Karnataka High Court
Narasimha vs State Of Karnataka By on 8 February, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No. 1625/2019
BETWEEN:
NARASIMHA
S/O SINGIRAPPA
AGED ABOUT 33 YEARS
CHIKKAPURA VILLAGE
CHITAMANI TALUK
CHIKKABALLAPURA DISTRICT
....APPELLANT
( BY SRI. M.R. NANJUNDA GOWDA, ADVOCATE)
AND:
STATE OF KARNATAKA BY
SHO, SRINIVASAPURA POLICE STATION
CHIKKABALLAPURA
REPRESENTED BY GOVERNMENT PLEADER
HIGH COURT BUILDINGS
BANGALORE CITY-560 001
.... RESPONDENT
(BY SRI. RAHUL RAI .K.,HCGP)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 20.08.2019,
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, KOLAR IN S.C.NO.156/2017, CONVICTING THE
2
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 376 AND 420 OF IPC AND SECTION-4 0F POCSO ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.01.2022, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant/accused has filed this appeal under Section 374(2) of Criminal Procedure Code,1973 ('Cr.P.C' for short)., challenging the judgment of conviction and order of sentence dated 20.08.2019 passed by the II Additional Sessions Judge at Kolar ('trial Court' for short) in SC No.156/2017, whereby the learned Sessions Judge has convicted the accused for the offences punishable under Sections 376 and 420 of Indian Penal Code, 1980 ('IPC' for short) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short).
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court. The brief factual matrix leading to the case is that, the victim came in contact with the accused. The parents of the victim were intending that she should marry her maternal uncle and as the victim was not interested in marriage with her maternal uncle, she called he accused over phone and as per the 3 instructions of the accused, on 15.03.2017 she went to Chintamani and then the accused took her to the house of CW.7 Nagamani and left her there for a week and thereafter, he took the victim to a rented house of CW.2-Aneesh Pasha in Srinivasapura and there, he committed an aggravated penetrative sexual assault on victim under the guise of marrying her, having knowledge that the victim is aged less than 18 years. Thereafter, he did not marry the victim and cheated her, having made her pregnant. When the victim was traced, she was secured by the police on the basis of the complaint of her parents and she revealed the incident and a complaint came to be lodged by her and the same was registered. Her statement under Section 164 of Cr.P.C. was also recorded by the Magistrate. On the basis of the complaint, the Investigating Officer has registered a crime by issuing FIR and also undertook investigation. During the course of investigation, it is noticed that the victim is pregnant. She sought for permission from the Hon'ble Apex Court for termination of her pregnancy by way of abortion and the Hon'ble Apex Court has granted permission. Accordingly, she was aborted in Vani Vilas Hospital at Bengaluru on 26.09.2017. The aborted fetus was also kept in preservation 4 and sent for FSL. In the meanwhile, blood sample of the victim was taken and sent to FSL by the Investigating Officer for DNA profile. Accordingly, the blood sample of the accused was also taken in the open Court and the same was also sent for DNA profiling. The DNA report discloses that the victim and the accused are biological parents of the aborted female fetus and the Investigating Officer, after collecting the material evidence has found that, there is sufficient material as against the accused and hence, he submitted the charge sheet against the accused. In the meanwhile, the accused was also arrested on 11.08.2017 and was remanded to judicial custody.
3. After submission of the charge sheet, as there were sufficient grounds to proceed against the accused, cognizance for the alleged offences was taken. The prosecution papers were also furnished to the defence counsel as contemplated under Section 207 of Cr.P.C.
4. After hearing the learned Public Prosecutor and the defence counsel, the learned Sessions Judge found that there is sufficient material to frame charge against the accused and as such, the charge under Sections 376 and 420 of IPC and Section 5 4 of the POCSO Act is framed against the accused. The accused pleaded not guilty and claimed to be tried.
5. To prove the guilt of the accused, the prosecution has examined in all twenty seven witnesses as PWs.1 to 27 and also placed reliance on thirty six documents and also seven material objects, which are marked as Exs.P1 to P36 and MOs. 1 to 7 respectively.
6. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial and he did not choose to lead any oral or documentary evidence and claimed to be tried.
