# Mohd. Akku v. State of U.P

- **Citation:** (2022) 10 ILRA 647
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** Criminal Appeal No. 775 of 2017
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-akku-v-state-of-u-p-47770
- **Pages:** 10

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section 164, 313 & 374(2) -
Indian Penal Code, Sections 376 & 511 -
Protection
of
Children
from
Sexual
Offence Act, 2012 - Sections 6, 8, 42 &
42-A : - Appeal - against conviction & sentence
- Plea of double jeopardy - complaint - FIR -
offence of attempt to rape U.P.on a minor girl of
6 years old - after appreciating the entire
evidence of record, the trial court convicted and
sentenced the appellant - 10 years RI and fine
or Rs. 3000/- under section 376 of IPC and 10
years RI and fine of Rs. 3000/- under section 6
of POSCO Act, - whether sentence awarded to
the appellant should run 'concurrently' or
'consecutively' - as per the legal proposition
propounded by the Hon'ble Apex Court in case
of 'Nagraja Rao Vs CBI' - conviction maintained
but sentence is modified - sentenced awarded
to the appellant shall run 'concurrently' not
'consequently' - appeal is partly allowed.(Para
39, 45, 48, 50)

Appeal partly allowed. (E-11)

List of Cases cited:

## Text

10 All. Mohd. Akku Vs. State of U.P.
647
Cr.P.C. on the subsequent statement of
P.W.'s- 1 & 4 recorded in 2017. The nonexamination of Smt. Vimla Devi by
prosecution, statement of P.W.-9 that
Vimla denied the fact that Krishna Veer
came to her house on the date of incident
as well as postmortem report and
statement
of
P.W.-3
(doctor)
also
demonstrate that the incident has not
taken place at 9.30 P.M. after taking
dinner, which proves that the prosecution
case is doubtful and prosecution has
failed to prove the charges against the
appellant - accused beyond reasonable
doubt.

34. Accordingly, the appeal is
allowed. The impugned judgment / order
of
conviction
and
sentence
dated
17.12.2019 passed by the Special Judge,
S.C./S.T. Act, Mathura is set aside. The
accused-appellant
Krishna
Veer
@
Pinkoo in Criminal Appeal No.487/2020
in in jail. He shall be released from the
jail forthwith, if not wanted in any other
case.

35. Let a copy of the judgment
along with the original record be sent to
the court below for compliance.
----------
(2022) 10 ILRA 647
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.10.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Appeal No. 775 of 2017

Mohd. Akku ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Vimal Shukla, Sri Piyush Kumar Singh,
Sri Prabhat Kumar

Counsel for the Respondent:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section 164, 313 & 374(2) -
Indian Penal Code, Sections 376 & 511 -
Protection
of
Children
from
Sexual
Offence Act, 2012 - Sections 6, 8, 42 &
42-A : - Appeal - against conviction & sentence
- Plea of double jeopardy - complaint - FIR -
offence of attempt to rape U.P.on a minor girl of
6 years old - after appreciating the entire
evidence of record, the trial court convicted and
sentenced the appellant - 10 years RI and fine
or Rs. 3000/- under section 376 of IPC and 10
years RI and fine of Rs. 3000/- under section 6
of POSCO Act, - whether sentence awarded to
the appellant should run 'concurrently' or
'consecutively' - as per the legal proposition
propounded by the Hon'ble Apex Court in case
of 'Nagraja Rao Vs CBI' - conviction maintained
but sentence is modified - sentenced awarded
to the appellant shall run 'concurrently' not
'consequently' - appeal is partly allowed.(Para
39, 45, 48, 50)

Appeal partly allowed. (E-11)

List of Cases cited:

