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Shakeel vs State Of U.P. on 5 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on: 24.09.2019

Delivered on: 05.11.2019

Court No. – 79

Case :- CRIMINAL APPEAL No. – 710 of 2013

Appellant :- Shakeel

Respondent :- State Of U.P.

Counsel for Appellant :- A. Kumar Srivastava,Rakesh Dubey

Counsel for Respondent :- Govt. Advocate,S.D.Singh Jadaun

Case :- CRIMINAL APPEAL No. – 736 of 2013

Appellant :- Akhilesh Kumar Verma

Respondent :- State of U.P.

Counsel for Appellant :- Govind Narain Srivastava,Satya Dheer Singh Jadaun

Counsel for Respondent :- Govt. Advocate

Hon’ble Ram Krishna Gautam,J.

1. This appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as ‘SectionCr.P.C.’) has been filed by Shakeel and connected Criminal Appeal No. 736 of 2013, under Section 374(2) Cr.P.C., has been filed by Akhilesh Kumar Verma against judgment of conviction and sentence made therein vide judgment and order dated 15.01.2013, passed by Additional District Sessions Judge, Court No. 9, Pilibhit in Sessions Trial No. 496 of 2010, arising out of Case Crime No. 1281 of 2010, under Sections 363, Section366, Section376 I.P.C., Police Station Puranpur, District Pilibhit, whereby both the appellants Shakeel and Akhilesh Kumar Verma have been convicted and sentenced with ten years rigorous imprisonment and fine of Rs.10,000/- under Section 376 I.P.C., three years rigorous imprisonment and fine of Rs.2,000/- each under Section 366 I.P.C. and two years rigorous imprisonment with fine of Rs.2,000/- each under Section 363 I.P.C. with a condition that in case of default of payment of fine, they will have to undergo additional imprisonment of three months. There was a direction for concurrent running of sentences.

2. The memo of appeal of convict-appellant Shakeel contends that trial court failed to appreciate facts and law placed on record. Specific allegation of rape was levelled against co-convict Akhilesh Kumar Verma, whereas without there being any evidence on record, convict-appellant Shakeel has also been convicted and sentenced, as above. Prosecutrix resided for 30 days with co-convict Akhilesh Kumar Verma at Lucknow and for all 30 days she kept mum. The prosecutrix was proved to be of 17 to 18 years of age. She never made any allegation against convict-appellant Shakeel in her statement recorded under Section 164 Cr.P.C. Though, during trial there was variation in her statement. Regarding Shakeel the role was specific that he handed over her to Akhilesh. Hence, for convict-appellant Shakeel, the accusation levelled was not proved beyond doubt and trial Judge failed to appreciate facts and law placed before it, thereby conviction and sentence is result of perversity. The convict-appellant Shakeel had no motive for kidnapping victim or seducing her or having extortion regarding sexual assault.

3. Memo of appeal of convict-appellant Akhilesh Kumar Verma contends that trial court has erred in law by convicting appellant without appreciating the facts and circumstances of case, available on record, because prosecution failed to prove its case beyond reasonable doubt. The FIR was of this fact that Shakeel took away prosecutrix and this was witnessed by PW-2. The wife of informant had seen several times conversation in between prosecutrix and Shakeel, who were in love affairs. Perusal of medico legal report as well as testimony of Medical Officer reveals that there was no specific opinion regarding commission of rape. Because no dead or alive spermatozoa were found in vaginal smear. There was material contradiction in the statement recorded under Section 164 Cr.P.C. as well as testimony of prosecutrix recorded during trial. In statement recorded under Section 164 Cr.P.C., no accusation of rape was there. It was subsequently developed, while being examined during trial. Hence, this conviction and sentence was against evidence on record.