7. After hearing the arguments advanced by the learned counsels appearing for the parties on both sides, the learned Sessions Judge has come to a conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Hence, she has convicted the accused for the offence punishable under Sections 376 of IPC and section 4 of the POCSO Act by imposing sentence of Simple Imprisonment for a period of seven 6 years each with fine of Rs.5000/- for each of the offence. Further, she has also imposed Simple Imprisonment for the period of one year with fine for offence under Section 420 of IPC with default clause and directed the sentences to run concurrently and she has also given set-off to the accused under Section 428 of Cr.P.C. Being aggrieved by this judgment of conviction, the accused has filed this appeal.
8. Heard Sri. M.R. Nanjunda Gowda, learned counsel appearing for the appellant and Sri. Rahul Rai K., the learned High Court Government Pleader ('HCGP' for short) appearing for the respondent-State, at length. Perused the records of the trial Court.
9. Learned counsel for the appellant would contend that the judgment of conviction and order of sentence is totally perverse, illegal and unlawful, which is contrary to the facts and material on record, and that the trial Court has failed to note that neither the victim nor the mother of the victim have supported the case of the prosecution and have turned hostile. He would also contend that the mahazar witnesses and the owner of the house wherein the victim is alleged to have been stayed and 7 raped, has also turned hostile and the learned Sessions Judge has ignored this material evidence. The learned counsel would further contend that, except official witnesses all the material witnesses have turned hostile and PW.1 has gone to the extent of denying her pregnancy. He would further contend that, none of the witnesses have deposed against the accused and the learned Sessions Judge has only placed reliance on medical evidence i.e., the DNA profile/report, which is not a substantial piece of evidence so as to base conviction, as it is not corroborated by any other material evidence. He would further contend that, the statement of the victim recorded by the Magistrate under Section 164 of Cr.P.C. is only an omnibus statement and not a substantial piece of evidence. She would further contend that, as per Section 42 of the POCSO Act, the learned Sessions Judge ought to have imposed sentence either under the provisions of IPC or POCSO Act. But, she has ventured to impose sentence under the provisions of IPC as well as POCSO Act, which clearly establish that, there is no application of mind. He would further contend that, no reasons were given for ignoring the evidence of the victim herself, wherein she has denied about she having seen the accused and 8 for arrival to a conclusion, the learned Sessions Judge has not at all given any reasons and hence, he would contend that the learned Sessions Judge, without application of mind, in a mechanical way, proceeded to convict the accused and as such, he would contend that the judgment of conviction and order of sentence suffers from infirmities and calls for interference by this Court. In support of his contentions, he has also placed reliance on the decisions reported in 2015 Crl.L.J. NOC 338 (Orissa) [Chaitu Naik Vs. State of Orissa] and 2020 (2) AKR 45 [Nagappa, S/o.Manappa Vs. State of Karnataka].
10. Per contra, the learned HCGP would support the impugned judgment of the trial Court and contended that, though the victim and her mother have turned hostile, the evidence discloses that, she herself has sought permission from the Hon'ble Apex Court for abortion and now she has given a go- by to this fact, which disclose she is being ownover by the accused. He would further contend that the scientific evidence in an un-impeached way establish that the accused is the biological father of the aborted female fetus and this fact establish that he had committed aggravated penetrative sexual assault on the victim girl and again it is corroborated by the statement of the 9 victim recorded by the Magistrate under Section 164 of Cr.P.C.. He would further contend that, though the victim has turned hostile, the other material evidence clearly establish the guilt of the accused. Further, he would contend that the trial Court has imposed minimum sentence prescribed under the law and hence, he would submit that, it does not call for any interference, as such, he would seek for rejection of the appeal.
11. Having heard the arguments and perusing the records, now the following point would arise for my consideration:-
Whether the judgment of conviction and order of sentence passed by the trial Court is perverse, erroneous and illegal, so as to call for any interference by this Court?
12. At the out set, it is to be noted here that the accused has been prosecuted for the offences under Sections 376 and 420 of IPC and Section 4 of the POCSO Act. It is also important to note here that, the victim was a minor as on the date of the alleged offences. This fact is not under dispute.
