# Bachu @ Hira Lal (In Jail) v. State of U.P

- **Citation:** (2019) 1 ILRA 601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-30
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bachu-hira-lal-in-jail-v-state-of-u-p-44529
- **Pages:** 12

## Headnote

A. IPC - section 506 I.P.C- The essential
ingredient for offence punishable under
this
section
is
offence
of
criminal
intimidation defined under section 503
I.P.C

To bring home an offence punishable u/s 506
I.P.C. the prosecution has to prove that
602 INDIAN LAW REPORTS ALLAHABAD SERIES
accused threatened the victim to injure his
person, reputation or property or to the
person or reputation of any one in whom that
person is interested. In the present case PW2-
victim, in her testimony, has said that while
she protested for rape, the convict-appellant
intimidated her by show of knife for killing her
in case of opening of lips to anyone or
protesting such rape. She was criminally
intimidated and assaulted for sexual assault.
For
this,
there
is
no
contradiction
or
exaggeration or embellishment. Rather full
corroboration is there. Hence this too has
been
fully
proved.
(Paras 26 &27)

B. POCSO Act, 2012: - u/s 4 of POCSO
Act, 2012- aggravated form of offence
punishable u/s 376 I.P.C.

C. The cardinal principle of criminal
jurisprudence
is,
unless
proved,
presumption of innocence is there and
prosecution is to prove charge beyond
doubt, whereas accused is to prove
exceptions, given under the Code, or lack
of any essential ingredient of that
particular offence to the extent of
preponderance of probabilities.
If he succeeds in creating situation of
existence of preponderance of probabilities,
then benefit of doubt is to be given to him i.e.;
the prosecution failed to prove its case beyond
reasonable
doubt.
But
in
this
special
legislation, this principle has been done away.
Here, if the victim is child, below the age of 16
years, the presumption is in favour of
prosecution and the defence is to prove
contrary to it. But no evidence in defencehas
been laid by accused. (Para 24)

D. Sentencing - question of awarding
sentence is a matter of discretion to be
exercised
on
consideration
of
circumstances
aggravating
and
mitigating in the individual case. It is
settled legal position that appropriate
sentence should be awarded after giving
due consideration to the facts and
circumstances of each case, nature of
offence and the manner in which it was
executed or committed. (Para 28 & 29)
CHRONOLOGICAL LIST OF CASES CITED: -
1:-(2014)
7
SCC
323
Sumer
Singh
Vs.Surajbhan Singh and others

2:-(1990) 4 SCC 731ShamSunder Vs. Puran

3:-(2005) 5 SCC 554 M.P. Vs. Saleem

4:-(1996) 2 SCC 175 Ravji Vs. State of
Rajasthan (E-7)

## Text

_Characters 0–39,893 of 40,486. This is a partial read: ask again with offset=39893 for what follows._

1 All. Bachu @ Hira Lal Vs. State of U.P.
601
vessel was used as human dwelling or was
used for custody of the property. Hence,
prosecution has to prove points required for
proving of an offence, under Section 379 IPC
plus that the moveable property was taken
away or moved out of a building, tent or
vessel and that such building, tent or vessel
was being used for human dwelling or
custody of moveable property. Intention to
take this dishonestly must be proved.

23. In present case, offence of theft
was got registered by informant against
unknown thieves. Subsequently, alleged
recovery of alleged stolen cash money
was said to have been made from convictappellants. Offence of theft or taking of
articles
from
building,
by
convict
appellants, was not proved by any witness
and on the basis of possession and
presumption, under Section 114, Evidence
Act, offence under Section 380 IPC was
deemed
to
be
proved
whereas
identification of alleged recovered cash,
with no specific mark of identification,
was neither established, by way of
identification parade, or by way of
proving it before Trial court.

24. Hence, learned Trial court failed
to appreciate facts and law placed before
it and thereby passed judgment of
conviction and sentences therein, against
evidence on record.

25. In view of what has been
discussed above, this Criminal Appeal
deserves to be allowed.

26. Accordingly, this Criminal Appeal
succeeds and is allowed. The impugned
judgment and order of conviction dated
20.07.2018, passed by the Trial Court, is
hereby set aside and the appellants are
acquitted of all the charges. The appellants
are in jail. They shall be released forthwith, if
not wanted in any other case.

27. Keeping in view the provisions
of section 437-A Cr.P.C. appellants are
directed to forthwith furnish a personal
bond and two reliable sureties, each, in
the like amount, to the satisfaction of
Trial court before it, which shall be
effective for a period of six months, along
with an undertaking that in the event of
filing of Special Leave Petition against
the instant judgment or for grant of leave,
the appellants, on receipt of notice
thereof, shall appear before the Hon'ble
Supreme Court.

