# Krishnakant (In Jail) v. State of U.P. & Anr

- **Citation:** (2022) 10 ILRA 982
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-27
- **Case number:** Criminal Appeal No. 355 of 2018
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishnakant-in-jail-v-state-of-u-p-anr-47915
- **Pages:** 14

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 376- Protection of Children from
Sexual Offences Act, 2012- Section 4 -
Section 42- 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 upto ten years only- 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-
As such the sentence as awarded under
Section 376 IPC is set-aside.

As per the mandate of Section 42 of the POCSO
Act, sentence of the greater degree has to be
awarded.

Indian Evidence Act, 1872- Section 64-
Section 65- An unproved and unexibited
document cannot be treated as evidence
in a case- There is a departure from the
said settled proposition of law as the trial
court has during arguments taken the
High School Certificate of the victim and
considered it along with the date of birth
mentioned in the protest petition for
reaching to a conclusion with regards to
the age of the victim. The same is an
incorrect approach of the trial court- The
radiologist
has
opined
as
per
the
radiological examination in his crossexamination as her being aged about 18
10 All. Krishnakant Vs. State of U.P. & Anr.
983
years of age. Thus, even by giving a
benefit of variation of two years, she
would be a major.

Settled law that an unproved and unexhibited
document is inadmissible in evidence and hence
the opinion of the radiologist opining the age of
the victim shall be accepted.

Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(1) 11- A perusal of the FIR
shows that there is no such averment in it
that the victim belongs to the caste which
came in the category of SC/ST. There was
no document filed to establish the caste of
the prosecutrix. The prosecution has not
established that the first informant belong
to a caste falling within the SC/ST Act-
POCSO Act, Section 4 of the Act deals with
punishment for penetrative for sexual
assault. The medical evidence does not
corroborate with the prosecution story.

In order to bring home the charge under the
SC/ST Act it is incumbent for the prosecution to
prove that the victim belongs to the SC/ST
category. (Para 25, 28, 29, 30, 32, 34, 35)

Criminal Appeal allowed. (E-3)

Case law/Judgements relied upon:-

Ram Murti Vs St. of Har. (1970) 3 SCC 21

## Text

_Characters 0–39,968 of 47,754. This is a partial read: ask again with offset=39968 for what follows._

982 INDIAN LAW REPORTS ALLAHABAD SERIES
inadequate to the crime. Therefore, the
death sentence awarded to the convict
under Section 302 IPC is liable to be
commuted into life imprisonment which
will accomplish the ends of justice.

Conclusion

66. While affirming the conviction of
the appellant under Section 376 and 302 IPC
we set aside the death penalty of the appellant
awarded by the trial court under Section 302
I.P.C. and this Court modify his sentence
from death penalty to life imprisonment
without remission under Section 302 I.P.C.

67. The Criminal Appeal No. 1004 of
2018 is partly allowed. In the light of the
above discussion reference for confirmation
of death penalty is liable to be rejected and is
accordingly rejected.

68. The appellant is in jail and shall
serve out his sentence as has been ordered
and modified by this Court.

69. We appreciate the able assistance of
Shri Manish Bajpai, learned Amicus Curiae
who assisted the Court in disposal of the
present reference and appeal.

70. Let a copy of this judgment as well
as lower court record be transmitted to the
trial court forthwith for necessary information
and compliance.
----------
(2022) 10 ILRA 982
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 355 of 2018
Krishnakant ...Appellant (In Jail)
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Anuruddh Chaturvedi, Sri Ajay Kumar
Giri, Sri Ram Milan Dwivedi, Sri Surendra
Kumar, Sri Satya Sinha, Sri Lallu Singh
Kanchan Ranjan, Sri Saurav Chaturvedi, Sri
I.K. Chaturvedi (Sr. Advocate)

Counsel for the Respondents:
G.A.

Criminal Law- Indian Penal Code, 1860-
Section 376- Protection of Children from
Sexual Offences Act, 2012- Section 4 -
Section 42- 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 upto ten years only- 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-
As such the sentence as awarded under
Section 376 IPC is set-aside.