4. From the very perusal of record of trial court and impugned judgment, it is apparent that First Information Report (Ext.Ka-1), scribed by Santosh Kumar, S/o Kishorilal, R/o Village Tilokpur, P.S. Paliyakalan Khiri, was submitted at Police Station Puranpur on 01.08.2010 at 13.40 P.M. by Nirmal Lal and this Case Crime No. 1281 of 2010, under Sections 363, Section366 I.P.C. was got registered at above police station as chick FIR (Ext Ka-8) against Shakeel with this contention that informant’s daughter prosecutrix had gone for her school Gurunanak Secondary Vidhyalaya, Rudrapur on 30.04.2010 at 8 A.M. She was enticed and taken away, in the way, by Shakeel, S/o Shabbir, R/o Village Sherpurkalan, Police Station Puranpur, which was witnessed by his another daughter Rubi. Shakeel was enticing prosecutrix since last three months and it was seen by informant’s wife Sunita Devi that prosecutrix was under talk with him, for which she had forbidden her. Prosecutrix and Shakeel was being searched, but in case of their failure of trace, this report was submitted. The case was investigated. On 02.09.2010, while Sub Inspector Pankaj Pant, along with Sub Inspector Smt. Parveen Bano and other police team, by way of movement entered at G.D. Entry No. 29 at 12.40 PM, were busy in search of prosecutrix, in the area of Police Out Post, Haripur, an information was received that prosecutrix, with one man, was present at Railway Station, Puranpur, under wait of train for proceeding for somewhere else. Police team, along with mother of prosecutrix i.e. Smt. Sunita Devi and her brother Ram Sagar, rushed at Railway Station, Puranpur where, in front of gate no. 1, prosecutrix was present with one other person. Both were apprehended at 15 P.M.. The man apprehended was Akhilesh Kumar Verma, S/o Rajendra Prasad Verma, R/o Govindapur, Police Station Hyderabad, District Lakhimpur Khiri. Prosecutrix disclosed that she was taken by Shakeel under the enticing of being married on 30.07.2010. She was medically examined. For determination of age, ossification test was got conducted. This medico legal report (Ext Ka-6) was with no mark or injury over private part or body of prosecutrix. Hymen was old torn, permitting entry of two fingers. Vaginal smear slide was got prepared and referred for pathological test. She was advised X-ray for determination of age. Supplementary medical report (Ext. Ka-7), dated 06.09.2010, was prepared and as per medical report, prosecutrix was held to be of 17 years. Epiphysis were fused. There was no presence of live or dead spermatozoa. Definite opinion of rape could not be given. Though, secondary sexual characters were well developed. Prosecutrix was produced before Magistrate, where her statement under Section 164 Cr.P.C. was got recorded. Thereafter, she was given under custody of her parents. Investigation resulted submission of charge sheet against Shakeel and Akhilesh Kumar Verma. The Magistrate took cognizance, vide order dated 17.09.2010. As offence punishable under Section 376 I.P.C. was exclusively triable by Court of Sessions, hence court of Chief Judaical Magistrate, Pililbhit, vide order dated 15.11.2010, committed this file to Court of Sessions.

5. After hearing learned D.G.C. (Criminal) as well as learned counsel for accused persons, Sessions Judge, Pilibhit vide order dated 8th December, 2010 framed charges against accused Shakeel and Akhilesh Kumar Verma for offences punishable under Sections 363, Section366, Section376(2)(g) I.P.C., which were read over and explained to both accused persons, but they pleaded not guilty and claimed for trial.

6. Prosecution examined informant PW-1 Nirmal Lal, PW-2 Km. Rubi, PW-3 prosecutrix, PW-4 Smt. Sunita, PW-5 Investigating Officer S.I. Pankaj Pant, PW-6 Dr. Seema Agrawal and PW-7 Constable Ramchandra Sharma.

