JUDGMENT : 1. This criminal appeal has been filed against the judgment and order dated 09.08.2017 passed by learned Additional Sessions Judge, Court-16, Kanpur Nagar in Special Session Trial No.26 of 2014 (State of U.P. Vs. Kallu @ Ravi) arising out of Crime No.32 of 2014, under Sections 377 I.P.C. and Section 3(A)/4 POCSO Act, Police Station Kakadeo by which appellant was convicted and sentenced under Section 377 I.P.C. for a period of 10 years rigorous imprisonment with fine of Rs.20,000 and under Section 4 POCSO Act for a period of 10 years rigorous imprisonment with fine of Rs.20,000 and in default of payment of fine to undergo additional simple imprisonment for a period of 2 years respectively. 2. Fact in brief are that informant Subodh Kumar @ Guddu is resident of B-52, Rajapurwa opposite to Ambedkar Park, Police Station Kakadeo, District Kanpur Nagar. On 07.02.2014 at about 9:30 P.M. nephew of informant aged about 8 years was playing outside the house. Appellant took him into the Ambedkar Park with bad intention and committed sodomy. Hearing shriek of the victim, informant and his brother Manoj went towards the park. Seeing them appellant fled away by jumping the grill. On the same day a written tehrir was given at the police station Kakadeo on the basis of which F.I.R. was lodged at about 10:30 P.M. 3. Majrubi chitthi was prepared in the police station and victim was sent to L.L.R. Hospital for medical examination. 4. Medical examination was done by Medical Officer, L.L.R. Hospital, Kanpur Nagar on 08.02.2014 at about 1:15 P.M. Detail of which is as under :- (I) Anal mucosal tears present on interior and posterior wall of anus at 12 O'clock and 6 O'clock position, fresh bleeding coming out during pushing of anal wall in opposite direction. (II) Yellowish white material present on anal opening. Slide prepared for examination of semen/spermatozoa and handed over to the police. (III) Opinion :-patient admitted u/o of Dr. Pawan Singh for expert opinion and management as a case of sexual assault by male partner. Injury no.1 caused by sodomy, fresh in duration and kept under observation, slide preparation done for examination of semen/spermatozoa of yellowish while material and handed over to police. On microscopic examination of swab/slide smears were negative for spermatozoa. 5. Pawan Singh for expert opinion and management as a case of sexual assault by male partner. Injury no.1 caused by sodomy, fresh in duration and kept under observation, slide preparation done for examination of semen/spermatozoa of yellowish while material and handed over to police. On microscopic examination of swab/slide smears were negative for spermatozoa. 5. Investigation of the case was handed over to S.I. Ramakant Dubey who took in possession the clothes of victim, made spot inspection, prepared site plan and recorded statements of victim and of other witnesses. On the material collected during the investigation he prepared charge-sheet and submitted before the court concerned. 6. The court concerned took cognizance of the offences and in compliance of Section 207 Cr.P.C. necessary copies of police papers were given to the appellant. 7. On the basis of material on record charge under Section 377 I.P.C. and 3/4 POCSO Act was framed which was read over and explained to the appellant who did not plead guilty but denied and claimed for trial. 8. In support of its case, prosecution adduced PW-1 Subodh Kumar informant, PW-2 victim as witness of fact, PW-3 Constable Satyendra Singh who prepared the F.I.R., PW-4 Dr. Vinay Kumar who examined the victim, PW-5 S.I. Ramakant Dubey who investigated the case and PW-6 Dr. Looba Khan the pathologist, PW-7 Manoj (uncle of the victim) a witness of fact. 9. After conclusion of prosecution evidence statement of appellant under Section 313 Cr.P.C. was recorded in which he stated about the incident to be false and the witnesses deposing falsely. In defence he produced DW-1 Pradeep Yadav, DW-2 Sunil and DW-3 Radha. 10. After hearing the arguments made by learned counsel for the appellant as well as learned counsel on behalf of the State and on perusal of record, learned trial court passed the judgment and order dated 09.08.2017 while convicting and sentencing the appellant as aforesaid. Being aggrieved with the judgment and order he has preferred this appeal. 11. Heard Sri Shive Datta Yadav, learned counsel for the appellant as well as learned A.G.A. for the State. 12. Learned counsel for the appellant submits that no independent witness was examined by the prosecution whereas the alleged incident took place in a park that is an open public place. The medical report has also not supported the prosecution version, all the witnesses are interested witnesses and close relatives of the victim. 12. Learned counsel for the appellant submits that no independent witness was examined by the prosecution whereas the alleged incident took place in a park that is an open public place. The medical report has also not supported the prosecution version, all the witnesses are interested witnesses and close relatives of the victim. No semen or spermatozoa was found on the anus and on the clothes of the victim during pathological examination. In this way, the prosecution could not prove it's case beyond reasonable doubt. The judgment under challenge is against the facts on record and also against the law. Without considering these facts, the learned trial court has awarded severe punishment to appellant. 