# Ashok @ Gore Lal v. State of U.P

- **Citation:** (2020) 2 ILRA 780
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-13
- **Case number:** Jail Appeal No. 3490 of 2016
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-gore-lal-v-state-of-u-p-45730
- **Pages:** 8

## Headnote

A. Criminal Law-Indian Penal Code -
Sections 363, 366, 376, 328, 506- Appeal
against conviction.

In a case of rape, when an adult commits
rape on a girl of tender age, deterrent
punishment is called for, taking a lenient
view is out of question. Once a person is
convicted for the offence of rape, he
should be treated with heavy hands and
undeserved indulgence or liberal attitude
in not awarding adequate sentence is
improper. (Para 21)

On present scenario, the appellant is in
jail since 5.1.2013 and during trial he
remained
in
jail.
Presently
he
is
incarceration for more than 7 years. That
appellant
is
very
poor
and
not
represented by counsel of his choice
during trial so the contention of learned
counsel to adopt a lenient view and
award the custodial sentence to the
appellant is fully acceptable. (Para 22)

Considering
the
peculiar
facts
and
circumstances of the case, the appellant
is
acquitted.
So
on
the
point
of
conviction, appeal is dismissed. On
quantum of sentence this court thinks
that end of justice would be met if the
appellant is sentenced to imprisonment
under section 376 I.P.C. which he has
already undergone. On the point of
sentence appeal is partly allowed.
(Para 23)

Criminal Appeal disposed off. (E-2)

List of cases cited:-

## Text

780 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise
than
under
normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative
of her husband for, or in connection with,
any demand for dowry, such death shall be
called "dowry death", and such husband or
relative shall be deemed to have caused
her death.

Explanation.--For the purpose of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term which shall not be less than
seven years but which may extend to
imprisonment for life."

33. A bare reading of aboresaid
Section makes it clear that imposition of
life imprisonment is not mandatory under
Section 304-B of IPC and the minimum
sentence, which has been provided in the
said Section, is 7 years.

34. If we apply the above principles
of law in the present case, what emerges is
that the deceased was brutally burnt by the
accused persons and specific role has been
assigned to each one of them.

35.

Learned
counsel
for
the
appellants has placed reliance on the
following judgments to contend that the
Apex Court has awarded fixed term
sentence to the accused persons instead
awarding life sentence:-

(i) Hari Om Vs. State of
Haryana & Another7; (ii) Hem Chand
Vs. State of Haryana8; (iii) Amar Singh
Vs. State of Rajasthan9; (iv) Shanti Vs.
State of Haryana10 (v) Sanjay Kumar
Singh
Vs.
State
of
Delhi11;
(vi)
Donthula Ravindranath alias Ravinder
Rao Vs. State of Andhra Pradesh12;
(vii) Ranjit Singh Vs. State of Punjab13;
(viii) Sunil Dutt Sharma Vs. State (Govt
of NCT of Delhi)14; (ix) Pradeep Kumar
Vs. State of Haryana15 (x) Banarsi Dass
& others Vs. State of Haryana16 and (xi)
Smt. Rama Devi Vs. State of U.P.17

36. The principles laid down by the
Supreme Court in the cases relied on by
the counsel for the appellants do not apply
to the facts of the present case. Present is
not a case of suicide or unnatural death by
some other means, but if the facts of the
present case are seen, the case may come
within the ambit of Section 302 of IPC,
where the minimum sentence which has
been provided is a life sentence. The
manner, in which the deceased was burnt,
shows brutality of the offence and we are
of the considered view that sentence of life
imprisonment imposed by the Court below
is fully justified. In the facts and
circumstances of the case, we find it
difficult to reduce the sentence.

37. The appeal has no substance. It is
accordingly dismissed.
----------
(2020)02ILR A780

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Jail Appeal No. 3490 of 2016

Ashok @ Gore Lal ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel
for
the
Appellant:
2 All. Ashok @ Gore Lal Vs. State of U.P.
781
From Jail, Sri Radhey Shyam Yadav

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law-Indian Penal Code -
Sections 363, 366, 376, 328, 506- Appeal
against conviction.

