Karnataka High Court

Narasimha vs State Of Karnataka By on 8 February, 2022

Bench: Rajendra Badamikar

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

             CRIMINAL APPEAL No. 1625/2019

BETWEEN:

NARASIMHA
S/O SINGIRAPPA
AGED ABOUT 33 YEARS
CHIKKAPURA VILLAGE
CHITAMANI TALUK
CHIKKABALLAPURA DISTRICT
                                             ....APPELLANT
( BY SRI. M.R. NANJUNDA GOWDA, ADVOCATE)

AND:

STATE OF KARNATAKA BY
SHO, SRINIVASAPURA POLICE STATION
CHIKKABALLAPURA
REPRESENTED BY GOVERNMENT PLEADER
HIGH COURT BUILDINGS
BANGALORE CITY-560 001
                                           .... RESPONDENT
(BY SRI. RAHUL RAI .K.,HCGP)

                          *****

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 20.08.2019,
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, KOLAR IN S.C.NO.156/2017, CONVICTING THE
                                 2



APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 376 AND 420 OF IPC AND SECTION-4 0F POCSO ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.01.2022, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

The appellant/accused has filed this appeal under Section

374(2) of Criminal Procedure Code,1973 ('Cr.P.C' for short).,

challenging the judgment of conviction and order of sentence

dated 20.08.2019 passed by the II Additional Sessions Judge at

Kolar ('trial Court' for short) in SC No.156/2017, whereby the

learned Sessions Judge has convicted the accused for the

offences punishable under Sections 376 and 420 of Indian Penal

Code, 1980 ('IPC' for short) and Section 4 of the Protection of

Children from Sexual Offences Act, 2012 ('POCSO Act' for short).

2. For the sake of convenience, the parties herein are

referred with the original ranks occupied by them before the trial

Court. The brief factual matrix leading to the case is that, the

victim came in contact with the accused. The parents of the

victim were intending that she should marry her maternal uncle

and as the victim was not interested in marriage with her

maternal uncle, she called he accused over phone and as per the

instructions of the accused, on 15.03.2017 she went to

Chintamani and then the accused took her to the house of CW.7

Nagamani and left her there for a week and thereafter, he took

the victim to a rented house of CW.2-Aneesh Pasha in

Srinivasapura and there, he committed an aggravated

penetrative sexual assault on victim under the guise of marrying

her, having knowledge that the victim is aged less than 18 years.

Thereafter, he did not marry the victim and cheated her, having

made her pregnant. When the victim was traced, she was

secured by the police on the basis of the complaint of her

parents and she revealed the incident and a complaint came to

be lodged by her and the same was registered. Her statement

under Section 164 of Cr.P.C. was also recorded by the

Magistrate. On the basis of the complaint, the Investigating

Officer has registered a crime by issuing FIR and also undertook

investigation. During the course of investigation, it is noticed that

the victim is pregnant. She sought for permission from the

Hon'ble Apex Court for termination of her pregnancy by way of

abortion and the Hon'ble Apex Court has granted permission.

Accordingly, she was aborted in Vani Vilas Hospital at Bengaluru

on 26.09.2017. The aborted fetus was also kept in preservation

and sent for FSL. In the meanwhile, blood sample of the victim

was taken and sent to FSL by the Investigating Officer for DNA

profile. Accordingly, the blood sample of the accused was also

taken in the open Court and the same was also sent for DNA

profiling. The DNA report discloses that the victim and the

accused are biological parents of the aborted female fetus and

the Investigating Officer, after collecting the material evidence

has found that, there is sufficient material as against the accused

and hence, he submitted the charge sheet against the accused.

In the meanwhile, the accused was also arrested on 11.08.2017

and was remanded to judicial custody.

3. After submission of the charge sheet, as there were

sufficient grounds to proceed against the accused, cognizance

for the alleged offences was taken. The prosecution papers were

also furnished to the defence counsel as contemplated under

Section 207 of Cr.P.C.

4. After hearing the learned Public Prosecutor and the

defence counsel, the learned Sessions Judge found that there is

sufficient material to frame charge against the accused and as

such, the charge under Sections 376 and 420 of IPC and Section

4 of the POCSO Act is framed against the accused. The accused

pleaded not guilty and claimed to be tried.

5. To prove the guilt of the accused, the prosecution

has examined in all twenty seven witnesses as PWs.1 to 27 and

also placed reliance on thirty six documents and also seven

material objects, which are marked as Exs.P1 to P36 and MOs. 1

to 7 respectively.

