Karnataka High Court
The State By Hunsur Police Station vs S V Lokesha on 10 April, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No.2031/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.2031/2016 (A)
BETWEEN:
THE STATE BY
HUNSUR POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001 ...APPELLANT
(BY SRI H.S.SHANKAR, HCGP)
AND:
S V LOKESHA
S/O VENKATESHAGOWDA
Digitally AGED ABOUT 29 YEARS
signed by K S R/O SHRAVANAHALLI (MADAPURA)
RENUKAMBA
VILLAGE, HUNSUR TALUK
Location: MYSURU DISTRICT - 571 105 ...RESPONDENT
High Court of
Karnataka
(BY SRI S R HEMANTH KUMAR, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S.378(1) & (3) CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE THE
IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL DATED
29.06.2016 PASSED BY THE VI ADDL. DIST. AND SPL. JUDGE,
MYSURU IN S.C.NO.174/2014 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 366 AND 376 OF IPC AND SECTIONS 4 AND 6 OF
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012.
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CRL.A No.2031/2016
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING, THIS DAY K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
"In acquitting the accused of the charges for the offences punishable under Sections 366 and 376 of IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short) whether the trial Court committed patent illegality leading to injustice ?" is the question involved in this case.
2. The respondent was prosecuted in S.C.No.174/2013 on the file of VI Additional District & Sessions Judge and Special Judge, Mysore for the charges for the offences punishable under Sections 366 and 376 of IPC and Sections 4 and 6 of POCSO Act on the basis of the charge sheet filed by Bilikere Police, Hunsur Taluk in Crime No.159/2013 of their police station. Crime No.159/2013 was initially registered on the basis of missing complaint Ex.P3 which was filed by PW.2.
3. PW.2 is the paternal grandfather of PW.1 the victim girl. PW.8 is the mother of PW.1 and daughter-in-law of PW.2. For the purpose of convenience, the parties will be -3- CRL.A No.2031/2016 referred to henceforth according to their ranks before the trial Court.
4. The case of the prosecution in brief is as follows:
(i) PW.1 was born on 25.05.1999. PW.8 was a widow. She was residing with her father-in-law/PW.2 along with her minor daughter PW.1 in Shravanahalli village. On 01.06.2013 at 4.30 a.m. when PW.1 had come out of the house of PW.2 to attend the nature's call, luring her of love and marriage, the accused kidnapped her on motorcycle bearing No.KA-45-E-5420 which belonged to PW.7. He took her to Dharmasthala and Kukke Subramanya. Finally they came back to the house of PW.11 situated in Deshahalli village of Maddur Taluk, Mandya District.
(ii) When he had lodged her in the said house, on 05.06.2013 during night, the accused committed penetrative sexual assault on her. When the police started searching for the victim on the basis of the complaint of PW.2, the accused took her in bus to Mysore bus stand and abandoned her in the bus stand. Then she returned to the house of PW.2 and informed him about the incident.
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(iii) PW.2 took her to Bilikere police station. In the police station, PW.12 then Sub-Inspector of Police of Bilikere police station recorded the statement of the victim. On the basis of such statement, he prepared the report Ex.P16 to include the offences under Sections 366 and 376 of IPC and Sections 4 and 6 of the POCSO Act and submitted the same to the Court. Then he referred the victim to PW.9 for medical examination and handed over further investigation to PW.17.
(iv) PW.17 conducted part of the investigation. On his transfer PW.19 Circle Inspector of Police of Hunsur police conducted further investigation and filed the charge sheet.
5. The trial Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 366 and 376 of IPC and Sections 4 and 6 of the POCSO Act. Since the accused denied the charges, the trial was conducted.
6. In support of the case of the prosecution, PWs.1 to 19 were examined and Exs.P1 to P29 were marked. After his examination under Section 313 of Cr.P.C, the accused filed his defence statement. He did not lead any defence evidence.
