# Gaura @ Gaurav v. State of U.P

- **Citation:** (2025) 11 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-27
- **Case number:** Criminal Appeal No. 682 of 2020
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaura-gaurav-v-state-of-u-p-54874
- **Pages:** 13

## Headnote

G.A.

Issue for Consideration
Matter pertains to whether the prosecution
proved beyond reasonable doubt that the
accused committed offences punishable under
S. 376(2)(i) IPC and Ss. 3/4 of the POCSO Act,
2012, and whether the trial court could lawfully
convict
and
sentence
the
accused
simultaneously under IPC and POCSO Act in
view of S. 42 of the POCSO Act.

Headnotes
Criminal Trial - Appreciation of Evidence -
Prosecutrix turning hostile - Victim (P.W.-
2) did not support prosecution version and
categorically denied occurrence - Her
testimony exonerating the accused cannot
be ignored - Evidence - Star witnesses
resiling - Informant mother (P.W.-1) and
father (P.W.-3) contradicted FIR version
and
denied
presence
at
place
of
occurrence - Father declared hostile -
Prosecution version not corroborated -
Medical
and
Forensic
Evidence
-
Corroboration absent - Medical opinion:
"No definite opinion about sexual assault
can
be
given"
-
FSL
report:
"no
spermatozoa were found on all the 07
articles" -POCSO Act, 2012 - S. 42 -
Alternate punishment - Conviction and
sentence cannot be imposed both under
IPC and POCSO Act - Punishment must be
under the statute providing punishment
496 INDIAN LAW REPORTS ALLAHABAD SERIES
"greater
in
degree"
-
Criminal
Jurisprudence - Benefit of doubt - Where
prosecution fails to establish guilt beyond
reasonable doubt, accused entitled to
acquittal.

Held: Prosecution "has failed to prove its case
beyond
reasonable
doubt
against
the
accused/appellant" - victim "has also not
supported the prosecution case and has
exonerated
the
accused/appellant"
-
the
material exhibit sent to the Forensic Science
Lab, Agra for examination did not find anything
incriminating in them and as such corroboration
through them is not in the present matter - trial
court "has also erred in convicting and
sentencing the accused/appellant under two
counts being under the provisions of Indian
Penal Code and POCSO Act, 2012", contrary to
S. 42 of the POCSO Act, 2012 - the impugned
judgment and order dated 10.01.2020 is set
aside and "the appellant is acquitted of the
charges levelled against him." (Paras - 30, 31,
32, 33, 34) (E-7)

Case Law Cited
Krishnakant Vs. State of U.P.: (2022) 10 ILRA
982: Criminal Appeal No. 355/2018.

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973; Prevention of Children from
Sexual Offences Act, 2012.

List of Keywords
beyond reasonable doubt; hostile; no definite
opinion about sexual assault can be given; no
spermatozoa were found; alternate punishment;
penetrative sexual assault; false implication;
torn hymen; set aside; acquitted; benefit of
doubt; Greater in degree; Reasonable doubt.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 682 of 2020, arising out of judgment
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, Case Crime No. 318 of 2017, P.S.
Lohamandi, District Agra.

Appearances for Parties
Advs. for the Appellant:
Abhishek Mayank
Ram Ker Singh
Shashikala Mani Tripathi
Advs. for the Respondent:
G.A. (State of U.P.)

## Text

_Characters 0–39,915 of 43,264. This is a partial read: ask again with offset=39915 for what follows._

11 All. Gaura @ Gaurav Vs. State of U.P.
495
medicines
which
were
sold
by
the
Nectarine Pharmacy to Bhuwan Pharma
and from Bhuwan Pharma to appellant
herein are different medicines then the
medicines of the same batch which were
sealed by the Drug Inspector from the
Nectarine Pharmacy are different, the
appellant herein cannot be held responsible
for
any
substandard
quality
of
the
medicines seized from his shop. If there
was any substandard quality of medicine, it
was the manufacturer of the medicine who
alone is responsible for the same. The
appellant
herein
has
categorically
discharged its burden by disclosing source
of purchase of the aforesaid medicine and
both the sources of the aforesaid purchase
of medicines were valid sources having a
proper license for production and sale of
the medicines. Thus, in the considered
opinion of this Court, the impugned
judgment of the trial court is not
sustainable in the eye of law and is liable to
be set aside.

