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Reserved on 04.04.2022

Delivered on 31.05.2022 A.F.R.

Court No. - 49

Case :- JAIL APPEAL No. - 153 of 2021

Appellant :- Sonu

Respondent :- State of U.P.

Counsel for Appellant :- From Jail,Rahul Jain

Counsel for Respondent :- A.G.A.

Hon'ble Suneet Kumar,J.

Hon'ble Umesh Chandra Sharma,J.

(Delivered by Hon’ble Umesh Chandra Sharma,J.)

1.The appeal has been preferred against the conviction and

sentence of the appellant Sonu S/o Late Phool Chand, under

Section 363, 366, 376D I.P.C. & Section 5/6 of POCSO Act in

Session Trial No. 8/2018 in Case Crime No. 111/2017, P.S.

Kotwali, District Vindhyachal, U.P. By Special Judge POCSO Act /

Additional Sessions Judge, Mirzapur on 14.10.2020.

2.The grounds of appeal are that there was no evidence on record

to prove the alleged incident. No one had seen Sonu along with

the victim on the date and time of incident. Though, it is stated

that the victim was kidnapped at about 10:00 A.M from the

nearby market place, no eye-witness saw the occurrence in day

light makes the allegation improbable. No witness, neither father

nor mother of the victim were aware about the date-of-birth of

the victim as to whether at the time of occurrence she was minor

or not. There was dispute between the father of the victim and

the uncle of the appellant. The victim had relations with Dinesh

and Sonu. Sonu has helped the victim to get married with Dinesh.

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Sonu has been made scapegoat in the matter. There are glaring

contradiction between the statement and cross-examination of

the witnesses P.W.-1, P.W.-2 & P.W.-3. The Trial Judge has not

relied upon the medical age already framing mind to convict the

appellant. In cross-examination, witness has stated that Sonu had

done nothing and had not gone with the victim though at some

places, victim has deposed against the appellant. There is no

explanation of delay in lodging the F.I.R. after three months from

the incident. The victim has stated to the I.O. that she was living

in Bahraich with her husband Dinesh. There is no independent

eye-witness. P.W.-1 and P.W.-2 have given heresay evidence. The

charge is not proved from the evidence of sole witness, victim

P.W.-3. Appellant has no previous criminal antecedent, therefore,

the appeal be allowed and the conviction and sentence awarded

by the learned Trial Court be quashed.

3.In brief, the case of the prosecution is this that informant/plaintiff

PW1- Ram Ashrey father of the victim, moved an application for

lodging the F.I.R. with the averment that on 27.10.2016, daughter

of the informant P.W.- 1 aged about 17 years old left the house at

about 10 A.M. for school, appellant-Sonu with two unknown

youngsters kidnapped and abducted her daughter. Even after

prolong search, he could not find her daughter. He used to talk

with his daughter from an unknown mobile no. 9565005779

provided by Sonu. Sonu informed P.W.-1 that on mobile no.

946763015, he will know about his daughter. Through that given

mobile number, he contacted his daughter who informed that she

was in Jammu & Kashmir.

4.On the basis of written FIR Ex. Ka-1, a case was registered under

Section 363 IPC on 12.03.2017, S.I. Bhuval Singh, Virendra

Yadav, Krishna Nand Rai, Jai Lal and lastly, S.H.O. Ashok Kumar

Singh investigated the matter. The charge-sheet was submitted

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by the last I.O.. The victim was found in injured condition in a

field near pitch road in P.S. Hardi, District Bahraich, U.P., for

which another crime no. 0338/2017, under Section 307 IPC was

registered on 05.03.2017. That case was transferred to District

Mirzapur where investigation was completed against the appellant

Sonu and charge-sheet was submitted under Sections 363, 366,

376, 307 IPC and ¾ POCSO Act. Investigation about rest accused

persons remain pending.