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7. The trial Court on hearing the parties by the impugned judgment and order, acquitted the accused on the following grounds:
(i) There are lot of inconsistencies and contradictions in the evidence of PW.1 the victim and her evidence does not inspire the confidence of the Court to hold that the charges were proved;
(ii) The evidence of PW.2-grandfather and PW.8/mother of PW.1 was hearsay. Even in their evidence, there are inconsistencies and improvements;
(iii) PW.2's evidence shows that he was not aware of the contents of the missing complaint;
(iv) The admissions of PWs.1 and 2 that the marriage of PW.1 was arranged with Chanakya and Nanjunda goes to show that she had attained the age of majority and she was not minor;
(v) PW.3 mahazar witness was the close relative of PW.2 and his evidence was also hearsay one;
(vi) Regarding commission of penetrative sexual assault, there is inconsistency in the evidence of PW.1 and in -6- CRL.A No.2031/2016 her statement under Section 164 of Cr.P.C. Before the Magistrate she states that she was subjected to hypnotization while committing the offence. But, in her evidence before the Court she says that the accused committed forced sexual intercourse on her and he scratched on her chest.
(vii) The medical evidence did not show any injury on her body, whereas PW.9 the doctor says that the history given by the victim was that the accused attempted to commit penetrative sexual assault on her and threatened her that he will trouble her relatives. But before PW.9 no history of commission of actual penetrative sexual assault was given. Therefore the evidence of PW.1 was shaky and unacceptable.
(viii) PWs.6, 7 and 11 have not supported the case of the prosecution with regard to the accused confining the victim in the house of PWs.6 and 11. Therefore, there was no corroboration to the evidence of PW.1 by other evidence regarding the commission of offence. If there was forced sexual intercourse, there should have been some injuries on -7- CRL.A No.2031/2016 the private part of PW.1. But as per the medical evidence, there was no such injury.
(ix) Since the evidence of PW.1 was shaky, the same needed corroboration and there was no such corroborative evidence.
Submissions of Sri H.S.Shankar, learned HCGP for the State/appellant:
8. The evidence of PWs.1, 2 and 8 was consistent regarding the accused kidnapping the victim on 01.06.2013 and that she was traced only on 10.06.2013. PW.1 was consistent in her evidence regarding the accused luring her of love and marriage kidnapping and taking her to several places and committing rape on her in the house of PW.11. Her evidence was corroborated by the medical evidence. Before the doctor PW.9 victim has given history of sexual assault. The findings of the medical examination report show that she was subjected to penetrative sexual assault. Under Sections 29 and 30 of the POCSO Act there is presumption regarding commission of the offence and the culpable mental state of the accused. By the evidence of PWs.1, 2, 8 and 9, the initial burden of proving the charges stood discharged. -8- CRL.A No.2031/2016 Then the burden shifted to the accused to disprove the charges. In the cases involving the offences under the POCSO Act, the prosecution is required to prove that the victim was aged below 18 years and she was subjected to penetrative sexual assault. Ex.P15 School Admission Certificate was marked by consent wherein her date of birth is mentioned as 25.05.1999. The deposition of PW.1 in that regard was also not disputed. PWs.2 and 8 also deposed that she was aged 14 years, that was not disputed. Thereby the prosecution proved that the victim was born on 25.05.1999. As on the date of the offence, she was hardly aged 14 years. In the light of such evidence, the trial Court's findings that the victim being aged below 18 years was not proved, is perverse. The evidence of PW.1 regarding sexual assault was corroborated by the medical evidence. She was subjected to sexual assault on 05.06.2013 and the medical examination was conducted on 12.06.2013. Due to lapse of time, traces of recent sexual intercourse could not have been found in medical examination. The victim herself did not claim that she had suffered injuries on her private part. The trial Court was not justified in rejecting the evidence with regard to sexual assault only on the ground that the injuries were not -9- CRL.A No.2031/2016 found on the private part of the victim. The impugned order suffers perversity and patent illegality and contrary to the established principles of law on the issue.