13. As could be seen from Ex.P35 (School Transfer Certificate), it is evident that the date of birth of the victim is 10 10.05.2002. The alleged offence is said to have been committed one week after 15.03.2017. Hence, it is evident that, as on the date of the accident, the victim girl was a minor being aged less than 18 years. Further, this aspect is also not under serious challenge. The victim is examined as PW.1. Though she admitted her signature on the complaint (Ex.P1), she denied the contents of the complaint and pleaded ignorance of the contents of Ex.P1 (complaint). She has also denied that, she is acquainted with the accused and accused taking her to the house of CW.7 and then keeping her in the house of CW.2- Aneesh Pasha in Srinivasapura and committing aggravated penetrative rape on her. Even she has gone to the extent of denying her pregnancy and medical examination being done on her. However, she admitted that, her statement being recorded by the Magistrate as per Ex.P6. She has even gone to the extent of denying the fact that, she has moved an application before the Hon'ble Apex Court seeking permission for abortion. However, she is very specific in her statement that, her parents were intended to give her in marriage to her maternal uncle, who is aged and as she was not interested in that marriage, she left the house.
11
14. PW.3-Muthamma, who is the mother of the victim has denied the case of the prosecution. However, she admitted that her daughter was found missing and in this regard, she has lodged a complaint and she was being subsequently kept in Balamandir. She has also denied that, her daughter was pregnant and the pregnancy was aborted. PW.2-Anees Pasha has turned hostile and denied drawing mahazar regarding spot and has also denied that the accused and the victim girl have stayed in his house, on rent.
15. PW.4-Anitha Shivakumar is a counselor and she has deposed regarding counseling the victim girl and identified the victim girl.
16. PW.6-Nagamani has also turned hostile and denied that the accused had kept the victim girl in her house initially.
17. PW.9-Ramadevi is the Superintendent of Women and Child Welfare Department. She deposes that, on 24.06.2017 the victim girl was shifted from Balamandir at Chintamani to Government Balamandir at Bengaluru and on enquiry, the victim has disclosed the fact of the accused raping her under the guise of marriage and hence, she has reported 12 the matter to the concerned police and the statement of the victim was recorded as per Ex.P1 in her presence and she has also identified her signature on Ex.P1, at Ex.P1(b) for having recorded the same in her presence. Though the witness-PW.9 was cross-examined at length, nothing was elicited and this witness has specifically stated that statement of the victim was recorded by the concerned Woman Police Constable in her presence as per Ex.P1 and she has also endorsed on the same. The evidence of this witness establish that, the victim girl has lodged a complaint under Ex.P1. There was no reason for this witness to give false evidence.
18. PW.10-Dr. Byappareddy has simply deposed regarding examination of the accused and giving a report as per Ex.P16 stating that the accused is fit to perform sexual act.
19. PW.12-Dr. Radhika is a material witness in the instant case. In her evidence, she has stated that, she is working as an Assistant Professor in Vani Vilas Hospital. On 22.09.2017 at about 1.30 p.m., the victim was brought to the hospital for abortion as per the directions of the Hon'ble Apex Court and at that time, the victim girl had a pregnancy of 25 13 weeks 6 days and it was her first pregnancy. She has also deposed that, on 26.09.2017 in the morning at 10.55 a.m., the victim girl underwent abortion and aborted fetus was of a female child weighing about 800 grams. She has also specifically stated that, she has also taken the blood sample of the victim and sent the same along with fetus with proper preservation to FSL for examination and she has also obtained the signature of the victim on Ex.P18 as an identification mark, which bear the signature of the victim girl. This witness was not seriously cross-examined and a formal and simple suggestion was made that, ' a false report is submitted'. The evidence of PW.12 is again corroborated by the evidence of PW.13-Dr. Harini Gopaiah, who has deposed that, on 26.07.2017, the victim girl was brought to KIMS Hospital and when the victim girl was subjected to scanning, she found that the victim had pregnancy of 18 weeks and 3 days and she has submitted a report as per Ex.P17 in this regard and also identified the victim girl in this regard in Ex.P8. Further, the evidence of PW.12 and PW.13 was again corroborated by the evidence of PW.14-Dr. Sowmya K.