32. Accordingly, the instant appeal is
allowed. The judgment and order dated
09.02.1984 passed by the trial court is
hereby set aside. The appellant herein is
acquitted of all the charges leveled against
him. The conviction and sentence awarded
to the appellant herein is also set-aside.

33. Since, the appellant is on bail, his
bail bonds are cancelled and sureties are
discharged.

34. Let the trial court record be sent
back to the trial court to be consigned. The
seized material, if any, be disposed of in
accordance with law after ninety days of
the instant order.
---------
(2025) 11 ILRA 495
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2025

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 682 of 2020

Gaura @ Gaurav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Abhishek Mayank, Ram Ker Singh, Shashikala
Mani Tripathi

Counsel for the Respondent:
G.A.

Issue for Consideration
Matter pertains to whether the prosecution
proved beyond reasonable doubt that the
accused committed offences punishable under
S. 376(2)(i) IPC and Ss. 3/4 of the POCSO Act,
2012, and whether the trial court could lawfully
convict
and
sentence
the
accused
simultaneously under IPC and POCSO Act in
view of S. 42 of the POCSO Act.

Headnotes
Criminal Trial - Appreciation of Evidence -
Prosecutrix turning hostile - Victim (P.W.-
2) did not support prosecution version and
categorically denied occurrence - Her
testimony exonerating the accused cannot
be ignored - Evidence - Star witnesses
resiling - Informant mother (P.W.-1) and
father (P.W.-3) contradicted FIR version
and
denied
presence
at
place
of
occurrence - Father declared hostile -
Prosecution version not corroborated -
Medical
and
Forensic
Evidence
-
Corroboration absent - Medical opinion:
"No definite opinion about sexual assault
can
be
given"
-
FSL
report:
"no
spermatozoa were found on all the 07
articles" -POCSO Act, 2012 - S. 42 -
Alternate punishment - Conviction and
sentence cannot be imposed both under
IPC and POCSO Act - Punishment must be
under the statute providing punishment
496 INDIAN LAW REPORTS ALLAHABAD SERIES
"greater
in
degree"
-
Criminal
Jurisprudence - Benefit of doubt - Where
prosecution fails to establish guilt beyond
reasonable doubt, accused entitled to
acquittal.

Held: Prosecution "has failed to prove its case
beyond
reasonable
doubt
against
the
accused/appellant" - victim "has also not
supported the prosecution case and has
exonerated
the
accused/appellant"
-
the
material exhibit sent to the Forensic Science
Lab, Agra for examination did not find anything
incriminating in them and as such corroboration
through them is not in the present matter - trial
court "has also erred in convicting and
sentencing the accused/appellant under two
counts being under the provisions of Indian
Penal Code and POCSO Act, 2012", contrary to
S. 42 of the POCSO Act, 2012 - the impugned
judgment and order dated 10.01.2020 is set
aside and "the appellant is acquitted of the
charges levelled against him." (Paras - 30, 31,
32, 33, 34) (E-7)

Case Law Cited
Krishnakant Vs. State of U.P.: (2022) 10 ILRA
982: Criminal Appeal No. 355/2018.

List of Acts
Indian Penal Code, 1860; Code of Criminal
Procedure, 1973; Prevention of Children from
Sexual Offences Act, 2012.

List of Keywords
beyond reasonable doubt; hostile; no definite
opinion about sexual assault can be given; no
spermatozoa were found; alternate punishment;
penetrative sexual assault; false implication;
torn hymen; set aside; acquitted; benefit of
doubt; Greater in degree; Reasonable doubt.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 682 of 2020, arising out of judgment
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, Case Crime No. 318 of 2017, P.S.
Lohamandi, District Agra.

Appearances for Parties
Advs. for the Appellant:
Abhishek Mayank
Ram Ker Singh
Shashikala Mani Tripathi
Advs. for the Respondent:
G.A. (State of U.P.)

(Delivered by Hon'ble 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,
11 All. Gaura @ Gaurav Vs. State of U.P.
497
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, 2012, Police Station
Lohamandi, District Agra on 17.10.2017 at
16:20 hours. The Chik F.I.R. is Ex. Ka-5 to
the records.

