Section 222(1) of the Code deals with a case when a person is charged with an offence consisting of several particulars. The Section permits the court to convict the accused of the minor offence, though he was not charged with it. Sub-section (2) deals with a similar, but slightly different, situation. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it.
16. What is meant by a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.
17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (Husband or relative of husband of a women subjecting her to cruelty). As the word cruelty is explained as including, inter alia, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Allahabad High Court
Dara Singh And Another vs State Of U.P. on 17 June, 2016
Bench: Amar Singh Chauhan
These are the three criminal appeals aforementioned have been filed before this court challenging the judgement and order dated 14.10.2015 passed by the Additional Sessions Judge, Court No. 1 Hathras in S.T. No. 27 of 2015 (arising out of Case crime No. 207 of 2015) State Versus Sanjay and others, P.S. Sadabad district Hathras whereby the appellants have been convicted and sentenced to undergo 2 years R.I. with fine of Rs. 1,000/- each under section 147 I.P.C.; to undergo one year with fine of Rs. 1,000/- each under section 323 I.P.C.; to undergo 2 years R.I. with fine of Rs. 1,000/- each under section 504 I.P.C.; to under to 2 years R.I. with fine of Rs. 1,000/- each under section 506 I.P.C.; to undergo 3 years R.I. with fine of Rs. 2,000/- each under section 354-D I.P.C.; to undergo 1 month simple imprisonment with fine of Rs.5,00/- under section 341 I.P.C.; to undergo 7 years R.I. with fine of Rs. 10,000/- each under section 363I.P.C.; to undergo 3 years R.I. with fine of Rs. 5,000/- each under section 11/12 Pocso Act and to undergo 5 years R.I. with fine of Rs. 20,000/- each under section 66/67 of I.T. Act and in default of payment of fine maximum six months additional sentence was ordered and all the sentences were directed to run concurrently.
Since the controversy and facts involved in these appeals are the same, therefore, they are being heard and decided together by a common judgement with the consent of the parties.
The prosecution case in brief is that Mukesh Chaudhary had lodged an FIR on 8.3.2015 at about 14.50 at P.S. Sadabad Kotwali district Hathras to the effect that the applicant is a resident of village Mansya Kalan P.S. Sadabad district Hathras. His nephew named Virendra Singh had told him on 7.3.2005 that he had been informed by Kala son of Atar Singh and other boys of the locality that the video clipping of his daughter was being viewed by the villagers. The clipping is very obscene. As soon as the applicant heard this news he made an enquiry about it from his daughter. Firstly, she hesitated to say anything, thereafter, she said that due to fear she could not tell this before. When he consoled his daughter then she narrated the whole story saying that they were intimidating her to kill all members of her family that is why she did not tell it before. She said that when retuning back to home from school on 20.2.2015 along with Dhirendra, she met Sanjay son of Than Singh, Dara Singh son of Laxman, Eloo son of Harish, Pankaj son of Som Prakash, Ravi son of Pritam Singh, all r/o village Mansya Kalan P.S. Sadabad district Hathras in the way and said " lkyh vkt gkFk yxh gS ge rsjk ihNk dkQh le; ls dj jgsa Fks" the aforesaid persons started quarrelling with Dhirendra who was accompanied her. Her daughter made hue and cry, but all in vain, meanwhile, Sanjay made Dhirendra fall on the ground and compelled her daughter to sit on him. They started beating them and got uttered whatever they wanted to. In the meanwhile, one boy started making video clipping of the incident. Thereafter, the aforesaid persons made the daughter of the applicant sit on the motorcycle and went to Sadabad and other places where they started doing unbecoming/obscene behaviour with the girl of the applicant and started making video clipping and intimidated her by saying that we will kill all members of your family and make this video known to every one, if you dared to tell about it to anybody else, you and your family members will not be able to face the society.
After coming to know the applicant went to the house of Sanjay alongwith Subhas son of Giriraj, Bhola son of Ramveer, then they bent to quarrel with him and said that I will defame your daughter and made her video viral on internet and nobody would touch us. The applicant came to known that Sanjay and others made the video of her daughter advertised on many places. Sanjay took out his mobile and said now I will show the video clipping of your daughter to you, when applicant and one Danveer try to apprehend Sanjay, then he escaped from the place leaving his mobile. I am coming here alongwith his mobile in which there is an obscene video of my daughter. The incident came to the knowledge of the me(applicant) on 7.3.2015, hence I am here to lodge a report. Please take proper legal action against Sanjay and others on the basis of my report.