7. With a view to have explanation, if any, and version of accused persons, their statement, under Section 313 Cr.P.C., was got recorded, wherein both accused persons Shakeel as well as Akhilesh Kumar Verma said accusation to be with false allegation and false registration of case with fallacious investigation and testimony. They said that evidence in defence will be given, but no evidence in defence was there. After hearing learned public prosecutor and learned counsel for defence, impugned judgment of conviction and sentence there-under, written as above, was passed. Learned counsel for appellant Shakeel Sri Rakesh Dubey as well as learned amicus curiae for appellant Akhilesh Kumar Verma Sri S.D. Singh Jadaun vehemently argued that charge sheet was filed for offence of kidnapping of a minor girl of informant, whereas prosecutrix was major and held to be of 17 years in medical age determination. She was in affairs and conversation with Shakeel for which Ext.Ka-1 says that Smt. Sunita used to forbid prosecutrix. The prosecutrix was in company with her another sister, even then, she went with Shakeel. Hence, it was consensual fleeing with Shakeel and accusation against Shakeel was this that he handed over her to Akhilesh Kumar Verma. She lived with Akhilesh Kumar Verma for more than one month, but at no point of time, she ever raised any protest. This also shows that it was a consensual act under her own volition. It was neither enticing nor kidnapping nor suggests for rape. No accusation of rape was there in statement recorded under Section 164 Cr.P.C. It was subsequently developed, at the time of recording of statement before the Court, and when cross-examined, prosecutrix (PW-3) denied about recording of statement by Magistrate, whereas the same was recorded by Magistrate and it has been proved and exhibited on record. This shows material contradiction. Hence, offence punishable, as above, were not proved beyond reasonable doubt. Even then, deterrent punishment has been imposed. Even if, conviction is not being challenged rather is being admitted, both of convicts are languishing in jail and have suffered more than seven years in detention against maximum sentence awarded of ten years. Hence, they deserve to be sentenced with period undergone.

8. Sri Brijendra Pratap, learned A.G.A. vehemently opposed arguments raised by learned counsel for appellants, with this contention that as per testimony of prosecutrix PW-3, her date of birth was 15.07.1995 and she was student of Class X at the time of occurrence. The occurrence was of 30.07.2010. She comes to the age of 15 years on the date of occurrence, which was said by informant in Ext. Ka-1 as well as in his testimony. The prosecutrix was held to be of 17 years in medical age determination report (Ext. Ka-7). There are various circumstances as well as rule of medical jurisprudence that ‘2’ years either way, may vary to this medical age determination, which goes to support the testimony of PW-1. Prosecutrix, being 15 years of age, as reported in (Ext.Ka-1) and decided to be of 17 years in medical age determination, it has been held by trial court in impugned judgment that she was not of 18 years. Hence, she was minor i.e. below 18 years and under Section 361 I.P.C., her consent or no consent is of no avail to mitigate offence of kidnapping from lawful guardianship, punishable under Section 363 I.P.C. Admittedly, she was taken for registration of marriage before court to have consultation with counsel i.e. this abduction was with intention to get prosecutrix married and she has said in her testimony as PW-3 that even on the date of kidnapping she was subjected to sexual assault. Hence, this kidnapping from lawful guardianship was with a view to have sexual recourse with prosecutrix. Hence, offence under Section 366 I.P.C. was fully proved. She was raped by both convicts appellants, as has been said and proved by her. Hence, sentence awarded by learned trial judge was in correct appreciation of facts and law placed on record. It was commensurate to gravity of offence. Hence, both the appeals be got dismissed.

9. Section 363 I.P.C. provides:- “whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Kidnapping from lawful guardianship has been defined under Section 361 I.P.C. that “whoever takes or entices any minor under sixteen years of age, if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” i.e. for punishment of offence under Section 363 I.P.C., Section 361 I.P.C. and its ingredients are to be proved, which requires taking or enticing of a minor under 16 if male and under 18 if female, from lawful guardianship or a person of unsound mind of any age, without consent of that guardian. Apex Court in SectionThakorlal D. Vadgama vs The State Of Gujarat; AIR 1973 SC 2313, has propounded the words “whoever takes or entices any minor” under Section 361 I.P.C. and observed as to what actually means. According to the Supreme Court, the word “takes”, does not necessarily connote taking by force and does not confined to use of force, actual or constructive. These words merely mean “to cause to woke”, “to support” or “to get into possession”. The gravamen of this offence under Section 361 I.P.C. lies in the taking or enticing of a minor, specified in this section out of the keeping of the lawful guardianship without the consent of such guardian.