20. PW.14-Dr. Sowmya, K. has deposed that, she is working as an Associate Professor in KIMS Hospital at Bengaluru. 14 On 26.07.2017, the victim girl was brought to the hospital and on an enquiry, the victim girl has revealed that, she is acquainted with accused for last two years and in March, 2017, she stayed with him in Chinthamani for 1½ months and during that period, the accused had physical contact with her on 5 to 6 occasions. PW.14 has further deposed that, on examination of the victim girl, she found that hymen was ruptured and she was found to be having pregnancy of 18 weeks and in this regard, she has submitted a report as per Ex.P7. Nothing was elicited in the cross-examination of this witness also.
21. PW.15-Nagaraja is an Assistant Engineer in PWD, Srinivasapura. He has simply deposed regard drawing a sketch of place of offence.
22. PW 16-Satyanarayana is a Chief Officer, City Municipal Office, Tumakuru, has deposed regarding issuing property extract of the place of offence as per Exs. P22 and 23.
23. PW.17-Dr. M.R. Rangarao is the Medical Officer of the Government Hospital at Srinivasapura and he deposed that, on 10.10.2017 he was summoned to the Court of Sessions Judge and JMFC at Srinivasapura and where, in presence of the 15 Magistrate, he has taken the blood sample of the accused and also an Identification Form was filled, which is attested by the defence counsel also and he has identified the accused. He has identified the Identification Form as per Ex.P24. In the cross- examination nothing was elicited and there is no reason to discard the evidence of this witness. The signature of the learned Sessions Judge is also found on Identification Form (Ex.P24), which is not denied. Hence, it is evident that, this witness has taken the blood sample of the accused in the presence of the Presiding Officer.
24. PW.21-B.N. Ravindragowda and PW.22-N. Rathnaiah are the Police Constables. They deposed regarding transfer of the case pending over the records and dropping the victim to the Mahila Santwana Kendra etc..
25. PW.23-Kumaraswamy, PW.24-Kavitha and PW.25- Krishna T.T. are the Investigating Officers. PW.24 -Kavitha has deposed regarding recording the statement of the victim girl on 11.07.2017 as per Ex.P1, in presence of the Superintendent, in Girls Balamandira and producing it before the PSI of C.K. Acchukattu Police Station.
16
26. PW.27-Dr.Shahanaz Fathima is a material witness in the instant case, who has done DNA Profiling in the instant case by submitting a report as per Ex.P36. PW.27 in her evidence deposed that, on 28.09.2017, she received two articles in a sealed cover and on 10.10.2017, she received another article in a sealed cover and the seals were intact. She has also deposed that, the first two samples received on 28.09.2017 were given DNA No.397/2017 and the 2nd sample received on 10.10.2017 was given DNA No.414/2017. She has also deposed that, article No.1, which is the fetus of female born to the victim girl was given I.D. No.P-2350. The blood sample of the victim was given Identification Number as P-2351 and that of the accused as P- 2352. Her evidence further disclose that, due care was taken for integrity of each sample by coding and de-coding and DNA was extracted from the sources of the samples sent in Item Nos. 1, 2 & 3. She has also deposed that DNA was quantified from each of the above samples and then amplified by the Polymerase Chain Reaction (PCR) using AmpF/STR Identifier kit containing primers for 15 STR Loci and a gender marker on Amelogenin. Her evidence further disclose that PCR products were separated on 3130x/Genetic Analyzer (Applied Biosystems Inc) and 17 analyzed by using Gene Mapper ID Software x3.2 to generate allcle profiles. She has also deposed that profile results for each sample are shown in Annexure-1 and a comprehensive analysis was shown in Annexure-2 along with her report. She has specifically stated that the DNA Profile results of dead female baby of the victim girl sent in Item No.1 is consistent with, having come from the off-spring of the victim girl and the accused and is matching with DNA profile results of sample blood send in Items No.2 & 3 ie., the victim girl and accused. Hence, she has categorically stated that the accused and the victim girl are the biological parents of the dead female fetus sent in Item No.1. She has also deposed that her report is as per Ex.P36. Though this witness was cross-examined at length and formal suggestions were made that, 'samples were useless samples and the samples were not properly preserved', but, she has denied the said suggestions. She has also denied the suggestion that, 'genetic analyzer was not working properly'. Nothing was elicited in her cross-examination so as to impeach her evidence. Hence, the evidence of PW.27 is conclusively establish coupled with evidence of PWs. 12 to 14 that the accused had physical relationship with the victim girl and he is 18 the cause for her pregnancy. No doubt, the victim girl and her mother have turned hostile. But, that itself is not sufficient, as other material conclusive evidence is available in the instant case in the form of evidence of PWs. 12 to 14 and PW.27. No reasons are forthcoming for discarding their evidence. This evidence clearly discloses that the victim has intentionally given a false evidence before the Court.