5.The accused was charged under the above sections which he

denied and sought trial. Prosecution submitted following

documentary evidences:-

1. Tehrir FIR, Ex. Ka.-1.

2. Statement of victim under Section 164 Cr.P.C., Ex. Ka.-2

3. Medical Report Ex. Ka.-3.

4. G.D. regarding institution of case, Ex. Ka.-4.

6.Map of Case Crime No. 338/17, under Section 307 IPC, P.S. Hardi,

District Bahraich. Ex-K-5 (Map of this Case Crime No. 3K/10 and

chik FIR 3K/2 and also chik 3k/4 and 5 relating Section 307 IPC,

P.S. Hardi, District Bahraich, have not been exhibited.)

7.Charge-sheet Ex-K-6

8.Following witnesses were examined to prove the prosecution

case.

1.PW1 Ram Ashrey, informant, father of the victim.

2.PW2 Pankali, mother of the victim.

3. PW3 Victim herself.

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4. PW4 Dr. Anuradha Mishra.

5. PW5 Ram Lallan Bajpai.

6. PW6 Haldhar @ Rakesh Yadav.

7.PW7 Head Constable Writer, Umakant Rai.

8. PW8 S.I. Suresh Kumar Singh, I.O.

9. PW9 S.I. Ashok Kumar Singh, I.O.

9.After completion of prosecution evidence, the statement of the

accused-appellant was recorded under Section 313 Cr.P.C.,

wherein he said that due to enmity between his maternal uncle

and the informant, he has falsely been implicated in this case.

The appellant did not produce any oral or documentary evidence

in his defence in the lower court. The Lower Court heard the

argument of both the parties and came to the conclusion that the

victim was aged about 17 years, at the time of occurrence. In this

regard, Lower Court has referred to section 94 of Juvenile Justice

Act 2015 and also relied on the case of Mahadeo vs. State of

Maharashtra and another (2013), 2014 SCC 637, in which

principles have been laid down by the Hon'ble Apex Court about

Rule 12 (3) of Juvenile Justice Rules 2007 and Rule 12 (3) B and

also Rule 12 (3) (A) (i) to (iii), and the same has been reiterated

by the Hon'ble Supreme Court in the case of Jernail Singh Vs.

State of Haryana (2013) 7SCC 263. In this regard the Lower

Court has also examined educational certificates of the victim in

which, her date of birth is mentioned as 20.10.2001. At the time

of occurrence, the victim was studying in class 10 in Maharaja

Pratap Inter College, Bihasara.

10.Victim's father and mother PW1 and PW2 and Victim herself as

PW3 have supported the prosecution version. In their statement

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given on oath before the Court, informant PW1 has proved that

aforementioned mobile numbers were provided by the accused

Sonu, by which he could contact the victim. He also found mobile

number of the accused in the book of victim. Accused also

abused him and used unparliamentary language on asking about

the victim.

11.The Lower Court has accepted the explanation given by the

informant PW1 regarding non lodging of FIR promptly and

accepted the explanation that to prevent propaganda, he did not

lodge the FIR just after the incident. It is a common practice in

the Indian society that when any offence is committed against

female member of the family, firstly, family members try to solve

the problem at their own end and upon failure, they take

recourse of law. In this regard, following citations are relevant in

which Hon'ble Supreme Court and High Courts have held that if

delay is properly explained then lodging the delayed F.I.R. is not

fatal to the prosecution case. In case of abduction, kidnapping

and rape of female member of the family, people think over

repeated times and try to solve the problem at their own end

fearing social admonition and when they became helpless then

they lodge the F.I.R.