6. After conclusion of the evidence of the prosecution,

the statement of the accused under Section 313 of Cr.P.C. was

recorded to enable the accused to explain the incriminating

evidence appearing against him in the case of the prosecution.

The case of accused is of total denial and he did not choose to

lead any oral or documentary evidence and claimed to be tried.

7. After hearing the arguments advanced by the learned

counsels appearing for the parties on both sides, the learned

Sessions Judge has come to a conclusion that the prosecution

has proved the guilt of the accused beyond all reasonable doubt.

Hence, she has convicted the accused for the offence punishable

under Sections 376 of IPC and section 4 of the POCSO Act by

imposing sentence of Simple Imprisonment for a period of seven

years each with fine of Rs.5000/- for each of the offence.

Further, she has also imposed Simple Imprisonment for the

period of one year with fine for offence under Section 420 of IPC

with default clause and directed the sentences to run

concurrently and she has also given set-off to the accused under

Section 428 of Cr.P.C. Being aggrieved by this judgment of

conviction, the accused has filed this appeal.

8. Heard Sri. M.R. Nanjunda Gowda, learned counsel

appearing for the appellant and Sri. Rahul Rai K., the learned

High Court Government Pleader ('HCGP' for short) appearing for

the respondent-State, at length. Perused the records of the trial

Court.

9. Learned counsel for the appellant would contend that

the judgment of conviction and order of sentence is totally

perverse, illegal and unlawful, which is contrary to the facts and

material on record, and that the trial Court has failed to note that

neither the victim nor the mother of the victim have supported

the case of the prosecution and have turned hostile. He would

also contend that the mahazar witnesses and the owner of the

house wherein the victim is alleged to have been stayed and

raped, has also turned hostile and the learned Sessions Judge

has ignored this material evidence. The learned counsel would

further contend that, except official witnesses all the material

witnesses have turned hostile and PW.1 has gone to the extent

of denying her pregnancy. He would further contend that, none

of the witnesses have deposed against the accused and the

learned Sessions Judge has only placed reliance on medical

evidence i.e., the DNA profile/report, which is not a substantial

piece of evidence so as to base conviction, as it is not

corroborated by any other material evidence. He would further

contend that, the statement of the victim recorded by the

Magistrate under Section 164 of Cr.P.C. is only an omnibus

statement and not a substantial piece of evidence. She would

further contend that, as per Section 42 of the POCSO Act, the

learned Sessions Judge ought to have imposed sentence either

under the provisions of IPC or POCSO Act. But, she has

ventured to impose sentence under the provisions of IPC as well

as POCSO Act, which clearly establish that, there is no

application of mind. He would further contend that, no reasons

were given for ignoring the evidence of the victim herself,

wherein she has denied about she having seen the accused and

for arrival to a conclusion, the learned Sessions Judge has not at

all given any reasons and hence, he would contend that the

learned Sessions Judge, without application of mind, in a

mechanical way, proceeded to convict the accused and as such,

he would contend that the judgment of conviction and order of

sentence suffers from infirmities and calls for interference by this

Court. In support of his contentions, he has also placed reliance

on the decisions reported in 2015 Crl.L.J. NOC 338 (Orissa)

[Chaitu Naik Vs. State of Orissa] and 2020 (2) AKR 45

[Nagappa, S/o.Manappa Vs. State of Karnataka].

10. Per contra, the learned HCGP would support the

impugned judgment of the trial Court and contended that,

though the victim and her mother have turned hostile, the

evidence discloses that, she herself has sought permission from

the Hon'ble Apex Court for abortion and now she has given a go-

by to this fact, which disclose she is being ownover by the

accused. He would further contend that the scientific evidence in

an un-impeached way establish that the accused is the biological

father of the aborted female fetus and this fact establish that he

had committed aggravated penetrative sexual assault on the

victim girl and again it is corroborated by the statement of the

victim recorded by the Magistrate under Section 164 of Cr.P.C..

He would further contend that, though the victim has turned

hostile, the other material evidence clearly establish the guilt of

the accused. Further, he would contend that the trial Court has

imposed minimum sentence prescribed under the law and hence,

he would submit that, it does not call for any interference, as

such, he would seek for rejection of the appeal.

11. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:-

Whether the judgment of conviction and order of sentence passed by the trial Court is perverse, erroneous and illegal, so as to call for any interference by this Court?

