Back
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SUBHASH CHANDRA SHARMA, J.
Kalloo @ Ravi - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 5432 of 2017
Decided On : 23-10-2021
Indian Penal Code, 1860 - Sections 377, sections 166A, 354A, 354B, 354C, 370, 370A, 375, 376, 376A, 376C, 376E or section 509 - POCSO Act - Sections 3(A)/4 and 42 - Criminal Procedure Code, 1973 - Sections 207 and 313 - Appeal against conviction - Penetrative sexual assault - Unnatural offences - Informant is resident of B-52 opposite to Ambedkar Park, Police Station Kakadeo - Nephew of informant aged about 8 years was playing outside house - Appellant took him into Park with bad intention and committed sodomy - Hearing shriek of victim - Informant and his brother went towards the park - Seeing them appellant fled away by jumping grill - On same day a written was given at the police station Kakadeo on the basis of F.I.R. was lodged - Case was handed over to S.I. who took in possession the clothes of victim, made spot inspection - prepared site plan and recorded statements of victim and of other witnesses. On the material collected during investigation he prepared charge-sheet and submitted before court concerned.
Finding of the Court: Medical report of victim shows that he did not sustain any physical injury and there was no sign of physical violence - Minimum punishment for the offence under Section 4 POCSO Act is provided for 7 years - Appellant has been in jail from the outset. As such he served in jail for a period of more than 7 years and there is no minimum limit provided under Section 377 I.P.C - Court is of opinion that a liberal view should be taken on sentence by reducing term of imprisonment already undergone by the appellant in this case and for default in payment of fine he will undergo additional imprisonment for a period of two months for each.
Result: Appeal is partly allowed.
JUDGMENT :
1. This criminal appeal has been filed against the judgment and order dated 09.08.2017 passed by learned Additional Sessions Judge, Court-16, Kanpur Nagar in Special Session Trial No.26 of 2014 (State of U.P. Vs. Kallu @ Ravi) arising out of Crime No.32 of 2014, under Sections 377 I.P.C. and Section 3(A)/4 POCSO Act, Police Station Kakadeo by which appellant was convicted and sentenced under Section 377 I.P.C. for a period of 10 years rigorous imprisonment with fine of Rs.20,000 and under Section 4 POCSO Act for a period of 10 years rigorous imprisonment with fine of Rs.20,000 and in default of payment of fine to undergo additional simple imprisonment for a period of 2 years respectively.
2. Fact in brief are that informant Subodh Kumar @ Guddu is resident of B-52, Rajapurwa opposite to Ambedkar Park, Police Station Kakadeo, District Kanpur Nagar. On 07.02.2014 at about 9:30 P.M. nephew of informant aged about 8 years was playing outside the house. Appellant took him into the Ambedkar Park with bad intention and committed sodomy. Hearing shriek of the victim, informant and his brother Manoj went towards the park. Seeing them appellant fled away by jumping the grill. On the same day a written tehrir was given at the police station Kakadeo on the basis of which F.I.R. was lodged at about 10:30 P.M.
3. Majrubi chitthi was prepared in the police station and victim was sent to L.L.R. Hospital for medical examination.
4. Medical examination was done by Medical Officer, L.L.R. Hospital, Kanpur Nagar on 08.02.2014 at about 1:15 P.M. Detail of which is as under :-
(II) Yellowish white material present on anal opening. Slide prepared for examination of semen/spermatozoa and handed over to the police.
(III) Opinion :-patient admitted u/o of Dr. Pawan Singh for expert opinion and management as a case of sexual assault by male partner. Injury no.1 caused by sodomy, fresh in duration and kept under observation, slide preparation done for examination of semen/spermatozoa of yellowish while material and handed over to police.
On microscopic examination of swab/slide smears were negative for spermatozoa.
5. Investigation of the case was handed over to S.I. Ramakant Dubey who took in possession the clothes of victim, made spot inspection, prepared site plan and recorded statements of victim and of other witnesses. On the material collected during the investigation he prepared charge-sheet and submitted before the court concerned.
6. The court concerned took cognizance of the offences and in compliance of Section 207 Cr.P.C. necessary copies of police papers were given to the appellant.
7. On the basis of material on record charge under Section 377 I.P.C. and 3/4 POCSO Act was framed which was read over and explained to the appellant who did not plead guilty but denied and claimed for trial.
8. In support of its case, prosecution adduced PW-1 Subodh Kumar informant, PW-2 victim as witness of fact, PW-3 Constable Satyendra Singh who prepared the F.I.R., PW-4 Dr. Vinay Kumar who examined the victim, PW-5 S.I. Ramakant Dubey who investigated the case and PW-6 Dr. Looba Khan the pathologist, PW-7 Manoj (uncle of the victim) a witness of fact.
9. After conclusion of prosecution evidence statement of appellant under Section 313 Cr.P.C. was recorded in which he stated about the incident to be false and the witnesses deposing falsely. In defence he produced DW-1 Pradeep Yadav, DW-2 Sunil and DW-3 Radha.
10. After hearing the arguments made by learned counsel for the appellant as well as learned counsel on behalf of the State and on perusal of record, learned trial court passed the judgment and order dated 09.08.2017 while convicting and sentencing the appellant as aforesaid. Being aggrieved with the judgment and order he has preferred this appeal.
11. Heard Sri Shive Datta Ya
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