On the basis of the aforesaid report, a case was registered against the appellants under sections 147,323,504,506,354-D 342 I.P.C. which was entered in G.D. Vide rapat no. 31 at 14.50 on 8.3.2015 at Police Station Sadabad district Hathras. After registration of the case, the investigation was handed over to the Investigating Officer, who investigated the case and recorded the statements of P.W.1, Mukesh Chaudhary, P.W. 2 Victim, P.W. 3 Ravindra Singh, P.W. 4 Dhirendra, P.W. 5 Constable 141 Chatrasal Singh, P.W. 6 Manoj Singh and P.W. 7 Munesh Kumar.
The investigation of the case was entrusted to S.I. Manoj Singh, P.W. 6. who visited the place of occurrence and prepared site plans, which is marked as Exhibit Ka-5 and ka-6. The Investigating Officer had tried to indicate by the site plan that on two places the incident occurred. He had also recorded the statement of P.W.1, P.W.2, P.W.3, P.W. 4. After completing the investigation he submitted a charge sheet against the appellants under sections 147,323,504,506,354-D 342I.P.C., in the court below, thereafter, the case was committed to the court of Sessions which framed the charges under sections 147,323,504,506,341, 354D I.P.C. read with sections 11/12 Pocso Act and sections 66/67 of I.T. Act to which the accused appellants denied and claimed to be tried.
To bring home the guilt of the accused, the prosecution has examined P.W. 1, Mukesh Chaudhary, who in his statement stated that the victim is his daughter, whose age is 16 years. On 7.3.2015, he was told by his son that video clipping of his daughter is being seen by some boys of the village. When he asked about aforesaid fact to his daughter then she started weeping and told that they were intimidating her that they would kill me and the members of her family. When he consoled his daughter then she narrated the whole story saying that on 20.2.2015 when she was returning home from the school, Dhirendra met her on the way at about 3.00 P.M. He in order to drop her got her seated on his motorcycle. He said that he is going to Mathura and he will drop her in his village. At some distance of Sadabad Chungi, on two motorcycles Sanjay, Dara Singh, Ilu alias Ram Naresh, Pankaj, Ramu and Ravi came and stopped the motorcycle and said to her that " lkyh vkt gkFk yxh gS rsjk ihNk dkQh fnuksa ls dj jgsa Fks" They got her and Dhirendra sat on their motorcycle by force and came to a lonely place and attempted to rape the victim, they take Dhirendra and Rekha (victim) to Koopa field, where they done marpeet with Dhirendra and the victim and attempted to do obscene behaviour with the victim, on being protested they make video. It was a day time that is why they could not succeed in their efforts. They preceded to another lonely place and attempted to rape the victim but could not succeed because of the people working in the field. They made Dhirendra fall on the ground and compelled her to sat on Dhrendra and started doing unbecoming behaviours with his daughter and got uttered whatever they wanted and intimidated her by saying that they would kill all members of her family. On next day at 9.00 a.m. at 8.3.2015 he went to the house of the Sanjay alongwith other witness Subhas, Bhola, Danveer etc. they bent to quarrel with him and said that he will make the video of his daughter viral on the internet and her daughter would not be able to face the society and said to him let you too see the video of your daughter. When Danveer approached to catch Sanjay then he escaped from the place leaving his mobile. They came with the mobile at police station and lodged the FIR scribed by Chandrapal dictated by the complainant, on which the complainant put his signature, which is Exhibit ka-1.