As per the mandate of Section 42 of the POCSO
Act, sentence of the greater degree has to be
awarded.

Indian Evidence Act, 1872- Section 64-
Section 65- An unproved and unexibited
document cannot be treated as evidence
in a case- There is a departure from the
said settled proposition of law as the trial
court has during arguments taken the
High School Certificate of the victim and
considered it along with the date of birth
mentioned in the protest petition for
reaching to a conclusion with regards to
the age of the victim. The same is an
incorrect approach of the trial court- The
radiologist
has
opined
as
per
the
radiological examination in his crossexamination as her being aged about 18
10 All. Krishnakant Vs. State of U.P. & Anr.
983
years of age. Thus, even by giving a
benefit of variation of two years, she
would be a major.

Settled law that an unproved and unexhibited
document is inadmissible in evidence and hence
the opinion of the radiologist opining the age of
the victim shall be accepted.

Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(1) 11- A perusal of the FIR
shows that there is no such averment in it
that the victim belongs to the caste which
came in the category of SC/ST. There was
no document filed to establish the caste of
the prosecutrix. The prosecution has not
established that the first informant belong
to a caste falling within the SC/ST Act-
POCSO Act, Section 4 of the Act deals with
punishment for penetrative for sexual
assault. The medical evidence does not
corroborate with the prosecution story.

In order to bring home the charge under the
SC/ST Act it is incumbent for the prosecution to
prove that the victim belongs to the SC/ST
category. (Para 25, 28, 29, 30, 32, 34, 35)

Criminal Appeal allowed. (E-3)

Case law/Judgements relied upon:-

Ram Murti Vs St. of Har. (1970) 3 SCC 21

(Delivered by Hon'ble Samit Gopal, J.)

1. The present Criminal Appeal under
Section 374 (2) Criminal Procedure Code,
1973 read with Section 14-A (2) of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989
("SC/ST Act") has been filed by the
accused appellant Krishnakant against the
judgment and order dated 30.11.2017
passed in Special Criminal Case No. 73 of
2014 (State Vs. Krishnakant) convicting
and sentencing the appellant under Section
376 Indian Penal Code, 1860 ("IPC") to 15
years Rigorous Imprisonment and a fine of
Rs.15,000/-, under Section 4 of the
Protection
of
Children
from
Sexual
Offences Act, 2012 ("POCSO Act") to 15
years Rigorous Imprisonment and fine of
Rs.15,000/-, under Section 3 (1) 11 SC/ST
Act to 2 years Rigorous Imprisonment and
a fine of Rs. 2,000/-, under Section 506 IPC
to 1 year Rigorous Imprisonment and a fine
of Rs. 1,000/-. It is further ordered that in
default of payment of fine under Section
376 IPC and Section 4 POCSO Act the
appellant shall undergo 2 years each
additional imprisonment, under Section 3
(1) 11 SC/ST Act to 2 months additional
imprisonment and under Section 506 IPC
to 1 month additional imprisonment. The
sentences have been ordered to run
concurrently. It is further ordered that out
of the fine as deposited, Rs.15,000/- as
compensation shall be paid to the victim.

2. The name of the prosecutrix is not
being disclosed and mentioned in the
present judgment in the light of directions
of the Apex Court in various judgments and
Section 228A of the IPC. She is, thus,
referred to as 'X' in the judgment.

3. The prosecution case as per an
application dated 9.6.2013 given by victim
''X' to police of police station Kamasin,
District Banda is that she is daughter of
Shiv Poojan residing in village Pachauha,
Police Station Kamasin, District Banda. On
23.5.2013 at about 10 a.m. she had gone
towards the Southern Nala of the village to
bring her buffaloes wherein Krishnakant
Dwivedi of the village came from behind,
caught hold of her, put a country-made
pistol on her chest and committed rape on
her. He threatened her that if she discloses
it to anyone in the house then he would
murder her brother and father. The incident
has been witnessed by Chota S/o Babu Lal
of the village. She came back home and
984 INDIAN LAW REPORTS ALLAHABAD SERIES
told about the incident to her mother and
father. On 1.6.2013, she along with her
mother Smt. Siya Sakhi and father Shiv
Poojan went to Police Station Kamasin and
gave information on which her medical
examination was done at the District
Hospital, Banda. Her date of birth is
28.6.1996. She prays that a case be
registered and legal action be taken.