12. At the out set, it is to be noted here that the accused

has been prosecuted for the offences under Sections 376 and

420 of IPC and Section 4 of the POCSO Act. It is also important

to note here that, the victim was a minor as on the date of the

alleged offences. This fact is not under dispute.

13. As could be seen from Ex.P35 (School Transfer

Certificate), it is evident that the date of birth of the victim is

10.05.2002. The alleged offence is said to have been committed

one week after 15.03.2017. Hence, it is evident that, as on the

date of the accident, the victim girl was a minor being aged less

than 18 years. Further, this aspect is also not under serious

challenge. The victim is examined as PW.1. Though she

admitted her signature on the complaint (Ex.P1), she denied the

contents of the complaint and pleaded ignorance of the contents

of Ex.P1 (complaint). She has also denied that, she is

acquainted with the accused and accused taking her to the

house of CW.7 and then keeping her in the house of CW.2-

Aneesh Pasha in Srinivasapura and committing aggravated

penetrative rape on her. Even she has gone to the extent of

denying her pregnancy and medical examination being done on

her. However, she admitted that, her statement being recorded

by the Magistrate as per Ex.P6. She has even gone to the

extent of denying the fact that, she has moved an application

before the Hon'ble Apex Court seeking permission for abortion.

However, she is very specific in her statement that, her parents

were intended to give her in marriage to her maternal uncle,

who is aged and as she was not interested in that marriage, she

left the house.

14. PW.3-Muthamma, who is the mother of the victim

has denied the case of the prosecution. However, she admitted

that her daughter was found missing and in this regard, she has

lodged a complaint and she was being subsequently kept in

Balamandir. She has also denied that, her daughter was

pregnant and the pregnancy was aborted. PW.2-Anees Pasha

has turned hostile and denied drawing mahazar regarding spot

and has also denied that the accused and the victim girl have

stayed in his house, on rent.

15. PW.4-Anitha Shivakumar is a counselor and she has

deposed regarding counseling the victim girl and identified the

victim girl.

16. PW.6-Nagamani has also turned hostile and denied

that the accused had kept the victim girl in her house initially.

17. PW.9-Ramadevi is the Superintendent of Women

and Child Welfare Department. She deposes that, on

24.06.2017 the victim girl was shifted from Balamandir at

Chintamani to Government Balamandir at Bengaluru and on

enquiry, the victim has disclosed the fact of the accused raping

her under the guise of marriage and hence, she has reported

the matter to the concerned police and the statement of the

victim was recorded as per Ex.P1 in her presence and she has

also identified her signature on Ex.P1, at Ex.P1(b) for having

recorded the same in her presence. Though the witness-PW.9

was cross-examined at length, nothing was elicited and this

witness has specifically stated that statement of the victim was

recorded by the concerned Woman Police Constable in her

presence as per Ex.P1 and she has also endorsed on the same.

The evidence of this witness establish that, the victim girl has

lodged a complaint under Ex.P1. There was no reason for this

witness to give false evidence.

18. PW.10-Dr. Byappareddy has simply deposed

regarding examination of the accused and giving a report as per

Ex.P16 stating that the accused is fit to perform sexual act.

19. PW.12-Dr. Radhika is a material witness in the

instant case. In her evidence, she has stated that, she is

working as an Assistant Professor in Vani Vilas Hospital. On

22.09.2017 at about 1.30 p.m., the victim was brought to the

hospital for abortion as per the directions of the Hon'ble Apex

Court and at that time, the victim girl had a pregnancy of 25

weeks 6 days and it was her first pregnancy. She has also

deposed that, on 26.09.2017 in the morning at 10.55 a.m., the

victim girl underwent abortion and aborted fetus was of a female

child weighing about 800 grams. She has also specifically stated

that, she has also taken the blood sample of the victim and sent

the same along with fetus with proper preservation to FSL for

examination and she has also obtained the signature of the

victim on Ex.P18 as an identification mark, which bear the

signature of the victim girl. This witness was not seriously

cross-examined and a formal and simple suggestion was made

that, ' a false report is submitted'. The evidence of PW.12 is

again corroborated by the evidence of PW.13-Dr. Harini Gopaiah,

who has deposed that, on 26.07.2017, the victim girl was

brought to KIMS Hospital and when the victim girl was subjected

to scanning, she found that the victim had pregnancy of 18

weeks and 3 days and she has submitted a report as per Ex.P17

in this regard and also identified the victim girl in this regard in

Ex.P8. Further, the evidence of PW.12 and PW.13 was again

corroborated by the evidence of PW.14-Dr. Sowmya K.