8. Investigation in the matter started
and victim X was subjected to medical
examination on 17.10.2017 at about 06:30
p.m. by Dr. Shuchi Rani Gupta wherein the
doctor did not find any injuries on her body
but on internal examination the doctor
found her hymen to be torn, no active
bleeding was present and only redness was
present over introitus. The opinion of the
doctor was as under:-

"No definite opinion about sexual
assault can be given."

The said medical examination
report is Ex. Ka-3 to the records.

9. A supplementary medico legal
report was prepared by the doctor on
17.10.2017
mentioning
therein
that
according to C.M.O. age of the victim
X is 07 years. Further the doctor opined
that no evidence of any penetrative sexual
assault was present. Vaginal smear was
498 INDIAN LAW REPORTS ALLAHABAD SERIES
sent for examination which did not find any
alive or dead spermatozoa. The said
supplementary medico legal report is Ex.
Ka-4 to the records.

10. Recovery memo regarding towel
and handing over of the accused and
payjama of the victim X was prepared
on 17.10.2017. The same is Ex. Ka-7 to the
records.

11. Clothes of the accused and the
victim X were sent to Forensic Science
Lab, Agra for its examination. A report
dated 01.11.2018 has been sent by the
Forensic Expert with regards to the said 07
items opining that no spermatozoa was
found on all the 07 articles. The said report
is Ex. Ka-10 to the records.

12. The victim X was produced
before the Magistrate concerned and her
statement under Section 164 Cr.P.C. was
recorded which is Ex. Ka-2 to the records.

13. Investigation concluded and a
charge sheet dated 08.12.2017 was filed
against the appellant/accused for the
offences under Sections 376 I.P.C. and
3/4 POCSO Act, 2012. The court
concerned took cognizance upon the said
charge sheet vide its order dated
08.1.2018, copy of the said charge sheet
is Ex. Ka-9 to the records.

14 . The court of Special Judge,
POCSO Act/Additional Sessions Judge,
Court No. 6, Agra vide order dated
17.4.2018 framed charges against the
appellant/accused
for
the
offences
under Sections 376 I.P.C. and 3/4
POCSO Act, 2012. The same was read
over and explained to the accused who
pleaded not guilty and claimed to be
tried.

15. The trial in the matter started in
which Smt. Rekha/first informant was
examined as P.W.-1, the victim X was
examined as P.W.-2, Sunil the father of the
victim was examined as P.W.-3, Dr. Shuchi
Rani Gupta was examined as P.W.-4, Head
Constable Vijendra Singh was examined as
P.W.-5, Inspector Anant Kumar Singh was
examined as P.W.-6 and Sub-Inspector
Jagdamba Singh was examined as P.W.-7.
The accused in his statement under Section
313 Cr.P.C. recorded on 31.5.2019 denied
the prosecution story and stated of false
implication. No defence evidence was led.
Trial court then convicted and sentenced
the accused/appellant as above.

16. Smt. Rekha P.W.-1 is the first
informant and mother of the victim. She
states that her husband is a sweeper. On
17.102017 at about 1.30 p.m. she sent her
daughter/victim aged about 7 years to a
shop in the locality for fetching some
articles wherein Gauru@Gaurav who lives
in front of her house, allured and took away
her daughter to his house. When her
daughter did not return back after sometime
then she went to search her and shouted for
her. When she reached the house of Gauru
she heard cry of her daughter. She then
called her husband Sunil from the house.
Both of them then went inside the house
and saw that Gauru had caught hold of her
daughter and had taken out of her paijama,
made her sit on himself
and was
committing wrongful act with her. She and
her husband Sunil apprehended him there
only and saved her daughter. At that time
Gauru wearing a towel and his pant and
underwear were kept nearby. Many people
of locality collected there. Gauru confessed
his guilt and apologized for the act. She and
her husband and people of the locality then
took Gauru to the police station along with
his pant and underwear. She got a report
11 All. Gaura @ Gaurav Vs. State of U.P.
499
lodged at the police station. Tehrir which
was given by her is present in the copy
which bears her signature. The same is Ex.
Ka-1 to the records. Her statement was
recorded by the Investigating Officer.

She in her cross-examination states
that it is correct to say that she is illiterate.
She only knows how to sign. She states that
she does not know who wrote the Tehrir.
She states that it is correct that Tehrir was
not read over to her and neither did she
read it. She only did her signature on it. She
further states that it is correct that on
17.10.2017 she was not present at her
house. Neighbours had called her through
her mobile. Her husband was also not in the
house. She states that it is correct that she
did not see the incident and was also not
present at the place of occurrence. People
of nearby had apprehended Gauru and had
detained him. She and her husband did not
apprehend him. Her daughter did not tell
her anything about the incident. The police
did not record her statement and neither did
they make the site plan in front of her.