The said application is Exb : Ka-1
to the records.

4. On the basis of the said application, an
FIR was lodged as Case Crime No.144 of 2013
under Section 376, 506 IPC and 3(Ka)/4
POCSO Act, 2012 and Section 3(1)XII of the
SC/ST Act, P.S. Kamasin, District Banda
against Krishnakant Dwivedi on 9.6.2013 at
12.30 hours.

The Chik FIR is Exb : Ka-3 to the
records.

5. The victim 'X' was medically examined
by Dr. Charu Gautam, Medical Officer, Female
District Hospital Banda while being brought by
Constable Jamuna Devi on 1.6.2013 at 3 p.m.
On her general examination, the doctor noted as
follows:-

"No injury over arm, fore arm, axilla,
breast, abdomen, back, thigh and legs.

On examining the external genital,
the doctor noted as follows:-

"No injury over labia majora, minora
and clitoris."

On examination of internal genital,
the doctor noted as follows:-

"Hymen torn old and healed. Vagina
admits two fingers easily. Vaginal smear
prepared and send to pathologist, P.H. Banda
for confirmation of spermatozoa and urine
pregnancy test for confirmation of pregnancy."

X-Ray
was
advised
for
determination of her age. The opinion as
drawn by the doctor is as follows:-

"Final opinion to be given after
radiology and pathology report."

The said report is Exb : Ka-5 to
the records.

A supplementary report dated
10.06.2013 was prepared by Dr. Charu
Gautam in which the finding as per
pathological report is as follows:-

"Vaginal smear shows no dead or
alive spermatozoa. Urine pregnancy shows
negative results."

The
opinion
according
to
radiological examination is as follows:-

"Right Elbow joint- all epiphysis
at right elbow joint are fused.

Left and right wrist- AP epiphysis
at lower end of right and left ulna are fused.
Line of fusion seen in right and left radius
with partial fusion in wrist joint."

The opinion about rape is given
as follows:-

"It is very difficult to say that
rape is committed on her or not."

The said report is Exb : Ka-6 to
the records.

The X-Ray examination report
dated 3.6.2013 is Exb : Ka-7 to the records
which has been given by Dr. Gyanendra
Neekhra.

6. The investigation concluded and a
final report was submitted in favour of the
accused-appellant stating therein that no
case is made out against him and he has
been falsely implicated. On the said final
report, a protest petition was filed on which
the accused-appellant was summoned to
face trial.

7. Subsequently vide order dated
1.1.2016 passed by Additional Sessions
Judge/Fast Track Court, Banda, charge
under Section 376 - Jha, 506 IPC, Section 4
POCSO Act, 2012 and 3 (1) XI SC/ST Act
was framed against the accused appellant.
10 All. Krishnakant Vs. State of U.P. & Anr.
985
The accused pleaded not guilty and claimed
to be tried.

8. The prosecution in order to prove
its case produced and examined victim ''X'
as P.W.1, Shiv Poojan, the father of the
victim as P.W.2, Smt. Shiv Dhuliya, the
maternal aunt/mausi of the victim ''X' as
P.W.3, Smt. Siya Sakhi, the mother of the
victim ''X' as P.W.4, Head Constable
Ayodhya Prasad as P.W.5, Dr. Charu
Gautam as P.W.6 and Dr. Gyanendra
Neekhra as P.W.7.

9. The statement of victim 'X'
recorded under Section 164 Cr.P.C. was
filed and proved as Exb : Ka-2 to the
records.

10. The accused-appellant in his
statement recorded under Section 313
Cr.P.C. has denied the prosecution case and
has stated that he has been falsely
implicated in the present case.

