The trial court erred in convicting under both IPC and POCSO Act without sufficient corroborative evidence, violating Section 42 of the POCSO Act regarding sentencing options.

JUDGMENT :

Samit Gopal, J.

1. List revised.

2. Heard Sri Abhishek Mayank, learned counsel for the appellant, Sri Ajay Singh, learned A.G.A.-I and Sri Bade Lal Bind, learned A.G.A. for the State and perused the record. The trial court records have been received which have also been perused. The paper book of the matter has been prepared which is on record and referred to.

3. Notice was issued to the opposite party no. 2 vide order dated 15.3.2023. Office vide its report dated 06.5.2023 reported that notice has been served personally on the opposite party no. 2 as per the report of C.J.M. concerned which is dated 28.3.2023. Service of notice is thus sufficient. Despite service no one appears on her behalf even in the revised list.

4. Name of the prosecutrix/victim is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgements and Section 228 of the Indian Penal Code. She is, thus, referred to as ''X' in the judgement.

5. This appeal has been preferred by the appellant/accused - Gauru @ Gaurav against the judgement and order dated 10.01.2020 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 9, Agra in Special Case No.190 of 2018 (State vs. Gauru @ Gaurav), Case Crime No. 318 of 2017, P.S.- Lohamandi, District- Agra, by which he has been convicted and sentenced for the offences under Section 376 read with (2)(i) I.P.C. to 14 years rigorous imprisonment, a fine of Rs.50,000/- and in default of payment of fine to 01 year additional imprisonment and under Section 3/4 of Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act, 2012) to 07 years rigorous imprisonment, a fine of Rs.25,000/- and in default of payment of fine to 03 months additional imprisonment. Sentences have been ordered to run concurrently. It has been ordered that half of the fine when deposited shall be paid to the victim. Further the trial court has extended the benefit of set-off under Section 428 Cr.P.C. to the accused/appellant.

6. The facts on the basis of which the present matter was initiated are that an application dated 17.10.2017 was given by Smt. Rekha wife of Sunil Balmiki, addressed to Station House Officer of Police Station Lohamandi, District Agra alleging therein that her husband is working as a sweeper. On 17.10.2017 at about 1:30 p.m. her daughter/victim “X” aged about 07 years was sent to a shop in the locality for getting some articles where Gauru @ Gaurav who was residing in front of her house, was present who allured and took her daughter to his house. Her daughter did not return back for a long time and then she started searching her out and was shouting for her. When she reached the house of Gauru @ Gaurav, she heard the cry of her daughter on which she called her husband and both of them then entered into the house and saw that Gauru @ Gaurav had caught hold of her daughter and had slipped her payjama down and made her sit on him and was committing illegal act on her. She and her husband apprehended Gauru @ Gaurav there and saved their daughter. At that time Gauru was wearing towel only and his pant and underwear were kept nearby. Many people of locality collected there. Gauru @ Gaurav confessed his guilt and pleaded apology. She along with her husband and daughter, Gauru @ Gaurav and people of nearby locality have come to police station along with his pant and underwear. A report be lodged and action be taken. The said report is Ex. Ka-1 to the records.

7. On the basis of the said application an F.I.R. was lodged as Case Crime No. 318 of 2017, under Section 376 I.P.C. and 3/4 POCSO Act,