Akshay Kumar Alias Manda vs State Of H.P

Vivek Singh Thakur, J

Appellant has filed this appeal against judgment dated 24.9.2020 passed by Special Judge Kangra at Dharamshala in Sessions Trial No. 039/2016, titled as State of Himachal Pradesh Vs. Akshay Kumar @ Manda @ Panku, in case FIR No. 125 of 2015, registered in Police Station, Lambagaon, District Kangra, H.P. under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and under Section 3(a) (XII) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, whereby appellant though has been acquitted of the charges of offence punishable under Section 3(1) (XII) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, however, has been convicted under Section 4 of the POCSO Act and has been sentenced to undergo 10 years rigorous imprisonment and to pay fine of ₹20,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 6 months and simple imprisonment for 6 months under Section 506 of the Indian Penal Code.

On 24.3.2026 during hearing, learned counsel for the appellant, under instructions, had submitted that appellant would not contest the appeal on merits, but only qua quantum of sentence imposed upon him in sequel to impugned judgment. Thereafter appeal has been heard on quantum of sentence imposed upon the appellant.

It has been submitted by learned counsel for the appellant that for commission of offence under Section 3 of the POCSO Act, punishment has been provided under Section 4 of the POCSO Act, wherein it has been provided that sentence under this Section shall not be less than 10 years, which may extend to imprisonment of life and convict shall also be liable to pay fine.

Learned counsel for the appellant has further submitted that imprisonment for 10 years under Section 4 of the POCSO Act has been prescribed after amendment carried out vide Amendment Act No. 25 of 2019 w.e.f. 16.8.2019 and, therefore, for offence punishable under Section

4 of the POCSO Act, prior to the aforesaid amendment, minimum prescribed sentence would be 7 years. It has been submitted that appellant, including his judicial custody as an undertrial prisoner for 2 years 7 days and in custody as convict w.e.f. 25.9.2020 to 23.3.2026, i.e. 5 years, 5 months and 29 days, has completed total imprisonment of 7 years 6 months as on 23.3.2026.

It has been submitted that offence in present case has been committed in October, 2015, whereas minimum sentence of 10 years has been provided w.e.f. 16.8.2019 and, therefore, in present case minimum prescribed sentence would be 7 years instead of 10 years. He has submitted that keeping in view the entire facts of the case and pronouncements of the Courts, age of the victim as well as convict, sentence awarded to the appellant deserves to be reduced to minimum prescribed sentence of 7 years rigorous imprisonment. He has submitted that keeping in view age of the appellant and the fact that there is no adverse report against him during detention as an undertrial prisoner as well as a convict, there is possibility of reformation and, therefore, the sentence awarded to the appellant deserves to be reduced.

The Apex Court in Mohd. Firoz Vs. State of Madhya Pradesh, reported in (2022) 7 SCC 443, has observed as under:-

"60. Considering the above, we, while affirming the view taken by the courts below with regard to the conviction of the appellant for the offences charged against him, deem it proper to commute, and accordingly commute the sentence of death for the sentence of imprisonment for life, for the offence punishable under Section 302 IPC. Since, Section 376-A IPC is also applicable to the facts of the case, considering the gravity and seriousness of the offence, the sentence of imprisonment for the reminder of the appellant's natural life would have been an appropriate sentence, however, we are reminded of what Oscar Wilde has said---"The only difference between the saint and the sinner is that every saint has a past and every sinner has a future."

One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence, while balancing the scales of retributive justice and restorative justice, we, deem it appropriate to impose upon the appellant-accused, the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under Section 376-A IPC. The conviction and sentence recorded by the courts for the other offences under IPC and the POCSO Act are affirmed. It is needless to say that all the punishments imposed shall run concurrently."

The Apex Court in Alister Anthony Pareira Vs. State of Maharashtra, 2012 (2) SCC 648 has reiterated that there is no straitjacket formula for sentencing an accused on proof of crime. The Courts have evolved certain principles. Twin objective of sentencing policy is deterrence and correction, the sentence would meet the ends of justice depends on the facts and circumstances of each case and the Courts must keep in mind the gravity of crime, motive for crime, nature of offence and all other attending circumstances.

In Dev Narayan Mandal Vs. State of U.P., 2004 (7) SCC 257, the Apex Court has held that sentence awarded should be neither excessively harsh nor ridiculously low, while determining the quantum of sentence, the Court should bear in mind the principle of proportionality and sentence should be based on the facts of a given case, and gravity of offence, manner of commission of offence, age and sex of accused should be taken into account and decision of the Court in awarding sentence cannot be exercised arbitrarily or whimsically.

Admittedly, in present case victim was, about 17 years old and appellant was 18 years old at the time of commission of offence. It has come in evidence that after violating the victim, appellant met with PW-2 Vikas alias Kaku, Surinder, Rahul and Naveen alias Dhanu, who were discussing that one lady was searching for her daughter, who had gone missing and the accused/appellant told them that one girl was found by him near Sari Molak School and he further told that he had informed the mother of the girl from his mobile and he again requested to inform the mother of the girl, whereupon appellant contacted mother of the girl and in response mother of the girl had asked him to detain the girl there. Thereafter appellant alongwith Vikas, Surinder, Naveen alias Dhanu went towards Sari Molak School in vehicle of Rahul and Akshay (Appellant) picked the girl and made her to sit in the vehicle and they started back towards bus stand. On the way they were stopped by another vehicle in which mother and maternal uncle of girl were going to search the girl and they took the girl out of the vehicle of Rahul and left the place in their vehicle. It has also come in evidence that after the incident suggestions were being given to marry the girl and the appellant with each other, but mother of the appellant refused to accept the said proposal and ultimately FIR was lodged.

At the time of commission of offence, appellant had attained the age of majority after his adolescent stage just few months ago from the incident. Victim had to about one year to attain the age of discretion. Victim after the incident, accompanied the appellant, in a Car of Rahul alongwith appellant and there were suggestions to marry the victim and appellant with each other and, therefore, possibility of romantic relationship between them cannot be ruled out. However, for minor age of victim the consent was and is immaterial. The victim was adolescent and for violating the minor girl, appellant has been treated as an offender and rightly so in view of provisions of POCSO Act.

Taking in view the entire facts and circumstances, we are of the considered opinion that prayer of the appellant to reduce his sentence to the minimum sentence provided for commission of offence under Section 4 of POCSO Act can be acceded to.

Accordingly, sentence awarded to the appellant under Section 4 of the POCSO Act is reduced to 7 years rigorous imprisonment alongwith fine of ₹20,000/- and sentence awarded for 6 months under Section 506 of the Indian Penal Code is not altered. The said sentence has run concurrently. However, appellant has already completed more than 7½ years imprisonment, therefore,remaining period of sentence shall be taken into consideration against the imprisonment for default in depositing the fine of ₹20,000/-.

Accordingly, upholding the conviction of the appellant, appeal is dismissed, but with modification of quantum of sentence in aforesaid terms and appellant if not warranted in any other case shall be released immediately.