1. List revised.

2. Heard Sri Abhishek Mayank, learned counsel for the appellant, Sri Ajay Singh, learned A.G.A.-I and Sri Bade Lal Bind, learned A.G.A. for the State and perused the record. The trial court records have been received which have also been perused. The paper book of the matter has been prepared which is on record and referred to.

3. Notice was issued to the opposite party no. 2 vide order dated 15.3.2023. Office vide its report dated 06.5.2023 reported that notice has been served personally on the opposite party no. 2 as per the report of C.J.M. concerned which is dated 28.3.2023. Service of notice is thus sufficient. Despite service no one appears on her behalf even in the revised list.

4. Name of the prosecutrix/victim is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgements and Section 228 of the Indian Penal Code. She is, thus, referred to as ''X' in the judgement.

5. This appeal has been preferred by the appellant/accused - Gauru @ Gaurav against the judgement and order dated 10.01.2020 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 9, Agra in Special Case No.190 of 2018 (State vs. Gauru @ Gaurav), Case Crime No. 318 of 2017, P.S.- Lohamandi, District- Agra, by which he has been convicted and sentenced for the offences under Section 376 read with (2)(i) I.P.C. to 14 years rigorous imprisonment, a fine of Rs.50,000/- and in default of payment of fine to 01 year additional imprisonment and under Section 3/4 of Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act, 2012) to 07 years rigorous imprisonment, a fine of Rs.25,000/- and in default of payment of fine to 03 months additional imprisonment. Sentences have been ordered to run concurrently. It has been ordered that half of the fine when deposited shall be paid to the victim. Further the trial court has extended the benefit of set-off under Section 428 Cr.P.C. to the accused/appellant.

6. The facts on the basis of which the present matter was initiated are that an application dated 17.10.2017 was given by Smt. Rekha wife of Sunil Balmiki, addressed to Station House Officer of Police Station Lohamandi, District Agra alleging therein that her husband is working as a sweeper. On 17.10.2017 at about 1:30 p.m. her daughter/victim “X” aged about 07 years was sent to a shop in the locality for getting some articles where Gauru @ Gaurav who was residing in front of her house, was present who allured and took her daughter to his house. Her daughter did not return back for a long time and then she started searching her out and was shouting for her. When she reached the house of Gauru @ Gaurav, she heard the cry of her daughter on which she called her husband and both of them then entered into the house and saw that Gauru @ Gaurav had caught hold of her daughter and had slipped her payjama down and made her sit on him and was committing illegal act on her. She and her husband apprehended Gauru @ Gaurav there and saved their daughter. At that time Gauru was wearing towel only and his pant and underwear were kept nearby. Many people of locality collected there. Gauru @ Gaurav confessed his guilt and pleaded apology. She along with her husband and daughter, Gauru @ Gaurav and people of nearby locality have come to police station along with his pant and underwear. A report be lodged and action be taken. The said report is Ex. Ka-1 to the records.

7. On the basis of the said application an F.I.R. was lodged as Case Crime No. 318 of 2017, under Section 376 I.P.C. and 3/4 POCSO Act, 2012, Police Station Lohamandi, District Agra on 17.10.2017 at 16:20 hours. The Chik F.I.R. is Ex. Ka-5 to the records.

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

                   “No definite opinion about sexual assault can be given.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

26. Next argument of learned counsel for the appellant/accused while criticizing the judgement of the trial court is that charge in the present matter was framed against the accused/appellant vide order dated 17.4.2018 for offences under Section 376 I.P.C. and Section 3 of POCSO Act, 2012 which is punishable under Section 4 of the said Act. The trial court came to its conclusion that offences under Section 376 (2) (i) I.P.C. and under Section 3/4 POCSO Act, 2012 are proved beyond reasonable doubt against the accused and thus convicted him under the said sections. While awarding sentence the trial court awarded the accused/appellant 14 years rigorous imprisonment along with fine of Rs.50,000/- and in default of payment of fine to 01 year additional imprisonment for the offence under Section 376(2)(i) I.P.C. and for 07 years rigorous imprisonment, a fine of Rs.25,000/- and in default of payment of fine 03 months additional imprisonment under Sections ¾ POCSO Act, 2012. The sentences were ordered to run concurrently. It is submitted that interference in the trial court judgement is called for as the trial court has found the accused/appellant guilty for offences under Sections 376(2)(i) I.P.C. and 3/4 of POCSO Act, 2012 and the trial court ought to have passed the sentence either under the Indian Penal Code or POCSO Act, 2012 whichever has greater punishment awarded in anyone of the Act. It is submitted that Section 42 of POCSO Act, 2012 empowers the court to give alternative punishment if the accused is found guilty for the offences which are punishable with both the provisions of Section 376 I.P.C. as well as of POCSO Act, 2012 which is greater in degree. If the accused is found guilty under Section 376 I.P.C., if punishment prescribed in it is higher then the court is required to pass higher sentence under Indian Penal Code and if sentence prescribed in POCSO Act, 2012 is more than the sentence awarded under the I.P.C. then the court is required to provide higher punishment prescribed under the POCSO Act, 2012. Section 42 of the POCSO Act, 2012 has been placed before the Court which reads as under:-

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

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

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

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

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

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

                   27. For determination regarding higher degree of sentence, Section 376 IPC is to be seen. It provides that whoever except in the cases provided in sub- section (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:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

34. The appeal is allowed.

35. The appellant is in jail. He shall be released forthwith unless wanted in any other case.

36. Copy of this order be communicated to the District and Sessions Judge/trial court concerned for its compliance on and necessary follow- up action(s). The trial court records be also remitted back with it forthwith.