1. Nagraja Rao Vs CBI (2015) 4 SCC 302,

2. Ramu Vs St. of U.P. & ors. (Criminal Appeal
No. 309/2015 decided on 18.12.2020),

3. Gyanendra Singh @ Raja Singh Vs St. of U.P.
(Jail
Appeal
No.
6590/2016
decided
on
02.08.2019).

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. The instant appeal under Section
374 (2) Code of Criminal Procedure, 1973
(in short ''Cr.P.C.') has been preferred by
the appellant Mohd. Akku against the
judgement and order dated 02.05.2017
648 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by Additional Sessions Judge, Court
No.1, Balrampur in Special Criminal Case
No. 84 of 2013 arising out of Case Crime
No. 126 of 2013, under Section 376 IPC
and Section 6 of Protection of Children
from Sexual Offence Act, 1912 (in short
''POCSO
Act'),
Police
Station-
Panchpedwa, District Balrampur, whereby
the accused- appellant has been convicted
under Section 376 IPC and Section 6 of
POCSO Act and has been sentenced for the
offence under Section 376 IPC for 10 years
rigorous imprisonment and of fine of
Rs.3000/- with further direction that in
default of payment of fine, the appellant
has further to undergo three months
additional rigorous imprisonment and again
has been sentenced for the offence under
Section 6 of POCSO Act for the same
sentence
i.e.
10
years
rigorous
imprisonment and fine of Rs. 3000/- with
further direction that any default of
payment of fine, the appellant has to further
undergo three months additional rigorous
imprisonment.

2. The prosecution case, in brief, is
that on 30.03.2013 at about 5 P.M. victim
aged about six year, daughter of Smt.
Shamim Jahan (PW1) along with her elder
daughter Sahar Bano (PW4) went to play at
her under construction house. The house of
the appellant is situated near to the house of
Shamim Jahan (PW 1). Sahar Bano (PW 4)
elder sister of victim went back to her
house and finding the victim alone,
appellant took the victim inside his house
and undressed her undergarment (panty)
and was attempting to rape upon the victim.
On the voice raised by the victim, Shamim
Jahan (PW1) along with her daughter Sahar
Bano (PW 4) sent inside the house of
appellant where appellant was attempting
for rape laying the victim on earth and
seeing
the
complainant
(PW1),
the
appellant fled away. It was told by the
victim to Shamim Jahan (PW1) that after
offering toffee to her took the victim inside
his room and laying on earth attempting to
rape.

3. Complainant Samim Jahan (PW1)
preferred a written report (Ex.Ka-1) at the
Police
Station
Panchpedwa,
District
Balrampur on the basis whereof Chik FIR
(Ex. Ka.5) was prepared and the said
information was entered in the general
diary report dated 30.03.2013 at about
00.45 A.M. (Ex. Ka.4) by constable Kailesh
Nath (PW6).

4. The victim was produced before
Dr. Subrna Kumar (PW 5) for medico-legal
examination on 01.03.2013 at district
hospital. In internal examination of the
victim, it was found that there was
inflamed (redness) on both sides of vagina,
hymen was torned and no bleeding was
present.

5. On 01.03.2013, the supplementary
medico-legal report was prepared and on
the basis of medico-legal report as well as
pathology report and on the ground of
supplementary medico-legal examination,
age of victim was determined as 6 years.

6. Investigation of the case was
entrusted to Sub-Inspector Narendra Nath
Yadav (PW3).

7. The victim was produced by the
investigating
officer
(PW3)
before
concerned Magistrate, Balrampur and her
statement under Section 164 Cr.P.C. was
recorded.

8. During the investigation, the
appellant was arrested and produced for
10 All. Mohd. Akku Vs. State of U.P.
649
medical examination and Sub-Inspector
Narendra Singh Yadav (PW3) visited the
place of occurrence and recorded the
statement of witnesses prepared the site
plan (Et. Ka.2) and after investigation,
submitted charge sheet (Ex.Ka.3) against
the appellant under Sections 376/511 IPC
and Section 8 of POCSO Act.

9. Learned trial court after hearing the
counsel for both sides, on 14.02.2014
framed the charges for offence under
Section 376/511 IPC and Section 8 of the
POCSO
Act
against
the
appellant.
Thereafter on the application of the
prosecution,
learned
trial
court
on
31.08.2016 framed the charges for the
offence under Section 376 IPC and on
25.10.2016 framed the charges under
Section 6 of POCSO Act against the
appellant, who denied the same and
claimed trial.

10. The prosecution in order to prove
its case, examined PW 1, Smt. Samim
Jahan (complaint), PW 2 Ramjan Ali, PW 3
Narendra Singh Yadav, Sub-Inspector, PW
4 Kumari Sahar Bano, PW 5 Dr. Suvarna
Kumar, PW 6 Kailesh Nath and PW 7
prosecutrix as child witness, under the
order dated 01.02.2017 passed by the trial
Court.

11.

