JUDGMENT : 1. The present jail appeal has been preferred by the appellant Baba Kuberanand @ Kaluram from jail against the impugned judgment and order dated 18.3.2016 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No.4, Ghaziabad in Sessions Trial No.17 of 2014 (State of U.P. Vs. Baba Kuberanand alias Kaluram). The accused-appellant has been convicted and sentenced with rigorous imprisonment for 5 years with fine of Rs.5,000/-under Section 363 I.P.C. and in default thereof he shall undergo additional imprisonment for two months, sentenced with rigorous imprisonment for 7 years and fine of Rs.10,000/-under Section 366 I.P.C. and in default thereof he shall undergo additional imprisonment for three months, sentenced with rigorous imprisonment for 10 years and fine of Rs.10,000/-under Sections 376(2) J of I.P.C. and in default thereof he shall undergo additional imprisonment for three months, sentenced with rigorous imprisonment for 7 years and fine of Rs.10,000/-under Section 4 of POCSO Act and in default thereof he shall undergo additional imprisonment for three months. All these sentences have been directed to be run concurrently. 2. Factual matrix of the case are that the F.I.R. (Exhibit Ka-5) was lodged by complainant Pratap Singh (P.W.-2) in Police Station Dhaulana, District Hapur that her daughter, age 15 years, was missing since evening of 13.1.2014 and he suspects Baba Kuberanand, Harish, Rinku and Sushil for the same. The case was registered as Case Crime No.21 of 2014, under Sections 363 & 366 I.P.C. The case was investigated by S.I. Vinod Kumar Sharma (P.W.-5) who submitted the charge-sheet (Exhibit Ka-8) on 8.2.2014. Learned trial court had framed charges against appellant on 3.5.2014 under Sections 363, 366, 376(2) I, 376(2) J of I.P.C. and Section 4 of POCSO Act. The appellant-accused has denied the charges and pleaded for trial. 3. So as to hold the accused-appellant guilty, the prosecution had produced six witnesses which are as follows:- 1. P.W.-1 victim 2. P.W.-2 Pratap, informant (father of victim) 3. P.W.-3 Bhujveer, nephew of informant 4. P.W.-4 Constable Kamal Singh, scriber of F.I.R. 5. P.W.-5 S.I. Vinod Kumar Sharma, Investigating Officer 6. P.W.-6 Dr. Tina Khanuja 4. The statement under Section 313 Cr.P.C. of accused-appellant was recorded in which he denied the allegations and pleaded that he has been falsely implicated in this case on account of enmity with informant. P.W.-3 Bhujveer, nephew of informant 4. P.W.-4 Constable Kamal Singh, scriber of F.I.R. 5. P.W.-5 S.I. Vinod Kumar Sharma, Investigating Officer 6. P.W.-6 Dr. Tina Khanuja 4. The statement under Section 313 Cr.P.C. of accused-appellant was recorded in which he denied the allegations and pleaded that he has been falsely implicated in this case on account of enmity with informant. It is stated that a quarrel took place on 4.1.2014 with father of victim and other villagers and as such for that reason he has been falsely implicated in this case. He has denied to produce any witness in support of his defence. 5. The victim was medically examined and as per medical report there was no external injury on any part of the body of victim and the victim had denied for her internal medical examination. The age of the victim was assessed as 17 years by Chief Medical Officer, Hapur. 6. The victim appeared as P.W.-1 before trial court and stated on oath that she went with accused-appellant to Himachal Pradesh from Meerut on motorcycle but she has not stated that she was enticed or forcibly took away by appellant-accused. The informant has appeared as P.W.-2 who is father of victim and has stated the same story as stated in F.I.R. The other witness of fact produced by prosecution was Bhujveer who appeared as P.W.-3 and supported the prosecution case. Constable Komal Singh appeared as P.W.-4 and proved the F.I.R. Investigating Officer Vinod Kumar Sharma appeared as P.W.-5 and proved the filing of charge-sheet. Dr. Tina Khanuja appeared as P.W.-6 and proved the medical report (Exhibit Ka-10). P.W.-6 had stated that victim denied for her internal medical examination and therefore commission of rape could not be proved. 