In a case of rape, when an adult commits
rape on a girl of tender age, deterrent
punishment is called for, taking a lenient
view is out of question. Once a person is
convicted for the offence of rape, he
should be treated with heavy hands and
undeserved indulgence or liberal attitude
in not awarding adequate sentence is
improper. (Para 21)

On present scenario, the appellant is in
jail since 5.1.2013 and during trial he
remained
in
jail.
Presently
he
is
incarceration for more than 7 years. That
appellant
is
very
poor
and
not
represented by counsel of his choice
during trial so the contention of learned
counsel to adopt a lenient view and
award the custodial sentence to the
appellant is fully acceptable. (Para 22)

Considering
the
peculiar
facts
and
circumstances of the case, the appellant
is
acquitted.
So
on
the
point
of
conviction, appeal is dismissed. On
quantum of sentence this court thinks
that end of justice would be met if the
appellant is sentenced to imprisonment
under section 376 I.P.C. which he has
already undergone. On the point of
sentence appeal is partly allowed.
(Para 23)

Criminal Appeal disposed off. (E-2)

List of cases cited:-

1. St. of Punj. Vs. Ramdev Singh 2004
(48) ACC 300,

2. St. of Raj. Vs. Om Prakash, 2002 (2)
JIC Page 870 (Crime),

3. St. of H.P. Vs. Dharmapal, (2004) 9 SCC Page
681,

4. St. of Punj. Vs. Ramdev Singh 2004 (48) ACC
300,

5. St. of Har. Vs. Raja Ram AIR 1973 SC 819,

6. Gopal Singh vs St. Of Uttarakhand (2013) 3 SCC
(Cri) 608,

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1.
Being
aggrieved
with
the
judgment and order dated 21.5.2016
passed by Additional Sessions Judge, Fast
Track Court No. 1, Kannauj, this jail
appeal has been preferred by appellant in
S.T. No. 139 of 2013, Case Crime No. 538
of 2012, under sections 363, 366, 376,
328, 506 I.P.C. Appellant has been
convicted under section 363 I.P.C. for 7
years rigorous imprisonment alongwith
fine of Rs. 5,000/-, under section 366
I.P.C. for 7 years rigorous imprisonment
alongwith fine of Rs. 5,000/-, under
section 376 I.P.C. for 10 years rigorous
imprisonment alongwith fine of Rs.
10,000/-, under section 328 I.P.C. for 7
years rigorous imprisonment alongwith
fine of Rs. 5,000/- and under section 506
I.P.C. for 3 years rigorous imprisonment
alongwith fine of Rs. 5,000/-. In default of
payment of fine, three moths further
imprisonment in each. After depositing the
fine, imposed upon the applicant, Rs.
25,000/- shall be given to the victim as a
compensation. All the sentences shall run
concurrently.

2. Brief facts of this case are as follows-:

The complainant (father of the
victim) / PW-1 lodged an F.I.R. on 9.8.2012
against the appellant by way of filing an
782 INDIAN LAW REPORTS ALLAHABAD SERIES
application under section 156 (3) Cr.P.C.
alleging that his daughter (victim) was a
student of Class VIII and on 23.7.2011 at
7.30 A.M., victim (aged about 13 years)
went to school at Mochipur for studying.
That after some time complainant received
a call on his mobile phone by Kamlesh and
Hariram. They told the complainant that
his daughter was seen accompanying with
appellant / Ashok @ Gore Lal and two
other persons in Chhebramau Civil Court,
Kannauj.
That
after
receiving
this
information, complainant searched his
daughter in several places but he could not
succeed in locating her. The daughter of
the complainant came back at her home at
4.00 P.M. on the same day told that when
she was on the way of her school and
reached at a deserted place, accused -
appellant / Ashok @ Gore Lal alongwith
one unknown person were came on a
moter-cycle and abducted her and thrown
her books into drain and fed her some
poisonous substance and raped her one by
one on the point of gun. After that they
have forcefully abducted his daughter and
executed written marriage agreement by
obtaining the thumb impression of her
daughter against her will. That due to
shame of society he did not make any
complaint
anywhere.
But
when
the
appellant constantly started threatening to
complainant
by
saying
that
I
will
forcefully kidnapped your daughter and
get married with her and now victim is his
wife. Then he went to Kannauj Police
Station and made a written complaint by
registered post to the S.S.P. Kannauj and
other higher authorities but when no action
was taken by the higher authorities, then
he approached to C.J.M. Kannauj and
lodged an F.I.R. Ex. Ka-2 by way of
application under section 156(3) Cr.P.C. as
Case Crime No. 538 of 2012 was lodged
on 29.8.2012 against the appellant and one
unknown person under sections 363, 366,
376, 328, 506 I.P.C. at Police Station
Kannauj, District Kannauj by way of G.D.
Entry (Ex.Ka-3) Serial No. 32 at 15.15
P.M.
Initially
the
investigation
was
conducted by S.I. Hamid Ali (who is PW7). S.I. Hamid Ali recorded the statement
of the witnesses and prepared the site plan
as
Ex.Ka-8.
Thereafter
further
investigation was conducted by subsequent
Investigating Officer, Tushar Dutt Tyagi
as PW-8, who after conducting the
formalities of investigation, filed the
chargesheet Ex. Ka-9 against the appellant
before the competent court and the case
was committed to the Sessions Court by
Chief
Judicial
Magistrate,
Kannauj.
Thereafter learned trial court framed
charge against the accused under sections
376, 363, 506, 328, 366 I.P.C. The charge
is read over to the appellant and appellant
denied the charge and claimed to be tried.