After
conclusion
of
the
prosecution evidence, the statement of
appellant was recorded under Section 313
Cr.P.C. who denies the prosecution story as
well as the evidence adduced by the
prosecution and stated that the victim is
tutored witness and has given false
deposition before the trial court at the
behest of the parents. It was further stated
by the appellant that initially the case was
registered with allegations of rape was
levelled against him with ulterior motive of
false implication. It was further stated by
the appellant that previously the case was
registered with the allegation of attempt to
rape but at the time of framing of charge, it
was altered with the motive of false
implication.

12. In support of his defence to rebut
the prosecution story, Smt. Kausar (DW1)
wife of appellant was examined as defence
witness.

13. After appreciating the entire
evidence and material on record and upon
conclusion, trial court passed the impugned
judgement and order dated 02.05.2017
convicted and sentenced the appellant as
mentioned
above. Aggrieved
by
the
aforesaid
judgement
and
order,
the
appellant has preferred the present appeal.

14. Per contra, Sri Aniruddh Kumar
Singh, learned AGA vehemently opposed
the contention aforesaid and submits that
from statement of PW 1, PW 2 and PW7 it
was comprehensively proved before the
trial court that the appellant committed rape
upon victim. It was further submitted that
the statement of PW 5 Dr. Suverna Kumar
is fully corroborated with the prosecution
story. He further submits that on the basis
of ocular testimony adduced by the
prosecution as well as the medical evidence
guilt of the appellant is established. He
further submits that the victim was minor at
the time of commission of offence, and
therefore, the offence under Section 6 of
the POCSO Act, is established against the
appellant and, therefore, there is no
illegality and infirmity in the impugned
judgement and order passed by the trial
court and appeal is liable to be dismissed.

15. Having heard the learned counsel
for the parties and perused the record.
650 INDIAN LAW REPORTS ALLAHABAD SERIES

16. After the aforesaid arguments, the
things, which emerge, are discussed as
under.

17. PW 1 is Smt. Samim Jahan, first
informant of the case and mother of the
victim, in her deposition before the trial
court, has deposed that her daughter
(victim) was aged about six years at the
time of incident. It was further deposed that
her daughter victim went to play along with
her elder sister Sahar Bano in their under
construction house. It was further deposed
that elder sister of victim Sahar Bano
returned to her house and victim was still
playing over there and appellant, who
resides adjacent to the house of the
informant, called the victim to his house
and committed rape upon her. It was further
deposed by PW 1 that due to alarm raised
by victim, she reached at the spot and saw
the appellant committing rape upon her
daughter and appellant fled away. It was
also deposed that there was bleeding of the
victim and on being asked, the victim told
that the appellant offered her toffee and
thereafter committed rape upon her.

18. Shamim Jahan (PW 1) in her
deposition before the trial court has stated
that she has preferred a written application
before the police station and proved the
same which was marked as Ex.Ka.5 that it
was emphasisly deposed by the witness that
she is eye witness of the incident and has
saw the appellant committing rape upon the
victim.

19. PW 2, Ramjan Ali (father of the
victim) has deposed before the learned trail
court that he has not seen the appellant
committing rape upon his daughter as he
left her house 8.00 a.m. in the morning with
his Rickshaw and when he came back in
evening,
he
was
informed
regarding
incident and what was informed to him has
been stated before the court concerned.

20. PW 3 Narendra Singh Yadav,
Investigating Officer has deposed before
the trial court that investigation of the case
was entrusted to him and on the basis of
statement of informant/victim and other
witnesses, charge sheet under Sections
376/511 IPC and Section 8 of POCSO Act
was filed by him against the appellant. He
prepared the site plan (Ex.Ka.2), recorded
the statement of the witnesses, produced
the victim for her statement before the
concerned Magistrate under Section 164
Cr.P.C. and filed charge sheet (Ex. Ka.3)
under Sections 376/511 IPC and 8 of
POCSO Act.

21. PW 4 Sahar Bano was examined
before the trial court in her deposition, she
stated that she along with her mother saw
that the appellant Md. Akku was in
objectionable position with victim on cot
(khatiya) and her mother took the victim
along with her. It was further deposed that
appellant attempted to commit rape upon
victim.

22. PW 5 Dr. Suverna Kumar, who is
Medical Officer examined the victim has
deposed that in the internal examination of
the victim, it was found that on both sides
of
the
private
part
of
the
victim
inflammation was present and it can be
caused as a result of rape. The witness has
proved the medico-legal report which is
marked as Ex.4.

