# Shyam Sunder (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 538
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-15
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-sunder-in-jail-v-state-of-u-p-44829
- **Pages:** 5

## Headnote

A. Criminal Law -Protection of Children
From
Sexual
Offences
Act,
2012,
sections 3 / 4; Indian Penal Code, 1860
- Sections 376, 506 & Code of Criminal
Procedure - Section 374(2) of Cr.P.C. -
Quantum of punishment - in case of
conviction under Section 376 I.P.C as
well as for penetrative sexual assault,
punishable under Section 4 of POCSO
Act, the sentencing is to be made under
Section 4 of the POCSO Act. , because it
is for graver degree sentence.

B. Sentencing - Modification of sentence
- The convict-appellant has no criminal
antecedent - There is likelihood of him
being brought in the main stream of
society after repent and reformation -
sentence of seven years with fine of
Rs.15,000/- and in default six months'
additional imprisonment under Section 4
of POCSO Act was adequate and proper
sentence - Imposed sentence under
Section 376 I.P.C. was not permissible as
per section 42 of POCSO Act. Appeal partly
3 All. Shyam Sunder Vs. State of U.P.
539
allowed regarding quantum of sentence for
imprisonment, awarded under Section 376
I.P.C. - dismissed for rest of sentence
awarded under Section 506 I.P.C. and Section
3/4 of POCSO Act, - The sentence awarded by
trial judge substituted - Convict-appellant
sentenced for offence punishable under
Section 506 I.P.C. with one year simple
imprisonment - further sentenced with seven
years' rigorous imprisonment and fine of
Rs.15,000/- and in default six months'
additional
imprisonment
for
offence
punishable under Section 3/4 of POCSO Act.
(Para 3,4,7, 8)

 Appeal partly allowed. (E-7)

## Text

538 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant
also
stands
rejected.".....................

27. Apart from the above three
dying declarations, the deceased also
made oral dying declaration before PW-4
and the said witness has also proved the
oral dying declaration.

28. Taking the cumulative effect of
the evidence, we have no reason to
disbelieve the dying declarations of the
deceased which have been duly proved by
the witnesses. The mere fact that certain
medicines were given to treat the
deceased does not mean that she was not
in a fit state of mind to make the dying
declaration. There is enough evidence on
record to suggest that from 31.10.1987 to
09.11.1987, deceased was in a position to
speak and at least she was in a fit state of
mind on 31.10.1987, 01.11.1987 and
02.11.1987 to make her statement.

29. Considering all these aspects of
the case, the complicity of the appellant in
committing the murder of the deceased,
has been duly proved.

30. We find no substance in the
argument of the defence that as the appellant
hospitalized the deceased, some leniency be
shown to him. The appellant might have
hospitalized the deceased because of fear in
his mind but that does not entitle him for any
leniency. The trial court was fully justified in
convicting the appellant.

31. The appeal has no substance and
the same is, accordingly, dismissed.

32. Accused-appellant is reported to
be on bail. His bail bond stands cancelled
and he be taken into custody immediately
for serving the remaining sentence.

33. We appreciate the assistance
rendered by Sri Ajay, Amicus and we
direct the State Government to pay Rs.
5,000/- towards his remuneration.
----------
(2019)11ILR A538

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No: 2854 of 2017

Shyam Sunder ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri P.K. Singh

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

A. Criminal Law -Protection of Children
From
Sexual
Offences
Act,
2012,
sections 3 / 4; Indian Penal Code, 1860
- Sections 376, 506 & Code of Criminal
Procedure - Section 374(2) of Cr.P.C. -
Quantum of punishment - in case of
conviction under Section 376 I.P.C as
well as for penetrative sexual assault,
punishable under Section 4 of POCSO
Act, the sentencing is to be made under
Section 4 of the POCSO Act. , because it
is for graver degree sentence.