P.W. 2 is the victim herself. She stated on oath that at present she is a student of class XII. She had passed High School from S.S.A. Public Pariksha Mathura Road, Sikandra, Agra. She proved the High School mark sheet as Exhibit Ka-2. Further, the prosecutrix stated that on 20.2.2015 at noon at about 3.00 P.M. when she was returning on foot from the school, Dhirendra met her, who was acquainted with her. He offered to drop her at his village on his bike, she sat on the bike, after passing a short distance, near Bajnath temple, six boys on two motorcycles namely Dara, Ilu alias Ram Naresh, Sanjay, Ravi, Ramu and Pankaj stopped Dhirendra and snatched the key of motorcycle. Ravi and Ilu alias Ram Naresh got Dhirendra sat on his motorcycle by force and Dara and Sanjay got sat the victim on his motorcycle by force. When prosecutrix protected to sit on motorcycle Sanjay hit her lips by fist and said " lkyh vkt rq gekjs gkFk yxh gS ge rsjk ihNk cgqr fnuksa ls dj jgsa Fks" and took her to a lonely place where she was molested by them and they tried to outrage her modesty. On protest she was beaten by them and after that they prepared video clip at the instance of Sanjay. After that they made the video viral.
P.W. 3 Ravindra Singh stated on oath that on 12.3.2015 a C.D. of the video clipping was given at the Police station and Head constable had prepared a Fard on which he, the complainant and one Ashok Chaudhary, put their signatures.
P.W. 4 Dhirendra Singh stated on oath that on 20.2.2015. When he was returning after leaving his Mausi from Sadabad, as he reached near the Statute of Chaudary Charan Singh, he met with prosecutrix whom he was acquainted. He offered lift, which she accepted. As soon as they reached near Agra Chungi six boys of Nansya village met him to whom he was not acquainted. When, he see the television and heard their names as Sanjay, Dara, Ilu alias Ram Naresh, Pankaj and Ravi,they gave threat to him and done the mar-peet and snatched the key of the motorcycle and made video clipping and again threaten him if you said about it we will kill you. This incident was at about 3.00 P.M.
P.W. 5, Constable 141 Chatrapal Singh, was examined by the prosecution who stated on oath that on 8.3.2015 he was posted as clerk at Kotwali Hathras, on that day on the complaint of complainant aforesaid case crime no. 207 of 2015 was registered and he further stated that on 8.3.2015 P.W. 1 Mukesh Chaudhary and another Karamveer Singh deposited a mobile set alongwith chip and C.D. Cassette, which was proved as Exhibit Ka-4.
P.W. 6 Manoj Kumar Sharma, who was the I.O. Of this case, was examined, who stated on oath that on 9.3.2015 he was posted as In-Charge officer of P.S. Sadabad. On that date, complainant Mukesh Chaudhary lodged case crime no. 207 of 2015 under sections 147,504,506,354-D I.P.C. read with section 66/67 I.T.Act and section 4 of Pocso Act. The statement of the prosecutrix was recorded by the lady constable Neetu Singh, who prepared Video C.D. Of her statement. On 103.2015 the statement of witnesses Subhash, Bhola Singh and Danveer were recorded, on 12.3.2015 the statement of Eye witness Dhirendra was recorded on whose instance,the inspected two places of occurrence and prepared the site plan. The witness has made his signature on the site plan, on 15.3.2015 the accused persons namely Dara Singh, Ilu alias Ram Naresh alias Ram Naresh, Pankaj, Ramu alias Ram Kumar were arrested and their statements were recorded. On 18.3.2015 accused persons Sanjay and Ravi were arrested and their statements recorded. On 19.3.2015, the statement of prosecutrix namely Km. Rekha was recorded under section 164 Cr.P.C. They procured the certified copies, and got it written in the case diary, which is Exhibit 3.
P.W. 7, Munesh Kumar, Computer operator, was examined, who stated on oath that on 8.3.2015 he was posted as computer operator at Kotwali Sadabad, at about 14.50 P.M. on the basis of written complaint of the complainant Mukesh Chaudahry, a chik computer report was prepared by him, who proved Exhibit 9 Chik report.
After the evidence of prosecution was closed, the statement of the accused was recorded undersection 313 Cr.P.C. in which they denied the occurrence and stated that they had been falsely implicated due to village partibandi. In defence two witnesses namely DW1 Ramji Lal and DW2 Hari Om Sharma were examined. Their statements mainly remained confined to age of the prosecutrix.
Learned Additional Session Judge, Hathras after perusing the record and hearing the counsel of the parties came to the conclusion that prosecution had established its charge against the appellants under sections 147, 323, 504, 506, 354D, 363, 341 IPC along with section 11/12 POCSO Act and 66/67 I.T. Act against the appellants and therefore convicted and sentenced them as has already mentioned herein above vide judgement and order, hence this appeal questioning the said judgement.
