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2021 DIGILAW 287 (UTT)

Tibbu Lal v. State Of Uttarakhand

2021-05-27

R.C.KHULBE

body2021
JUDGMENT R.C. Khulbe, J. - This jail appeal, is preferred against the judgment and order dated 11.12.2019, passed by the learned Special Sessions Judge POCSO, Rudraprayag in Special Session Trial No. 12 of 2019, State vs. Tibbu Lal whereby the learned trial court has convicted the appellant under section 354, 354A, 354B IPC and under section 8 of the POCSO Act and sentenced him seven years rigorous imprisonment with fine of Rs. 10,000/-, in default of which, appellant to undergo simple imprisonment for four months. He was also convicted under section 366 IPC and sentenced to seven years rigorous imprisonment with fine of Rs. 10,000/- in default of which he has to undergo further four months' simple imprisonment. All the sentences are directed to be run concurrently. 2. Brief facts of the case are that PW2-mother of the prosecutrix gave information with Police Station Augustyamuni, District Rudraprayag on 16.10.2019. On the basis of said information, FIR No. 57 of 2019 (Ex. A13) was registered on the very same day. The statement of the prosecutrix under section 164 Cr.P.C. was recorded. She was medically examined. After completion of investigation charge sheet (Ex. A16) was submitted against the appellant on 26.11.2019. 3. Accordingly, the concerned Sessions Judge took the cognizance and after compliance of section 207 Cr.P.C., framed the charges under section 354, 354-A, 354B, 366 IPC and under section 8 of the POCSO Act. The appellant denied the allegation and claimed to be tried. 4. To prove its case, the prosecution produced PW1 prosecutrix, PW2 mother of the prosecutrix, PW3 relative of the prosecutrix, PW4 Prabhakar Baijwal, Head Master who proved the age of the prosecutrix, PW5 Dr. Shivani Gusai, and PW6 S.I. Sanyogita Rawat, who lodged the FIR and prepared the GD. 5. After completion of prosecution evidence, statement of accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied all the evidence and stated that the prosecution produced false evidence against him. In defence, no evidence was produced. 6. After hearing both the parties, the learned trial Court has convicted and sentenced the appellant, as mentioned in para no.1 of the judgment above. Feeling aggrieved, the appellant preferred this criminal appeal. 7. Heard learned counsel for the appellant as well as learned for the State through video conferencing and perused the entire evidence available on record. 8. 6. After hearing both the parties, the learned trial Court has convicted and sentenced the appellant, as mentioned in para no.1 of the judgment above. Feeling aggrieved, the appellant preferred this criminal appeal. 7. Heard learned counsel for the appellant as well as learned for the State through video conferencing and perused the entire evidence available on record. 8. Learned Counsel for the appellant fairly submitted that he does not want to argue the case on merit because the trial Court has rightly convicted the appellant based on evidence. He fairly submitted that the matter relates to the year 2019. The appellant has been sentenced to seven years rigorous imprisonment against which he has already served more than two year. The appellant has no criminal antecedent. The Court, while upholding appellant's conviction, may consider to alter the sentence awarded to the appellant and reduce it to the extent of period already undergone. 9. Learned counsel for the State also submitted that under section 8 of the POCSO Act and under section 354-B IPC, the minimum three years is prescribed. It is also submitted that the appellant has no criminal history. 10. I have also gone through the evidence on record and came to this conclusion that the trial Court has convicted the appellant based on sufficient evidence, as produced by the prosecution. There is no illegality or infirmity in the impugned findings regarding conviction but the trial court has committed mistake by awarding seven years sentence to the appellant under sections 354, 354A IPC and under section 8 of the POCSO Act by a single stroke. If the accused has been convicted and sentenced under section 354B IPC, there was no occasion to sentence him under sections 354, 354A IPC and u/s 8 of POCSO Act. 11. Section 42 of the POCSO Act provides that:- "Where an act or omission constitutes an offence punishable under this Act and also under sections 166-A, 354A, 354B, 354-C, 354- D, 370, 370-A,375, 376, 376-A, 376-AB, 376- C, 376-D, 36-DA, 376-DB,376-E 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." 12. Accordingly, the impugned sentence dated 11.12.2019 sentencing the appellant under sections 354, 354A IPC and u/s 8 of POCSO Act, is liable to be set aside in view of the clear provision of section 42 of the POCSO Act. Same is hereby set aside. As regard to the sentence, under section 354B IPC is concerned, the minimum punishment is not less than three years while the maximum punishment is upto seven years. The appellant does not have any criminal antecedents in his past life; and, he is not required in any other criminal case except the present one. Thus, it is considered to be just and appropriate to alter the sentence from seven years to three years under section 354B IPC and also under section 366 IPC. 13. In view of the above discussion, the appeal is allowed in part. The appellant is sentenced as follows:- A. The appellant is sentenced to undergo three years rigorous imprisonment under section 354B IPC instead of seven years, as awarded by the trial Court. B. The appellant is sentenced to undergo three years rigorous imprisonment under section 366 IPC instead of seven years, as awarded by the trial Court. C. The fine awarded under sections 354B, 366 IPC are maintained and he will deposit the fine and compensation as imposed by the trial Court. D. All the sentences shall run concurrently. E. On completion of period of sentence, as modified by this Court, he shall be released from jail, as per law. 14. Pending application, if any, stands disposed of. 15. Let a copy of this judgment along with LCR be sent to the Court concerned for compliance.