In defence he produced Anil
Singh as D.W.1 and Sumer as D.W.2 and
further filed the parivar register 57 Kha and
papers of medical examination 58-Kha to
60-Kha.

11. The trial court after conclusion of
trial convicted and sentenced the accusedappellant as stated above.

12. Heard Sri I.K. Chaturvedi, Senior
Advocate assisted by Sri Saurav Chaturvedi
holding brief of Sri Ram Milan Dwivedi,
learned counsel for the appellant, Sri Ankit
Srivastava, learned Brief Holder for the
State of U.P. and perused the materials on
record.

13. Learned counsel for the appellant
argued that the appellant has been falsely
implicated in the present case. It is argued
that victim 'X' is a major girl. It is argued
that there is an enmity of the accusedappellant with the mother and mausi of
victim 'X'. The matter was investigated and
it was found that the accused-appellant has
been falsely implicated and as such a final
report was submitted in his favour after
which he was summoned on a protest
petition filed in the matter. It is argued that
the medical examination of victim 'X' does
not corroborate with the prosecution case.
The doctor did not opine of any rape being
committed on her but to the contrary
looking to the medical examination report
dated 1.6.2013 (Exb : Ka-5) specifically the
examination of internal organs, it is clear
that victim 'X' was habitual to sexual
intercourse.
The
doctor
in
the
supplementary medical examination report
has given an inconclusive finding with
regards to the allegation of rape stating that
it is difficult to say that rape is committed
on her or not and as such an inference can
be drawn that there was no rape committed
on her. It is argued that the present FIR has
been lodged after an unexplained delay of
16 days. The incident is alleged to have
taken place on 23.5.2013 after which the
present FIR has been lodged on 9.6.2013.
There
is
no
explanation
whatsoever
regarding the delay in lodging of the FIR. It
is argued that the medical examination of
the victim 'X' was conducted on 1.6.2013
which was prior to lodging of the FIR and
even in the same there was no suggestion
of rape being committed on her. Even till
the time of her medical examination which
was after about 8 days of the occurrence,
there was no whisper regarding the
accused-appellant being involved in the
matter. It is argued that as per the FIR, the
victim has disclosed her date of birth as
28.6.1996 and as such at the time of
occurrence, she would be around 17 years
of age. It is argued that the trial court in its
986 INDIAN LAW REPORTS ALLAHABAD SERIES
judgement and order of conviction has
stated that at the time of arguments, the
copy of the High School certificate of the
victim 'X' was produced before the court in
which her date of birth was written as
28.6.1997 which was taken to be true by
the trial court and her age was assessed as
about 15 years 10 months and 25 days at
the time of occurrence which is an incorrect
and illegal approach as the said document
was not produced in evidence before the
trial court and even the accused was not
given an opportunity to challenge the same.
It is argued that a document produced in
the trial all of a sudden without it being
proved and without the accused being
given the opportunity to challenge it cannot
be considered. It is argued that there is
nothing on record to show that the victim
girl belongs to a caste falling within the
SC/ST. The accused-appellant cannot be
convicted under Section 376 IPC as per
Section 42 POCSO Act. It is further argued
that Chota, the alleged eye-witness of the
case has not been produced by the
prosecution. It is argued that looking to the
glaring irregularities, illegalities and lack of
evidence, the accused-appellant deserves to
be acquitted. He has been in jail since
30.11.2015 and as such has undergone
about
6
years
and
10
months
of
incarceration. The appeal deserves to be
allowed.

14. Per contra learned counsel for the
State has opposed the arguments of learned
counsel for the appellant and argued that
the occurrence of the present case is of
23.5.2013 of which the FIR was lodged on
9.6.2013. It is argued that the information
about the incident was given by the victim
herself at the police station on 1.6.2013
after which her medical examination was
done. It is argued that there is no chance of
false implication in the matter or even
misidentity as the accused-appellant was
known to the victim 'X'. It is argued that the
contradictions in the statement of the
witnesses are minor in nature as their
statements have been recorded after 3 years
of the incident and as such cropping of
some
contradictions
is
a
natural
consequence. The appellant is named in the
FIR and there are allegations against him of
committing rape on victim 'X'. The FIR has
been lodged by the victim herself. There is
no reason stated by the accused-appellant
in his statement recorded under Section 313
Cr.P.C. for his false implication. The
appellant has active role in the present case.
The trial court after examining the evidence
on record has convicted the appellant. The
present appeal deserves to be dismissed.