3. In support of the prosecution case,
prosecution has examined 8 witnesses i.e.
PW-1
/
daughter
(victim)
of
the
complainant, PW-2 Mahesh (father of the
victim), who proved the written report as
Ex.Ka-2, PW-3 / Smt. Urmila (Bua of the
victim), PW-4-H.C. / Ram Shankar, who is
chek writer and proved chek F.I.R. as Ex.
Ka-2, PW-5 / Dr. Neelima Thaigal, who
proved medical examination of the victim
(Ex. Ka-4 & Ka-5), PW-6 / Kamlesh
Katiyar, proved the date of birth certificate
of the victim as well as attested photocopy
of her educational qualification (Ex.Ka-6
& Ka-7), PW-7 / S.I. Hamid Ali, first IO,
prepared the site plan (Ex. Ka-6) and PW8 / S.I. Tushar Dutt Tyagi, second IO,
proved the charge-sheet (Ex.Ka-9).

4. After examination of these
witnesses, statement of the accused -
appellant was recorded under section 313
2 All. Ashok @ Gore Lal Vs. State of U.P.
783
Cr.P.C. Accused/ appellant denied all the
charges levelled against him and stated
that due to enmity, all the witnesses had
given false statements against him. No
defence witness was produced by the
appellant in his defence. After hearing the
argument of both the parties, learned trial
court has convicted the accused-appellant
as aforesaid. Aggrieved with the same,
accused-appellant
has
preferred
this
appeal.

5. Learned counsel for the appellant
submits that impugned judgment dated
21.5.2016 is illegal, perverse and passed
only on surmises and conjectures. It is
submitted by the learned counsel for the
appellants that F.I.R. is lodged against the
applicant after approx two months of the
incident
after
due
deliberation
and
consultation and there were no plausible
explanation regarding the delay. It is next
contended that medical examination of the
victim was conducted by Dr. Neelima
Thaigal but as per medical examination
report there is no mark of injury on the
body of the victim. It is next contended
that as per opinion of Dr. Neelima Thaigal,
she was not sure whether any rape was
committed or not so there is no definite
opinion that victim was raped. It is next
contended that there was no motive for
appellant to commit such offence and there
are several contradictions and infirmities
in the statements of PW-1, PW-2 and PW3. Further submitted that there was love
affair between the victim and appellant so
the victim has voluntarily entered into
relationship with the appellant. It is next
contended that as no definite opinion
regarding rape can be given so learned
trial court wrongly convicted the appellant
in this case without applying its judicial
mind. Learned counsel further submitted
that in this scenario appellant is liable to
be acquitted from all the charges levelled
upon him. It is lastly contended that there
is
no
definite
opinion
regarding
administering of poison as there is no
medical report nor any visible sign which
suggest that the poison was administered
by the appellant. Learned counsel for the
appellant
vehemently
argued
above
sentence being highly excessive and not in
commensurate with degree of offence.