23. PW 6 Kailash Nath Constable
Muharrir has deposed that on 31.03.2013
posted at Police Station Panchpedwa and
first information report was lodged at 00.45
a.m. on written application of the informant
Samim Jahan and registered as Case Crime
10 All. Mohd. Akku Vs. State of U.P.
651
No. 126 of 2013, under Sections 576/511
IPC and Section 8 of POCSO Act, Police
Station Panchpedwa, District Balrampur.

24. The victim has been examined as
child witness as PW 7 before the trial court.
The victim has deposed that the appellant
has committed rape upon her, of which
report was lodged by her mother. It was
deposed that she went to the police station
and she has informed to the police that
when she was playing, appellant came there
and gave a toffee to her and then asked her
to bring water in a jug. It was further
deposed that when she came with water, the
appellant took her to his home and put her
on cot and committed rape upon her. It was
further deposed that her mother came and
upon which the appellant fled from spot. It
was further deposed by the witness that
there was bleeding from private part and
she was in pain. She further deposed that
she was medically examined and incident is
of before four years. Appellant took her to
his home on pretext of offering toffee
where she was put on the cot, thereafter
appellant removed her cloth and committed
rape upon her. It was further deposed that
on alarm being raised, her mother came
there and then the appellant left her and
fled away. It was further deposed that there
was bleeding from her private part.

25. After the statement of appellant
under Section 313 Cr.P.C., DW 1 Smt.
Kaushar wife of the appellant was examined
as DW 1. The witness in her examination
deposed that she has four daughters and three
sons. Her elder daughter is 19 years old and
youngest daughter is 8 years. She has
purchased the same land out of village over
which the appellant has constructed his
house. Upon the aforesaid land, Ramjan and
Shamim Jahan were trying to forcibly take
possession over house but due to purchase of
land by the appellant, they could not succeed
and due to aforesaid, they were inimical to
the appellant. It was further deposed that the
appellant is earning his livelihood in Mumbai
and has returned to the village upon death of
his mother-in-law. It was further deposed that
Ramjan and Shamim Jahan have exalted
pressure upon the appellant for taking
possession of house of appellant and forcibly
implicated the appellant in the instant case. It
was further deposed that on several times,
there was demand of money from her in
order to settle the case and on 06.01.2016
Ramjan demanded Rs.4 Lakh for release of
her husband which was recorded by her and
clip of recording was filed before the trial
court which was marked as Ex. Kh-1.

26. In so far as argument of the counsel
for the applicant is to the effect that the
prosecution story is highly improbable and it
will be fruitful to examine the deposition of
PW 1, PW 4 and PW 7 before the trial court.
PW 1 is complainant and eye witness of the
incident, who in her deposition has clearly
stated that the victim along with her elder
sister were playing in under construction
house and house of the appellant is near to
the under construction house. It was deposed
by PW 1 that upon loud alarm of the victim,
when she reached at the place of incident, she
saw the appellant committing rape upon the
victim. The victim was put in intensive cross
examination. PW 4 Sahar Bano, who is elder
sister of victim has also supported the
prosecution story. The PW 4 in her statement
has deposed that when she arrived at the
place of incident along with her mother, she
saw that the appellant was in objectionable
position with the victim upon the cot.

27. Victim was examined as PW 7
before
the
trial
court
and
in
her
examination-in-chief has in most clear
terms stated that the appellant offered him
652 INDIAN LAW REPORTS ALLAHABAD SERIES
toffee and asked her to bring water in a Jug
and then she came along with water, the
appellant called her inside the house where
she was laid on cot and clothes were
removed and rape was committed upon her
by the appellant. Narration of the incident
by the witness clearly goes to establish that
the appellant offered toffee to the victim
and asked her to bring water from jug and
when the victim came with the water in jug,
she was called by the appellant in house
where the appellant removed cloth of the
victim and committed rape upon her.

28. Statement of the victim is
absolutely intact, consistent and does not
show any chance of blemish. There is no
inconsistence or anything adverse in her
statement to show any doubt upon the
prosecution story.

29. Thus, from perusal of the
statement of PW 1, PW 4 and PW 7, the
presence
of
the
appellant
is
comprehensively proved that the victim
was inside his house and commission of
rape by the appellant on the victim is also
established, therefore, the argument of the
learned counsel for the appellant has no
legs to stand and is rejected.