13. At the outset, learned counsel for the appellant confined his argument to the quantum of sentence only without challenging the impugned judgment and order on merits. He has further submitted that as per statement of appellant recorded under Section 313 Cr.P.C. his age was 18 years at the time of recording the statement on 04.06.2015 whereas the incident took place on 07.02.2014, which shows that he was aged about 17 years at the time of occurrence. Considering the tender age of the appellant, a liberal view may be taken by the court. He has further submitted that appellant remained in jail throughout the trial from the date of incident and as such he has been in jail for the last more than 7 years. Minimum sentence provided under Section 3/4 POCSO Act is 7 years he, therefore, requested that considering the period already served in the jail, the sentence awarded to the appellant, may be modified to the minimum as provided under the Act. 14. He further submitted that learned trial court has awarded separate sentence under Section 377 I.P.C. and under Section 4 POCSO Act whereas on the analogy of Section 42 of POCSO Act accused be awarded sentence under the law which provides greater punishment. In view of this legal position learned trial court might have awarded sentence either under Section 377 I.P.C. or under Section 4 POCSO Act. 15. In view of this legal position learned trial court might have awarded sentence either under Section 377 I.P.C. or under Section 4 POCSO Act. 15. Learned A.G.A. on behalf of the State supported the impugned judgment and order of learned trial court and submitted that victim is a minor boy and act of the appellant is heinous in nature and trial court after appreciating all the evidence available on record, rightly convicted the appellant for the offences under Section 377 I.P.C. & Section 4 POCSO Act. The appellant deserves no leniency, hence appeal has no force and is liable to be dismissed. 16. Section 3/4 of POCSO Act reads as under: Section 3: Penetrative sexual assault.-A person is said to commit 'penetrative sexual assault' if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. Section 4: Punishment for penetrative sexual assault.-Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. 17. Section 377 I.P.C. reads as under : 377. Unnatural offences.— Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.— Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. 18. Section 42 of POCSO Act reads as under : 42. Explanation.— Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. 18. Section 42 of POCSO Act reads as under : 42. Alternate Punishment:-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 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. 19. Regarding submission made by learned counsel for the appellant that on the analogy of Section 42 of POCSO Act, the learned trial court might have awarded sentence either under Section 377 I.P.C. or under Section 4 POCSO Act, which provides greater punishment, it is to note that the offence mentioned under Section 42 of POCSO Act does not include offence under Section 377 I.P.C., therefore, Section 42 of the Act cannot be taken recourse with, while awarding sentence. 20. While dealing with the quantum of sentence, it is expedient to go through the legal position in this regard. 21. In Mohd. Giasuddin Vs. State of A.P., AIR 1977 SC 1926 , explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court : "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 re-culturization. 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. 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." 22. In Sham Sunder vs. Puran, (1990) 4 SCC 731 , where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held: "The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence." 23. In State of M.P. vs. Najab Khan, (2013) 9 SCC 509 , the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs. State of U.P. (2010) 12 SCC 532 , Guru Basavraj vs. State of Karnataka, (2012) 8 SCC 734 , the court observed as follows : "In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment." 24. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment." 24. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of U.P., (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 proportionately. 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. 25. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs. State (NCT of Delhi), (2013) 7 SCC 77 , it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in 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 . 26. In Kokaiyabai Yadav vs. State of Chhattisgarh (2017) 13 SCC 449 , it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts, have grown and nurtured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world. 27. 26. In Kokaiyabai Yadav vs. State of Chhattisgarh (2017) 13 SCC 449 , it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts, have grown and nurtured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world. 27. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel vs. State of U.P. (2010) 12 SCC 532 , Guru Basavraj vs. State of Karnataka, (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. 28. 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 cannot endure long and develop under serious threats of crime and disharmony. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. It is therefore, necessary to avoid undue leniency in imposition of sentence. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society cannot endure long and develop under serious threats of crime and disharmony. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. It is therefore, necessary to avoid undue leniency in imposition of sentence. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. 29. In the present case at the time of commission of offence the convict was nearly 17 years of age. It cannot be said that he was mature and there is no possibility of reform in him. The medical report of the victim shows that he did not sustain any physical injury and there was no sign of physical violence on him. There is no previous criminal history of the appellant. The minimum punishment for the offence under Section 4 POCSO Act is provided for 7 years. The appellant has been in jail from the outset. As such he served in jail for a period of more than 7 years and there is no minimum limit provided under Section 377 I.P.C. Considering the age of the appellant and the period he served in jail, this Court is of the opinion that a liberal view should be taken on sentence by reducing the term of imprisonment already undergone by the appellant in this case and for default in payment of fine he will undergo additional imprisonment for a period of two months for each. 30. Consequently, the conviction is upheld and the sentence under Section 377 I.P.C. and under Section 4 POCSO Act is modified to already undergone and in default of payment of fine he is to undergo additional imprisonment for a period of two months in each. 31. With the above modifications, the appeal is partly allowed. 32. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.