28. Let a copy of this judgment
along with lower court's record be sent
back to the court concerned for immediate
compliance.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 7229 OF 2018

Bachu @ Hira Lal ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ashok Kumar Singh.

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

A. IPC - section 506 I.P.C- The essential
ingredient for offence punishable under
this
section
is
offence
of
criminal
intimidation defined under section 503
I.P.C

To bring home an offence punishable u/s 506
I.P.C. the prosecution has to prove that
602 INDIAN LAW REPORTS ALLAHABAD SERIES
accused threatened the victim to injure his
person, reputation or property or to the
person or reputation of any one in whom that
person is interested. In the present case PW2-
victim, in her testimony, has said that while
she protested for rape, the convict-appellant
intimidated her by show of knife for killing her
in case of opening of lips to anyone or
protesting such rape. She was criminally
intimidated and assaulted for sexual assault.
For
this,
there
is
no
contradiction
or
exaggeration or embellishment. Rather full
corroboration is there. Hence this too has
been
fully
proved.
(Paras 26 &27)

B. POCSO Act, 2012: - u/s 4 of POCSO
Act, 2012- aggravated form of offence
punishable u/s 376 I.P.C.

C. The cardinal principle of criminal
jurisprudence
is,
unless
proved,
presumption of innocence is there and
prosecution is to prove charge beyond
doubt, whereas accused is to prove
exceptions, given under the Code, or lack
of any essential ingredient of that
particular offence to the extent of
preponderance of probabilities.
If he succeeds in creating situation of
existence of preponderance of probabilities,
then benefit of doubt is to be given to him i.e.;
the prosecution failed to prove its case beyond
reasonable
doubt.
But
in
this
special
legislation, this principle has been done away.
Here, if the victim is child, below the age of 16
years, the presumption is in favour of
prosecution and the defence is to prove
contrary to it. But no evidence in defencehas
been laid by accused. (Para 24)

D. Sentencing - question of awarding
sentence is a matter of discretion to be
exercised
on
consideration
of
circumstances
aggravating
and
mitigating in the individual case. It is
settled legal position that appropriate
sentence should be awarded after giving
due consideration to the facts and
circumstances of each case, nature of
offence and the manner in which it was
executed or committed. (Para 28 & 29)
CHRONOLOGICAL LIST OF CASES CITED: -
1:-(2014)
7
SCC
323
Sumer
Singh
Vs.Surajbhan Singh and others

2:-(1990) 4 SCC 731ShamSunder Vs. Puran

3:-(2005) 5 SCC 554 M.P. Vs. Saleem

4:-(1996) 2 SCC 175 Ravji Vs. State of
Rajasthan (E-7)

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This appeal, under section 374(2)
of
Code
of
Criminal
Procedure
(hereinafter referred to as Cr.P.C.), has
been filed by convict appellant Bachu @
Hira Lal, against judgment of conviction
and
sentence
made
therein,
dated
20.10.2018, passed by Court of VIII
Additional Sessions Judge, Aligarh, in
S.T. No. 48 of 2015, State Vs. Bachu @
Hira Lal, arising out of Case Crime No.
320 of 2014, u/s 376, 506 I.P.C. read with
Section 4 Protection of Children from
Sexual Offences Act, 2012, (hereinafter
referred
to
as
POCSO
Act)
P.S.
Chandaus,
District
Aligarh,
wherein
convict appellant has been convicted for
offences punishable u/s 376, 506 I.P.C.
with offence punishable u/s 4 of POCSO
Act, 2012. But as the offence punishable
u/s 4 of POCSO Act was aggravated form
of offence punishable u/s 376 I.P.C.,
hence, sentence of 10 years R.I. with fine
of Rs. 30,000/- and in default six months'
additional
imprisonment
for
offence
punishable u/s 4 of POCSO Act with two
years R.I. and fine of 10,000/- and in
default
three
months'
additional
imprisonment for offence punishable u/s
506 I.P.C. with a direction for concurrent
running of sentences and adjustment of
previous sentence, if any, was awarded.
Memo of appeal contains that the trial
court failed to appreciate facts and law
placed before it. Appellant was engaged
1 All. Bachu @ Hira Lal Vs. State of U.P.
603
as a contractor at Ganesh brickkiln. He had
lent Rs. 35,000/- to informant, as advance,
but she and her husband were not working
properly. When pressure was exerted, this
false concoction was lodged. Dr. Praveen
Jahan (PW3), in her testimony, has held that
hymen of victim was old torn. She was with
no injury nor any spermatozoa was found in
Pathological report. Alleged assault was of
30.11.2014, for which report was got lodged
by way of presenting an application before
the Senior Superintendent of Police, Aligarh,
on 8.12.2014 i.e. nine days delayed report,
with no explanation, was there. Investigation
was not proper. Statement of owner of
Ganesh Brickklin was not taken by
Investigating
Officer.
All
prosecution
witness,
examined,
were
interested
witnesses. Impugned judgment of conviction
was with no evidence on record and sentence
awarded was much severe. Hence, this
appeal with a prayer for setting aside the
impugned judgment of conviction and
sentence therein with a further prayer for
acquittal in above trial.