About delayed FIR and delayed recording of statement of PWs by

I.O. u/s 161 CrPC, Hon'ble Supreme Court has held that if causes

are not attributable to any effort to concoct a version and the

delay is satisfactorily explained by prosecution, no consequence

shall be attached to mere delay in lodging FIR and the delay

would not adversely affect the case of the prosecution. Delay

caused in sending the copy of FIR to Magistrate would also be

immaterial if the prosecution has been able to prove its case by

reliable evidence: Hon'ble Supreme Court has in catena of cases

held the above discussed law:-

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1a. Mukesh Vs. State for NCT of Delhi & Others, AIR

2017 SC 2161 (Three-Judge Bench)

1. Ashok Kumar Chaudhary Vs. State of Bihar, 2008

(61) ACC 972 (SC)

2. Rabindra Mahto Vs. State of Jharkhand, 2006 (54)

ACC 543 (SC)

3. Ravi Kumar Vs. State of Punjab, 2005 (2) SCJ 505

4. State of H.P. Vs. Shree Kant Shekari, (2004) 8 SCC

153

5. Munshi Prasad Vs. State of Bihar, 2002(1) JIC 186

(SC)

6. Ravindra Kumar Vs. State of Punjab, 2001 (2) JIC

981 (SC)

7. Sheo Ram Vs. State of U.P., (1998) 1 SCC 149

8. State of Karnataka Vs. Moin Patel, AIR 1996 SC

3041

Hon'ble Supreme Court has held that the normal rule is that

prosecution has to explain delay and lack of prejudice does not

apply per se to rape cases, vide.

(I) State of U.P. Vs. Manoj Kumar Pandey, AIR

2009 SC 711 (Three-Judge Bench)

(ii) Santosh Moolya Vs. State of Karnataka, (2010),

5 SCC 445”

12.PW2, mother of the victim has also deposed that at times

accused Sonu and his friends used to come at her house. She

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further deposed that on 27.10.2016 when victim left the house

for school, Sonu had come with two other friends who, took away

her daughter. When PW1 and PW2, father and mother of the

victim, came to know about the victim, they went to Bahraich and

K.G.M.U. Lucknow, where, police had admitted the victim.

13.PW3, victim had narrated the whole story that on 27.10.2016,

when she was going school, Sonu along with another person met

her at Chauraha (crossing) and on their direction, she sat on their

Motorcycle, where from she was taken to a mountain at Mirzapur,

there she was raped by the accused-appellant Sonu. At the same

place, she was made unconscious by Guddu and was taken away

to Bahraich, where she was given to Dinesh, Guddu returned

from there. Dinesh kept her for two-three months in his house,

where he used to beat her. Dinesh at several occasions forcefully

raped her and torn her clothes. Sonu wanted to marry her.

According to her, she was married another person, Lalla Prasad,

aged about 25 years, by Dinesh.

14. As per the evidence of P.W.-5 & P.W. 6, the Victim was found in

naked and unconscious condition without clothes in the area of

P.S. - Hardi, District-Bahraich. There was tube for passing urine

on the body of the victim, her hymen was old torned. She was

also subjected to physical and sexual assault when she was found

in District Bahraich, there were marks of injuries at her body. The

victim has proved her statement recorded under Section 164

Cr.P.C.

15.P.W.-5 Ram Lalla Bajpai and PW6 Haldhar @ Rakesh have

deposed that victim was found in unconscious state. There were

injuries on her body.

16.Thus, it is proved that the victim was kidnapped from Mirzapur

and was transferred to several persons and was beaten and

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subjected to physical, mental and sexual assault and later on was

thrown in the area of P.S. Hardi District Bahraich.

17.According to PW6 Haldhar @ Rakesh Yadav there were injuries

upon both the eyes and nose of the victim. There was swelling on

her face. There was dried blood at her nose face and cheeks.

18.P.W.-7 Constable Uma Kant Rai proved chik FIR and G.D.

regarding institution of case. P.W.-7 S.I. Investigator Suresh

Kumar Singh had started investigation of Case Crime No.

3311/17, under Section 307 IPC, P.S. Hardi, District Bahraich,

which was transferred to P.S. Mirzapur after knowing that main

offence had been committed under the jurisdiction of P.S.

Vindhyachal, Mirzapur.