17. P.W.-2 is the victim X aged
about 7 years. She was asked certain
general questions by the court after which
the court was of the opinion that she is
capable of giving answers to the questions
and then proceeded for recording of her
statement. She was taken in a close room
where she was examined. Her examination
is in question-answer form. She states that
she knows Gauru@Gaurav who lives near
her house and is her chacha by relation. She
further states that no untoward incident
took place with her. She further states that
the accused did not take her to his house.
She further states that he did not take out
her pajami. She states that the police did
not interrogate her. She states that her
statement was recorded in the court. The
police got her medically examined. Her
statement was recorded under Section 164
Cr.P.C. and her photograph and signature
was got identified, which was marked as
Ex. Ka-2. On the showing of the said
statement she states that same was recorded
before the Magistrate.

In her cross-examination she states
that she gave her statement in the court on
her own. Further she states that she was
playing where she fell down and received
injuries. She does not remember where she
received injuries. She went to the doctor.

18. Sunil P.W.-3 is the father of the
victim X. He states that on 17.10.2017
at about 1.30 p.m. his daughter victim
X aged about 7 years was sent by his
wife to a shop situated in the locality for
getting some articles. His younger daughter
aged about 02 years and son aged about 4
years were also with her. On the way
Gauru@Gaurav a person living in front of
his house, did not meet his daughter,
neither he allured her and took her to his
house. He was not interrogated by the
Investigating Officer. On the request of
prosecution the witness was declared
hostile
and
cross-examination
was
permitted.

In his cross-examination he was read
his statement recorded during investigation
by the police to which he states that he
cannot tell as to how it was recorded.
Further he states that it is incorrect that on
hearing of cry of his daughter from the
house of Gauru@Gaurav, he and his wife
went inside the house and found the
accused catching hold of his daughter and
committing some illegal act with her. He
states that he has not seen any such
incident. He states that it is incorrect that he
was present at the place of occurrence. He
500 INDIAN LAW REPORTS ALLAHABAD SERIES
further
states
that
the
police
had
interrogated his daughter and she was
medically examined. The police had got
recorded the statement of his daughter
before the Magistrate in his presence. He
further states that it is incorrect that
compromise has been entered into with the
accused Gauru@Gaurav and thus he is not
giving the correct statement. He states that
it is correct that he and his wife were not
present at the place of occurrence. He
further states that it is correct that his wife
on the saying of people of the locality had
lodged the report against Gauru@ Gaurav.
He further states that before recording of
the statement of his daughter in the court,
the police officials had tutored her and then
she had given her statement. The police had
not prepared any fard before him but
has got him signed on a plain paper.

19. P.W.4 Dr. Shuchi Rani Gupta was
the Medical Officer at District Women
Hospital, Agra on 17.10.2017. On the said
date at about 6.30 p.m. Lady Constable
No.616 Rukhsana Parveen brought the
victim X to the hospital for medical
examination. She conducted her medical
examination and prepared its report. She
further prepared a supplementary medical
report. Both the reports have been proved
by her and marked as Ex. Ka-3 and Ex. Ka4 to the records respectively. The details of
the same have already been given above
and thus are not being given on the count of
repetition.

In her cross-examination she states
that within 72 hours it can be known
whether sperm are dead or alive. The
victim had no other injury either on her
body or internally and thus the injury
received by her could not have been caused
by falling on a blunt object. The victim did
not tell her that she received injuries by
falling while playing. The victim was not
having any bleeding. She does not
remember whether she was interrogated by
the police or not. When the victim had
come for medical examination she does not
remember
whether
the
victim
was
accompanied by her mother and father or
not.
When
she
came
for
medical
examination her pulse was normal. It is
incorrect that the fact which the victim told
her that she has been raped, was an
incorrect fact. She states that it is incorrect
to state that she is giving a false statement
today.

20. P.W.-5 Vijendra Singh Head
Constable is a formal witness. He states
that on 17.10.2017 he transcribed the chik
F.I.R. and GD corresponding to it. He
further states that the accused Gauru @
Gaurav was brought at the police station
and a memo regarding it and recovery
memo of payjami (plazo) was prepared. He
proves them being chik F.I.R. and Ex. Ka-5
and Ex. Ka-6 to the records.