20. PW.14-Dr. Sowmya, K. has deposed that, she is

working as an Associate Professor in KIMS Hospital at Bengaluru.

On 26.07.2017, the victim girl was brought to the hospital and

on an enquiry, the victim girl has revealed that, she is

acquainted with accused for last two years and in March, 2017,

she stayed with him in Chinthamani for 1½ months and during

that period, the accused had physical contact with her on 5 to 6

occasions. PW.14 has further deposed that, on examination of

the victim girl, she found that hymen was ruptured and she was

found to be having pregnancy of 18 weeks and in this regard,

she has submitted a report as per Ex.P7. Nothing was elicited in

the cross-examination of this witness also.

21. PW.15-Nagaraja is an Assistant Engineer in PWD,

Srinivasapura. He has simply deposed regard drawing a sketch

of place of offence.

22. PW 16-Satyanarayana is a Chief Officer, City

Municipal Office, Tumakuru, has deposed regarding issuing

property extract of the place of offence as per Exs. P22 and 23.

23. PW.17-Dr. M.R. Rangarao is the Medical Officer of

the Government Hospital at Srinivasapura and he deposed that,

on 10.10.2017 he was summoned to the Court of Sessions Judge

and JMFC at Srinivasapura and where, in presence of the

Magistrate, he has taken the blood sample of the accused and

also an Identification Form was filled, which is attested by the

defence counsel also and he has identified the accused. He has

identified the Identification Form as per Ex.P24. In the cross-

examination nothing was elicited and there is no reason to

discard the evidence of this witness. The signature of the

learned Sessions Judge is also found on Identification Form

(Ex.P24), which is not denied. Hence, it is evident that, this

witness has taken the blood sample of the accused in the

presence of the Presiding Officer.

24. PW.21-B.N. Ravindragowda and PW.22-N. Rathnaiah

are the Police Constables. They deposed regarding transfer of

the case pending over the records and dropping the victim to

the Mahila Santwana Kendra etc..

25. PW.23-Kumaraswamy, PW.24-Kavitha and PW.25-

Krishna T.T. are the Investigating Officers. PW.24 -Kavitha has

deposed regarding recording the statement of the victim girl on

11.07.2017 as per Ex.P1, in presence of the Superintendent, in

Girls Balamandira and producing it before the PSI of C.K.

Acchukattu Police Station.

26. PW.27-Dr.Shahanaz Fathima is a material witness in

the instant case, who has done DNA Profiling in the instant case

by submitting a report as per Ex.P36. PW.27 in her evidence

deposed that, on 28.09.2017, she received two articles in a

sealed cover and on 10.10.2017, she received another article in

a sealed cover and the seals were intact. She has also deposed

that, the first two samples received on 28.09.2017 were given

DNA No.397/2017 and the 2nd sample received on 10.10.2017

was given DNA No.414/2017. She has also deposed that, article

No.1, which is the fetus of female born to the victim girl was

given I.D. No.P-2350. The blood sample of the victim was given

Identification Number as P-2351 and that of the accused as P-

2352. Her evidence further disclose that, due care was taken for

integrity of each sample by coding and de-coding and DNA was

extracted from the sources of the samples sent in Item Nos. 1,

2 & 3. She has also deposed that DNA was quantified from each

of the above samples and then amplified by the Polymerase

Chain Reaction (PCR) using AmpF/STR Identifier kit containing

primers for 15 STR Loci and a gender marker on Amelogenin.

Her evidence further disclose that PCR products were separated

on 3130x/Genetic Analyzer (Applied Biosystems Inc) and

analyzed by using Gene Mapper ID Software x3.2 to generate

allcle profiles. She has also deposed that profile results for each

sample are shown in Annexure-1 and a comprehensive analysis

was shown in Annexure-2 along with her report. She has

specifically stated that the DNA Profile results of dead female

baby of the victim girl sent in Item No.1 is consistent with,

having come from the off-spring of the victim girl and the

accused and is matching with DNA profile results of sample

blood send in Items No.2 & 3 ie., the victim girl and accused.

Hence, she has categorically stated that the accused and the

victim girl are the biological parents of the dead female fetus

sent in Item No.1. She has also deposed that her report is as

per Ex.P36. Though this witness was cross-examined at length

and formal suggestions were made that, 'samples were useless

samples and the samples were not properly preserved', but, she

has denied the said suggestions. She has also denied the

suggestion that, 'genetic analyzer was not working properly'.