15. Victim 'X' P.W.1 states that the
incident is of 23.5.2013 when she was
giving water to her buffaloes and the
animals suddenly started running towards
the South nala. She ran behind them
wherein Krishna Kumar Dwivedi of the
village caught hold of her from behind and
threw her on the ground, threatened her
with a country-made pistol and took out her
salvar and committed rape on her. She tried
to shout but he threatened her with a
country-made pistol and stated that if she
tells it to her family members, he would
murder them. She came back home and
told about the incident to her family
members but the side of the accused were
pressurizing them regularly for not lodging
a report. After that on 9.6.2013, she went to
the police station with her parents and gave
a tehrir written by her which is on record.
She proves the same as Exb : Ka-1 to the
records. She states that on 1.6.2013 she had
given an information at the police station
on the basis of which her medical
examination report was done and her
statement under Section 164 Cr.P.C. was
10 All. Krishnakant Vs. State of U.P. & Anr.
987
recorded. She proves her statement under
Section 164 Cr.P.C. and her signature on it.
She states that she had given her statement
before the Magistrate but in the same it is
written that she did not know Krishna
Kumar Dwivedi from before and came to
know when with a boy Chotu disclosed
about him and then she came to know of
his name, is incorrect but he is of the same
village and she knew him from before. She
proves her statement which was marked as
Exb : Ka-2 to the records.

In her cross-examination, she
states that she is a student of B.A IInd year.
She had studied class Xth at the time of
incident. She does not remember when her
class Xth board examination has finished.
She was giving water to her buffaloes on
23.5.2013 at 10 a.m. Her house in village
Pachauha on the Narayanpur Road at the
corner. The South nala is about 1⁄2 km.
away from her house where her buffaloes
started running. Her buffaloes had run
outside the village towards nala. They had
reached the nala. They sat inside the nala.
She tried to get them out of the nala but
they did not come out and then she sat on
the south corner. When she had reached the
nala, Krishna Kant Dwivedi was not there.
Chota @ Babu Lal Chamar was not there.
She reached the nala at about 10 a.m. After
about 2-4 minutes, the accused and Chota
reached there. When the accused Krishna
Kumar Dwivedi caught hold of her, Chota
was about 2-4-10 steps away. The accused
had caught her when she was sitting at the
corner of the nala. The ground was rough
and with rubbles. She was thrown on the
ground from her back side. After throwing
her down, her salvar was taken out. She
tried to save herself at the time of incident
and resisted the occurrence. She had
received injury on her back at the time of
incident. Her back did not get injured but
there was pain which she is telling. The
accused was on her top. The rape continued
for 15-20 minutes. The accused was there
for about 21-22 minutes and till that time
Chota was also there. After that the accused
went away along with Chota. She then
wore her clothes and came back. She
reached at about 10.30 a.m. She told about
the incident after returning home to her
parents. She went to the police station
Kamasin with her parents on 1.6.2013. She
reached police station at about 10 a.m.
Prior to 1.6.2013 neither her parents nor
she
gave
any
complaint
to
the
administration or police. On 1.6.2013, the
police of police station Kamasin got her
medical done. Her X-Ray was done after
three days. After her medical examination,
she did not return back to the police station
but went to the house of her mausi in
village Maki. She was called for her X-Ray
examination at the police station. She went
there with her parents and then she was
taken for X-Ray by a police constable. On
1.6.2013, no report was lodged. The police
got her medical examination and X-Ray
done without any report. From 1.6.2013 to
8.6.2013 no Fax was done with regards to
the incident. She does not have any copy of
the Fax and neither is there any application
on record. She went to the police station
Kamasin on 9.6.2013 on her own. She did
not call anyone. She reached the police
station at 10 a.m. She got the report lodged
on her own. Her report was lodged on
9.6.2013. Her statement was recorded
before the Magistrate. Certain things had
been written wrong in the statement and
certain things are correct. There was no
enmity at that time. She had stated that
earlier her statement was recorded wrongly
by the Magistrate but she does not know as
to why the same was recorded as such. She
states that it is incorrect that on the advice
of her Advocate, she had given a wrong
statement before the Magistrate. She
988 INDIAN LAW REPORTS ALLAHABAD SERIES
further states that it is incorrect that the
accused Krishna Kumar Dwivedi did not
commit rape on her and threatened her with
a country-made pistol. She states that the
incident is not a false incident and story is
not a fabrication and untrue that no such
incident took place. She states that on the
basis of her report, the case was lodged in
which after investigation, final report was
submitted. She states that it is incorrect that
the Investigating Officer found the story to
be false and filed final report. She filed an
application through her lawyer after filing
of the final report and then the case again
started. She denies that the entire story is
false and with enmity. She further denies
the suggestion that there was some dispute
with regards to the harvesting of wheat and
money between her parents and the family
of the accused. She further denies that due
to the said dispute, false case has been
lodged and the accused-appellant has been
implicated who threatened for it. She
further denies that the accused has been
falsely implicated under conspiracy. She
further states that it is incorrect that after
consultation and discussion her parents
pressurized her for lodging of a report and
under their pressure, she is given the false
statement.