Feeling aggrieved, the accused appellants have come up in appeal.
I have heard Sri Dharmendra Singhal, Dri Devendra Dahma, Sri Gopal Das Srivastava for the appellants in connected appeals, Sri Ajatshatru Pandey for the informant, learned AGA for the State and perused the record.
Learned counsel for the appellants submits that the main grounds to assail of the impugned judgement of conviction and sentence is on three counts. Firstly, that the Investigating Officer has neither filed the charge sheet under section 363 I.P.C. nor the charge was framed by the court below under section 363 I.P.C. but the trial court illegally convicted the appellants undersection 363 I.P.C. IPC. Secondly, no offence under section 66/67 of I.T. Act is made out against the appellants as Section 66 of the I.T. Act relates to the computer related offence and not by mobile or cellphone. It has not been specifically come in prosecution evidence that what obscene act are made during video clipping in the incident. Two video clipping show only simple marpit has been done by co-accused Dara Singh and Sanjay and no attempt of outrageously modesty or sexual harassment of the victim has been attempted or made. No injury was found on the body of either Dhirendra or on the victim. Thirdly, appellants Ravi and Ilu alias Ram Naresh alias Ram Naresh did not participate in the alleged crime but efforts was made to save the alleged victim and Dhirendra and no over act was assigned to them.
In reply to the contentions raised by the learned counsel for the appellants, the learned A.G.A. and the learned counsel for the complainant submitted that the case law referred by the trial court, the case of Narwinder Singh vs. State of U.P.(2011) 1 Supreme Court Cases (Cri) 601, is applicable to the facts and circumstances of the instant case. They further submitted that the accused appellants are criminals and some proceedings under the Goodnas Act are also pending against Dara Singh, Ilu alias Ram Naresh, Pankaj and Ravi. They further submitted that there is no contradiction in the statements of the witnesses. They have supported the prosecution case. There is no illegality or infirmity in the impugned judgement of the trial court, therefore, no interference is called for by this court.
At this juncture, it is necessary to determine that the ratio laid down by Hon'ble Apex Court in the case of Narwinder Singh vs. State of U.P. 2011 (1) SCC (Crl) 601 is applicable in the fact and circumstances of the case as Trial Court has relied on this case law. In the case cited in Narwinder Singh, the charge was framed under section 304B IPC but conviction was made undersection 306 IPC which is a minor offence in comparison to section 304B IPC and further the nature of the offence under both the sections are not distinct and different category whereas in the instant case the charge was framed under section 341 IPC but conviction was made undersection 363 IPC which is a major and graver offence in comparison to offence under section 341IPC and the trial court convicted the appellants under section 363 IPC for maximum punishment of seven years without complying the mandatory provision of sections 216, 217, 218, 221 and222 Cr.P.C. The case law cited by the court is not applicable in the facts and circumstances of the present case as neither specific charge under section 363 IPC have been framed nor opportunity of hearing was afforded to the appellants and impugned conviction is unjustified in view of 464(1) Cr.P.C., as the same had occasioned failure of justice. Hon'ble Apex Court inShaman Sahevsaheb M. Multtani vs. State of Karnataka, AIR 2001 SC page 921 in which the accused husband was charged for dowry of death of his wife, under sections 302 and 498A IPC, but offence of murder was not established against him, and hence he was acquitted for offences under those sections i.e. Sections 302, 498A IPC. His conviction under section 304B IPC without notice to him calling upon him to enter on this defence in respect of the offence under section 304B was unjustified in view of Section 464 (1) Cr.P.C. as the same had occasioned failure of justice. The accused in the instant case was called upon to defend only a charge under Section 302 IPC. Paras 13, 14, 15, 16 and 17 of the said judgement are as follows:
13. Be that as it may. The question raised before us is whether in case where prosecution failed to prove the charge under Section302 IPC, but on the facts the ingredients of section 304-B have winched to the fore, can the court convict him of that offence in the absence of the said offence being included in the charge.
14. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits to convict the accused of the offence of which he is shown to have committed though he was not charged with it. But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence underSection 302 IPC, at least at the time of framing the charge.