21. P.W.-6 Anant Kumar was Deputy
Director, Forensic Science Lab, Agra. He
states that 7 articles were received at the
Forensic
Science
Lab
which
were
examined and a report was prepared. In all
the 7 articles no spermatozoa was found.
The report was forwarded by Joint
Director. The report was proved by him,
which is Ex. Ka-10 to the records.

In his cross-examination he states that
underwear also did not contain any spot
and payjami of the victim was also not
found containing any spot on it.

22. P.W.-7 Jagdamba Singh is the
Investigating Officer of the matter. He
states that he has taken up investigation on
17.10.2017. He recorded the statement of
11 All. Gaura @ Gaurav Vs. State of U.P.
501
the victim, the informant and other persons.
He took into the possession of towel of the
accused Gauru @ Gaurav and paijami of
the victim. He got the statement of the
victim recorded under Section 164 Cr.P.C.
He prepared site plan on the pointing out of
the informant. The same is Ex. Ka-8 to the
records. He states that the accused was
brought to the police station who was also
taken into custody. He completed the
investigation and filed a charge sheet
against the accused/appellant. The same
has been proved and marked as Ex. Ka-9 to
the records.

In his cross-examination he states that
site plan was prepared on the pointing out
of the first informant. He denies the fact
that the victim X was tutored by him
before recording of her statement under
Section 164 Cr.P.C. He further denies that
investigation is incorrect. He further denies
that he has filed a false charge sheet
without any evidence.

23. The accused in his statement under
Section 313 Cr.P.C. denied the prosecution
case in whole. He states that the statements
of the witnesses are false. He states that he
does not intend to give any defense
evidence.

24. The trial court thus came to its
conclusion that the accused has committed
rape upon the victim X and charges
against him are proved under Section
376(2) (i) I.P.C. and Section 3/4 POCSO
Act, 2012 and the prosecution has been
successful in proving its case beyond
reasonable
doubt.
It
convicted
and
sentenced the accused appellant as above.

25. Learned counsel for the appellant
raised two arguments in the present matter.
The first argument raised by him is that the
appellant has been falsely implicated in the
present case. It is submitted that there is no
credible
evidence
against
the
accused/appellant. It is submitted that
although P.W.-1 Smt. Rekha the first
informant and mother of the victim X
in her examination-in-chief reiterated the
version of the First Information Report but
in her cross-examination she states that she
does not know as to who had written the
Tehrir given at the police station for
lodging of the F.I.R. She further states that
she was not read over the said Tehrir and
neither she read it herself but had only
made her signature on it. Further in crossexamination she states that on the date of
incident she was not present at the house.
Neighbours had called her through phone.
Her husband was also not present there.
She states that it is correct that she did not
see the incident herself and was not present
at the place of occurrence. She states that
her daughter did not tell her about any
incident. It is submitted that thus the said
witness is wholly unreliable in so far as the
fact as stated by her in the F.I.R. and in her
examination-in-chief
that
the
accused/appellant was apprehended by her
and other people of the locality is
concerned. The same is false and incorrect
inasmuch as in her cross-examination she
stated
that
people
of
nearby
had
apprehended the accused-appellant and she
and her husband did not apprehend him. It
is submitted that thus in so far as the fact
that the accused/appellant was apprehended
while committing the said incident by the
first informant, her husband and people of
the locality is concerned is totally false. It
is submitted further that the victim was
asked various questions by the trial court
and after being satisfied regarding her
ability to answer them, she was then
examined
wherein
she
denied
the
prosecution case in whole. It is submitted
502 INDIAN LAW REPORTS ALLAHABAD SERIES
that the victim in her cross-examination has
stated that she received injuries after falling
in the house while playing. It is submitted
that thus even the statement of the victim
does not implicate the accused/appellant. It
is further submitted that Sunil P.W.-3 the
father of the victim and husband of the first
informant P.W.1 has not supported the
prosecution case in whole and has been
declared hostile by the trial court. His
testimony thus is of no use to the
prosecution. It is submitted that the
prosecution has not produced and examined
any other independent witness or person of
the locality so as to substantiate its case
regarding
the
accused/appellant
being
involved in the matter and he being
apprehended while committing rape upon
the victim X. It is submitted further that
in so far as corroboration of the incident of
rape is concerned, although underwear of
the accused/appellant, his hair, one slide,
one swab and then two slides of the victim,
one towel and one plazo of the victim were
sent to the Forensic Science Lab, Agra,
U.P. for examination but its report dated
01.11.2018, which is Ex. Ka-11 to the
records, states that all the 07 items were not
found to contain any spermatozoa. It is
submitted that thus the said items also fail
to corroborate the allegation of rape. It is
submitted that thus there is no credible
evidence regarding the accused/appellant
committing rape upon the victim X. It
is further submitted that in so far as the
case of the prosecution regarding the
accused/appellant being apprehended by
the first informant and her husband at the
place of occurrence while committing rape
is concerned, the same is also not
consistent looking to the statement of the
first informant/Smt. Rekha P.W.-1 and
Sunil her husband P.W.-2. The fact that the
accused/appellant was living in front of the
house of the first informant is not under
dispute and thus his presence in the locality
was a natural consequences.