16. Shiv Poojan, P.W.2 is the father
of victim ''X'. He states about the incident
to have taken place on 23.5.2013. He states
that the age of victim 'X' was about 17
years at that time. The victim 'X' had gone
to bring her buffaloes at about 10 a.m. who
had run away. Krishna Kumar Dwivedi was
hiding near the nala who caught-hold of his
daughter, threatened her with a countrymade pistol and committed rape on her. He
then threatened her of not disclosing it to
anyone otherwise he would kill her. His
daughter when came back home, told him
about the incident after which he went to
the police station with his daughter but his
report was not lodged. He then gave an
application to higher officials after which
his report was lodged. The medical
examination of his daughter was done. His
statement
was
recorded
during
investigation.

In cross-examination, he states
that his original village is Babu Ka Purva.
Pachauha is his Sasural. He had come to
village Pachauha around 9-10 years ago
and was living there. He had constructed a
house around 5-6 years back. The land was
given for construction of his house by
Kailash Nath Dwivedi who is the grandfather of accused Krishna Kant Dwivedi.
He does not work in the fields of Kailash
Nath Dwivedi and the accused. To a
suggestion given to him, he denies that due
to present dispute he is being pressurized
by the family members of the accused to
vacate his house which is on their land and
he has denied that he has threatened the
accused of implicating him in a case. He
further denies the suggestion that due to the
said dispute after consultation he has
implicated the accused in a false case.

17. Shiv Dhuliya, P.W.3 is the mausi
of the victim 'X'. She states that the
incident had taken place about 3 years ago.
The victim 'X' is the daughter of her sister.
She had gone to give water to the buffaloes.
The victim is resident of village Pachaunha,
Police Station Kamasin. She has reached on
the information given by the father of the
victim 'X'. She was told about the incident
by victim 'X'. Her daughter was raped by
Shivakant. After the incident, she went to
the police station with her daughter and
lodged an FIR. Shivakant is the son of
Suresh Tiwari Brahmin and resident of
village
Pachauha.
Her
daughter
was
medically
examined
in
P.H.C.
Her
statement was recorded in the said matter.
10 All. Krishnakant Vs. State of U.P. & Anr.
989
In her cross-examination, she states that she
is not an eye-witness of the incident. She is
telling about it on hearing it from someone.

