JUDGMENT :

1. The present appeal is filed by the State with the following prayer:

“WHEREFORE, The Appellant/State most respectfully prayed that this Hon'ble Court may kindly be pleased to call for the records of Special Case No.58/2014 Additional District and Sessions Judge, Bidar.

a) GRANT LEAVE to appeal against the judgment and order of Inadequate punishment /sentence dated: 07.09.2015 passed by the Learned Special Judge and Additional District and Sessions Judge at Bidar, in Special Case No.58/2014 may be modified by imposing maximum punishment and imposing fine amount to the respondent for offence punishable under Section 376 of IPC and Section 4 of the POCSO Act, 2012.

b) Modify the order dated: 07.09.2015 passed by the Learned Special Judge and Additional District and Sessions Judge, Bidar, in Special Case No.58/2014 where by imposing maximum sentence on the respondent for the offence punishable under Section 376 of IPC and Section 4 of the POCSO Act of 2012.

c) CONVICT AND SENTENCE the respondent/ accused for all the offences with which he has been charged in accordance with law, in the interest of justice and equity.”

2. Brief facts which are necessary for disposal of the appeal are as under:

Accused/respondent was chargesheeted for the offence punishable under Section 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012, (for short, hereinafter referred to as ‘POCSO Act’). Accused pleaded not guilty and therefore, the trial was held. Prosecution in order to prove its case, examined 21 witnesses as P.Ws.1 to 21 and relied on 17 documentary evidence which are exhibited and marked as Exs.P.1 to P.17. The prosecution also placed reliance on 9 material objects which are marked as M.Os.1 to 9. Thereafter, statement of accused as contemplated under Section 313 of Cr.P.C., was recorded wherein accused denied all the incriminating materials that are found against the accused. Accused did not chose to place any defence evidence or his written statement as is contemplated under Section 313 (5) of Cr.P.C.

3. In other words, the presumption contemplated under Section 29 and 30 of the POCSO Act, were not rebutted by the accused by placing rebuttal evidence on record.

4. Thereafter, learned Special Judge heard the parties in detail and after considering the material evidence on record, passed an order of conviction, convicting the respondent/accused for the offence punishable under Sections 376 of IPC and Section 4 of the POCSO Act. The order of sentence is extracted as under:

“1. Convict/accused is sentenced to undergo Simple Imprisonment for a period of 05 years and shall pay a fine of Rs.2,000/-, for the offence punishable under section 376 of IPC. In default to pay fine, he shall undergo further S.I. for a period of two months.

2. Convict/accused is sentenced to undergo Simple Imprisonment for a period of 05 years and shall pay a fine of Rs.2,000/-, for the offence punishable under section 4 of POCSO Act. In default to pay fine, he shall undergo further S.I. for a period of two months.

Both the above sentences shall run concurrently.

Furnish free copy of this judgment to the convict/accused forthwith.

Convict/accused is given benefit of set off, for the period of imprisonment undergone by him as provided under section 428 of Cr.P.C.

Further it is ordered that the victim i.e, P.W.1 approached District Legal Services Authority for victim compensation under sec. 357(a) of Cr.P.C., M.O.1 to 9 are worthless and valueless ordered to be destroyed after appeal period is over.”

5. Being aggrieved by the order of sentence passed by the learned Special Judge in respect of the offence under Section 4 of the POCSO Act, the State has preferred the present appeal with the following grounds:

- It is submitted that, the offence punishable under Section 376 is for life or imprisonment for 10 years and fine but the trial court in order to reduce the period of imprisonment for the said offence against the respondent