15. Section 222(1) of the Code deals with a case when a person is charged with an offence consisting of several particulars. The Section permits the court to convict the accused of the minor offence, though he was not charged with it. Sub-section (2) deals with a similar, but slightly different, situation. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it.
16. What is meant by a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.
17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (Husband or relative of husband of a women subjecting her to cruelty). As the word cruelty is explained as including, inter alia, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Moreover, the ingredients of section 361 IPC are lacking in the instant case as the prosecution has failed to establish that alleged victim girl was taken out of the keeping of her lawful guardian by appellants and nowhere it can be inferred that she was enticed, kidnapped or abducted or taken out in order to put her out of the keeping of her lawful guardian as admittedly the alleged victim themselves returned to their home and accused persons made no protest. Perhaps this was the reason that after investigation, charge sheet was not filed under section 363 IPC and even no charge of section 363 was framed during trial. Therefore, the charge under section 363IPC against the appellants is not established and appellants are to be acquitted of the charge under section 363 IPC.
Now it is to be seen as to whether all of the appellants have actively participated in the commission of the crime or not.
The appellants Ravi and Ilu alias Ram Naresh did not participate in the alleged crime, even they did not participate to save the alleged victim and Dhirendra, no overt act was assigned to them as it has come in the evidence of victim that " fd fofM;ksa Dyhfiax esa bZyw vkSj jfo dks ekjihV djrs ;k nq"deZ djrs ugha fn[kk;k x;k g]S vt[kqn dgk fd og fofM;ks dyhfix cuk jgs Fks] ;g dguk xyr gS fd bZyw o jfo us eq>s cpkus dk iz;kl fd;k Fkk] ;g lgh gS fd fofM;ks Dyhfiax es /khjsUnz dks jfo }kjk [khpdj ys tkuk fn[kk;k gS A^^ In the cross examination of Manoj Kumar Sharma, PW-6 it has come out that " fofM;ks esa lQsn lVZ dkyh ykbZu ds lkFk lVZ dkyk VsdlwV QkSth dV ckyks esa jfo gS] ;g lgh gS fd fofzM;ks esa jfo /khjsUnz dks idM+ dj ys tk jgk gS] eSaa ugh dg ldrk fd og cpkdj ys tk jgk gS ;k ihVus ys tk jgk gS] ;g lgh gS fd fofZM;ksa esa jfo js[kk ls ekjihV djrs ;k v'yhy gjdr djrs ;k xkyh xykSt djrs ugha fn[kk;k gS ;g lgh gS fd fofM;ks esa jfo utj tk jgk gS] bl fy, ml le; fofM;ksa Dyhfiax fdlh vU; us cukbZ gksxh A eq>s ugh irk fd fofZM;ksa esa jfo }kjk /khjsUnz ls ;g dgk gks fd rq ml yM+dh dks /kks[kk nsxk ftlls rwus 'kknh dh gS A^^ It has come in the evidence of PW-4 Dhirendra " eq>s ;kn ugha fd bZyq o jfo us eq>s cpkus dh dksf'k'k dh Fkh ;k ugha A eq>s /;ku ugha fd bZyw o jfo us eq>s xkyh nh ;k ugha A ;g dguk xyr gS fd js[kk ds ?kj okys ds dgus ij eSa >wBh xokgh csotg nwa A"
Two video clips show that only simple mar-peet has been done by the co-accused Dara Singh and Sanjay with the alleged victim and Dhirendra. The appellants Ravi and Ilu alias Ram Naresh were only present on the spot and saving the victim and Dhirendra. The alleged video clip further reveals that apart from simple assault by the co-accused Dara Singh and Sanjay upon the victim and Dhirendra and no attempt of outraging modesty or sexual harassment of the prosecutrix has been attempted or made and this fact is further proved by testimony of Dhirendra before the Trial Court wherein he did not support the allegation of outraging modesty and sexual harassment and has admitted only simple marpit by Sanjay and Dara Singh with him. There is material contradiction between the statement of victim and Dhirendra.
From the above discussion, it is inferred that appellants Ravi and Ilu alias Ram Naresh did not participate in the alleged crime and they have attempted to save the alleged victim. No over act was assigned to the appellants Ravi and Ilu alias Ram Naresh. The complicity of Ravi and Ilu alias Ram Naresh is not proved and entitled to be acquitted for the alleged charge.