18. Siya Sakhi, P.W.4 the mother of
victim 'X' states that the incident is of 3
years ago. On that date the mother of
Jagmohan of the village had died and she
had gone there. Her husband Shiv Poojan
had gone to do work in the village. Her
daughter victim 'X' and one small child
were in the house. Her buffaloes freed
themselves and ran towards nala. Her
daughter victim 'X' had gone behind the
animals where Krishna Kant Dwivedi was
present from before who called her
daughter and threatened her with a countrymade pistol and told her not to tell about
the incident to anyone otherwise he would
kill her parents and brother. He had
committed rape on her. Her daughter told
about the incident when she came back to
her. Then she told it to her husband after
which her daughter victim 'X' was taken by
her husband to the police station where
their report was not lodged. The report was
lodged after ten days. Her daughter was
medically examined in District Hospital,
Banda.

In her cross-examination to a
suggestion that there was some fight
between the accused and her husband, she
denies it. She states that it is incorrect that
due to the said fight, the accused has told
her husband to vacate the house which was
constructed on his ancestral property. She
states that it is correct that there is threat
being extended of their being thrown out
the house. She denies the suggestion that a
false case has been lodged on the saying of
persons.

19. Head Constable Ayodhya Prasad,
P.W.5 transcribed the Chik FIR of the case
and the corresponding G.D. He proves the
same.

In cross-examination he states
that the incident is of 23.5.2013. The FIR
was lodged on 9.6.2013. He did not ask
especially as to why the FIR is being
lodged with delay. He states that Tejvali
had also come with the first informant. He
does not know as to which political party
does he belong to. He states that he does
not belong to Kamasin area and is of Maki
area. Along with Tejvali, his wife had also
come. No FIR has been lodged by the
victim 'X' prior to 9.6.2013. She has not
received any injury on her body otherwise
the same would have been mentioned in the
G.D. She did not bring any clothes which
she was wearing at the time of the incident
and also documents with regards to her age.
He states that the Chik is on a printed
proforma which is empty and is filled by
him. It is his responsibility. He states that if
any column is left blank then it is illegal
but sometimes there is something left blank
but the reference of the same in G.D. is
important. He states that the page number
is not filled in it. There is no signature of
the first informant in it. He denies the
suggestion that a FIR was lodged on the
saying of politicians and S.O under
pressure.

20. Dr. Charu Gautam, P.W.6 had
conducted the medical examination of
victim 'X' on 1.6.2013. The details of the
same have already been given above. She
has also prepared the supplementary
medical examination report. The details of
the same have also been given above. She
proves the same.

21. Dr. Gyanendra Neekhra, P.W.7
states that on 3.6.2013, he was posted as
Consultant in District Hospital, Jhansi. He
was posted on the post of Radiologist.
990 INDIAN LAW REPORTS ALLAHABAD SERIES
Under his supervision X-Ray of victim 'X'
was done and report was prepared. He
proves the X-Ray report and X-Ray plates.

In cross-examination, he states
that he did not give any opinion regarding
age in the X-Ray report as he did not do the
physical examination of the victim 'X'. He
states that as per the X-Ray, victim 'X' was
aged about 18 years.

22. Anil Singh, D.W.1 has stated that
Shiv Poojan who is the father of victim has
a dispute with regards to harvesting of
wheat with accused Krishnakant. Shiv
Poojan has constructed a house on the
ancestral land of Krishnakant. Due to the
dispute of harvesting of wheat, Krishnakant
had told Shiv Poojan to vacate his land.
The brother-in-law (Sardu) of Shiv Poojan
lives in village Sarda Marka and is issue
less who is a politician of Bahujan Samaj
Party and is very close to the local MLA.
Victim 'X' was living with Tejbali from
before the incident. Tejbali is her Mausa.
Victim 'X' was living in village Sarda
Marka. Tejbali in conspiracy with the MLA
Gaya Charan Dinkar, had got a false FIR
lodged under pressure against Krishnakant
for money. He was a village Pradhan at that
time. He had got conducted a panchayat for
both the parties but the dispute could not be
settled due to greed of money. Around 25
people had given an affidavit to C.O.
Baberu. He filed the affidavit which was
marked as Exb : Kha-1 to the records and
stated that the said affidavit was taken by
the C.O on 28.06.2013.

