JUDGMENT : Syed Aftab Husain Rizvi, J. 1. This criminal appeal has been filed against judgement and order dated 03.06.2017 passed by Additional District and Sessions Judge, Court No.1, Hamirpur in Special Case No.29 of 2015 (State Versus Asrar Ahamad) arising out of Case Crime No.22 of 2015 under Sections 376(2)(d), 354(Ka), 506 I.P.C. and 4 of Protection of Children From Sexual Offences Act, Police Station Maudaha, District Hamirpur. The appellant has been convicted for the offences under Sections 376(2)(d), 354(Ka), 506 I.P.C. and 4 of Protection of Children From Sexual Offences Act and sentenced to undergo life imprisonment for the offence under Section under Sections 376(2)(d) I.P.C; to undergo three years’ rigorous imprisonment with fine of Rs.5000/-for the offence under Section 354(Ka) I.P.C. and in default of payment of fine, five months’ rigorous imprisonment; to undergo three years’ rigorous imprisonment with fine of Rs.5000/-for the offence under Section 506 I.P.C. and in default of payment of fine, five months’ rigorous imprisonment and to undergo ten years’ rigorous imprisonment with fine of Rs.16,000/-for the offence under Section 4 of Protection of Children From Sexual Offences Act and in default of payment of fine, to undergo 16 months’ rigorous imprisonment. All the sentences were directed to run concurrently. 2. The F.I.R. of this case was lodged on 08.01.2015 as Case Crime No.22 of 2015 on the written information of informant, alleging therein that the informant is permanent resident of Village Kamhariya, Police Station Maudaha, District Hamirpur. At present, he is residing at Mohalla Upraus, Kasba Maudaha, District Hamirpur in a rented accommodation. He is posted as Headmaster at Purv Madhyamik Vidyalaya. He was busy in his job and treatment of his ailing mother which is going on since last 4 months. During this period, the family members of Amir Ahmad alias Bachcha, who resides in the neighbourhood, used to visit his house. On 20.08.2014 at about 10.00 a.m. when the informant was on his duty, his wife was at Village Kamhariya to look after his ailing mother and minor daughter of the informant was alone at her house, his neighbour Asrar Ahamad son of Amir Ahmad alias Bachcha came to his house and offered sweets (Laddu) to his minor daughter. His minor daughter became unconscious after consuming the sweet, whereafter the accused sexually assaulted her and took her nude photographs. His minor daughter became unconscious after consuming the sweet, whereafter the accused sexually assaulted her and took her nude photographs. When his daughter regained consciousness, she told the accused that she will make a complaint to her father, on which the accused showed her nude photographs. His daughter became silent. Taking advantage of it, the accused started blackmailing and sexually assaulting her. Asrar Ahamad, his mother Sitara Bano, sister Abida Bano and father Amir Ahmad put pressure of marriage, when the accused failed in his object, he extended death threats, pointing country made pistol on her daughter. On 31.12.2014 when the informant saw his daughter in a sullen condition and inquired from her, then she narrated the entire incident. It is further alleged that Asrar Ahamad has also committed indecent acts with his other minor daughter. 3. The Investigating Officer recorded the statements of the informant, the victims and other witnesses. Both the victims were also produced for medical examination and also for recording their statement under Section 164 Cr.P.C. The Investigating Officer also took other steps of investigation and after concluding it, submitted the charge-sheet against the accused Asrar Ahamad. 4. Charges under Sections 376(2)(d), 354 (Ka) and 506 I.P.C. and Section 4 of Protection of Children From Sexual Offences Act were framed against the accused who pleaded not guilty and claimed for trial. 5. The prosecution produced eight witnesses in oral evidence, to prove its case. The details of which will come later on. 6. Incriminating material against the accused was put to him under Section 313 Cr.P.C. He denied the prosecution evidence and has stated that a false report has been lodged against him. It is also stated that the marriage proposal of first victim with him was sent by the informant, but it was refused as the character of the victim was improper. Aggrieved by it, this case has been lodged against him. He works at Saubi Arab and is engaged in the manufacturing of MCB Breaker. No defence evidence has, however, been produced. 7. The first victim was medically examined on 08.01.2015 at 7.00 p.m. by Dr Poonam Sachan, who has appeared as PW 8. The witness has stated that as informed by the victim and her father, the date of birth of victim was 14.07.1999 and her age was about 15 years, she is unmarried. Her weight was 40 kg. 7. The first victim was medically examined on 08.01.2015 at 7.00 p.m. by Dr Poonam Sachan, who has appeared as PW 8. The witness has stated that as informed by the victim and her father, the date of birth of victim was 14.07.1999 and her age was about 15 years, she is unmarried. Her weight was 40 kg. Axillary and pubic hairs were present. The breasts were developed. There was no sign of injury either on the body or on the private parts. The hymen was old torn and healed. Vaginal smear was taken and slide was sent for pathological examination. The victim was also referred for determination of her radiological age. The witness has proved the medical examination report as Ext. Ka-9. 