19.PW-8 Suresh Kumar Singh, S.I was appointed Investigating

Officer of Case Crime No. 338/17 Section 307 IPC, PS Hardi,

District-Bahraich, collected the articles received from the spot

recording the statements, visited the spot, recorded the medical

report in C.D. Parcha and transferred the case P.S.- Vindhyachal,

Mirzapur, for further investigation.

20.P.W.-9, S.I. Investigator, Ashok Kumar Singh had finally

investigated the case and submitted the charge sheet in the

afore-mentioned sections and proved the same. He has also

proved the papers regarding acts done during the course of

investigation.

21.On the basis of oral and documentary evidences, the Lower

Court convicted the accused appellant under Sections 363, 366,

376D IPC and Section 6 POSCO Act and discharged the accused

appellant under Section 307 IPC. After conviction Lower Trial

Court sentenced the accused-appellant under Section 363 IPC for

rigorous Imprisonment of five years and 10 thousand Rs. fine and

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in default of payment of fine three months additional

imprisonment. The Lower Trial Court has also sentenced the

appellant for seven years rigorous imprisonment and 10 thousand

Rs. fine and in case of non-payment of fine he would undergo

three months additional imprisonment under Section 366 IPC.

The accused has been sentenced for life imprisonment and Rs. 50

thousand fine under Section 376D IPC equivalent Section 6 of

POCSO Act and in case of non-payment of fine simple

imprisonment of 1 year has been awarded.

22.As already noted that the appellant has not produced any

evidence in his defence and there is not even an iota of the

evidence in support of his false implication at the behest of

plaintiff due to enmity with his maternal uncle. Even alleged

enmity is not established.

23.Section 359 defines kidnapping which is as under:-

Kidnapping is of two kinds; kidnapping from India and

kidnapping from lawful guardianship.

In this case the matter relates to kidnapping from the lawful

guardianship.

24.Section 361 relates to kidnapping from lawful

guardianship- whoever takes or entices any minor under

sixteen years of age if a male, or under eighteen years of age if a

female, or any person of unsound mind, without the consent of

such guardian, is said to kidnap such minor or person from lawful

guardianship.

25.Section 363 relates to punishment for kidnapping

whoever kidnaps any person from India or from lawful

guardianship, shall be punished with imprisonment of either

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description for a term which may extend to seven years, and shall

also be liable to fine.

26.In this case, the victim has been found minor by the Lower

Court, which is not rebutted by the accused-appellant. The Lower

Court has given a categorical finding by referring to the

concerned Section and Rules of Juvenile Justice Act, 2015. The

Trial Court concluded that the date of birth 20.10.2001 of the

victim as written in the progress report of year 2015-2016 in

Jayanti Singh Lal Man Singh Ucchatar Madhyamik Vidhyalya,

Jignapur is correct. The occurrence has taken place on

27.10.2016, thus, the victim was aged about 15 years 7 days old

at the time of occurrence, which is below 16 years. The victim's

mother PW2 has deposed that her daughter was about 17 years

old at the time of occurrence. Thus, at the time of occurrence.

Thus victim was a minor and was under the lawful guardianship

of her parents where from she was kidnapped for which the

accused-appellant has been rightly punished on the basis of

evidence of P.W.-1, P.W.-2 and P.W.-3. The accused-appellant has

also been punished and sentenced under Section 363/366 IPC for

kidnapping, abduction, inducing a woman to compel her from

marriage, it is as under:-

Section 366 relates to kidnapping, abducting or inducing

woman to compel her marriage, etc.-

Whoever kidnaps or abducts any woman with intent that she

may be compelled, or knowing it to be likely that she will be

compelled, to marry any person against her will, or in order tat

she may be forced or seduced to illicit intercourse, or knowing

it to be likely that she will be forced or seduced to illicit

intercourse, shall be punished with imprisonment of either

description for a term which may extend to ten years, and

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shall also be liable to fine; and whoever, by means of criminal

intimidation as defined in this Code or abuse of authority or

any other method of compulsion, induces any woman to go

from any place with intent that she may be, or knowing that it

is likely that she will be, forced or seduced to illicit intercourse

with another person shall be punishable as aforesaid.