23. Sumeru, D.W.2 has stated that he
is not well educated. He is the neighbour of
Shiv Poojan, the father of victim 'X'.
Victim 'X' was living at the house of her
Mausa in Sarda Marka at the time of
incident. He states that there was a dispute
between Krishnakant and Shiv Poojan
relating to the harvesting of wheat and Shiv
Poojan had told him that he would get him
implicated in a case. He states that no such
incident had happened with victim 'X'.
Tejbali is brother-in-law (Sardu) of Shiv
Poojan who for money got a false FIR
lodged. Accused Krishnakant has been
falsely implicated in the case.

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
10 All. Krishnakant Vs. State of U.P. & Anr.
991
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
(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
less than ten years but which may be for
life and shall also be liable to fine:
992 INDIAN LAW REPORTS ALLAHABAD SERIES

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 accusedappellant cannot be convicted under
Section 376 IPC finds force. As such the
sentence as awarded under Section 376 IPC
is set-aside.

32. Now coming to the issue of the
age of the victim 'X' in the FIR lodged by
herself, she discloses her date of birth as
28.6.1996. Her medical examination was
done and her X-Ray examination was done
for ascertainment of her age but in the
supplementary examination report, the
doctor did not opine with regards to the
estimation of her age. Dr. Gyanendra
Neekhra, P.W.7 in his cross-examination
has
stated
that
as
per
the
X-Ray
examination, the victim was aged about 18
years. The trial court in the impugned
judgement and order while giving a finding
with regards to the estimation of age has
stated that at the time of arguments, a copy
of the High School Certificate of victim 'X'
was produced which showed her date of
birth as 28.6.1997. It is further stated that in
the protest petition, the date of birth of the
victim was stated as 28.6.1997 and since
the incident is of 23.5.2013, the victim
would be aged about 15 years 10 months
and 25 days of age. It is trite law that for
relying upon a document, it has to be
proved in the trial. A document which has
not been proved in the trial, cannot be
10 All. Krishnakant Vs. State of U.P. & Anr.
993
considered by just providing it at the fag
end of trial by one of the parties and no
finding can be based on the basis of the
same.

33. The Apex Court in the case of
Ram Murti v. State of Haryana : (1970)
3 SCC 21 has held that an unproved and
unexibited document cannot be treated as
evidence in a case. The observations in
paragraph 6 and 7 of the said judgment are
as follows:

"6. The trial court, in support of
its conclusion on the question of age of the
prosecutrix, relied on the birth certificate
Ex. PL and the report of Dr Ajmer Kaur,
Ex. PA. The omission on the part of the
prosecuting agency to get Satnam Kaur's
bones X-rayed as advised by Dr Ajmer
Kaur was not considered by that court to
be very material. Considering that the
prosecutrix was only a student of 9th Class
at the time of the occurrence that court felt
that Dr Ajmer Kaur's estimate other age
was trustworthy and the prosecutrix was
held to be definitely below 18 years of age.
That court also took into consideration an
unproved
and
unexhibited
school
certificate which appears to have been
obtained by the Investigating Officer from
the Dev Samaj School. According to this
certificate the date of Satnam Kaur's birth
is stated by the trial court to be August 5,
1948. We had a look at this document. It is
dated April 9, 1965 and purports to certify
the date of Satnam Kaur's birth according
to the school register to be November 5,
1948 and is signed by someone describing
herself as Head Mistress, Dev Samaj Girls'
High School. We fail to understand how the
trial court felt justified in taking this
document into consideration and holding
the date of birth as entered in this
document to be August 5, 1948. We,
however, need not say anything more about
the merits of this document because the
Counsel for the State in this Court has
rightly declined to place any reliance on it.
In the High Court the learned single Judge
dealt with the question of age in the
following manner:

"According
to
her
medical
examination by Dr Ajmer Kaur, mentioned
above, the was between 16 and 17 years of
age. During the course of investigation, her
birth entry PL was obtained showing that a
daughter was born to Hans Raj on 25th
September, 1949, with the aid of Bhagwanti
Dai. This entry was made in the register on
27th September, 1949.