2. Heard Sri Ashok Kumar Singh,
learned counsel for appellant, and Sri
Munne Lal, learned AGA for the State,
and gone through the impugned judgment
and record of trial court.

3. Learned counsel for appellant
argued that it was a case based on enmity.
F.I.R. was lodged at a delay of nine days.
Medical evidence was not in support of
accusation of rape. There was material
contradiction
regarding
place
of
occurrence, wherein field of sugarcane
and
field
of
wheat
was
said
by
prosecution, which was with material
contradiction. Statement recorded u/s 164
Cr.P.C., as of victim, was under influence
of her parents, who were under debt of
convict appellant for which this false
accusation was lodged. Detention of four
years six months in judicial prison is
there. Hence sentence being deterrent and
not in consonance with offence, above
detention may be deemed to be proper
sentence.

4. Learned AGA has vehemently
controverted the argument of learned
counsel for appellant by arguing that it
was a case of rape by convict appellant
with a vulnerable girl of 14 years, who
was ailing and was taken for giving
medical treatment at a clinic of a medical
practitioner, where from the convict
appellant, who was co-worker at above
brickklin and was under acquaintance,
took her under deceit and committed rape
with her. Victim and her parents being
poor vulnerable labourer, reported the
matter to brickklin owner, who asked
them to be away from brickklin and get
the case lodged at their respective police
station. Attempt was made by the
informant for getting case lodged at
Police
Station
Jalalpur,
District
Hameerpur, but it was refused to be
registered at the police station because of
territorial jurisdiction of district Aligarh,
where this offence was committed. Then
after this victim and her parents appeared
before the Senior Superintendent of
Police, Aligarh, where her agony was
heard and under direction of S.S.P.,
Aligarh, this case was got lodged at P.S.
Women Cell, Aligarh, wherein victim-
prosecutrix, her parents along with other
witnesses have proved charge beyond
doubt. Hence conviction and sentence was
with evidence on record. It was a proper
sentencing. Hence appeal be dismissed.

5. Prosecution case, as surfaced
from record, is that FIR (Ext. Ka1), under
thumb impression of informant Smt.
604 INDIAN LAW REPORTS ALLAHABAD SERIES
Noorjahan, w/o Rafiq, dated 8.12.2014,
was presented before S.S.P., Aligarh, over
which an order for registration of case
crime number was passed by the S.S.P.,
Aligarh, on 8.12.2014 itself. This was
with contention that informant Smt.
Noorjahan, w/o Rafiq, is resident of
village Ghauhal Bujurg, P.S. Jalalpur,
District Hameerpur. On 30.11.2014 she
along with her husband and daughter Km.
Fatima, aged about 14 years, was at
'Ganesh Brickklin', situate at Chandaus
within the area of P.S. Chandaus, District
Aligarh, as labourer. Km. Fatima became
ill. Her father Rafiq took her on
30.11.2014 at 5.00 P.M. at a clinic of a
medical practitioner situated at Chandaus
town. Bachu @ Hira Lal, resident of same
village of informant, accompanied them.
Rafiq after taking prescription left Fatima
at above clinic and went in the town for
purchasing medicines and some daily
needs. In between Bachu @ Hira Lal
apprised Fatima that her father had
straight away gone to brickklin and she to
accompany him to brickklin. This was
refused by her. But under persuasion she
was taken. On the way, in a sugarcane
field, Bachu @ Hira Lal committed rape
with her, by showing knife and he
extended threat of dire consequences, in
case of opening of lips to anyone. This
was instantly complained by Fatima to her
mother, after reaching at brickklin. Her
mother and father went to brickklin owner
and lodged complaint. But he asked them
for going to their native place and to
lodge report at P.S. Jalalpur. She, along
with her husband and victim, went at P.S.
Jalalpur, District Hameerpur, to lodge
report, but the report was not lodged,
because of being territorial jurisdiction of
district Aligarh. Hence, on 8.12.2014, an
application was filed before the S.S.P.,
Aligarh. Under his direction Case Crime
No. 320 of 2014, u/s 376, 506 I.P.C. read
with section 3/ 4 POCSO Act, 2012, was
got lodged vide chick F.I.R. (Ext. Ka8) at
P.S. Mahila Thana, District Aligarh,
which was subsequently transmitted to
P.S. Chandaus. This registration of case
crime number was vide G.D. entry (Ext.
Ka9). Prosecutrix was instantly examined,
under medical examination, and medico
legal report (Ext. Ka4), supplementary
report (Ext. Ka5) was there. Her statement
u/s 164 Cr.P.C. (Ext. Ka2) was recorded
by Magistrate on 16.12.2014. She was
produced before Medical Board for her
age determination, wherein she was held
to be of 15 years in report (Ext. Ka10).
Investigation resulted in submission of
charge sheet (Ext. Ka7), against convict
Bachu
@
Hira
Lal,
for
offences
punishable u/s 376, 506 I.P.C. read with
section 3/ 4 POCSO Act. The court of
Magistrate took cognizance over it, vide
order
dated
3.6.2015.
As
offences,
punishable under these sections, were
exclusively triable by Court of Sessions,
hence file was committed to the Court of
Sessions, from where it was sent to
Special Court, exercising jurisdiction
under POCSO Act, 2012.