8. The second victim was also medically examined by Dr Poonam Sachan (PW 8) on 08.01.2015 at 8.30 p.m. The witness has stated that as informed by father of the victim, the date of birth of the victim was 29.10.2007. Her age was about seven years. Her weight was 18 kgs. Axilliary and pubic hairs were not present. Breasts were not developed. Redness was present on labia minora, hymen and vagina. Hymen was old torn and healed. Vaginal smear was taken and slide was sent for pathological examination and the victim was referred for determination of her radiological age. The witness has proved the medical examination report as Ext. Ka 10. 9. The informant PW 1 has stated that accused Asrar Ahamad lives in his neighbourhood. The witness with his wife, three daughters and a son was living in the house of Mohd. Nabi, situated in Mohalla Upraus, Kasba Maudaha, District Hamirpur at the time of the incident. His mother, Jamila, is old and sick and to look after her his wife used to visit Village Kamhariya. The witness has narrated the facts of the incident as alleged in the F.I.R. The witness further stated that when the incident came to his notice, then on the same day, he went to the police station, but he was not entertained there. Then on 08.01.2015, he got the application typed and after signing it, presented it at Police Station Maudaha. The witness has proved the written report as Ext. Ka-01. The witness has also stated that the medical examination of her two minor daughters (victims) were conducted with his consent. Then on 08.01.2015, he got the application typed and after signing it, presented it at Police Station Maudaha. The witness has proved the written report as Ext. Ka-01. The witness has also stated that the medical examination of her two minor daughters (victims) were conducted with his consent. The witness has identified the photographs of the victims and his signatures on the medical reports. 10. The victim no.2 is PW 2. She has stated that accused Asrar Ahamad lives in her neighbourhood in Mohalla Upraus. His parents and sisters used to visit her house and she identified them and called him (accused) Mamu (maternal uncle). When she used to go to play, then Asrar Ahamad caught hold her and after disrobing her and himself, indulged in indecent and vulgar acts and also extended threats. He used to commit these acts in a room at ground floor as well as at the first floor where straw was stored. The witness has further stated that one day she was sitting in her courtyard, then she noticed that her elder sister was making some complaint to her father. She was complaining the indecent acts of Asrar Ahamad, then she also came into the room and told her father about the incident occurred with her. The witness has corroborated her statement recorded under Section 164 Cr.P.C. She has also stated that she is studying in Class-III and her date of birth is 29.10.2007. 11. First victim, PW 3 in her statement has stated that she knew the accused Asrar Ahamad, who lives in her neighbourhood. On 20.08.2014 at about 10 a.m. when she was alone at her house Asrar Ahamad came and offered sweets (Laddu). After consuming it, she became unconscious. Asrar Ahamad sexually assaulted her and, had taken her nude photographs. When she regained consciousness, she said that she will tell about the incident to her father, then Asrar Ahamad showed her nude photographs and also threatened her with death. Taking advantage of this, he used to blackmail and commit rape with her and continued it for about three and a half months. The witness has further stated that one day she was going to her school. Abida Bano, the sister of Asrar Ahamad was standing at the door of her house, asked her to come inside. Taking advantage of this, he used to blackmail and commit rape with her and continued it for about three and a half months. The witness has further stated that one day she was going to her school. Abida Bano, the sister of Asrar Ahamad was standing at the door of her house, asked her to come inside. The witness said that she will not come as Asrar Ahamad was there and he used to tease her. Then, she said that he is Mamu, he may be making fun. He is not at the house and she will admonish him. Believing it, the witness went inside the house, where she saw a sorcerer (Tantrik). Sitara Bano, mother and Amir Ahmad, father of Asrar Ahamad were sitting beside the sorcerer, then she was also got seated beside them and sorcery was performed on her. All of them pressurized her to marry Asrar Ahamad. Asrar Ahamad also put a country-made pistol on her forehead and asked her to run away with him and also threatened her with death. When she came back to her house and told this incident to her parents, then her father lodged the F.I.R. The witness has also corroborated her previous statement under Section 164 Cr.P.C. 12. The remaining witnesses are formal in nature. Smt. Meera Devi, PW 5 is the Principal of Government Inter College, Maudaha, Hamirpur, who has proved the date of birth of first victim, as recorded in her high school documents. She has also stated that according to the documents, the date of birth of victim is 14.07.1999. The witness has proved this document as Ext. Ka-5. 13. Constable Priti Rajput PW 6 is the chick and G.D. writer and she has proved both the documents prepared in her handwriting as Exts. Ka-6 and Ka-7. 14. Inspector Rajjan Lal PW 4 is the first Investigating Officer. The witness has stated that after registration of the F.I.R., he took up the investigation. He recorded statement of informant, inspected the place of occurrence and prepared its site-plan Exts. Ka-1 to Ka-4. On his direction, on 09.01.2015 the statement of victims were recorded by Anupam Srivastava, Station Officer, Mahila Thana. The witness has further stated about other steps taken during the course of investigation. 