9. In support of his submissions, he relies on the following judgments:
(i) State of Punjab vs. Gurmit Singh & ors1
(ii) Ganesan vs. State rep by its Inspector of Police2 Submissions of Sri S.R.Hemanth Kumar, learned Counsel for the accused:
10. There is delay in filing the complaint. The prosecution failed to prove that the victim was aged below 18 years. The author of Ex.P15 the date of birth record was not examined. The evidence of PW.16 the doctor who conducted ossification test and issued report Ex.P20 shows that PW.1 was aged between 16 to 17 years. In such cases, there is scope for error of margin of two years on either side. Therefore the victim being 18 years was not conclusively proved. PW.1 had given inconsistent versions of sexual assault in her statement before the Police Officer, in her 1 (1996) 2 SCC 384 2 (2020) 10 SCC 573
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CRL.A No.2031/2016statement under Section 164 of Cr.P.C. before learned Magistrate and in her evidence before the Court. As per the history given by her before PW.9 the medical Officer there was an attempt of rape. Therefore, the evidence of PW.1 was not credit worthy and that needed corroboration. But her evidence was not corroborated by any other witnesses. Therefore the trial Court was justified in acquitting the accused for the offences of penetrative sexual assault. Such judgment does not warrant interference of this Court, in this appeal against the order of acquittal.
11. In support of his submissions, he relies upon the judgment of the Hon'ble Supreme Court in Hansraj vs. State of Haryana3.
Analysis:
12. In the case involving sexual offences against the child under the POCSO Act, the prosecution is required to prove:
(i) that the victim was aged below 18 years;
(ii) accused subjected her to penetrative sexual assault.
3
2015(1) AICLR 498
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CRL.A No.2031/2016Reg. Age:
13. As per the prosecution, the victim was born on 25.05.1999 and as on the date of offence she was hardly aged 14 years. To prove the said fact the prosecution relied on the evidence of PWs.1, 2 and 8 and Ex.P15 the date of birth record issued by the school authorities where she studied. The Investigating Officer referred PW.1 to PW.16 for the ossification test also. PW.16 said to have conducted the ossification test and issued report Ex.P29.
14. PW.1 in her deposition categorically stated that her date of birth was 25.05.1999. In her cross examination that was not disputed at all. Further PWs.2 and 8 in their evidence deposed that at the relevant time PW.1 was aged 14 years. The evidence of PWs.2 and 8 with regard to date of birth/age of PW.1 was not disputed at all in their cross examination by the defence counsel. The Investigating Officer collected Ex.P15 the admission record of the victim from the Head Master of Government Primary School, Shravanahalli. As per the said record, PW.1 was admitted into the school on 01.06.2013. Her date of birth as per the admission records was 25.05.1999.
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CRL.A No.2031/2016
15. As per the evidence of PWs.1 and 2, PW.1 studied up to IX Standard and thereafter she was dropped out from the school. That evidence was also not disputed. What is most important is that Ex.P15 was marked by consent. Therefore, at this stage it is not open to the accused to claim that the author of Ex.P15 should have been examined. Therefore, the date of birth mentioned in Ex.P15 and deposed by PW.1 and the age deposed by PW.2 stood uncontroverted and has to be accepted.
16. Despite such uncontroverted document and oral evidence, the trial Court relied on the evidence of PW.16 and Ex.P20 to hold that the age of the girl was 16 to 17 years and margin of two years has to be given to the same. PW.16 was neither radiologist nor specialized in assessment of age. According to his own evidence, he was Associate Professor of Forensic Department, Mysore Medical College. He says that he subjected PW.1 to physical, dental and radiological examination and assessed the age, based on that issued Ex.P20. Though he was not radiologist or dentist, how he conducted such examinations was not explained.
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CRL.A No.2031/2016
17. The Hon'ble Supreme Court in Mahadeo vs. State of Maharashtra4 has held that the principles applicable for determination of the age of juvenile in conflict with law are applicable to the juvenile victim also. In that judgment, referring to Rule 12 of J.J. Rules 2007 it was held that to consider the age of the victim first the matriculation or equivalent certificate if available shall be taken into consideration. If the same is not available, the date of birth certificate from the school first attended other than the play school shall be considered. In the absence of any of them birth certificate given by the Corporation or Municipal Authority or Panchayat shall be considered. Only in the absence of the aforesaid three records, the ossification test shall be resorted to assess the age.