7. The learned trial court on the basis of evidence adduced by the prosecution had recorded the findings that as per migration certificate the age of victim is 16 years 5 months as her date of birth is mentioned as 15.8.1997. As per report of Chief Medical Officer, Hapur dated 4.2.2014 the age of victim was 17 years and as such she was minor on the date of incident, therefore, the charges against accused-appellant were established and convicted the accused-appellant under Sections 363, 366 and 376 (2) J of I.P.C. and Section 4 of POCSO Act. 8. As per report of Chief Medical Officer, Hapur dated 4.2.2014 the age of victim was 17 years and as such she was minor on the date of incident, therefore, the charges against accused-appellant were established and convicted the accused-appellant under Sections 363, 366 and 376 (2) J of I.P.C. and Section 4 of POCSO Act. 8. Heard Sri Lalji Chaudhary, learned counsel for appellant, Sri R.K. Srivastava, learned A.G.A. for the State and perused the impugned judgment and order as well as record of the present case. 9. Learned counsel appearing for appellant states that he does not propose to challenge the judgment and order of trial court on its merit. He, however, submitted that there are contradictions in the statements of witnesses produced by prosecution and the trial court has ignored the evidence of doctor who appeared as P.W.-6 that internal medical examination was refused by the victim thus commission of rape could not have been proved. It is further submitted that from the evidence adduced by the prosecution it is apparent that victim went to Himachal Pradesh with accused-appellant on motorcycle without raising any alarm and lived there till 24.1.2014 which itself proved that she was consenting party and went with appellant with her own will but on account of enmity with informant the appellant has been falsely implicated in this case. 10. Learned counsel for appellant has submitted that maximum sentence awarded by learned trial court is 10 years and the appellant has already undergone more than 6 years 10 months and as such the matter be considered sympathetically and the order of sentence may be reduced to the period already undergone by the appellant. It is next submitted that appellant is not a previous convict. Learned Additional Government Advocate has no objection if the Court reduces the quantum of punishment. 11. The findings of fact has been recorded by trial court that on the date of incident the victim was minor and that findings have not been challenged by the appellant, hence, the conviction of appellant stands affirmed. 12. Learned counsel for appellant pleads that appellant is in jail for last about 7 years whereas the maximum punishment awarded to the appellant is 10 years and as such the appeal may be decided sympathetically and the sentence may be reduced to the period which had already undergone by the appellant. 13. 12. Learned counsel for appellant pleads that appellant is in jail for last about 7 years whereas the maximum punishment awarded to the appellant is 10 years and as such the appeal may be decided sympathetically and the sentence may be reduced to the period which had already undergone by the appellant. 13. In the case of Sattan Sahani vs. State of Bihar and others, 2002 (45) ACC 1134 (SC), accused were sentenced to three years' rigorous imprisonment under section 326 IPC. In appeal, the Apex Court reduced the sentence to the period already undergone on the ground that the incident took place two decades back and parties have also compromised. 14. In the case of Uthem Rajanna vs State of Andhra Pradesh, 2005 (11) SCC 531 , accused was convicted and sentenced to six months' simple imprisonment under section 304-A IPC along with fine of Rs. 500/-and three months' simple imprisonment under section 338 IPC and also to pay a fine of Rs. 500/- under section 337 IPC. The Apex Court in appeal has reduced the sentence to the period already undergone. 15. In the case of Neelam Bahal and another vs. State of Uttarakhand, 2010 (2) SCC 229 , the accused was convicted and sentenced to undergo seven years' rigorous imprisonment under section 307 IPC. The Apex Court has convicted the accused under section 326 IPC and reduced the sentence to the period already undergone, i.e. almost one year. 16. The Hon'ble Supreme Court has reduced the sentence of accused to the period already undergone in the case of B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457 SC. The relevant paragraph of the judgment is reproduced as under: "Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs-200/-to Rs. 400/-. Period of imprisonment in case of default will remain the same." 17. In the present case the appellant is in jail since 25.1.2014 and had served the sentence for 6 years 10 months. In view of aforesaid facts the sentence awarded to the appellant is modified and the sentence is reduced to the period already undergone by the appellant in this case. 18. The present jail appeal is partly allowed. The appellant is in jail. He shall be released forthwith if not wanted in any other case. It is further directed that the appellant shall furnish bail bonds with sureties to the satisfaction of the court concerned.