B. Sentencing - Modification of sentence
- The convict-appellant has no criminal
antecedent - There is likelihood of him
being brought in the main stream of
society after repent and reformation -
sentence of seven years with fine of
Rs.15,000/- and in default six months'
additional imprisonment under Section 4
of POCSO Act was adequate and proper
sentence - Imposed sentence under
Section 376 I.P.C. was not permissible as
per section 42 of POCSO Act. Appeal partly
3 All. Shyam Sunder Vs. State of U.P.
539
allowed regarding quantum of sentence for
imprisonment, awarded under Section 376
I.P.C. - dismissed for rest of sentence
awarded under Section 506 I.P.C. and Section
3/4 of POCSO Act, - The sentence awarded by
trial judge substituted - Convict-appellant
sentenced for offence punishable under
Section 506 I.P.C. with one year simple
imprisonment - further sentenced with seven
years' rigorous imprisonment and fine of
Rs.15,000/- and in default six months'
additional
imprisonment
for
offence
punishable under Section 3/4 of POCSO Act.
(Para 3,4,7, 8)

 Appeal partly allowed. (E-7)

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

1. This appeal under Section 374(2)
of
Code
of
Criminal
Procedure
(hereinafter referred to as 'Cr.P.C.') has
been filed by convict-appellant Shyam
Sunder against judgment of conviction
and sentence made therein in Special
Sessions Trial No. 579 of 2013 (State Vs.
Shyam Sunder), arising out of Case
Crime No. 351 of 2013, under Sections
376, 506 I.P.C. read with Section 3/4
POCSO Act, Police Station Kalyanpur,
District Kanpur Nagar, passed by Court
of
Special
Judge
(POCSO
Act)
/
Additional Session Judge, Court No. 14,
Kanpur Nagar.

2. Memo of appeal contends that
trial court failed to appreciate facts and
evidence placed on record. There was
inordinate delay in lodging the F.I.R. and
it was without any explanation. There was
inconsistency in medical report and oral
testimony, resulting improvement and
exaggeration in prosecution case. Owing
to
dispute
of
tenancy,
this
false
implication was made. Hence, this appeal
with a prayer for setting aside impugned
judgment of conviction and sentence
made therein.

3. At the very outset, it is mentioned
by Sri P.K. Singh, learned counsel for
appellant that he is not challenging the
judgment of conviction, wherein convictappellant has been convicted for offence
punishable under Sections 376, 506 I.P.C.
read with Section 3/4 of POCSO Act.
Rather, quantum of punishment has been
challenged
because
trial
court
has
convicted and sentenced the convictappellant
with
ten
years'
rigorous
imprisonment and fine of Rs.10,000/- and
in case of default six months' additional
rigorous imprisonment under Section 376
I.P.C. with further sentence for one year's
simple imprisonment under Section 506
I.P.C. with additional imprisonment of
seven years' imprisonment with fine of
Rs.15,000/- and in case of default six
months' additional rigorous imprisonment
under Section 3/4 of POCSO Act. There
had been a direction for concurrent
running of sentences and adjustment of
previous imprisonment in this very case,
towards
above
sentence
awarded.
Whereas, as per Section 42 of the
Protection of Children From Sexual
Offences Act, 2012 (Act No. 32 of 2012)
"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, 376C, 376D,
376E or Section 509 of the Indian Penal
Code (45 of 1860), 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 under this Act or under the
Indian Penal Code as provides for
punishment which is greater in degree."
i.e. punishment may not be made in both
540 INDIAN LAW REPORTS ALLAHABAD SERIES
the provisions of Indian Penal Code as
well as of POCSO Act. Rather, the
punishment, which is higher in degree, for
one and same offence, as provided under
POCSO Act as well as I.P.C. is to be
chosen and that is to be awarded. The
awarded sentence by trial court under
Section 376 I.P.C. was ten years' rigorous
imprisonment with fine of Rs.10,000/-
and in default, six months' additional
rigorous imprisonment. Again for same
offence of penetrative sexual assault i.e.
rape, defined under Section 375 I.P.C. as
well as Section 3 of POCSO Act,
punishable under Section 376 I.P.C. and
Section 4 of POCSO Act, trial court has
awarded
sentence
of
seven
years
imprisonment with fine of Rs.15,000/-
and in default six months' additional
imprisonment. Hence, it was apparently
erroneous.