27. Apart from the above, the evidence of PW.27 is again corroborated by the victim's statement recorded by the Magistrate under Section 164 of Cr.P.C., which is produced at Ex.P6. The victim has not denied her signature and she has admitted in her evidence that, she had been to Court. The evidence of the victim in the statement recorded by the Magistrate under Section 164 Cr.P.C. clearly disclose that, she had physical relationship with accused and she has also stated before the Magistrate that the accused had promised her of marrying and under that pretext, she had physical relationship with him. No doubt, the statement recorded under Section 164 of Cr.P.C. itself is not a substantial piece of evidence, unless it is corroborated. But, in the instant case, the admission made by the victim by herself and her silence regarding this statement 19 without denying the same coupled with the evidence of PWs.12 to 14 prove the guilt of the accused. Further, this evidence is again corroborated by PW.9, who has deposed that, the statement of the victim (PW.1) under Ex.P1 was recorded in her presence. Further, the same is again corroborated by the evidence of PW.24.
28. The learned counsel for the accused has placed reliance on a decision reported in the case of Chaitu Naik Vs. State of Orissa (supra) and argued that the statement recorded under Section 164 of Cr.PC by the Magistrate is not a substantial piece of evidence. There is no dispute regarding this preposition of law. Though the statement under Section 164 is not a substantial piece of evidence, if corroborative evidence is established, then it becomes a material piece of evidence. In the instant case, the 164 statement recorded as per Ex.P6 is supported by other material witnesses including medical and scientific evidence and hence, it cannot be ignored. If the prosecution relies only on Ex.P6 alone, things would have been different. But, the prosecution is placing reliance on other corroborative evidence. Therefore, the principles enunciated in 20 the above cited decision cannot be applicable to the facts and circumstances of the case in hand.
29. The learned counsel for the appellant has further placed reliance on a decision of this Court in Nagappa Vs. State of Karnataka ( supra) and argued that, it is highly unsafe to rely on DNA Test Report, in the absence of any independent corroboration. He would contend that, there is no balance between the scientific evidence and human evidence and hence, it is not safe to rely on the same. But, the facts and circumstances of the said case are entirely different, as in the above cited case, it is elicited from DNA Expert that the blood samples were not sent immediately and also not stored in a thermocol box with ice cubes. It is also observed that, if the DNA are stored for more than 6 days at 24 degree temperature, it may vary final result. Further, it is also observed that the possibilities of tampering of blood samples of the accused, not ruled out. In this context, the Co-ordinate Bench of this Court has held that, it is highly unsafe to rely on sole DNA test to convict the accused. But, the facts and circumstances of the present case are entirely different. In the instant case, the evidence of PW.27 clearly establish that the samples were 21 preserved properly and due care was also taken. Further, the evidence also disclose that, after taking samples, immediately the samples were subjected for DNA profile test, without any delay. Hence, the chances of tampering the blood samples in the present case are minimum and no such case is made-out.
30. Apart from the above, the DNA profiling and the mapping test is again supported by the evidence of PWs.9 and 12 to 14 and their evidence is not at all impeached. It is again corroborated by 164 statement as per Ex.P6 recorded by the Magistrate pertaining to the victim girl. Further, it is evident that, the victim has approached the Hon'ble Apex Court seeking permission for abortion and as per the order of the Hon'ble Apex Court, she was aborted in Vani Vilas Hospital, by PW.14. the victim has gone to the extent of denying this aspect also, which clearly establish that, to what extent she is giving false evidence and she was intended to save the accused person. Hence, considering the facts and circumstances of the case in hand, the principles relied by the defence counsel cannot be made applicable to be case on hand.