6. Per contra, rebutting the above
argument, the learned A.G.A. supports
the judgment of conviction and order of
sentence
and
submitted
that
the
prosecutrix was a minor girl and
appellant abducted her forcefully and
committed rape. He further argued that
alleged offences against the applicant are
serious in nature and due to shame of
society, there is delay in lodging the
F.I.R., which is clearly explained by the
complainant (PW-2) in his statement. He
further submits that victim has clearly
stated in her statement recorded under
section
164
Cr.P.C.
that
accusedapplicant had committed rape upon her
on the point of gun. It is next submitted
that as per her educational certificate,
victim was studying in class 8th at the
time of alleged incident and as per
educational record, at the time of alleged
offence, she was about 13 years old. It is
next submitted that as per X-ray report
and supplementary report, age of victim
is less than 17 years. So it is clear that at
the time of alleged incident, victim was
minor. He further submits that impugned
judgment of conviction and order of
sentence is well reasoned and there is no
illegality or perversity in the impugned
judgment of trial court. He further
submits that keeping in view the facts
and
circumstances
and
evidences
tendered before the trial court alongwith
784 INDIAN LAW REPORTS ALLAHABAD SERIES
the documentary evidence no interference
warranted in this case.

7. In this case, prosecution has examined
the prosecutrix as PW-1 and she clearly states
in her statement that she was subjected to rape
by accused on the point of gun against her
wishes. On perusal of the statement of the
witnesses it reveals that appellant was
extending threats to victim and forcefully taken
her to Chhibramau Court where a false
document of marriage prepared by the
appellant. She clearly denied that she was fall
in love with appellant and also denied that she
never solemnized marriage with appellant.

8. PW-2 is the father of the PW1(victim). PW-2 has clearly stated in his
statement
that
immediately
after
the
occurrence he did not lodge a report for a fear
of slander in the society and when he received
threatening call from the appellant then he
compel to lodge an F.I.R. against the appellant.

9. PW-3 is the Bua of the victim, who
also supported the prosecution version and she
clearly stated that on the date of alleged
incident, she was also present in the house of
his brother to celebrate Rakshabandhan
festival.

10. One of the argument of the appellant is
that there is delay in lodging the F.I.R.

11. Submission of learned counsel for the
appellant is that the F.I.R. was lodged near about
2 month after the alleged incident so no reliance
can be placed but on perusal of the statement of
PW-2, it transpires that delay is clearly explained.

12. Hon'ble Apex Court held in State of
Punjab Vs. Ramdev Singh 2004 (48) ACC
300 as under:-

"Delay in lodging the FIR
cannot be used as a ritualistic formula
for doubting the prosecution case and
discarding the same solely on the ground
of delay in lodging the first information
report. Delay has the effect of putting the
Court in its guard to search if any
explanation has been offered for the
delay, and if offered, whether it is
satisfactory or not. If the prosecution
fails to satisfactorily explain the delay
and there is possibility of embellishment
in prosecution version on account of
such delay, the same would be fatal to the
prosecution. However, if the delay is
explained to the satisfaction of the Court,
same cannot by itself be a ground for
disbelieving and discarding the entire
prosecution version, as done by the High
Court in the present case."

13. So the contention of appellant
have no force that due to delay in lodging
the F.I.R., no reliance can be placed
against the prosecution case.

14. Learned counsel for the appellant
vehemently argued that as per medical
report Ex.Ka-4 & Ex.Ka-5 and as per the
statement of PW-5/Dr. Neelima Thaigal as
there is no mark of injury found on the
body of victim and medical evidence does
not support the prosecution case as no
definite opinion has been recorded by the
doctor with regard to the injuries inflicted
on the body of prosecutrix and no definite
opinion of rape has been mentioned.
Before examining this aspect, it would be
relevant to mention that in State of
Rajasthan Vs. Om Prakash, 2002 (2) JIC
Page 870 (Crime), Hon'ble Apex Court
held that "there is no force in the
contention that if there was any forcible
sexual intercourse, it would have resulted
in some injuries upon the prosecutrix.
Presence of injuries are not always sine
qua non to prove the charge of rape."
2 All. Ashok @ Gore Lal Vs. State of U.P.
785

Further there are catena of decisions
of Hon'ble Apex Court that it is necessary
for the court to have a sensitive approach
when dealing with the cases of rape. It is
also trite that in the case of State of
Himachal
Pradesh
Vs.
Dharmapal,
(2004) 9 SCC Page 681, Hon'ble Apex
Court held that "rape is a serious offence,
as it leads to an assault on the most
valuable possession of a woman i.e.
character,
reputation,
dignity
and
honour."