6. After hearing learned public
prosecutor as well learned counsel for
accused, Trial Judge levelled charges against
accused Bachu @ Hira Lal, vide order dated
16.1.2016 for offences punishable u/s 376,
576 I.P.C. and 3/ 4 POCSO Act, which were
read over and explained to accused, who
pleaded not guilty and claimed for trial.

7. Prosecution examined PW1-
informant Smt. Noorjahan, PW2- victim
Km. Fatima, PW3- Dr. Smt. Praveen
Jahan,
PW4-
Investigating
Officer
Inspector Ramdarash Yadav and PW5-
Constable Clerk 1339 Priti.
1 All. Bachu @ Hira Lal Vs. State of U.P.
605

8. With a view to have explanation,
if any, and version of accused over
incriminating
evidence
furnished
by
prosecution, he was examined and his
statement u/s 313 Cr.P.C. was recorded,
wherein the accusation was denied with
contention of false testimonies of PW1,
PW2 and PW4, but testimonies of PW3-
Dr. Smt. Praveen Jahan and PW5-
Constable Clerk Priti were answered to be
not under his knowledge. He stated that
he was a contractor at above brickklin and
there was money due against informant.
With a view to grab the same, this false
accusation was got lodged.

9. No evidence in defence was given
by convict appellant.

10. Learned trial judge, after hearing
learned counsel for both sides, passed the
impugned judgment of conviction, as
above, and after hearing over quantum of
sentence, awarded sentences, as above.

11. PW5 is Constable Clerk Priti, who
stated that after receiving original first
information report of Smt. Noorjahan, w/o
Rafiq, containing order of S.S.P., Aligarh,
dated 8.12.2014, she got case crime number
registered and this chick F.I.R. was entered in
General Diary entry. At that time Noorjahan-
informant along with victim Fatima, aged
about 14 years, and her brother Imran was
present at police station. In cross-examination,
she has reiterated her previous statement by
saying that she was posted at Mahila Thana,
Aligarh, on 8.12.2014 as constable clerk,
when this typed F.I.R. with order of S.S.P.,
Aligarh, was received. She registered it as
Case Crime No. NIL of 2014, u/s 376, 506
I.P.C. read with section 3/ 4 POCSO Act at
P.S. Mahila Thana, Aligarh, against Bachu @
Hira Lal. Chick F.I.R. No. 137 of 2014, under
handwriting and signature of this witness, was
proved and exhibited as Exhibit Ka8. This,
registration of case crime number, was entered
in the G.D. entry at 4.40 P.M. of 8.11.2014;
under handwriting and signature of this
witness; proved and exhibited as Exhibit Ka9.
This G.D. entry was prepared under one and
common process, under carbon copy, and it
was in accordance with original G.D., brought
by the witness, before the court, at the time of
recording of her testimony. There is no
contradiction,
exaggeration
and
embellishment in her testimony. Not only this,
when asked about this testimony, under
statement recorded u/s 313 Cr.P.C., it was
neither disputed nor admitted by accused.
Rather ignorance of same was answered.