10. Prosecutrix in her statement recorded before trial court as PW-3 has said that on 30.07.2010, while she, along with her younger sister Rubi, was on her way to school, Shakeel came there and asked to be with him, which was refused. He extended threat of dire consequences and thereby took her at Puranpur Railway Station, where Akhilesh met. She was taken by both of them by train at Gola Gokaran Nath, from where Akhilesh took her to Lucknow and she was being kept at different places for about one month, where Akhilesh used to commit rape with her. He brought her by rail at Puranpur, where they were got apprehended. She got medically examined and her statement was recorded before Magistrate. Shakeel too had committed repeated rape with her, while she was at her home and this was under threat of dire consequences, in case of opening lips to anyone. Her mother had scolded her and Shakeel, for it. She, in her cross examination, has categorically said that it was not said to Magistrate that Shakeel too had committed rape with her. In cross-examination, learned counsel for Akhilesh Kumar Verma had given suggestive question that it was a consensual living with Akhilesh Kumar Verma and willful marriage, which was got signed by some papers at court. This was vehemently denied by prosecutrix, but this leading suggestive question itself sows that living for 30 days and having physical relation by Akhilesh Kumar Verma is not disputed fact. Rather, it was said to be consensual living. Whereas, this witness has categorically said her date of birth to be 15.07.1995 and no cross-examination over this date of birth is there nor any documentary evidence to prove date of birth otherwise could be got filed by accused persons. Hence, prosecutrix being minor was subjected to rape. Her consent or no consent is of no avail, because of her being minor one.

11. On a plain reading of this Section, the consent of the minor, who is taken or enticed, is wholly immaterial, it is only the guardian’s consent which takes the case within its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person, which creates willingness on the part of minor to be taken out of the keeping of the lawful guardianship would be sufficient to attract this Section 361 I.P.C., as has been held by Apex Court in State of Haryana Vs. Raja Ram; AIR 1973 SC 819. Moreso, this was in corroboration with medical age determination report (Ext. Ka-7) filed and proved on record. Prosecutrix was below 18 years of age on above date and as per testimony, she was enticed and taken by convicts appellants by way of persuasion and she was taken without consent of her lawful guardian informant. Hence, ingredients of offence under Section 361 I.P.C. punishable under Section 363 I.P.C. was fully proved by testimony of prosecutrix PW-3. This has further been corroborated by testimony of PW-1 informant Nirmal Lal that her daughter was at her school and was taken by Shakeel, which was witnessed by PW-2 Rubi. Subsequently, she was apprehended, along with Akhilesh Kumar Verma. She was 15-16 years of age. Convicts appellants took her out of his legal guardianship without his consent. He got this case registered by presenting an application Ext.Ka-1. This has further been corroborated by testimony of PW-2 Km. Rubi, who was eyewitness account of this taking, and she in her testimony has proved that while being with prosecutrix on her way to school, prosecutrix was enticed and taken away by Shakeel and she informed this to her parents. For this testimony, there was no contradiction, exaggeration or embellishment. This has further been corroborated by testimony of PW-4 Sunita Devi, mother of prosecutrix, that Shakeel was under conversation with prosecutrix, for which this witness had scolded both of them. Prosecutrix had said that Shakeel used to transmit messages over mobile to her and for this, this witness had scolded her. Ultimately, prosecutrix was enticed and taken by Shakeel and she was recovered while being in company of Akhilesh Kumar Verma. Regarding this testimony, there is no contradiction, exaggeration or embellishment.