Nothing was elicited in her cross-examination so as to impeach

her evidence. Hence, the evidence of PW.27 is conclusively

establish coupled with evidence of PWs. 12 to 14 that the

accused had physical relationship with the victim girl and he is

the cause for her pregnancy. No doubt, the victim girl and her

mother have turned hostile. But, that itself is not sufficient, as

other material conclusive evidence is available in the instant case

in the form of evidence of PWs. 12 to 14 and PW.27. No reasons

are forthcoming for discarding their evidence. This evidence

clearly discloses that the victim has intentionally given a false

evidence before the Court.

27. Apart from the above, the evidence of PW.27 is again

corroborated by the victim's statement recorded by the

Magistrate under Section 164 of Cr.P.C., which is produced at

Ex.P6. The victim has not denied her signature and she has

admitted in her evidence that, she had been to Court. The

evidence of the victim in the statement recorded by the

Magistrate under Section 164 Cr.P.C. clearly disclose that, she

had physical relationship with accused and she has also stated

before the Magistrate that the accused had promised her of

marrying and under that pretext, she had physical relationship

with him. No doubt, the statement recorded under Section 164

of Cr.P.C. itself is not a substantial piece of evidence, unless it is

corroborated. But, in the instant case, the admission made by

the victim by herself and her silence regarding this statement

without denying the same coupled with the evidence of PWs.12

to 14 prove the guilt of the accused. Further, this evidence is

again corroborated by PW.9, who has deposed that, the

statement of the victim (PW.1) under Ex.P1 was recorded in her

presence. Further, the same is again corroborated by the

evidence of PW.24.

28. The learned counsel for the accused has placed

reliance on a decision reported in the case of Chaitu Naik Vs.

State of Orissa (supra) and argued that the statement recorded

under Section 164 of Cr.PC by the Magistrate is not a substantial

piece of evidence. There is no dispute regarding this preposition

of law. Though the statement under Section 164 is not a

substantial piece of evidence, if corroborative evidence is

established, then it becomes a material piece of evidence. In

the instant case, the 164 statement recorded as per Ex.P6 is

supported by other material witnesses including medical and

scientific evidence and hence, it cannot be ignored. If the

prosecution relies only on Ex.P6 alone, things would have been

different. But, the prosecution is placing reliance on other

corroborative evidence. Therefore, the principles enunciated in

the above cited decision cannot be applicable to the facts and

circumstances of the case in hand.

29. The learned counsel for the appellant has further

placed reliance on a decision of this Court in Nagappa Vs.

State of Karnataka ( supra) and argued that, it is highly unsafe

to rely on DNA Test Report, in the absence of any independent

corroboration. He would contend that, there is no balance

between the scientific evidence and human evidence and hence,

it is not safe to rely on the same. But, the facts and

circumstances of the said case are entirely different, as in the

above cited case, it is elicited from DNA Expert that the blood

samples were not sent immediately and also not stored in a

thermocol box with ice cubes. It is also observed that, if the

DNA are stored for more than 6 days at 24 degree

temperature, it may vary final result. Further, it is also observed

that the possibilities of tampering of blood samples of the

accused, not ruled out. In this context, the Co-ordinate Bench of

this Court has held that, it is highly unsafe to rely on sole DNA

test to convict the accused. But, the facts and circumstances of

the present case are entirely different. In the instant case, the

evidence of PW.27 clearly establish that the samples were

preserved properly and due care was also taken. Further, the

evidence also disclose that, after taking samples, immediately

the samples were subjected for DNA profile test, without any

delay. Hence, the chances of tampering the blood samples in

the present case are minimum and no such case is made-out.

30. Apart from the above, the DNA profiling and the

mapping test is again supported by the evidence of PWs.9 and

12 to 14 and their evidence is not at all impeached. It is again

corroborated by 164 statement as per Ex.P6 recorded by the

Magistrate pertaining to the victim girl. Further, it is evident

that, the victim has approached the Hon'ble Apex Court seeking

permission for abortion and as per the order of the Hon'ble Apex

Court, she was aborted in Vani Vilas Hospital, by PW.14. the

victim has gone to the extent of denying this aspect also, which

clearly establish that, to what extent she is giving false evidence

and she was intended to save the accused person. Hence,

considering the facts and circumstances of the case in hand, the

principles relied by the defence counsel cannot be made

applicable to be case on hand.