12. Occurrence was of 30.11.2014
and this was a case registered under
direction of S.S.P., Aligarh, passed over
Exhibit Ka1, submitted by informant,
before him. The reason of delay has been
said in this report itself that informant and
victim being poor, downtrodden labourer,
made a complaint to brickklin owner, who
asked them to get the case lodged at their
police station. They went there at P.S.
Jalalpur, district Hameerpur. But owing to
territorial jurisdiction, they again came
back at Aligarh and then after this case
could be got lodged under the direction of
S.S.P., Aligarh. Thus, reason of delay has
been properly explained. This informant
(PW1), though not being an eyewitness
account of the occurrence, is the witness
of getting FIR lodged. She, in her
statement on oath under examination in
chief, has categorically stated that her
daughter Fatima, aged about 14 years,
was suffering under ailment. Her husband
Rafiq took her at a clinic at Chandaus for
getting medicine for her. Bachu @ Hira
Lal, who was resident of village of
informant and was at work at above
brickklin, accompanied them. When her
606 INDIAN LAW REPORTS ALLAHABAD SERIES
husband went to have medicine from
Medical Store in the Town, Bachu @ Hira
Lal, under deceit, took her daughter with
him and on the way, he committed rape
with her. This was under threat of dire
consequences and by show of knife. She
came
at
brickklin
and
instantly
complained to her. They went to brickklin
owner, who asked them to lodge FIR at
P.S. Jalalpur, District Hameerpur. They
went there and again came back to
Aligarh
and
got
the
case
lodged.
Statement of her daughter was recorded
by the Magistrate and she was examined
by Medical Officer. Though, in crossexamination, she has categorically said
that
she
was
not
eyewitness
of
occurrence. Whatever was narrated by the
victim, was under her knowledge. As the
victim herself has been examined, this
hearsay witness is of no avail. Regarding
her testimony recorded under examination
in chief, there is no contradiction,
exaggeration
or
embellishment
in
examination in cross. She is fully intact.

13. PW3- Dr. Praveen Jahan, in her
examination in chief, has said that while
being
posted
as
E.M.O.
at
M.L.G.DistrictWomanHospital, Aligarh, on
8.12.2014, she had examined Km. Fatima,
D/o Rafiq, R/o Ghauhal Bujurg, P.S.
Jalalpur, District Hameerpur, at 3.40 P.M.,
brought by police personnel Constable
Suman Sharma of Police Women Cell,
Aligarh. She was of average body built; with
height of 152 cm and weight of 36 Kg. There
was no mark of external injury over her
person. Hymen was old torn and intact.
Vaginal
smear
slide,
for
checking
spermatozoa, was prepared and she was
referred to C.M.O., Aligarh, for her age
determination, with request for D.N.A.
examination. Medico legal report, under
thumb
impression
of
victim;
under
handwriting and signature of this witness,
was got prepared at the time of examination,
which is on record as Exhibit Ka3. In
accordance with pathological report (Ext.
Ka4) supplementary report was prepared by
this witness. There was no spermatozoa seen
and prosecutrix was of 15 years of age.
Exhibit Ka5 has been formally proved by
this witness. In cross-examination, she
reiterated the victim to be of 15 years of age
and not being major. Regarding her
testimony, while put u/s 313 Cr.P.C., no
dispute was made by accused or his counsel.
She is fully intact formal witness.

14. PW2- Fatima, victim, in her
examination in chief, has categorically
stated that she was of 13 years. When at
about one and half years back from the
date of evidence, at 5.00 P.M., she, along
with her father, was at a clinic at
Chandaus for taking medicine. Her father
was brickklin labour. Accused Bachu @
Hira Lal was also a labour at that
brickklin. She was left by her father at the
clinic, till he comes back after taking
medicine and some daily need things from
town. She was there when Bachu @ Hira
Lal came and asked her to be with him,
which was denied. Again he persuaded by
saying that her father had gone straight
way to brickklin and she was to
accompany him. Under belief, she went
with him. But he committed rape with her
in a sugarcane field, while being on way
to brickklin. When she protested, threat of
dire consequences by show of knife was
extended. She complained the occurrence
to her mother, after reaching at brickklin,
who got this case lodged. She was
medically examined and got her statement
recorded before Magistrate, which was
opened in Court at the time of her
testimony and was with her photograph
and thumb impression over it. The
1 All. Bachu @ Hira Lal Vs. State of U.P.
607
contents were admitted and this was
exhibited as Exhibit Ka2. In crossexamination she has said that accused
Bachu is resident of same village and he
had come at above brickklin together to
them for doing work of labour. There had
been no quarrel or any dispute previously
amongst them. Though, she could not
raise rescue call because her mouth was
shut by him and threat by show of knife
was given by him. She complained to her
mother at brickklin. Though, no one met,
while on the way, nor she complained to
anyone, otherwise she would have faced
consequences
by
Bachu.
This
was
complained to brickklin owner, but he did
not help them and asked them to go to
Hameerpur. Though, this witness has
been cross-examined at length, but in over
all appreciation of her testimony, there is
no
contradiction,
exaggeration
or
embellishment, which be treated to be
material one. Rather minor discrepancies
and variance establishes her to be a
natural witness.

15. Learned counsel for appellant
has vehemently argued about crop of
wheat and crop of sugarcane, as was
shown in site map (Ext. Ka6), wherein
'Khet Gehun' has been written by
Investigating Officer. But this court takes
notice that occurrence was of 30.11.2014
and in the month of November there
remains showing of wheat. It can never be
a crop of wheat. Moreso, such type of
variance was not a material variance at
all.
Rather
a
variation,
owing
to
perception of a child witness, who had
suffered mental agony of sexual assault
by one, who was under belief, because of
being native of same village, that too in
the evening at about 5-6 P.M. of the
month of November, which results in
sunset and such variance under above
facts
and
circumstances
is
natural
variance.