26. Next argument of learned counsel
for the appellant/accused while criticizing
the judgement of the trial court is that
charge in the present matter was framed
against the accused/appellant vide order
dated 17.4.2018 for offences under Section
376 I.P.C. and Section 3 of POCSO Act,
2012 which is punishable under Section 4
of the said Act. The trial court came to its
conclusion that offences under Section 376
(2) (i) I.P.C. and under Section 3/4 POCSO
Act, 2012 are proved beyond reasonable
doubt against the accused and thus
convicted him under the said sections.
While awarding sentence the trial court
awarded the accused/appellant 14 years
rigorous imprisonment along with fine of
Rs.50,000/- and in default of payment of
fine to 01 year additional imprisonment for
the offence under Section 376(2)(i) I.P.C.
and for 07 years rigorous imprisonment, a
fine of Rs.25,000/- and in default of
payment of fine 03 months additional
imprisonment under Sections POCSO
Act, 2012. The sentences were ordered to
run concurrently. It is submitted that
interference in the trial court judgement is
called for as the trial court has found the
accused/appellant guilty for offences under
Sections 376(2)(i) I.P.C. and 3/4 of POCSO
Act, 2012 and the trial court ought to have
passed the sentence either under the Indian
Penal
Code
or
POCSO
Act,
2012
whichever has greater punishment awarded
in anyone of the Act. It is submitted that
Section 42 of POCSO Act, 2012 empowers
the court to give alternative punishment if
the accused is found guilty for the offences
which are punishable with both the
provisions of Section 376 I.P.C. as well as
of POCSO Act, 2012 which is greater in
degree. If the accused is found guilty under
11 All. Gaura @ Gaurav Vs. State of U.P.
503
Section
376
I.P.C.,
if
punishment
prescribed in it is higher then the court is
required to pass higher sentence under
Indian Penal
Code
and
if
sentence
prescribed in POCSO Act, 2012 is more
than the sentence awarded under the I.P.C.
then the court is required to provide higher
punishment prescribed under the POCSO
Act, 2012. Section 42 of the POCSO Act,
2012 has been placed before the Court
which reads as under:-

"42.
Alternate
punishment.--
Where an act or omission constitutes an
offence punishable under this Act and also
under sections 166A, 354A, 354B, 354C,
354D, 370, 370A, 375, 376, 2[376A,
376AB,
376B,
376C,
376D,
376DA,
376DB], 3[376E, section 509 of the Indian
Penal Code or section 67B of the
Information Technology Act, 2000 (21 of
2000)], then, notwithstanding anything
contained in any law for the time being in
force, the offender found guilty of such
offence shall be liable to punishment only
under this Act or under the Indian Penal
Code as provides for punishment which is
greater in degree."

27. It is submitted that the trial court in
the present matter has awarded sentence
under Indian Penal Code and POCSO Act,
2012 both and thus on this count also the
sentence and the reasoning given by the
trial court are required to be interfered.
Reliance has been placed by learned
counsel for the appellant on the judgement
of this Court in the case of Krishnakant Vs.
State of U.P.: (2022) 10 ILRA 982:
Criminal Appeal No. 355/2018, decided on
27.09.2022, Para-24 to 31 wherein it has
been held as under:-

"24. This Court first deals with
the argument of learned counsel for the
appellant that the conviction of the
accused-appellant under Section 376 IPC
and Section 4 POCSO Act for a maximum
sentence of 15 years in both is not justified
as per Section 42 of the POCSO Act, the
same would be illegal and incorrect.