18. In the case on hand, the records relating to the date of birth of the victim from where she attended the school was produced and marked with consent. The evidence of PW.1 and 2 with regard to her age was not disputed. Under the circumstances, the trial Court committed perversity in holding that the prosecution has 4 (2013)14 SCC 637
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CRL.A No.2031/2016failed to prove that the victim was aged below 18 years. The said finding is also contrary to the judgment of the Hon'ble Supreme Court in Mahadeo's case referred to supra. Reg. the offences under Sections 366 & 376 IPC and Sections 4 & 6 of POCSO Act:
19. It was the case of the prosecution that the accused luring the victim of love and marriage, kidnapped her from the lawful custody of her grand father and mother. It was not disputed that the accused was the neighbour of PWs.1, 2 and 8. PW.2 filed complaint Ex.P3 on 01.06.2013 alleging that PW.1 is missing from the house since 6.00 a.m. of that day and despite search, she was not found. He also stated in the complaint that he suspects accused might have kidnapped her. The filing of the missing complaint was not disputed.
20. PW.1 deposed that on 01.06.2013 at about 4.00 a.m. when she came out of their house in the village to attend the nature's call, the accused induced her that he will marry her, took her on the motor bike to Mysore Railway Station. She further deposed that from Mysore Railway Station, he took her to Dharmastala and Kukke Subramanya
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CRL.A No.2031/2016in the bus. She further deposed that from Kukke Subramanya he took her to Bengaluru, then to Nanjangud, then to Chamarajanagar. She deposed that from Chamarajanagar he took her to Mysore. In Mysore, when PW.7 questioned, the accused told him that he needs her, he will marry her and from there they went to Deshahalli, Maddur Taluk where he lodged her in the house of his relatives PWs.6 and 11. PWs.6 and 11 are the husband and wife of the accused.
21. PW.1 further deposed that during the night of 05.06.2013 against her will the accused committed penetrative sexual assault on her. She deposed that on PW.2 her grandfather giving public notice about her missing, the accused took her to Mysore bus stand and abandoned her. She further deposed about she going to her house, informing PWs.2 and 8 and PW.2 taking her to the Police Station and then she being examined by the Medical Officer. PWs.2 and 8 her grand father and mother speak about she missing from the house and PW.2 filing the missing complaint Ex.P3, PW.1 returning to the house on 10.06.2013 and they taking her to the Police station etc.
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CRL.A No.2031/2016
22. The trial Court disbelieved the evidence of PW.1 on the ground that there were inconsistencies or improvements in her statements before the Police, Magistrate and before the Court. In a case of sexual assault, the core fact is whether there was evidence with regard to penetrative sexual assault. The trial Court disbelieved the evidence of PW.1 on the ground that before the Police and the Magistrate PW.1 stated that the accused and his mother hypnotized her by applying some ash on her forehead and she could not realize what was happening thereafter. But before the Court she narrates other incidents. Even assuming that there were such improvements or inconsistencies that were with regard to accused kidnapping her or taking her. She was consistent about the accused committing sexual assault on her.
23. Further the trial Court relying on the evidence of PW.9 that PW.1 gave the history of attempted penetrative sexual assault holds that she has not stated about the complete act of penetrative sexual assault. PW.9 is the Medical Officer who has examined PW.1, issued the wound certificate Ex.P9 and the final opinion Ex.P29. In Ex.P29 the
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CRL.A No.2031/2016history is mentioned as sexual assault. It is not mentioned as attempted sexual assault. Ex.P9 and P29 do not say that the victim gave the history of attempted sexual assault. Further PW.9 herself states that hymen of the victim had ruptured. In Ex.P29 her opinion is that there was a sign of vaginal penetration. She states that there was no evidence of recent sexual intercourse. The alleged offence took place on 05.06.2013 and the victim was examined medically on 12.06.2013. Obviously there could not have been any traces of recent sexual intercourse. It was not even the case of PW.1 that accused inflicted any injury on her private part while committing such offence. Therefore the trial Court's observation that, if at all there was any penetrative sexual assault there could have been some injuries on her private part is erroneous.