Section 375 relates to rape:-

A man is said to commit “rape” if he-

(a) penetrates his penis, to any extent, into the vagina, mouth,

urethra or anus of a woman or makes her to do so with him or

any other person; or

(b) inserts, to any extent, any object or a part of the body, not

being the penis, into the vagina, the urethra or anus of a woman

or makes her to do so with him or any other persons; or

(c) manipulates any part of the body of a woman so as to cause

penetration into the vagina, urethra, anus or any part of body of

such woman or makes her to do so with him or any other

persons; or

(d) applies his mouth to the vagina, anus, urethra of a woman or

makes her to do so with him or any other person.

Under the circumstances falling under any of the following seven

descriptions:

First. - Against her will.

Secondly. - Without her consent.

Thirdly. - With her consent, when her consent has been obtained

by putting her or any person in whom she is interested, in fear of

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death or of hurt.

Fourthly.- With her consent, when the man knows that he is not

her husband and that her consent is given because she believes

that he is another man to whom she is or believes herself to be

lawfully married.

Fifthly. - With her consent when, at the time of giving such

consent, by reason of unsoundness of mind or intoxication or the

administration by him personally or thorough another of any

stupefying or unwholesome substance, she is unable to

understand the nature and consequences of that to which she

gives consent.

Sixthly. - With or without her consent, when she is under

eighteen years of age.

Sevently. - When she is unable to communicate consent.

Explanation 1.- For the purposes of this section, “vagina” shall

also be include labia majora.

Explanation 2.- Consent means an unequivocal voluntary

agreement when the woman by words, gestures or any form of

verbal or non-verbal communication, communicates willingness

to participate in the specific sexual act:

Provided that a woman who does not physically resist to the

act of penetration shall not by the reason only to that fact, be

regarded as consenting to the sexual activity.

Exception 1.- A medical procedure or intervention shall not

constitute rape.

Exception 2. - Sexual intercourse or sexual acts by a man

with his own wife, the wife not being under fifteen years of

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age, is not rape.]

Section 376 relates to Punishment for rape:-

(1) Whoever, except in the cases provided for in sub-section

(2), commits rape, shall be punished with rigorous

imprisonment of either description for a term which1[shall not

be less than ten years, but which may extend to imprisonment

for life, and shall also be liable to fine].

(2) Whoever,—

(a) being a police officer, commits rape—

(i) within the limits of the police station to which such police

officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer's custody or in the

custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such

public servant's custody or in the custody of a public servant

subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by

the Central or a State Government commits rape in such area;

or

(d) being on the management or on the staff of a jail, remand

home or other place of custody established by or under any law

for the time being in force or of a women's or children's

institution, commits rape on any inmate of such jail, remand

home, place or institution; or

(e) being on the management or on the staff of a hospital,

commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a

position of trust or authority towards the woman, commits rape

on such woman; or

(g) commits rape during communal or sectarian violence; or

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(h) commits rape on a woman knowing her to be pregnant; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman,

commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical

disability; or

(m) while committing rape causes grievous bodily harm or

maims or disfigures or endangers the life of a woman; or

(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.

Explanation.—For the purposes of this sub-section,—

(a) "armed forces" means the naval, military and air forces and

includes any member of the Armed Forces constituted under

any law for the time being in force, including the paramilitary

forces and any auxiliary forces that are under the control of the

Central Government or the State Government;

(b) "hospital" means the precincts of the hospital and includes

the precincts of any institution for the reception and treatment

of persons during convalescence or of persons requiring medical

attention or rehabilitation;

(c) "police officer" shall have the same meaning as assigned to

the expression "police" under the Police Act, 1861 (5 of 1861);

(d) "women's or children's institution" means an institution,

whether called an orphanage or a home for neglected women

or children or a widow's home or an institution called by any

other name, which is established and maintained for the

reception and care of women or children.

1[(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

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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.]