16. Learned counsel for appellants
has vehemently argued by way of hair
splitting of fact. Whereas there is catena
of judgment of this court as well as of
Apex Court that illiterate, rustic and
vulnerable witnesses, put under fatigue
cross-examination, are bound to say with
variations and those variations are natural
variations proving them to be natural
witness.

17. PW4 is Ram Darash Yadav,
Investigating
Officer.
He,
in
his
examination in chief, has said about
registration
of
case
crime
number,
investigation
deputed
to
him
and
investigation performed by him. He has
formally proved preparation of site map
(Ext. Ka6), under his handwriting and
signature filed on record, and filing of
charge sheet (Ext. Ka7), for above offence
under his handwriting and signature. In
cross-examination, no question regarding
investigation made by him or preparation
of Exhibits Ka6 and Ka7, under his
handwriting and signature, has been put to
this witness nor any question regarding
'wheat crop' or 'sugarcane crop' or
previous statement recorded u/s 161
Cr.P.C. as of witnesses have been put to
this
witness.
He
has
proved
his
investigation as formal witness.

18. The purpose for legislation of a
special Act for protection of children from
sexual
offences
has
been
given
by
Legislature itself in the POCSO Act, 2012.

"An Act to protect children
from offences of sexual assault, sexual
harassment and pornography and provide
for establishment of Special Courts for
608 INDIAN LAW REPORTS ALLAHABAD SERIES
trial of such offences and for matters
connected
therewith
or
incidental
thereto." This object is with reference and
context given by Legislature itself.

"WHEREAS
clause
(3)
of
article 15 of the Constitution, inter alia,
empowers the State to make special
provisions for children;

AND
WHEREAS,
the
Government of India has acceded on the
11th December, 1992 to the Convention
on the Rights of the Child, adopted by the
General Assembly of the United Nations,
which has prescribed a set of standards to
be followed by all State parties in
securing the best interests of the child;

AND
WHEREAS
it
is
necessary for the proper development of
the child that his or her right to privacy
and confidentiality be protected and
respected by every person by all means
and through all stages of a judicial
process involving the child;

AND
WHEREAS
it
is
imperative that the law operates in a
manner that the best interest and well
being of the child are regarded as being of
paramount importance at every stage, to
ensure the healthy physical, emotional,
intellectual and social development of the
child;

AND WHEREAS the State
parties to the Convention on the Rights of
the Child are required to undertake all
appropriate
national,
bilateral
and
multilateral measures to prevent-

(a) the inducement or coercion
of a child to engage in any unlawful
sexual activity;

(b) the exploitative use of
children in prostitution or other unlawful
sexual practices;

(c) the exploitative use of
children in pornographic performances
and materials;

AND
WHEREAS
sexual
exploitation and sexual abuse of children
are heinous crimes and need to be
effectively addressed.

BE it enacted by Parliament in
the Sixty-third Year of the Republic of
India as follows."

Meaning thereby for the best
interest and for ensuring healthy physical,
emotional,
intellectual
and
social
development of the child and preventing
them from being exploited sexually or
otherwise this Act has been legislated in
furtherance of responsibility owned vide
International
covenants
and
this
enactment
came
in
operation
on
14.11.2002 vide S.O. 2705(E), dated 9th
November, 2012, published in the Gazette
of India, Extra, Pt. II, Sec. 3(ii), No. 2250,
dated 9th November, 2012. In the present
case, the occurrence is of 30.11.2014 i.e.
after operation of this enactment.

19. Section 2(d) of this Act provides
definition of child. "Child" means any
person below the age of eighteen years".
In medical examination, as per Exhibits
Ka3, Ka4 and Ka5, prosecutrix, in the
present case, has been held to be of 15
years of age. Though, her mother and she
herself had narrated her age to be of 13
years and there are catena of citations
about two years either way in medical
age,
hence
this
medico
legal
determination of age of 15 years may be
two years either way. But towards lesser
side i.e. 13 years is supported by
testimonies of PW1 and PW2, who are
mother of the victim and victim herself.
But even if it is not being accepted,
adding two years in positive way comes
to 17 years, which is below 18 years of
age. Hence this poor vulnerable victim
PW2 was a child on the date of
occurrence.
1 All. Bachu @ Hira Lal Vs. State of U.P.
609

20. Chapter II of POCSO Act, 2012,
provides for penetrative sexual assault
and punishment therefor.

"3. Penetrative sexual assault.-

A person is said to commit
"penetrative sexual assault" if-

(a) he penetrates his penis, to
any extent, into the vagina, mouth, urethra
or anus of a child or makes the child to do
so with him or any other person; or

(b) he inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of the child or makes the child to do so
with him or any other person; or

(c) he manipulates any part of
the body of the child so as to cause
penetration into the vagina, urethra, anus
or any part of body of the child or makes
the child to do so with him or any other
person; or

(d) he applies his mouth to the
penis, vagina, anus, urethra of the child or
makes the child to do so to such person or
any other person."