24. It is settled principle of law that in all cases of rape there need not be external injuries on the private part of the victim as there is chance of victim not resisting such act under undue influence, duress etc. According to the prosecution, the accused committed the offences luring the victim of love and marriage. Time and again the Hon'ble
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CRL.A No.2031/2016Supreme Court has held that the Courts should conduct the cases involving rape/sexual offence in a sensitive manner. Right from the case of Gurumit Singh till Ganesan referred to supra the Hon'ble Supreme Court has held that if the evidence of the victim is found reliable and trust worthy, the conviction can be based on the sole testimony of the victim.
25. In the present case also, the evidence of the victim varied only with regard to the peripheral aspects. But her evidence regarding the accused kidnapping her and keeping her in the house of relative and her evidence with regard to commission of penetrative sexual assault was categorical, cogent and consistent. That was further corroborated by the medical evidence that she was reported before PW.9 with history of sexual assault and that her hymen had ruptured. She has revealed the same history before PWs.2 and 8 her grandfather and mother. Therefore, her evidence was corroborated by the evidence of PWs.2 and 8 and the medical examination report Ex.P29.
26. The Hon'ble Supreme Court in paras 31 to 33 of the judgment in Bakhshish Singh v. State of Punjab5 5 (2013)12 SCC 187
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CRL.A No.2031/2016referring to its several earlier judgments held that minor inconsistent versions/discrepancies in the evidence of the witnesses do not necessarily demolish the entire prosecution story, if it is otherwise found creditworthy. It was further held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observations differ from person to person. It was further held that minor contradictions, inconsistencies, embellishments or improvement on trivial matters which do not affect the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The parties in their anxiety to make their case strong, make some improvements, exaggerations and lacing leading to inconsistencies which are natural. Unless such inconsistencies or contradictions demolish the core case of the prosecution, they should not be over magnified.
27. It is material to note that the victim at the time of the incident was aged hardly 14 years, whereas the accused who was her neighbour was aged 27 years which was almost double her age. Under such circumstances, even if PW.1 agrees to accompany him, he had the legal duty of
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CRL.A No.2031/2016informing PWs.2 and 8 her guardians, which he had not done. Having regard to her age, irrespective of her alleged consent for sexual relationship, the act of the accused constitutes the offences under Section 4 of the POCSO Act and Section 375 of IPC. By such evidence, the prosecution had discharged its initial burden. Therefore, the presumptions under Sections 29 and 30 of the POCSO Act come into play. It was for the accused to disprove the charges.
28. In the evidence of PW.1 he should have taken a definite defence. In the evidence of PW.1, it was suggested that after the death of her father PW.2 took charge of the waterman work in the village and he was not performing that properly. In the evidence of PW.2 it was suggested that since the villagers and others opposed that, he was falsely implicated in the case which he denied. PWs.1 and 8 also denied such defence. But such defence was not putforth in his examination under Section 313 of Cr.P.C. or in his defence statement, filed before the trial Court. The accused in his defence statement takes totally different stand saying that PWs.2 and 8 had fixed the marriage of PW.1 with
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CRL.A No.2031/2016Chanakya and Nanjunda. As PW.1 disliked the said marriage arrangements, she herself left the house, concealing that fact at the behest of the persons who are ill disposed against him PWs.2 and 8 have falsely implicated him in the case.
29. In the cross examination of PW.1 the defence counsel himself suggested that while moving along with the accused she did not raise alarm. In para 14 of her cross examination he himself suggested that PW.1 herself sat on the bike of the accused hugging him and she did not raise any alarm while moving with him on bike etc. The trial Court without considering such incriminating evidence against the accused and the implications of Sections 29 and 30 of the POCSO Act proceeded to magnify irrelevant or insignificant inconsistencies in the evidence of PWs.1, 2 and 8 and held that the offence of penetrative sexual assault is not proved.