12. This Court in a Division Bench Judgment in Kunwar Singh Vs. State of U.P.; 1993 (3) AWC 1305 has propounded the effect of non cross-examination of witness on a fact appearing in Examination-in-Chief under Section 137 of Evidence Act and held that if some fact has been averred in Examination-in-Chief of testimony of a witness and same is not being cross-examined in Examination-in-Cross, truthfulness of that uncontroverted part of a fact shall be accepted. In the present case, it was specifically said by prosecutrix (PW-3), in her Examination-in-Chief, that her date of birth is 15.07.1995 and this fact was not cross-examined by learned counsel for the defence. Hence, this portion of fact is full truth and is to be accepted. This occurrence was of 30.07.2010 i.e. prosecutrix was below 18 years on above date and as per her testimony, she was enticed and taken by convicts-appellants by way of persuasion. This was with no consent of lawful guardian, informant i.e. Nirmal Lal. Hence, ingredients of offence under Section 361 I.P.C., punishable under Section 363 of I.P.C., was fully proved by testimony of prosecutrix (PW-3). This has further been corroborated by testimony of PW-1 Nirmal Lal (informant) that at the time of alleged occurrence, her daughter was 15-16 years of age. No cross-examination about date of birth of prosecutrix, said by this witness in his examination-in-chief, has been made by learned counsel for the defence. Thereby, this fact is unrebutted in cross-examination. A suggestive question has been put to PW-3 that it was a consensual living with Akhilesh Kumar Verma and willful marriage, which was got signed by some papers at court. This was vehemently denied by prosecutrix. But, this leading suggestive question itself sows that living for 30 days and having physical relation by Akhilesh Kumar Verma is not disputed fact. Rather, it was said to be consensual living. Hence, by factual evidence of these two witnesses, offence punishable under Section 363 I.P.C. was fully proved.

13. Offence punishable under Section 366 I.P.C. requires three principal ingredients (I) kidnapping or abduction to any women (II) such kidnapping or abduction must be (i) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (ii) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illegal intercourse, or (iii) by means of criminal intimidation or otherwise by enticing any women to any place with intent that she may be or knowing that she will be forced or seduced to illicit intercourse. It is immaterial whether the women kidnapped is married women or not. To bring him an offence punishable under Section 366 I.P.C., the prosecution is to prove (a) that the accused kidnapped has understood Section 360 or 361 SectionI.P.C. or abducted the victim has understood Section 362 I.P.C.; (b) that the victim of the aforesaid kidnapping or abduction was a female; (c) that the accused during the kidnapping or abduction had intention or knew it likely that (1) such women might or would be forced to marry a person against her will, or (2) that she might or would be forced or seduced to illicit intercourse, or (3) by means of criminal intimidation or otherwise by enticing a women to go from any place with intent that she may be or knowing that she will be forced or seduced to illicit intercourse. As in the present case, prosecutrix was proved to be minor, hence, regarding minor for such offence punishable under Section 366 I.P.C. was fully proved.

14. Section 376 I.P.C. provides for punishment of rape that – (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.”

15. In the present case, prosecutrix as PW-3, in her testimony in Examination-in-Chief has, specifically said that she was subjected to repeated rape by accused, against her wishes, by use of force and threat. Regarding this statement, given in fact, there is no contradiction or exaggeration in Examination-in-Cross. Rather, a suggestive question has been put to PW-3 and it has been argued by learned counsel for the appellants that prosecutrix was under love affair with convict-appellant and it was a consensual living. This defence shows that having physical relation is not being disputed. Rather the same is being said to be under consensual affairs. Whereas prosecutrix, by her unimpeachable testimony, has proved about forceful rape with her.

16. PW-7 Constable Ramchandra Sharma is the formal witness, who has proved registration of this case and its G.D. Entry in Chick F.I.R. The same were exhibited on record as Chick F.I.R. (Ext. Ka-8) and G.D. Entry (Ext. Ka-9), for which there is no contradiction or embellishment.

17. PW-5 Investigating Officer Pankaj Pant has proved formal investigation of this case and preparation of site map, upon pointing of witnesses, and the same was exhibited as Ext.Ka-2 on record. Recovery memo of recovery of prosecutrix from possession of Akhilesh Kumar Verma has been duly proved by court witness, which is Ext. Ka-3 on record. After determination of age of prosecutrix and finding of her being minor, she was given in custody of her parents. This custody paper was proved as Ext.Ka-4 on record. After investigation, submission of charge sheet (Ext.Ka-5) under his handwriting and signature was proved by him. Hence, there is no material contradiction, embellishment or exaggeration in his testimony.