4. For determination of this point
regarding higher degree of sentence,
Section 376 I.P.C. provides whoever
except in the cases provided for in subsection (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
woman 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 with both. Meaning thereby,
punishment under this section is of two
categories. First is not less than seven
years, which may extend to life. The
second one is for a term, which may
extend to ten years and shall also be liable
to fine. The trial Judge in present case has
invoked jurisdiction for this second part
because fine has been imposed along with
ten years rigorous imprisonment, which is
not provided in first part. Whereas under
POCSO
Act
under
Section
4
the
punishment for penetrative sexual assault
is "whoever commits penetrative sexual
assault
shall
be
punished
with
imprisonment of either description for a
term which shall not be less than seven
years,
but
which
may
extend
to
imprisonment for life, and shall also be
liable to fine i.e. imprisonment not less
than seven years extending up to life
imprisonment, along with fine has been
provided in this Section 4. Hence, it is a
graver punishment in degree. Because
under Section 376 I.P.C., the punishment
of life imprisonment was with no fine and
a punishment which was with fine was up
to ten years only. Whereas under Section
4 of POCSO Act punishment provided is
up to life imprisonment, but not less than
seven years coupled with fine. Hence, it is
a graver punishment. Hence, as per
Section 42 of POCSO Act, in case of
conviction under Section 376 I.P.C as
well as for penetrative sexual assault,
punishable under Section 4 of POCSO
Act, the sentencing is to be made under
Section 4 of the POCSO Act. Because it
is of graver degree sentence. The trial
Judge,
in
impugned
judgment,
has
awarded ten years' rigorous imprisonment
with fine for offence punishable under
Section 376 I.P.C. and he has further
sentenced rigorous imprisonment of seven
years with fine and in default additional
imprisonment, under Section 4 of POCSO
Act. Hence, prayer for setting aside
sentence provided under Section 376
I.P.C. has been made.

5. Sri K.K. Rajbhar, learned A.G.A.
has vehemently opposed this contention
by mentioning that sentence awarded in
3 All. Shyam Sunder Vs. State of U.P.
541
I.P.C. was in view of the provisions given
under the Code, whereas under Section 4
of POCSO Act, it was within provision of
the above Act. The Court had taken care
for a direction for concurrent running of
sentences and it cannot be said that twice
sentencing is there. Hence, this appeal,
against quantum of punishment, be
dismissed.

6. From the very perusal of legal
provision of Section 376 I.P.C., which
provides for punishment of rape and
Section 4 of POCSO Act, which provides
punishment for penetrative sexual assault,
it is apparently clear that sentence to be
provided under Section 4 of POCSO Act
is greater in degree then of I.P.C..
Because under POCSO Act the minimum
sentence is seven years, which may
extend to life imprisonment and it is to be
coupled with fine. Whereas under Section
376 I.P.C. minimum sentence as the Code
was in effect on that date is seven years
imprisonment, which may extend up to
life imprisonment, but there is not
provision for fine and if fine is to be
imposed then it is for second category
where the maximum sentence is up to 10
years coupled with fine. Hence, the
learned trial Judge was to sentence under
Section 4 of POCSO Act because of
Section 42 of POCSO Act and under
Section 4 of POCSO Act, sentence
awarded is of seven years' imprisonment
with fine and in default additional
imprisonment of six months, which was
in accordance with the provision of
Section 4. The punishment awarded for
offence punishable under Section 376
I.P.C.
i.e.
ten
years'
rigorous
imprisonment with fine of Rs.10,000/-
was not to be awarded as per Section 42
of POCSO Act. Hence, this part of
quantum of sentence is to be set aside.
There is no State appeal for enhancement
of punishment awarded under Section 4
of POCSO Act.