30. The submissions advanced by
learned counsel for the appellant to the
effect that the prosecution has failed to
establish its case beyond reasonable doubt
is concerned, the statement of the PW 1
informant as well as PW 4 elder sister of
the victim as well as statement of victim
herself as PW 7 clearly establish and makes
abundantly
clear
that
the
appellant
committed rape upon the victim in his
home.

31. There is no inconsistency or
contradiction in the statement of the
witnesses which can be fatal for the
prosecution. All the witnesses relied by the
prosecution
have
given
trustworthy
testimony before the trial court which
inspires confidence and are worth of
acceptance.

32. It has been argued by learned
counsel for the appellant that there are
major contradiction in the statement of PW
1, PW 4 and PW 7 and their statements are
inconsistence. It would be relevant to
discuss the testimony of PW 1, PW 4 and
PW 7, the ocular testimony deposed by the
witness goes to show that there are hardly
any contradiction in the statement of the
witness. All the witness examined by the
trail court are inconsistence in their
testimony against the appellant and have in
unequivocal terms deposed before the trial
court that the appellant committed rape
upon the victim and PW 1 and PW 4 of the
eye witness to the incident.

33. There seems to be no force in the
argument of learned counsel for the
appellant as aforesaid that there are major
contradiction in the statement of the
witness are inconsistence to the version of
the first information report.

34. It has been argued by learned
counsel for the appellant that appellant has
been falsely implicated due to dispute of
property. This argument of counsel for the
appellant is based upon the testimony of
DW 1 wife of appellant whose testimony
has already been discussed hereinabove.

35. The appellant in support of his
contention false implication arising out of
property dispute has not placed any reliable
documentary evidence regarding property
to establish the reason of his false
implication. In absence of any such
10 All. Mohd. Akku Vs. State of U.P.
653
evidence, it cannot be said that he has been
falsely implicated in the present case due to
property dispute.

36. It is pertinent to mention that PW
7 who herself is victim in her deposition
before the trial court, stated that the
appellant inside his house committed rape
upon her and the same is corroborated with
the medco-legal examination of the victim
as well as by the statement of PW 5 Dr.
Suvarna Kumar. Thus, contention of the
appellant regarding the false implication of
the appellant due to the property dispute
does not inspire any confidence and cannot
be accepted.

37. In the light of the aforesaid
discussion, the finding recorded by the trial
court are well reasoned based on proper
appriciation of evidence adduced by the
prosecution as well as defence. Trial Court
has elaborately discussed the prosecution
evidence in the light of the submissions
advanced by prosecution as well as
defence, the impugned judgement and
order passed by the trial court is well
reasoned and no interference is required.

38. Accordingly, the judgement and
order
dated
02.05.2017
passed
by
Additional Sessions Judge, Court No.1,
Balrampur in Special Criminal Case No. 84
of 2013 is hereby affirmed.

39. Now question for appreciation left
before this Court is that as to whether
sentence awarded to the appellant by the
trial court should run ''concurrently' or
''consecutively'.

40. Learned counsel for the appellant
submits that the appellant has been
convicted and sentenced for rigorous
imprisonment for 10 years under Section
376 IPC with fine stipulation of Rs.3000/-
and further rigorous imprisonment for 10
years under Section 6 of the POCSO Act
with fine stipulation.

41. Submission laid by counsel for the
appellant that the trial court has committed
an error by not holding that both the
sentence awarded to the appellant shall run
concurrently and in absence of such finding
the appellant is constrained to serve both
the sentence awarded by the trial court
under Section 376 IPC and Section 6 of
POCSO Act.

42. Section 42 and 42A of POCSO
Act is very clear on the aforesaid point.
Section 42 and 42A of the POCSO Act is
reproduced hereinbelow;

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.

42A. Act not in derogation of any
other law.- The provisions of this Act shall
be in addition to and not in derogation of
the provisions of any other law for the time
being in force and, in case of any
inconsistency, the provisions of this Act
shall have overriding effect on the
provisions of any such law to the extent of
the inconsistency."
654 INDIAN LAW REPORTS ALLAHABAD SERIES

43. In order to settle the controversy,
the legal proposition propounded
by
Hon'ble Apex Court as well as this Court to
be discussed.