30. The finding of the trial Court that kidnapping and sexual assault were not proved are contrary to the evidence on record and against the spirit and object of Sections 4, 6, 29 and 30 of the POCSO Act and the judgments of the Hon'ble Supreme Court referred to supra. Such erroneous finding of the trial Court has led to miscarriage of justice as it
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CRL.A No.2031/2016is the duty of the Society to protect the children from the perpetrators of such crimes. The crime of penetrative sexual assault on children is not only an offence against child, but the offence against the entire society.
31. For the aforesaid reasons, the impugned judgment and order of acquittal is liable to be set aside and the appeal deserves to be allowed. Hence the following:
ORDER
i) The appeal is allowed.
ii) The impugned judgment and order of acquittal is hereby set aside.
iii) Respondent-accused is hereby convicted for the offences punishable under Sections 366 and 376 of IPC and Section * 4 of the POCSO Act.
To hear on sentence, the accused shall be present before the Court on 19.04.2023.
Sd/-
JUDGE Sd/-
JUDGE KSR/AKC List No.: 1 Sl No.: 38 * Corrected Vide Court Order dated 19.04.2023
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CRL.A No.2031/2016KSMJ & RMBJ:
19.04.2023.
ORDER ON SENTENCE Learned HCGP, respondent's counsel and the respondent/accused are present. Both side drawing the attention of the Court to the operative portion of the judgment submit that by accidental error instead of Section 4 of the POCSO Act, the same is typed as Section 6 of the POCSO Act.
The case of the prosecution itself is that the respondent committed single penetrative sexual assault on the victim who was aged between 14 -15 years. The perusal of the judgment more particularly para 27 makes it clear that this Court held that act of the respondent -accused constitutes the offence under Section 4 of the POCSO Act and Section 375 of IPC. Therefore, apparently there is accidental error in the operative portion of the order in mentioning Section 6 of the POCSO Act instead of Section 4 of the POCSO Act. The same is corrected accordingly.
Heard both side on sentence. Learned counsel for the respondent submits that the incident was love affair, now the respondent is married and has a child. Therefore, lenient
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CRL.A No.2031/2016view may be taken. Learned HCGP submits that since the offence is under the POCSO Act and having regard to the facts and circumstances of the case, the respondent does not deserve any leniency.
The offence under Section 4 of the POCSO Act at the relevant time carried minimum sentence of 7 years and fine. The offence under Section 366 of IPC carries imprisonment upto 10 years and Section 376 IPC carries imprisonment upto minimum of 7 years extendable upto life imprisonment and fine. Under the aforesaid circumstances, the Court has no discretion to reduce the sentence below 7 years. Hence the following:
ORDER For the offence under Section 4 of the POCSO Act, the accused is sentenced to rigorous imprisonment of 7 years and fine of Rs.25,000/-. In default to pay the fine amount he shall undergo simple imprisonment of 3 months.
For the offence under Section 376 of IPC, the accused is sentenced to rigorous imprisonment of 7 years and fine of
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Rs.25,000/-. In default to pay the fine amount he shall undergo simple imprisonment of 3 months.
For the offence punishable under Section 366 of IPC, the accused is sentenced to rigorous imprisonment of 3 years and fine of Rs.10,000/-. In default to pay the fine amount, he shall undergo simple imprisonment of 1 month.
All the above sentences shall run concurrently. There shall be set off as per Section 428 of Cr.P.C. for the period of detention already undergone by the accused, if any.
Out of fine amount sum of Rs.50,000/- shall be paid to the victim and remaining amount shall be remitted to the State.
Acting under Section 33(8) the POCSO Act the accused is hereby directed to pay compensation of Rs.50,000/- to victim-PW1 in addition to the above said amount. The same shall be deposited before the trial Court within 60 days.
The accused shall surrender before the trial Court within two weeks from the date of this order. If he fails to surrender before the trial Court, the trial Court shall proceed against him in accordance with law.
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The trial Court shall issue the conviction warrant accordingly.
Registry shall furnish free copy of this judgment to the accused.
Sd/-
JUDGE Sd/-
JUDGE DS