25. Section 42 POCSO Act
provides that the offender found guilty of
such offence shall be liable to punishment
either under the POCSO Act or under IPC
whichever is greater in degree. It reads as
under:-

"42:- Alternate punishment. -
Where an act or omission constitutes an
offence punishable under this Act and also
under sections 166A, 354A, 354B, 354C,
354D, 370, 370A, 375, 376, 376A, 376AB,
376B, 376C, 376D, 376DA, 376DB, 376E,
section 509 of the Indian Penal Code (45 of
1860) or section 67B of the Information
Technology Act, 2000 (21 of 2000) then,
notwithstanding anything contained in any
law for the time being in force, the offender
found guilty of such offence shall be liable
to punishment only under this Act or under
the Indian Penal Code as provides for
punishment which is greater in degree."

26. The sentence awarded to the
accused-appellant by the trial court under
Section 376 IPC is 15 years R.I.,
Rs.15,000/- as fine and in default of
payment of fine 2 years additional
imprisonment. Then under Section 4
POCSO
Act
to
15
years
rigorous
imprisonment, Rs.15,000/- as fine and in
default of payment of fine to 2 years
additional imprisonment.

27. For determination regarding
higher degree of sentence, Section 376 IPC
is to be seen. It provides that whoever
except in the cases provided in sub-section
504 INDIAN LAW REPORTS ALLAHABAD SERIES
(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, 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 12 years of age,
in which case he shall be punished with
either description for a term which may
extend to two years or fine or both. Thus,
the punishment is under two parts in this
Section being:-

1. Not less than seven years,
which may extend to life,

2. For a term which may extend
to ten years and shall also be liable to fine.

Section 376 IPC reads as under:-

"376. Punishment for rape. -

(1) 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 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.

(2) Whoever,--

(a) being a police officer commits
rape-

(i) within the limits of the police
station to which he is appointed; or

(ii) in the premises of any station
house whether or not situated in the police
station to which he is appointed; or

(iii) on a woman in his custody or
in the custody of a police officer
subordinate to him; or

(b) being a public servant, takes
advantage of his official position and
commits rape on a woman in his custody as
such public servant or in the custody of a
public servant subordinate to him; or

(c) being on the management or
on the staff of a jail, remand home or
other place of custody established by or
under any law for the time being in force
or of a woman's or children's institution
lakes advantage of his official position
and commits rape on any inmate of such
jail, remand home, place or institution;
or

(d) being on the management or
on the staff of a hospital, takes advantage
of his official position and commits rape on
a woman in that hospital; or

(e) commits rape on a woman
knowing her to be pregnant; or

(f) commits rape on a woman
when she is under twelve years of age; or

(g) commits gang rape,

shall be punished with rigorous
imprisonment for a term which shall not be
11 All. Gaura @ Gaurav Vs. State of U.P.
505
less than ten years but which may be for
life and shall also be liable to fine:

Provided that the court may, for
adequate and special reasons to be
mentioned in the judgment, impose a
sentence
of
imprisonment
of
either
description for a term of less than ten
years,

Explanation I.--Where a woman
is raped by one or more in a group of
persons acting in furtherance of their
common intention, each of the persons
shall be deemed to have committed gang
rape within the meaning of this sub-section.

Explanation
2.--"Women's
or
children's institution" means an institution,
whether called an orphanage or a home for
neglected woman or children or a widows'
home or by any other name, which is
established
and
maintained
for
the
reception and care of woman or children.

Explanation 3.--"Hospital" means
the precincts of the hospital and includes
the precincts of any institution for the
reception and treatment of persons during
convalescence or of persons requiring
medical attention or rehabilitation."

28. In the present case the trial
court has resorted to the second part of
the conviction under Section 376 IPC
whereas under Section 4 POCSO Act
while dealing with penetrative sexual
assault, the trial court while holding the
victim to be less than 16 years of age
(being of 15 years, 10 months and 25
days old) has resorted to the punishment
of 15 years being not less than seven
years
but
which
may
extend
to
imprisonment for life and has also
imposed fine as is also provided in it.