44. The Hob'ble Apex Court in the
case of Nagaraja Rao vs Central Bureau
of Investigation reported in (2015) 4 SCC
302 has held as under;

"16. The following observations
made by this Court in paras 9 and 10 are
apposite (Mohd. Akhtar Hussain case
(1998) 4 SCC 183: 1988SCC (Cri) 921:
AIR 1988 SC 2143, SCC P. 187, para 9-10

"9.
The
section
relates
to
administration of criminal justice and
provides procedure for sentencing. The
sentencing court is, therefore, required to
consider and make an appropriate order as
to how the sentence passed in the
subsequent case is to run. Whether it
should be concurrent or consecutive ?

10. The basic rule of thumb over
the years has been the so-called single
transaction rule for concurrent sentences.
If a given transaction constitutes two
offences under two enactments generally, it
is wrong to have consecutive sentences. It
is proper and legitimate to have concurrent
sentences. But this rule has no application
if the transaction relating to offences is not
the same or the facts constituting the two
offences are quite different."

17. Likewise, a question arose
before the three-judge Bench in State of
Maharashtra vs. Najakat Alia Mubarak Ali,
(2001) 6 SCC 311, as to whether the accused
convicted in two cases one after another was
entitled to claim set off the period of
detention during investigation, inquiry or
trial from the sentence imposed on conviction
in both the cases. While interpreting Section
428 of the Code, the majority of the judges
answered the question in affirmative. While
answering the question, Justice Thomas, J.
speaking for majority of the Judges, made the
following observations, which are pertinent.
(SCC p.320, para 17

"17. In the above context, it is
apposite to point out that very often it
happens, when an accused is convicted in one
case under different counts of offences and
sentenced to different terms of imprisonment
under each such count, all such sentences are
directed to run concurrently. The idea behind
it is that the imprisonment to be suffered by
him for one count of offence will, in fact and
in effect be imprisonment for other counts as
well."

18. The aforesaid principle of law
was relied upon by this Court in Chatar
Singh vs. State of M.P., (2006) 12 SCC 37
and State of Punjab vs. Madan Lal, (2009) 5
SCC 238, and lastly recently in Manoj vs.
State of Haryana, (2014) 2 SCC 153, wherein
this Court taking recourse to Section 31 of
the Code directed in somewhat similar facts
that the sentences awarded to the accused to
run
"concurrently"
in
place
of
"consecutively".

45. Thus, in view of law propounded by
the Hon'ble Apex Court in the case of
Nagaraja Rao (Supra) the sentence awarded
to the appellant shall run ''concurrently' and
not ''consecutively'.

46. This Court in its judgement and
order dated 18.12.2020 passed in Criminal
Appeal No. 309 of 2015 passed in Criminal
Appeal No. 309 of 2015 (Ramu vs State of
U.P. and others) has dealt with the present
situation in para 51, 52 and 54 which are
quoted hereinunder;
10 All. Mohd. Akku Vs. State of U.P.
655

51. It is settled principle of law that
no person can be punished twice for one
offence. Normally a criminal court, by virtue
of Section 71 I.P.C., in such cases, where any
criminal act is punishable in two or more
Statute or in different provision of same
statutes, convicts and sentence in such
provision of such statutes where lesser
punishment has been provided. Parliament
was aware to this situation. Looking into the
gravity of nature of offence of rape offences,
particularly, rape with victim below age of 18
years, Section 42 and 42 A of POCSO Act,
2012 were incorporated to deal with such
peculiar situation, which read as under:-

52. Thus it is clear that if offence of
sexual assault is punishable in relevant
provision of POCSO Act and also in relevant
provision of I.P.C., like 376 I.P.C., Trial Court
is bound to punish the accused either in the
relevant provision of POCSO Act, or under
I.P.C. which is greater in degree.

54. In view of the provision
contained in Section 42 of POCSO Act, Trial
Judge ought to have punished appellant only
in Section 376 I.P.C., not in Section 4 of
POCSO Act, 2012. In addition to it, he ought
not to have punished appellant both in
Sections 376 I.P.C. and in Section 4 of
POCSO Act, 2012.

47. This Court in Jail Appeal No. 6590
of 2016 (Gyanendra Singh @ Raja Singh
vs State of U.P. ) has held in para 52 and 54
which is quoted herein under;

52. Thus it is clear that if offence of
sexual assault is punishable in relevant
provision of POCSO Act and also in relevant
provision of I.P.C., like 376 I.P.C., Trial Court
is bound to punish the accused either in the
relevant provision of POCSO Act, or under
I.P.C. which is greater in degree.