15. In State of Punjab Vs. Ramdev
Singh 2004 (48) ACC 300 Hon'ble Apex
Court held as under:-

"Sexual violence apart from
being a dehumanizing act is an unlawful
intrusion on the right of privacy and
sanctity of a female. It is a serious blow
to her supreme honour and offends her
self-esteem and dignity. It degrades and
humiliates the victim and where the
victim is a helpless innocent child or a
minor. It leaves behind a traumatic
experience. A rapist not only causes
physical injuries but more indelibly
leaves a scar on the most cherished
possession of a woman i.e. her dignity,
honour, reputation and not the least her
chastity. Rape is not only a crime against
the person of a woman, it is a crime
against the entire society. It destroys, as
noted by Apex Court in Shri Bodhisattwa
Gautam v. Miss Subhra Chakraborty,
AIR 1996 SC 922 the entire psychology of
a woman and pushes her into deep
emotional crisis. It is a crime against
basic human rights, and is also violative
of the victim's most cherished of the
Fundamental Rights, namely, the Right
to Life contained inArticle 21of the
Constitution of India, 1950 (in short the
'Constitution'). The Courts are, therefore,
expected to deal with cases of sexual
crime
against
women
with
utmost
sensitivity. Such cases need to be dealt
with sternly and severely. A socially
sensitized judge, in our opinion, is a
better statutory armour in cases of crime
against women than long clauses of
penal provisions, containing complex
exceptions and provisos."

16. In this case, it is not only the
evidence of PW-1 but immediately after
commission
of
rape
the prosecutrix
narrated the whole incident to her father
and her Bua, who were produced by the
prosecution as PW-2 & PW-3. It is
pertinent to mention here that on the sole
testimony of the prosecutrix, conviction is
sustainable in the eye of law without any
corroboration
of
medical
evidence.
Prosecution
by
cogent
and
credible
evidence is able to prove the charge under
section 376 I.P.C. against the appellant.

17. So far as regard section 363
I.P.C. is concerned, it is clearly established
beyond reasonable doubt that at the time
of alleged incident, victim was below the
age of 17 years, regarding this charge u/s
363 I.P.C. framed against the appellant.
Section
363
I.P.C.
provides
that
"Punishment for kidnapping.--Whoever
kidnaps any person from 1[India] or from
lawful guardianship, shall be punished
with imprisonment of either description for
a term which may extend to seven years,
and shall also be liable to fine."
Kidnapping from lawful guardianship
defined in section 361 I.P.C. Kidnapping
from lawful guardianship.--Whoever takes
or entices any minor under 1[sixteen]
years of age if a male, or under
2[eighteen] years of age if a female, or
any person of unsound mind, out of the
keeping of the lawful guardian of such
786 INDIAN LAW REPORTS ALLAHABAD SERIES
minor or person of unsound mind, without
the consent of such guardian, is said to
kidnap such minor or person from lawful
guardianship. Explanation.--The words
"lawful guardian" in this section include
any person lawfully entrusted with the
care or custody of such minor or other
person."

On a plain reading of this Section, the
consent of the minor, who is taken or
enticed, is wholly immaterial, it is only the
guardian's consent which takes the case
within its purview. Nor is it necessary that
the taking or enticing must be shown to
have been by means of force or fraud.
Persuasion by the accused person, which
creates willingness on the part of minor to
be taken out of the keeping of the lawful
guardianship would be sufficient to attract
this Section 361 I.P.C., as has been held by
Apex Court in State of Haryana Vs. Raja
Ram AIR 1973 SC 819.

18. So far as regard section 366 I.P.C. is
concerned
requires
three
principles
ingredients:-
"Offence
punishable
under
Section 366 I.P.C. requires three principal
ingredients (I) kidnapping or abduction to any
women (II) such kidnapping or abduction must
be (i) with intent that she may be compelled or
knowing it to be likely that she will be
compelled to marry any person against her
will; or (ii) in order that she may be forced or
seduced to illicit intercourse or knowing it to
be likely that she will be forced or seduced to
illegal intercourse, or (iii) by means of
criminal intimidation or otherwise by enticing
any women to any place with intent that she
may be or knowing that she will be forced or
seduced to illicit intercourse. It is immaterial
whether the women kidnapped is married
women or not."