29. Hence punishment under
Section 4 POCSO Act is greater in degree
as under Section 376 IPC, the punishment
of imprisonment for life was with no fine
but punishment which was with fine was
up-to ten years only.

30. The Court thus comes to the
conclusion that the punishment under
Section 4 POCSO Act is a graver
punishment. Hence as per Section 42
POCSO Act, in case of a conviction under
Section 376 IPC and for penetrative sexual
assault punishable under Section 4 POCSO
Act, the sentence has to be awarded under
Section 4 POCSO Act only because it is a
sentence of greater degree.

31. Hence the argument of the
learned counsel for the appellant that the
accused-appellant cannot be convicted
under Section 376 IPC finds force. As such
the sentence as awarded under Section 376
IPC is set-aside."

28. It is submitted that as such the
present appeal deserves to be allowed and
conviction
and
sentence
of
the
accused/appellant deserves to be set aside.
The accused/appellant is in jail, he be
directed to released forthwith.

29.
Per
contra,
learned
A.G.A.
opposed the present appeal and the
arguments of learned counsel for the
appellant. It is submitted that in the present
case the victim was found to have received
injuries. Dr. Shuchi Rani Gupta P.W.-4 has
proved the injuries report and her medical
examination report. It is submitted that
further
the
accused/appellant
was
apprehended by the first informant and her
husband while committing rape upon the
victim X and persons of locality were
also present at that time and then he was
506 INDIAN LAW REPORTS ALLAHABAD SERIES
brought to the police station and handed
over to the police and thus his participation
in the present matter cannot be ruled out. It
is submitted that the present appeal thus is
without any merit as the prosecution has
proved its case beyond reasonable doubt
and same be dismissed.

30.
After
having
heard
learned
counsels for the parties and perusing the
records, it is evident that as per prosecution
case
the
accused/appellant
was
apprehended by the first informant Smt.
Rekha/P.W.-1 and her husband Sunil/P.W.-
3 along with the persons of locality while
committing rape upon their daughter/victim
X. He was then brought to the police
station and handed over to the police and a
Tehrir was given on the basis of which
F.I.R. was lodged. In so far as the fact of
the accused being brought by the first
informant and her husband is concerned
during trial said two witnesses have denied
the same. P.W.-1 Smt. Rekha has stated
that she was not present at the house and
the accused was got apprehended by the
persons of locality and she was called from
mobile after which she and her husband
reached there. Sunil P.W.-3 the husband of
Smt. Rekha P.W.-1 has not supported the
prosecution case in whole and has been
declared hostile. The victim X was
examined as P.W.-2 before the trial court
who has also not supported the prosecution
case
and
has
exonerated
the
accused/appellant in her examination-in-chief
and cross-examination. She states that she
received injury after having suffered fall
while playing in the house. The material
exhibit sent to the Forensic Science Lab,
Agra for examination did not find anything
incriminating
in
them
and
as
such
corroboration through them is not in the
present matter. Merely by the Investigating
Officer stating that the accused was brought
at the police station by the informant and her
husband and other persons would not make
him guilty of the offence. There has to be
positive and active evidence regarding his
participation in the charged offences.

31. The next factor which needs
consideration is that the trial court has
convicted
and
sentenced
the
accused/appellant under two Sections being
376(2)(i) I.P.C. and 3/4 POCSO Act, 2012.
The trial court has not considered the fact that
Section 42 of the POCSO Act, 2012 clearly
states that the offender if found guilty of such
offence shall be liable to punishment only
under this Act or under the Indian Penal Code
as provides for punishment which is greater
in degree. In the present case there is no such
finding of the trial court and even adherence
to the said provision of the statute. The
judgement and order of conviction thus
stands at fault on the said count also.
Reference is taken of the judgement of
Krishnakant (Supra) also at this stage.

32. In view of the discussions as
above, this Court finds that prosecution has
failed to prove its case beyond reasonable
doubt
against
the
accused/appellant.
Further the trial court has also erred in
convicting
and
sentencing
the
accused/appellant under two counts being
under the provisions of Indian Penal Code
and POCSO Act, 2012.

33. The impugned judgement and
order dated 10.01.2020 of the trial court is
hereby set aside. The appellant is acquitted
of the charges levelled against him.

34. The appeal is allowed.

35. The appellant is in jail. He shall be
released forthwith unless wanted in any
other case.
11 All. Shailendra Kumar Mishra Vs. State of U.P.
507