27.In the case of Mohan Das Survanshi Vs State of Madhya

Pradesh, 1999 Cr LJ 3451 (MP), the Court held that consent

of a minor prosecutrix does not matter if she was taken to

separate places for making sexual intercourse away from her

lawful guardians, her name different in FIR does not matter as it

was her pet name, under such circumstances accused is guilty of

kidnapping and raping a minor for days.

28.In this regard P.W.-1 and P.W.-2 have deposed that accused

-appellant Sonu used to come at their house with one or two

persons, and PW3 has deposed that she was on the way to

school, when she was taken away by Sonu and another unknown

person. On their direction, she sat on their Motorcycle but they

did not leave her at her school and carried her to Mirzapur

Mountain where, Sonu raped her and Guddu thereafter had taken

her to Bahraich. Thus, when the victim was on the way to school

even then she was under the lawful guardianship of her parents

being minor girl. Later on, she has deposed that Guddu had given

her in the custody of Dinesh who got her married to Lalla

Prashad, who makes bricks in Delhi. The accused-appellant had

knowledge about the consequences of kidnapping and abduction

of a minor girl. Medical evidence of PW4 also corroborates the

oral evidence of P.W.-1, P.W.-2 and P.W.-3. Doctor PW4 found the

victim’s hymen old torned. She opined that it might be due to

injury or due to inter course. Thus, the Lower Trial Court has

rightly convicted the appellant under Sections 363 and 366 IPC.

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29.From the above discussed evidences, it is also proved that she

was raped by Sonu and one Dinesh but Dinesh was not present in

Mirzapur when she was raped on the Mountain at Mirzapur by

Sonu. There is no evidence that Sonu was also present when

Dinesh had raped her. It is also not established that who was

another person and whether one Guddu named by the victim was

also present when she was being raped by Sonu at the Mountain

of Mirzapur. Therefore, it is clearly established from the evidence

of the victim PW3 that at the time of rape she was alone raped by

the accused-appellant Sonu. Therefore, Section 376D is not

attracted as it is not established by any evidence that it is a case

of gang rape. Though, it is established and proved beyond

reasonable doubt that she was raped by two or three persons at

different locations and at different time. Therefore, this Court is

of the opinion that Section 376D is not made out and the accused

is not liable to be punished and sentenced under Section 376D

IPC and the Lower Court has erred in coming to the above

conclusion. Thus, the accused-appellant is proved to have

committed the offence of rape with the minor prosecutrix of this

case.

30. The Lower Trial Court has convicted and sentenced the

accused-appellant under Section 6 of the POSCO Act. Section 6

POSCO Act was amended on 16.08.2019 and minimum sentence

of 20 years imprisonment was added along with imposition of

fine. Since, it is proved that it is not a case of gang rape as the

victim was raped by more than one person at different time

intervals and the trial is going on only for the accused -appellant

Sonu, who kidnapped and abducted the victim from Mirzapur and

committed penetrative sexual assault on her. Therefore, this case

is covered under Section 4 of the POSCO Act. The offence was

committed on 27.10.2016 and Section 4 was amended on

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16.08.2019 and minimum sentence 07 years was amended and

enhanced to minimum 10 years. By the same amendment,

section 4 clause (2) of the POSCO Act was added and it was

provided that if penetrative sexual assault has been committed

upon a child below 16 years of age, the accused shall be

punished with imprisonment for a term not less than 20 years

which may extend to imprisonment for life. Before the date of

occurrence i.e. 16.08.2019, sub-Section 2 of Section 4 was not

part of the statute.

31. So far as Section 376 IPC is concerned, this Section was

amended on 03.02.2013, earlier this Section was substituted by

Act 43 of 1983 w.e.f. 25.12.1983. On 21.04.2018 the sentence

clause was amended thereby incorporating, “shall not be less

than 10 years but, which may extend to imprisonment of life and

shall also be liable to fine”. Before the aforesaid date minimum

seven years sentence was provided. Earlier, it has been concluded

by this Court that it is not a case of gang rape by the accused-

appellant but the victim was subjected to rape by Sonu alone for

which Sonu was tried by the lower trial Court and this appeal too.