18. Apex Court in SectionNarbada Prasad vs Chhagan Lal And Ors AIR 1969 SC 393, has held that in an appeal the burden is on the appellant to prove how the judgment under appeal is wrong? He must show where the assessment has gone wrong? In criminal trial Apex Court in SectionKali Ram vs State Of Himachal Pradesh AIR 1973 SC 2773, has propounded that the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. SectionIn Partap vs. State of UP; AIR 1976 SC 966, Apex Court has held that prosecution has to prove case beyond all reasonable doubt whereas accused is to prove only establishing preponderance of probabilities. Though Apex Court in SectionShankarlal Gyarasilal Dixit vs. State Of Maharashtra; AIR 1981 SC 765 has propounded that feasibility of defence does not shape prosecution case and suspicion how so strong cannot take place of proof.

19. In present case, prosecution has proved its case. The argument of learned counsel for the appellants that it was single testimony of prosecutrix on the basis of which this judgment of conviction has been passed, is not of any weight because repeatedly this Court as well as Apex Court has propounded that even a single testimony, which is unimpeachable, proves case beyond doubt, case of prosecution is not to be thrown out. Apex Court Veer Singh and another Vs. State of U.P., 2014 (84) ACC 681 at para 17 has propounded – “Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses, but, quality of their evidence which is important, as there is no requirement under the law of evidence, that any particular number of witness is to be examined to prove/disapprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence, as has been provided, under Section 134 of Evidence Act. As a general rule, Court can and may act on the testimony of a single witness provided he is wholly reliable”. In this case, itself Court has propounded “testimony of a witness cogent, credible and trustworthy, having ring of truth, deserve its acceptance.” In the present case, testimony of PW-1 informant corroborated with unimpeachable testimony of PW-2 Rubi, who was eyewitness, is cogent, credible and trustworthy, having ring of acceptance. Accordingly, judgment of conviction is fully based on evidence placed on record. There was no illegality or irregularity in passing of judgment of conviction regarding charges levelled for offence punishable under Sections 363, 366 and 376 of I.P.C.

20. Sentence awarded for offence punishable under Sections 363 and Section366 I.P.C. was commensurate to degree of offence. It is neither excessive nor without reason.

21. Regarding Section 376 I.P.C., the minimum sentence provided for offence of rape is seven years and in case of punishment, less than seven years, Court is required to write reasons being adequate and special reasons to be mentioned in the judgment for imposing a sentence of imprisonment for a term less than seven years.

22. Apex Court in SectionGopal Singh vs State Of Uttarakhand (2013) 3 SCC (Cri) 608 has propounded:-

“Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect – propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, etc. etc.”

23. Though in a case of rape, when an adult commits rape on a girl of tender age, deterrent punishment is called for, taking a lenient view is out of question. Once a person is convicted for offence of rape, he should be treated with heavy hands and undeserved indulgence or liberal attitude in not awarding adequate sentence is improper. As per law laid down by Apex Court in SectionState of U.P. vs. Babu Lal, AIR 2008 SC 582, the adequate and proper sentencing is to be made. In the present case, convicts-appellants have been sentenced with ten years rigorous imprisonment, whereas award of eight years and fine of Rs.10,000/- and in default two years rigorous imprisonment will proved to be adequate sentence under Section 376 of I.P.C.

24. Accordingly, this appeal is to be partly allowed regarding sentence. Hence, sentence awarded by trial court is being amended as follow:-

Order

Convicts-appellants Shakeel and Akhilesh Kumar Verma are being sentenced with eight years rigorous imprisonment and fine of Rs.10,000/- and in default two years rigorous imprisonment for offence punishable under Section 376 I.P.C., three years rigorous imprisonment with fine of Rs.2,000/- and in default three months additional imprisonment under Section 366 I.P.C., two years rigorous imprisonment with fine of Rs.2,000/- and in default three months additional imprisonment under Section 363 I.P.C. Sentences shall run concurrently and adjustment of previous imprisonment in this case shall be made against above awarded sentence.

25. 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.

26. Before parting, we find it appropriate to place on record our commendation to Sri S.D. Singh Jadaun, learned counsel for appellant Akhilesh Kumar Verma, who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. He shall be paid counsel’s fee as per order dated 18.04.2016.

Order Date :- 05.11.2019

NS

 

 

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