21. Section 4 of POCSO Act, 2012,
provides:

"4. Punishment for penetrative
sexual
assault.-
Whoever
commits
penetrative
sexual
assault
shall
be
punished with 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."

Meaning thereby, this section
provides for punishment for penetrative
sexual assault, which provides that
whoever commits penetrative sexual
assault
shall
be
punished
with
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.

22. Learned counsel for appellant
vehemently argued that there was no
injury over the person of victim or her
private organ and no spermatozoa was
there. These injuries or presence of
spermatozoa
are
not
the
condition
precedent or sine qua non for constituting
offence of penetrative sexual assault,
written as above. It constitutes offence
even by applying mouth to private organs,
which never causes any injury or
ejaculation. Hence the argument of
learned counsel for appellant is of no
avail.

23. Section 29 of the Act provides as
under:

"29. Presumption as to certain
offences.- Where a person is prosecuted
for committing or abetting or attenuating
to commit any offence under sections
3,5,7 and section 9 of this Act, the Special
Court shall presume, that such person has
committed or abetted or attempted to
commit the offence, as the case may be,
unless the contrary is proved."

Meaning thereby, this section
provides for presumption as to certain
offences. It provides that where a person
is prosecuted for violating any offence
under sections 3, 5, 7 and section 9 of this
Act, the Special Court shall presume, that
such person has committed or abetted or
attempted to commit the offence, as the
case may be, unless the contrary is
proved.

24. The cardinal principle of
criminal jurisprudence is, unless proved,
610 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption of innocence is there and
prosecution is to prove charge beyond
doubt, whereas accused is to prove
exceptions, given under the Code, or lack of
any essential ingredient of that particular
offence to the extent of preponderance of
probabilities. If he succeeds in creating
situation of existence of preponderance of
probabilities, then benefit of doubt is to be
given to him i.e.; the prosecution failed to
prove its case beyond reasonable doubt. But
in this special legislation, this principle has
been done away. Here, if the victim is child,
below the age of 16 years, the presumption
is in favour of prosecution and the defence
is to prove contrary to it. But no evidence in
defence has been laid by accused. Except a
statement of false concoction, that owing to
advance of Rs. 35000/- lent to informant
has been said in statement recorded u/s 313
Cr.P.C. Whereas PW1 and PW2 both have
proved that this accused is resident of same
village of informant and he too is a labourer
at brickklin, situated at Chandaus, District
Aligarh, where he along with informant and
other labourers had gone from district
Hameerpur to do work of labour. Moreso,
this plea was taken by convict-appellant and
he was required to prove it that he had
advanced money. He was a banker or
money lender or was not a poor
downtrodden labourer category and he had
been running business of money lending.
There was dues of Rs. 35000/- against
informant for which she got this case
registered. But not even a single iota of
evidence has been given by convictappellant. Whereas victim- prosecutrix, a
child witness, has proved charge, levelled
against convict-appellant, and this was
substantiated and corroborated by formal
witnesses.

25. Section 506 I.P.C. provides that
whoever commits, the offence of criminal
intimidation shall be punished with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both; If threat be to
cause death or grievous hurt, etc.-And if
the threat be to cause death or grievous
hurt, or to cause the destruction of any
property by fire, or to cause an offence
punishable with death or imprisonment
for life, or with imprisonment for a term
which may extend to seven years, or to
impute, unchastity to a woman, shall be
punished with imprisonment of either
description for a term which may extend
to seven years, or with fine, or with both.

26. The essential ingredient for
offence punishable under this section is
offence of criminal intimidation defined
under section 503 I.P.C. Section 506
I.P.C. provides punishment for it and
essential
ingredients
for
offence
punishable u/s 506 I.P.C. i.e. criminal
intimidation - (1) threatening a person (i)
with any injury to his person, reputation
or property; or (ii) to the person or
reputation of any one in whom that person
is interested. (2) the threat must be with
intent; (i) to cause alarm to that person,
(ii) or to cause that person to do any act
which he is not legally bound to do, as the
means of avoiding the execution of such
threat; (iii) or to omit to do any act which
that person is legally entitled to do, as the
means of execution of such threat.

