal Nemane ,
  14 December 2021       Share Bookmark

Court :
High Court of Delhi
Brief :

Citation :
Civil Appeal No. 163 of 2013

Date of judgement:
5th January 2016

Justice Gita Mittal
Justice R.K Gauba

Respondent – STATE


A person cannot be punished twice for the same offence, otherwise it will be termed as Double jeopardy. A person cannot be punished for his offence by two different provisions of law. There can be trial on alternative charge to be held for both the offences but he will be punished under any of the one provision which is graver in nature.

Legal Provisions

  • Section 376 IPC- Punishment for rape.
  • Section 354 IPC- Assault or criminal force to woman with intent to outrage her modesty
  • Section 506 IPC- Punishment for criminal intimidation.
  • Section 6 POSCO Act- Punishment for aggravated penetrative sexual assault.
  • Section 71 IPC- Limit of punishment of offence made up of several offences.


  • The victim was a minor girl born on 10th September 1999. She was raped by her stepfather. Her biological father had died in an accident when she was about one and a half years old. She had a step brother who was 8 years old. The stepfather (also the appellant) was a driver and mother used to do household chores at people’s house as a maid.
  • On 8th September 2013, the victim was taken to a Gynecologist where it was found that she was pregnant with a child carrying a fetus assessed at that stage to be 22 weeks and 1 day old. She gave birth to a male child on 10th February, 2014, New Delhi as the foetus could not be aborted. At the time the victim was 14years and 5 months old.
  • On questioning about the incidence, the victim revealed that the stepfather was responsible for the pregnancy and said that she was often being assaulted by him(Chhedkhani). She was also being given life threats by him if she opens her mouth. After counseling, an FIR was filed on 18th September 2013 by the victim. It was revealed by the victim that the appellant had a habit of touching her in an inappropriate manner. After the scientific evidence was collected, there was no doubt that the stepfather had committed the rape.
  • There was delay in filing an FIR as the victim was afraid that the family will lose the earner in the house and was also terrified by the death threats given by the appellant.
  • On 15th October, 2015 the appellant was held guilty under section 354 and 506 of IPC besides under section 4 of POSCO Act read with section 376 of IPC.


  • Here the appellant challenged his conviction for being charged twice for the same offence committed by him.

Judgment Analysis

  • On 5th January, 2016, separate punishments were awarded to the appellant under section 6 of POCSO Act (whoever commits aggravated penetrative sexual assault will be punished for a term not less than 20 years which can also be extended for life, and shall also be liable to fine or with death) , Section 376 (person committing rape will be punished with rigorous imprisonment of term not less than 10 years and which can also extend for life and shall also be liable to fine ,354(person committing assault or criminal force on any woman with and intention to outrage her modesty, shall be imprisoned for a term which may extend to 2 years or with fine or both) and 506 (on commencement of offence of criminal intimidation will be punished with imprisonment of a term of max 2 years or with fine or both), of IPC.
  • Also, a compensation of Rs 13 lakhs was directed to be paid with reference to section 33 (8) of POCSO Act (states that the special court may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child)”read with rule 7(2) of POCSO Rules.
  • Also, Rs 2 lakhs recommended under section 357 A Cr.P.C. (every state government with the co-ordination of central government should come out with a way to provide funds for purpose of compensation to victim or the people who are dependent and also have suffered injury or loss as a result of crime and who require rehabilitation) read with POCSO rules.


Section 71 of IPC holds that when an offence falls under two or more separate definitions of any law which is in force, the offender will be punished with a punishment which is not that severe.When we put a person through 2nd trial of an offence for which she/he has been already convicted or prosecuted is known as Double Jeopardy. Jeopardy means danger.

Article 20(2) of constitution which is a fundamental right of India, involves the principle of “autrefois convict” meaning double jeopardy. Italso follows the “audi alterum partem rule” which means that no person can be punished for the same offence more than ones.”

Click here to download the original copy of the judgement

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