7. The factual aspect of this case is
that prosecutrix was held to be of 15 years
in medical age determination, though she
was said to be of 11 years in F.I.R.
(Ext.Ka-1) and other statement recorded.
But from the perusal of first information
report, it is apparent that this report was
got lodged for above offence of rape after
repeated rape being said to be made by
convict-appellant. In between, neither
prosecutrix disclosed the occurrence nor
ever
protest
was
raised.
The
last
occurrence of rape was said to be of
Chaitra Navratra of year 2013 i.e. a
delayed report. The convict-appellant is
of no criminal antecedent. There is
likelihood of him being brought in the
main stream of society after repent and
reformation. Hence, sentence of seven
years with fine of Rs.15,000/- and in
default
six
months'
additional
imprisonment under Section 4 of POCSO
Act was adequate and proper sentence.

8.

Under
above
facts
and
circumstances, imposed sentence under
Section 376 I.P.C. was not permissible as
per section 42 of POCSO Act. Hence,
appeal is liable to be partly allowed
regarding
quantum
of
sentence
for
imprisonment, awarded under Section
376 I.P.C.. But for rest of sentence
awarded under Section 506 I.P.C. and
Section 3/4 of POCSO Act, the same is to
be dismissed. Accordingly, it is being
partly allowed. The sentence awarded by
trial judge is being substituted as below.

Order

Convict-appellant Shyam Sunder is
being sentenced for offence punishable
542 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 506 I.P.C. with one year
simple imprisonment. He is further
sentenced with seven years' rigorous
imprisonment and fine of Rs.15,000/- and
in
default
six
months'
additional
imprisonment for offence punishable
under Section 3/4 of POCSO Act. Both
the sentences shall run concurrently and
adjustment of previous imprisonment in
this case crime number shall be made
against above awarded sentence.

9. Copy of the judgment along with
lower Court record be transmitted to trial
Court for amendment of warrant of
conviction and sentence as per above
conviction and sentence and for follow up
action.
----------

(2019)11ILR A542

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.10.2019

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE ANIL KUMAR-IX, J.

Criminal Appeal No. 2963 of 2009

Hasam & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Sushil Kumar Pandey, Sri Abhinav
Singh, Sri Anil Raghav, Sri Brijesh Sahai,
Sri Nazrul Islam Jafri, Sri Veer Singh, Sri
S.I. Jafri

Counsel for the Opposite Party:
A.G.A., Sri Bakhtyar Yusuf

A.
Evidence
Law-Indian
Evidence
Act,1872
-
Medical
evidence
(postmortem report) fully corroborates
the prosecution version as well as
testimony of prosecution witnesses -
ocular evidence has been fully supported
by medical evidence - The presence of
witnesses is proved to be natural and
their
statements
are
nothing
but
disclosure of actual facts relating to the
occurrence - There is nothing on record
to show that PW-2 had any animous
against the accused appellants - The
testimony of prosecution witnesses of
fact are cogent credible and trustworthy
- both the witnesses of fact have proved
the
prosecution
version
and
their
testimonies is fully supported by medical
evidence therefore motive loses its
significance - there are some minor
contradictions in the depositions of the
prosecution witnesses of facts that too
in regard to the subsequent events and
not to the actual incident - minor
contradictions,
inconsistencies
or
insignificant
embellishments
do
not
affect the core of the prosecution case
and should not be taken to be a ground
to reject the prosecution evidence. The
omission should create a serious doubt
about
the
truthfulness
or
creditworthiness of a witness. It is only
the serious contradictions and omissions
which materially affect prosecution case
but not every contradiction or omission -
findings of conviction for the offence
punishable under Section 302 I.P.C.
recorded by the trial court are well
substantiated by the evidence on record
- the conviction recorded against the
accused appellants under Section 302
I.P.C. is hereby maintained and affirmed.
(Para 6 ,58,59,64,69,71)

B. Indian Evidence Act,1872 - Section
25, Section 26 , Section 27 - Section 27
of the Indian Evidence Act is in the
nature of an exception to the general
rules contained in the two preceding
sections i.e. under section 25 and 26 -
Being an exception to the general rule it
has to be strictly construed - The section
does
not
permit
the
admission
in
evidence of the whole of the confession,
but of such portion only of it as can be
said to relate distinctly to the fact