In this appeal prosecution by means of
credible
and
cogent
evidence
clearly
established
that
victim
was
forcefully
kidnapped by the appellant in order to
solemnize marriage and by deceitful means
appellant force the victim to sign on the
marriage certificate. So prosecution is able to
prove the charge under section 366 I.P.C.
against the appellant.

19. So far as regard section 328
I.P.C. is concerned "Causing hurt by
means of poison, etc., with intent to
commit an offence.--Whoever administers
to or causes to be taken by any person any
poison or any stupefying, intoxicating or
unwholesome drug, or other thing with
intent to cause hurt to such person, or with
intent to commit or to facilitate the
commission of an offence or knowing it to
be likely that he will thereby cause hurt,
shall be punished with imprisonment of
either description for a term which may
extend to ten years, and shall also be
liable
to
fine."
After
perusing
the
statement of PW-1/victim, wherein she has
stated that appellant fed her some
poisonous substance but no sign or any
visible injury inflicted to victim of having
any poisonous substance and it is also not
the case of prosecution that due to
administering of poisonous substance
victim become unconscious. So offence
under section 328 I.P.C. is not proved
against the appellant.

20. Appellant was also charged under
section 376 I.P.C. which provides as
"Whoever, except in the cases provided for
by sub-section (2), commits rape shall be
punished with imprisonment of either
description for a term which shall not be
less than seven years but which may be for
life or for a term which may extend to ten
years and shall also be liable to fine unless
the women raped is his own wife and is not
under twelve years of age, in which cases,
he shall be punished with imprisonment of
2 All. Ashok @ Gore Lal Vs. State of U.P.
787
either description for a term which may
extend to two years or with fine or with
both: Provided that the court may, for
adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than seven years." Regarding section 376
I.P.C. the maximum sentence provided for
offence of rape is 7 years. Apex Court in
Gopal Singh vs State Of Uttarakhand
(2013) 3 SCC (Cri) 608 has propounded:-

"Just
punishment
is
the
collective cry of the society. While the
collective cry has to be kept uppermost in
the mind, simultaneously the principle of
proportionality between the crime and
punishment cannot be totally brushed
aside. The principle of just punishment is
the bedrock of sentencing in respect of a
criminal offence. A punishment should
not be disproportionately excessive. The
concept of proportionality allows a
significant discretion to the Judge but the
same has to be guided by certain
principles. In certain cases, the nature of
culpability,
the
antecedents
of
the
accused,
the
factum
of
age,
the
potentiality of the convict to become a
criminal in future, capability of his
reformation and to lead an acceptable life
in the prevalent milieu, the effect -
propensity to become a social threat or
nuisance, and sometimes lapse of time in
the commission of the crime and his
conduct in the interregnum bearing in
mind the nature of the offence, etc. etc."

21. Though in a case of rape, when
an adult commits rape on a girl of tender
age, deterrent punishment is called for,
taking a lenient view is out of question.
Once a person is convicted for the offence
of rape, he should be treated with heavy
hands and undeserved indulgence or
liberal attitude in not awarding adequate
sentence is improper.

22. On present scenario, the
appellant is in jail since 5.1.2013 and
during trial he remained in jail. Presently
he is incarceration for more than 7 years.
That appellant is very poor and not
represented by counsel of his choice
during trial so the contention of learned
counsel to adopt a lenient view and award
the custodial sentence to the appellant is
fully acceptable.

23. Considering the peculiar facts
and circumstances of the case, the
appellant is acquitted against the charge
under section 328 I.P.C. levelled against
him. Conviction of the appellant is
confirmed under sections 363, 376, 506
& 366 I.P.C. So on the point of
conviction, appeal is dismissed. On
quantum of sentence this court thinks that
end of justice would be met if the
appellant is sentenced to imprisonment
under section 376 I.P.C. which he has
already undergone. It is hereby clear that
fine clause shall be unaltered. After
depositing fine of Rs. 20,000/-, the victim
shall entitle of Rs. 15,000/- under section
357 (2) Cr.P.C. On the point of sentence
appeal is partly allowed.

24. On above terms, appeal is finally
disposed off.

25. Let a copy of the judgment
alongwith
lower
court
record
be
transmitted to the trial court for necessary
compliance.
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(2020)02ILR A787

APPELLATE JURISDICTION
CRIMINAL SIDE