32.In view of the above discussion, it is proved beyond reasonable

doubt that accused-appellant Sonu has committed the offence

under Section 363 and 366 IPC and also committed the offence

under Section 376 IPC read with Section 4 of the POCSO Act. In

this context the law laid down by the Hon'ble Supreme Court in

Manoj Mishra @ Chhotkau Vs State of Uttar Pradesh

2021, is relevant wherein after rape of a minor girl, the Session

Trial under Sections 363, 366, 376D and ¾ POCSO Act was

conducted and the accused was convicted and sentenced and

duly affirmed by the High Court, Lucknow Bench, as follows:-

(I) The Trial Court awarded 3 years RI and Rs. 3,000/- fine for

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the offence u/s 363 I.P.C.

(ii) The Trial Court awarded RI and Rs. 5,000/- fine for the

offence u/s 366 I.P.C.

(iii) The Trial Court awarded RI and Rs. 25,000/- fine for the

offence u/s 376 I.P.C.

(iv) The Trial Court awarded RI and Rs. 2,000/- fine for the

offence u/s 506 I.P.C.

(v) The Trial Court awarded RI and Rs. 7,000/- fine for the

offence u/s 4 POCSO Act.

The Supreme Court found that it was not a case of gang rape,

therefore, confirmed the conviction and sentence awarded by the

trial Court and confirmed by the High Court under Section 363 &

366 I.P.C. but converted the Section 376 D into Section 376 I.P.C

and held that prior to the amendment w.e.f. 21.04.2018 the

minimum sentence was 07 years which became 10 years

minimum w.e.f. 21.04.2018 and since the accused has undergone

sentence for more than 8 years, the appellant shall be released

on payment of fine.

33. The Supreme Court held that appellant was father of five

children and there was not apprehension that appellant would

indulge in similar acts in future. He had no criminal antecedent.

Section 376D was not made out therefore, the Hon'ble Supreme

Court released the appellant for undergone sentence for more

than 8 years and ordered to release him after payment of fine.

The facts of the above cited case is similar to the case in hand.

34. In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC

1926, explaining rehabilitary & reformative aspects in sentencing

it has been observed by the Supreme Court:

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"Crime is a pathological aberration. The criminal can

ordinarily be redeemed and the state has to rehabilitate

rather than avenge. The sub-culture that leads to ante-

social behaviour has to be countered not by undue cruelty

but by reculturization. Therefore, the focus of interest in

penology in the individual and the goal is salvaging him for

the society. The infliction of harsh and savage punishment

is thus a relic of past and regressive times. The human

today vies sentencing as a process of reshaping a person

who has deteriorated into criminality and the modern

community has a primary stake in the rehabilitation of the

offender as a means of a social defence. Hence a

therapeutic, rather than an 'in terrorem' outlook should

prevail in our criminal courts, since brutal incarceration of

the person merely produces laceration of his mind. If you

are to punish a man retributively, you must injure him. If

you are to reform him, you must improve him and, men are

not improved by injuries."

34. The term, 'Proper Sentence', was explained in Deo Narain

Mandal Vs. State of UP, (2004) 7 SCC 257 by observing

that sentence should not be either excessively harsh or

ridiculously low. While determining the quantum of sentence, the

court should bear in mind the 'principle of proportionality'.

Sentence should be based on facts of a given case. Gravity of

offence, manner of commission of crime, age and sex of accused

should be taken into account. Discretion of Court in awarding

sentence cannot be exercised arbitrarily or whimsically.

