IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1119 of 2018 FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE S.V. PINTO ==========================================================

Approved for Reporting No ==========================================================

NARESH @ LALO RAYAJI RATHOD Versus STATE OF GUJARAT ==========================================================

Appearance:

HCLS COMMITTEE(4998) for the Appellant(s) No. 1 MR. AAMIR S PATHAN(7142) for the Appellant(s) No. 1 MS. C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MS. JUSTICE S.V. PINTO Date : 12/02/2026

ORAL JUDGMENT

1. The appeal is filed by the appellant – original accused under Section 374 of the Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Special & Additional Sessions Judge, Bharuch (hereinafter referred to as “the learned Trial Court”) in Special POCSO Case No. 56/2015 on 27.07.2017, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Sections under Sections 363, 366, 376 of Indian Penal Code, 1860 and Section 4 and 6 of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act” for short). The appellant was sentenced to simple imprisonment for three years and fine of Rs. 2000/- and in default, simple imprisonment for six months for the offence under Section 363 of IPC, simple imprisonment for three years and fine of Rs. 2000/- and in default, simple imprisonment for six months for the offence under Section 366 of IPC, simple imprisonment for seven years and fine of Rs. 10,000/- and in default, simple imprisonment for one year for the offence under Section 376 of IPC, simple imprisonment for seven years and fine of Rs. 10,000/- and in default, simple imprisonment for one year for the offence under Section 4 of POCSO Act and simple imprisonment for ten years and fine of Rs. 10,000/- and in default, simple imprisonment for one year for the offence under Section 6 of POCSO Act. All the sentences were ordered to run concurrently.

2. Heard learned advocate Mr. Aamir Pathan appearing from the High Court Legal Services Committee for the appellant and learned APP Ms. C.M. Shah for the respondent State.

3. Learned advocate Mr. Aamir Pathan for the appellant submits that the appellant has been convicted under Sections 363, 366, 376 of Indian Penal Code, 1860 and Section 4 and 6 of the POCSO Act. Learned advocate submits that Section 376 of Indian Penal Code, 1860 before the amendment Act No. 22 of 2018 w.e.f. 21.04.2018 i.e. on the date of offence reads as under:

376. Punishment for rape.—

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine].

Learned advocate further submits that Section 6 of the POCSO Act before the amendment by Act 25 of 2019 w.e.f

16.08.2019 i.e. on the date of offence reads as under:

6. Punishment for aggravated penetrative sexual assault.— (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine.

Learned advocate for the appellant has not pressed the appeal on merits so far as the conviction is concerned, however, he has submitted that the learned Trial Court has committed an apparent error while imposing sentence for the offences under Section 376 of IPC and Section 6 of the POCSO Act by awarding “Simple Imprisonment”, though the statutory provisions, as applicable on the date of the offence i.e. 08.06.2015, mandate “Rigorous Imprisonment”. It is further submitted that the default sentences awarded f