22
31. The learned counsel has also brought to the notice of this Court that the trial Court has not at all given any reasons for convicting the accused, except recording deposition of the witnesses. No doubt, the trial Court has not discussed the medical and scientific evidence except concluding the same and did not give the reasons for relying on particular evidence, but in a mechanic way proceeded to convict the accused. This approach of the trial Court is no doubt illegal and not acceptable. However, this court sitting as First Appellate Court, has got all powers of re-appreciating the entire evidence. Hence, as observed above, on appreciating the entire evidence, it is evident that the evidence led by the prosecution is sufficient to bring home the guilt of the accused beyond all reasonable doubt. Though the learned Sessions Judge has not given proper reasonings, but ultimately, the findings are justified.
32. The learned counsel for the appellant invites the attention of the Court to Section 42 of the POCSO Act, which reads as under:
"42. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540, 370, 370A, 375, 376, 376A, 376C, 3760, 376E or section 509 of 23 the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree".
Hence, as per the mandate of this section, in case the offender is found guilty of the offences under the provisions of POCSO Act, he shall be liable to be punished under this Act or under IPC, which provides greater decree of punishment. In the instant case, both the punishments under Section 376 of IPC and Section 4 of the POCSO Act are punishable with a minimum imprisonment of seven years, which may extend to life with fine. But, Section 42 mandates that, primary punishment should be under the provisions of the POCSO Act, in the absence of greater degree of punishment under the IPC. But, as rightly argued by the learned counsel for the appellant, the learned Sessions Judge has convicted the accused for both the offences under Section 376 of IPC as well as under Section 4 of the POCSO Act and it amounts to sentencing the accused twice for the same offence. Hence, the conviction under Section 376 of IPC though proper, however, it does not call for separate 24 sentence, since in view of Section 42 of the POCSO Act, the punishment is being incorporated under Section 4 of the Act. To this extent, the judgment of the trial Court calls for interference.
33. Learned counsel for the appellant has placed reliance on a decision reported in 1946 CRL.L.J. 2867 [Ramesh Babulal Doshi Vs. State of Gujarat] regarding the conduct of the trial Court regarding not giving reasons. But, the facts and circumstances of the said case are entirely different. This Court being the First Appellate Court, has got every power of re- appreciating the evidence. Further, the said case was against acquittal and the facts are being different, the same cannot be made applicable to the facts and circumstances of the case in hand. He has further placed reliance on a decision reported in 1989 CRL.L.J. 1155 [State of Maharashtra and another Vs. Salem Hasan Kahn]. But, the facts and circumstances of the said case are entirely different and it is pertaining to externment order by the Government, which was not a speaking order and in the instant case, the judgment is by the Sessions Judge. As observed above, this Court being the First Appellate Court, has got all powers of re-appreciating the evidence and as such, the principles enunciated in the above cited decisions will not assist 25 the appellant in any way. Apart from that, under Section 376 of IPC and Section 4 of the POCSO Act, the Statute mandates that minimum sentence shall be seven years with fine and maximum is life imprisonment. No doubt, the learned Sessions Judge has not given any reasons for imposing minimum sentence and admittedly in the instant case, minimum sentence has been imposed to the tune of seven years with fine of Rs2,000/- and this sentence has not been challenged by the State. Hence, it does not call for any interference by this Appellate Court. Further, the accused under false promise has abused the minority of the victim girl to have his lust satisfied and thereby made her pregnant and it will be a lifelong stigma on the life of the victim girl. Under such circumstances, the provisions of Section 420 of IPC are also attracted regarding cheating under false promise and the sentence of simple imprisonment for one year with fine of Rs.1,000/- is not disproportionate and does not call for any interference by this Court.
34. Looking to the facts and circumstances, the appeal is devoid of any merits so far as it relates to conviction. However, as regards imposing sentence under Section 376 of IPC is concerned, it calls for interference and to this extent only the 26 appeal needs to be allowed. Accordingly, the point under consideration is answered and I proceed to pass the following:-
ORDER The appeal is allowed in part. The judgment of conviction passed by the trial Court for the offences under Sections 376 and 420 of IPC, and Section 4 of the POCSO Act, is upheld. However, the sentence of imprisonment pertaining to offence under Section 376 of IPC is set aside, as it is merged with the sentence of imprisonment under Section 4 of the POCSO Act, as per Section 42 of the POCSO Act.
The other sentences for the offence under Section 420 of IPC and Section 4 of the POCSO Act, stands confirmed.
Sd/-
JUDGE KGR*