31. The learned counsel has also brought to the notice of

this Court that the trial Court has not at all given any reasons for

convicting the accused, except recording deposition of the

witnesses. No doubt, the trial Court has not discussed the

medical and scientific evidence except concluding the same and

did not give the reasons for relying on particular evidence, but

in a mechanic way proceeded to convict the accused. This

approach of the trial Court is no doubt illegal and not

acceptable. However, this court sitting as First Appellate Court,

has got all powers of re-appreciating the entire evidence. Hence,

as observed above, on appreciating the entire evidence, it is

evident that the evidence led by the prosecution is sufficient to

bring home the guilt of the accused beyond all reasonable doubt.

Though the learned Sessions Judge has not given proper

reasonings, but ultimately, the findings are justified.

32. The learned counsel for the appellant invites the

attention of the Court to Section 42 of the POCSO Act, which

reads as under:

"42. 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".

Hence, as per the mandate of this section, in case the

offender is found guilty of the offences under the provisions of

POCSO Act, he shall be liable to be punished under this Act or

under IPC, which provides greater decree of punishment. In the

instant case, both the punishments under Section 376 of IPC and

Section 4 of the POCSO Act are punishable with a minimum

imprisonment of seven years, which may extend to life with fine.

But, Section 42 mandates that, primary punishment should be

under the provisions of the POCSO Act, in the absence of

greater degree of punishment under the IPC. But, as rightly

argued by the learned counsel for the appellant, the learned

Sessions Judge has convicted the accused for both the offences

under Section 376 of IPC as well as under Section 4 of the

POCSO Act and it amounts to sentencing the accused twice for

the same offence. Hence, the conviction under Section 376 of

IPC though proper, however, it does not call for separate

sentence, since in view of Section 42 of the POCSO Act, the

punishment is being incorporated under Section 4 of the Act. To

this extent, the judgment of the trial Court calls for interference.

33. Learned counsel for the appellant has placed reliance

on a decision reported in 1946 CRL.L.J. 2867 [Ramesh

Babulal Doshi Vs. State of Gujarat] regarding the conduct of

the trial Court regarding not giving reasons. But, the facts and

circumstances of the said case are entirely different. This Court

being the First Appellate Court, has got every power of re-

appreciating the evidence. Further, the said case was against

acquittal and the facts are being different, the same cannot be

made applicable to the facts and circumstances of the case in

hand. He has further placed reliance on a decision reported in

1989 CRL.L.J. 1155 [State of Maharashtra and another Vs.

Salem Hasan Kahn]. But, the facts and circumstances of the

said case are entirely different and it is pertaining to externment

order by the Government, which was not a speaking order and in

the instant case, the judgment is by the Sessions Judge. As

observed above, this Court being the First Appellate Court, has

got all powers of re-appreciating the evidence and as such, the

principles enunciated in the above cited decisions will not assist

the appellant in any way. Apart from that, under Section 376 of

IPC and Section 4 of the POCSO Act, the Statute mandates that

minimum sentence shall be seven years with fine and maximum

is life imprisonment. No doubt, the learned Sessions Judge has

not given any reasons for imposing minimum sentence and

admittedly in the instant case, minimum sentence has been

imposed to the tune of seven years with fine of Rs2,000/- and

this sentence has not been challenged by the State. Hence, it

does not call for any interference by this Appellate Court.

Further, the accused under false promise has abused the

minority of the victim girl to have his lust satisfied and thereby

made her pregnant and it will be a lifelong stigma on the life of

the victim girl. Under such circumstances, the provisions of

Section 420 of IPC are also attracted regarding cheating under

false promise and the sentence of simple imprisonment for one

year with fine of Rs.1,000/- is not disproportionate and does not

call for any interference by this Court.

34. Looking to the facts and circumstances, the appeal is

devoid of any merits so far as it relates to conviction. However,

as regards imposing sentence under Section 376 of IPC is

concerned, it calls for interference and to this extent only the

appeal needs to be allowed. Accordingly, the point under

consideration is answered and I proceed to pass the following:-

ORDER

The appeal is allowed in part. The judgment of conviction passed by the trial Court for the offences under Sections 376 and 420 of IPC, and Section 4 of the POCSO Act, is upheld. However, the sentence of imprisonment pertaining to offence under Section 376 of IPC is set aside, as it is merged with the sentence of imprisonment under Section 4 of the POCSO Act, as per Section 42 of the POCSO Act.