So far as offence under section 323, 147 and 504 IPC are concerned appellants have been assigned the role of doing marpit with Dhirendra and victim but surprisingly no injury was found on the body of either of Dhirendra or the victim. Since the complicity of the appellants Ravi and Ilu alias Ram Naresh has not been established the provision of section 147 IPC is not attracted. The provision of section 504 IPC is attracted only when three ingredients are fulfilled. Firstly, the accused is insulted the complainant. Secondly, the insult may not be of such a nature that it should be a provocation to the complainant and thirdly that the accused intended that provocation was likely to cause the complainant to either break public peace or commit any other offence. If any of these ingredients missing, the accused cannot be said to have committed an offence under section 504 IPC. My view finds support from a case law decided by another Bench of this court in case of Jodh Singh and another vs. State of U.P. ACC 1991 (28) 429 Alld. Nothing has come in the prosecution evidence that there is an intentional insult to any other. The prosecution failed to attract the Section 504 IPC against the appellants. Therefore, appellants are entitled to be acquitted of the charge under section 141, 323 and 504 IPC.
The case in hand, learned Session Judge has awarded the maximum sentence provided underthe Indian Penal Code but the punishment should always be proportionate/commensurate to the gravity of the offence. The Court has to decide the punishment after considering all aggravating and mitigating factors and circumstances in which crime has been committed. Conduct and state of mind of the accused and age of the sexually assaulted victim and gravity of the criminal act are the factors of the paramount importance. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstance of the case. The power under proviso is not to be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause require strict interpretation. The Legislature introduced the imposition of minimum sentence by amendment in the IPC w.e.f. 25.12.1983, therefore, the courts are bound to bear in mind the effect thereof.
As this issue was summarised by the Hon'ble Apex Court in State of Rajasthan vs. Vinod Kumar, 2012 (6) SCC 770.
The complicity of the appellants i.e. Dara Singh, Pankaj, Ramu alias Ram Kumar and Sanjay for the alleged offence under sections 341, 506, 354D along with POCSO Act and section 66/67 of I.T. Act are established.
Learned Sessions Judge has convicted the appellants under section 354D IPC and also section 11/12 of POCSO Act whilst section 42 of the Protection of Children from Sexual Offences Act, 2012 provided for alternate punishment which reads as follows:
42. Alternate punishment - "Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A,376C, 376D, 376E 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."
Learned Additional Session Judge has imposed the sentence of 5 years under section 66/67 of I.T. Act than the prescribed sentence of 3 years on the first breach renders the impugned conviction unwarranted and unauthorised and cannot be sustained.
The Criminal Appeal No. 5006 of 2015 is allowed. In view of the above discussion, the conviction and sentence of the appellants Ravi and Ilu alias Ram Naresh under sections 323, 504, 506,147, 363, 354D with 11/12 POCSO Act and section 66/67 are set aside and appellants are acquitted of the alleged charges.
The Criminal Appeals No. 4756 of 2015 and 4829 of 2015 are partly allowed and the awarded maximum sentence by the learned Additional Sessions Judge is modified as follow as it will be in proportionate or commensurate to the gravity of the offence and will meet the end of justice.
The appellants i.e. Dara Singh, Pankaj, Ramu alias Ram Kumar and Sanjay are sentenced under section 11/12 of POCSO Act instead of section 354D IPC to undergo one and half year rigorous imprisonment and fine of Rs. 5000/- and in default of payment of fine one month simple imprisonment each; to undergo 1 year R.I. with fine of Rs. 1,000/- under section 506 IPC each and in default of payment 10 days simple imprisonment; to undergo one month rigorous imprisonment and fine of Rs. 500/- in default 2 days simple imprisonment under section 341 IPC and to undergo one and half year rigorous imprisonment and fine of Rs. 50000/- each and in default payment of fine one year simple imprisonment under section 66/67 of I.T. Act and all the sentences shall run concurrently but for the reasons aforesaid, the conviction and sentence of the above appellants under section 323, 147, 504, 363 IPC are set aside and the appellants are acquitted of above charges.
Appellants shall deposit the fine in concerned court within three months and on such deposit half of the fine so deposited will be paid to the victim.
Let a copy of the order along with record be sent to the lower court for compliance.
Date: 17.6.2016 N.A/Puspendra
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