54. In view of the provision
contained in Section 42 of POCSO Act, Trial
Judge ought to have punished appellant only
in Section 376 (2) (f) (i) I.P.C., not in Section
4 of POCSO Act, 2012. In addition to it, he
ought not to have punished appellant both in
Sections 376 (2) I.P.C. and in Section 3 /4 of
POCSO Act, 2012.

48. Thus, in the light of the abovesaid
settled proposition of law and discussions,
the judgement and order dated 02.05.2017
passed by Additional Session Judge, Court
No.1, Balrampur in Special S.T. No. 84 of
2013 arising out of Case Crime No. 126 of
2013, under Section 376 IPC and Section 6
of Protection of Children from Sexual
Offence Act, 1912 (in short ''POCSO Act'),
Police
Station-
Panchpedwa,
District
Balrampur so far as relates to conviction of
appellant is maintained and affirmed but
sentence is liable to be modified.

49. In view of above, conviction of
appellant under Section 6 of POCSO Act is
maintained. The appellant shall serve the
sentence of 10 years rigorous imprisonment
and fine of Rs.3000/- and in event of default
of fine, he shall further serve rigorous
imprisonment for three months. No separate
sentence is required for the offence under
Section 376 of IPC. In case the appellant has
served the sentence of imprisonment of 10
years as awarded by the learned trial court, he
shall set at liberty forthwith, if not wanted in
connection with any other case.

50. In the light of the observations,
the appeal is partly allowed to the extent
as above.

51. Let the copy of this judgement
and lower court record be sent to the trial
court
for
necessary
information
and
compliance.
656 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 10 ILRA 656
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 1043 of 2015

Ram Sewak @ Baura ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Uttar Kumar Goswami, Sri
Virendra Pratap Yadav (A.C.)

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

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2)/383 -
Indian Penal Code, 1860-Sections 363 &
376 -challenge to-conviction-no disclosure
of name and address of the accused in the
FIR-Informant-PW-1 denied to recognize
the accused in her statement recorded u/s
161 Cr.P.C. as well as in her statement
recorded before the court below as PW-1neither any test identification parade of
the accused had been carried out nor the
accused was identified by the victim(PW2)-Statement of the victim (PW-2) had not
been recorded-no thumb impression or
signature of the victim in the medical
report, hence it is not proved that the
injury report is of the victim-PW-1 had not
seen the incident with her own eyes-other
witnesses were not examined in support
of
the
prosecution
version-Hence,
prosecution failed to prove the guilt of the
accused beyond reasonable doubt.(Para 1
to 38)

B. It is well settled that where a witness
identifies an accused who is not known to
him in the Court for the first time, his
evidence is absolutely valueless unless
there
has
been
a
previous
Test
Identification Parade to test his powers of
observations. The idea of holding T.I.
Parade under Section 9 of the Evidence
Act is to test the veracity of the witness on
the question of his capability to identify an
unknown person whom the witness may
have seen only once. If no T.I. parade is
held then it will be wholly unsafe to rely
on his bare testimony regarding the
identification of an accused for the first
time in Court.(Para 19)

The appeal is allowed. (E-6)

List of Cases cited:
1. Kanan & ors. Vs St. of Ker. (1979) 3 SCC 319

2. Suresh Chandra Bahri Vs St. of Bih. (1995)
SCC (Crl.) 60

3. Dana Yadav @ Dahu & ors. Vs St. of Bih.
(2002) 7 SCC 295

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This jail appeal has been preferred
by accused-appellant, namely, Ram Sewak
@ Baura against the judgment and order
dated 21st January, 2015 passed by the
Additional Sessions Judge, Court No.1,
Banda in Sessions Trial No. 188 of 2013
(State Vs. Ramsewak @ Baura) arising out
of Crime No. 363, 308 and 376 I.P.C.,
Police
Station-Pailani,
District-Banda,
whereby the accused-appellant has been
convicted and sentenced to undergo to (i)
life imprisonment under Section 376 I.P.C.
with fine of Rs. 40,000/-, in default thereof,
he has to further undergo eight months'
additional simple imprisonment and (ii)
five years rigorous imprisonment under
Section 363 I.P.C. with fine of Rs. 10,000/-
, in default thereof, he has to further
undergo
two
months'
additional
imprisonment, with the observations that