27. To bring home an offence
punishable u/s 506 I.P.C. the prosecution has
to prove that accused threatened the victim to
injure his person, reputation or property or to
the person or reputation of any one in whom
that person is interested. In the present case
PW2- victim, in her testimony, has said that
while she protested for rape, the convictappellant intimidated her by show of knife
1 All. Bachu @ Hira Lal Vs. State of U.P.
611
for killing her in case of opening of lips to
anyone or protesting such rape. She was
criminally intimidated and assaulted for
sexual assault. For this, there is no
contradiction
or
exaggeration
or
embellishment. Rather full corroboration is
there. Hence this too has been fully proved.

28. So far as sentence regarding
appellants is concerned, it is always a difficult
task
requiring
balancing
of
various
considerations. The question of awarding
sentence is a matter of discretion to be exercised
on consideration of circumstances aggravating
and mitigating in the individual case.

29. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. It is obligation of
Court to constantly remind itself that right
of victim, and be it said, on certain
occasions persons aggrieved as well as
society at large can be victims, never be
marginalised. The measure of punishment
should be proportionate to gravity of
offence. Object of sentencing should be to
protect society and to deter the criminal in
achieving avowed object of law. Further,
it is expected that Courts would operate
the sentencing system so as to impose
such sentence which reflects conscience
of society and sentencing process has to
be stern where it should be. The Court
will be failing in its duty if appropriate
punishment is not awarded for a crime,
which has been committed not only
against individual victim but also against
society to which criminal and victim
belong. Punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality with which the
crime has been perpetrated, enormity of
crime warranting public abhorrence and it
should 'respond to society's cry for justice
against the criminal'. [Vice Sumer Singh
Vs. Surajbhan Singh and others, (2014)
7 SCC 323, Sham Sunder Vs. Puran,
(1990) 4 SCC 731, M.P. Vs. Saleem,
(2005) 5 SCC 554, Ravji Vs. State of
Rajasthan, (1996) 2 SCC 175].

30. Hence, applying the principles
laid down by the Apex Court in the
aforesaid judgments and having regard to
the totality of facts and circumstances of
case, nature of offence and the manner in
which it was executed or committed, I
find that punishment imposed upon the
appellant by Trial Court in impugned
judgment and order is not excessive or
exorbitant and no question arises to
interfere in the mater on the point of
punishment imposed upon them.

31. In view of the above facts and
circumstances, impugned judgment and
order dated 20.10.2018 deserves to be
affirmed and appeal is liable to be
dismissed.

32. In the result, the Criminal
Appeal is dismissed. Impugned judgment
and order dated 20.10.2018, detailed
above, is hereby confirmed/affirmed. The
appellant, who is in jail, shall serve out
the sentence awarded to him by the Trial
Court.

33. Copy of this order along with
lower Court record be sent to Court
concerned forthwith.

34. A copy of this order be also sent
to appellant through concerned Jail
Superintendent.
--------
612 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 6648 OF 2017

Inayatullah ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Ms. Abida Syed (A.C.)

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

A.
Evidence
Act
-
merely
because
witnesses are close relatives of victim,
their testimonies cannot be discarded.
Relationship with one of the parties is
not a factor that affects credibility of
witness. More so, a relative would not
conceal the actual culprit and make
allegation against an innocent person.
However, in such a case Court has to
adopt a careful approach and analyse the
evidence to find out that whether it is
cogent
and
credible
evidence.
(Para35)

B. No prosecution case is fool proof and
the same is bound to suffer from some
lacuna or the other. It is only when such
lacunae are on material aspects going to
the root of the matter, it may have
bearing on the outcome of the case, else
such shortcomings are to beignored.
 (Para 45)

C. Section 313 Cr.P.C- Power to examine
the accused-Court has to see whether in
broad narration given by witnesses, if
there is any material contradiction so as
to render evidence so self-contradictory
as to make it untrustworthy. Minor
variations or such omissions which do
not otherwise affect trustworthiness of
evidence, which is broadly consistent in
statement of witnesses, is of no legal
consequence
and
cannot
defeat
prosecution. (Para 46)

Minor
contradictions,
inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a
ground on which the evidence can be rejected
in its entirety. Court has to form its opinion
about the credibility of witness and record a
finding,
whether
his
deposition
inspires
confidence. Exaggerations per se do not render
the evidence brittle, but can be one of the factors
to test credibility of the prosecution version, when
entire evidence is put in a crucible for being tested
on the touchstone of credibility. Therefore, mere
marginal variations in the statement of a
witnesses cannot be dubbed as improvements as
the same may be elaborations of the statements
made by the witnesses earlier. Only such
omissions which amount to contradictions in
material particulars i.e. Go to the root of the
case/materially affect the trial or core of the
prosecution's case, render the testimony of the
witness liable to be discredited. (Para -47)

D. Recovery - No independent witness.
Held:- prosecution not obliged to produce
independent witness in support

of recovery involving police.