15. Inspector Hawaldar Singh PW 7 is the second Investigating Officer. He has also stated about steps taken during further investigation. Ka-1 to Ka-4. On his direction, on 09.01.2015 the statement of victims were recorded by Anupam Srivastava, Station Officer, Mahila Thana. The witness has further stated about other steps taken during the course of investigation. 15. Inspector Hawaldar Singh PW 7 is the second Investigating Officer. He has also stated about steps taken during further investigation. The witness has also stated that on 07.04.2015, he submitted the charge-sheet (Ext. Ka-8) against the accused. 16. We have heard Sri M.P. Yadav, Sri Kamta Prasad, learned counsels for the appellant, Sri Dinesh Kumar Gupta, learned counsel for the informant and Sri Amit Sinha, learned Additional Government Advocate, apeparing for the State. 17. Learned counsel for the appellant has submitted that he is not challenging the finding of conviction recorded by the trial court. He is confining his submissions only on the point of quantum of sentence. Learned counsel submitted that the appellant is languishing in jail since date of his arrest and has served eight years two months and eighteen days of actual incarceration, whereas nine years seven months and twenty seven days of incarceration with remission. Learned counsel further submitted that alleged incident is of year 2014. At the relevant point of time, the punishment prescribed for offence under Section 376 I.P.C. was minimum seven years which may extend to imprisonment for life with fine and for the offence under Section 4 of Protection of Children From Sexual Offences Act was seven years with fine. It is further contented that the appellant has already served sentence imposed for the offence under Section 354(Ka) and 506 I.P.C. It is next contended that learned trial court has failed to consider that incident is of prior to the amendment, hence pre-amended provisions will be considered while imposing sentence. The sentence imposed by the learned trial court is not appropriate and is excessive. Relying on the case law of Manoj Mishra alias Chhotkau Versus State of Uttar Pradesh (2021) 10 Supreme Court Cases 763, learned counsel has also pointed out that the appellant has no previous criminal history and has already served more than eight years of actual sentence while more than nine years of sentence with remission. Therefore, his sentence may be reduced to the period already undergone. 18. Therefore, his sentence may be reduced to the period already undergone. 18. Learned counsel for the informant and learned A.G.A. appearing for the State contended that the appellant has repeatedly committed sexual assault on the minor victim and is also involved in indecent acts against her younger sister. The trial court, after considering the entire facts and evidence and other material available on record, found him guilty and, therefore, sentenced him as above which is appropriate. 19. The prosecution has produced both the victims as PW 2 and PW 3 who have supported the prosecution case. Both the witnesses have also corroborated their previous statements under Section 164 Cr.P.C. The informant PW 1 has also corroborated their testimony. The formal witnesses have also supported the prosecution case. There is no serious discrepancy and material contradictions in the prosecution evidence. We, therefore, do not find any error or illegality in the finding of guilt returned by the trial court. 20. It is undisputed that alleged incident is prior to amended provisions of Section 376 I.P.C. and Section 4 of Protection of Children From Sexual Offences Act. Pre-amended Section 376 I.P.C. is as follows: “376. Punishment for sexual assault – 1 (a) whoever, except in the cases provided for by sub-section (2) commits rape 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. 21. Pre-amended provisions of Section 4 of Protection of Children From Sexual Offences Act is quoted below: “4. Punishment for penetrative Sexual Assault.-[(1)] 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.” 22. According to the pre-amended provisions, the minimum sentence is seven years with fine while maximum sentence is life imprisonment. The appellant-accused has already served more than eight years of actual incarceration, whereas more than nine years and eight months of incarceration with remission. He has no previous criminal history. The possibility of correction on the part of the accused cannot be ruled out and he ought to be given a chance to do so. 23. The appellant-accused has already served more than eight years of actual incarceration, whereas more than nine years and eight months of incarceration with remission. He has no previous criminal history. The possibility of correction on the part of the accused cannot be ruled out and he ought to be given a chance to do so. 23. Considering the entire facts and circumstances of the case and the view taken by the Apex Court in Manoj Mishra alias Chhotkau (supra), we find that sentence in terms of imprisonment already undergone will serve the purpose of justice. However, the appellant will have to pay fine imposed upon him by the trial court. In default of payment of fine, the appellant will have to serve the default sentence. If the fine is deposited, the first victim will be entitled to receive it as compensation and the trial court will inform her to claim the amount of compensation. 24. The appeal stands partly allowed. The conviction of the appellant-accused is upheld. However, sentence is modified to the above extent. 25. The office is directed to transmit lower court record with copy of this judgement to the trial court immediately for compliance.