35. In Ravada Sasikala vs. State of A.P. AIR 2017 SC

1166, Supreme Court referred its earlier judgments

rendered in Jameel vs State of UP [(2010) 12 SCC 532],

20

Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734],

Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323],

State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and

Raj Bala vs State of Haryana, [(2016) 1 SCC 463], and

has reiterated that, in operating the sentencing system, law

should adopt corrective machinery or deterrence based on

factual matrix. Facts and given circumstances in each case,

nature of crime, manner in which it was planned and committed,

motive for commission of crime, conduct of accused, nature of

weapons used and all other attending circumstances are relevant

facts which would enter into area of consideration. Further, undue

sympathy in sentencing would do more harm to justice

dispensations and would undermine the public confidence in the

efficacy of law. It is the duty of every court to award proper

sentence having regard to nature of offence and manner of its

commission. The Supreme Court further said that courts must not

only keep in view the right of victim of crime but also society at

large. While considering imposition of appropriate punishment,

the impact of crime on the society as a whole and rule of law

needs to be balanced. The judicial trend in the country has been

towards striking a balance between reform and punishment.

The protection of society and stamping out criminal proclivity

must be the object of law which can be achieved by imposing

appropriate sentence on criminals and wrongdoers. Law, as a tool

to maintain order and peace, should effectively meet challenges

confronting the society, as society could not long endure and

develop under serious threats of crime and disharmony. It is

therefore, necessary to avoid undue leniency in imposition of

sentence. Thus, the criminal justice jurisprudence adopted in the

country is not retributive but reformative and corrective. At the

same time, undue harshness should also be avoided keeping in

view the reformative approach underlying in our criminal justice

21

system.

36. Keeping in view the facts and circumstances of the case and

also keeping in view criminal jurisprudence in our country which

is reformative and corrective and not retributive, this Court

considers that no accused person is incapable of being reformed,

therefore, all measures should be applied to give them an

opportunity of reformation in order to bring them in the social

stream.

37. As discussed above, 'reformative theory of punishment' is to

be adopted and for that reason, it is necessary to impose

punishment keeping in view the 'doctrine of proportionality'. It

appears from perusal of impugned judgment that sentence

awarded by learned trial court for life term is very harsh keeping

in view the entirety of facts and circumstances of the case and

gravity of offence. Hon'ble Supreme Court, as discussed above,

has held that undue harshness should be avoided taking into

account the reformative approach underlying in criminal justice

system.

38. In this case, the accused-appellant has no criminal

antecedent. It is not a case of gang rape. He belongs to a poor

family. He is about 24 years old, therefore, a lenient view

regarding sentence may be adopted. Consideration may be given

to the young age, future & financial condition of the accused. The

appellant is not even financially able to arrange a private

Advocate due to which, an amicus curiae has been provided to

him. Considering the overall circumstances, this Court is of the

opinion the punishment and sentence under Section 363 & 366

IPC is liable to be maintained and that the accused has not been

found guilty of Section 376D and Section 6 of the POCSO Act

instead he has been found guilty of Section 376 IPC and Section

22

4 POCSO Act. Therefore, adopting a reformative approach, the

accused is liable to be punished for seven years rigorous

imprisonment and Rs. 25,000/- fine under Section 376 I.P.C and

Section 4 POCSO Act.

Order in Appeal.

1.The appeal is accordingly partly allowed and partly

rejected. The punishment and sentence awarded by the Lower

Court under Section 363, 366 IPC is maintained.

2. The conviction under Section 376D IPC and Section 6 POCSO

Act is modified under Section 376 IPC and Section 4 of the

POCSO Act and is awarded seven years rigorous imprisonment

and fine of Rs. 50,000/-. In case of non-payment of fine under

Section 376 and Section 4 of the POCSO Act, the accused-

appellant shall undergo one year additional rigorous

imprisonment. The fine imposed as above shall be given to the

victim as amount of compensation. As the accused-appellant is

already in jail the period of his incarceration in jail shall be

adjusted as per rules. All the sentences shall run concurrently.

3. The Registry to return the lower court record along with the

copy of this order.

Order Date :- ….2022

Sachin

(Umesh Chandra Sharma,J.) (Suneet Kumar,J.)