SHYAM SUNDER Vs. STATE OF U.P.

JUDGEMENT

(1.) This appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed by convict-appellant Shyam Sunder against judgment of conviction and sentence made therein in Special Sessions Trial No. 579 of 2013 (State Vs. Shyam Sunder), arising out of Case Crime No. 351 of 2013, under Sections 376, 506 I.P.C. read with Section 3/4 POCSO Act, Police Station Kalyanpur, District Kanpur Nagar, passed by Court of Special Judge (POCSO Act) / Additional Session Judge, Court No. 14, Kanpur Nagar.

(2.) Memo of appeal contends that trial court failed to appreciate facts and evidence placed on record. There was inordinate delay in lodging the F.I.R. and it was without any explanation. There was inconsistency in medical report and oral testimony, resulting improvement and exaggeration in prosecution case. Owing to dispute of tenancy, this false implication was made. Hence, this appeal with a prayer for setting aside impugned judgment of conviction and sentence made therein.

(3.) At the very outset, it is mentioned by Sri P.K. Singh, learned counsel for appellant that he is not challenging the judgment of conviction, wherein convict-appellant has been convicted for offence punishable under Sections 376, 506 I.P.C. read with Section 3/4 of POCSO Act. Rather, quantum of punishment has been challenged because trial court has convicted and sentenced the convict-appellant with ten years' rigorous imprisonment and fine of Rs.10,000/- and in case of default six months' additional rigorous imprisonment under Section 376 I.P.C. with further sentence for one year's simple imprisonment under Section 506 I.P.C. with additional imprisonment of seven years' imprisonment with fine of Rs.15,000/- and in case of default six months' additional rigorous imprisonment under Section 3/4 of POCSO Act. There had been a direction for concurrent running of sentences and adjustment of previous imprisonment in this very case, towards above sentence awarded. Whereas, as per Section 42 of the Protection of Children From Sexual Offences Act, 2012 (Act No. 32 of 2012) "Alternate Punishment-Where an act or omission constitutes an offence punishable under this Act and also under Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or Section 509 of the Indian Penal Code (45 of 1860), 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." i.e. punishment may not be made in both the provisions of Indian Penal Code as well as of POCSO Act. Rather, the punishment, which is higher in degree, for one and same offence, as provided under POCSO Act as well as I.P.C. is to be chosen and that is to be awarded. The awarded sentence by trial court under Section 376 I.P.C. was ten years' rigorous imprisonment with fine of Rs.10,000/- and in default, six months' additional rigorous imprisonment. Again for same offence of penetrative sexual assault i.e. rape, defined under Section 375 I.P.C. as well as Section 3 of POCSO Act, punishable under Section 376 I.P.C. and Section 4 of POCSO Act, trial court has awarded sentence of seven years imprisonment with fine of Rs.15,000/- and in default six months' additional imprisonment. Hence, it was apparently erroneous.