NARESH @ LALO RAYAJI RATHODversusSTATE OF GUJARAT

     R/CR.A/1119/2018                             JUDGMENT DATED: 12/02/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1119 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO
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             Approved for Reporting                           No

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                        NARESH @ LALO RAYAJI RATHOD
                                   Versus
                             STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR. AAMIR S PATHAN(7142) for the Appellant(s) No. 1
MS. C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                              Date : 12/02/2026

                              ORAL JUDGMENT

1.      The appeal is filed by the appellant – original accused

under Section 374 of the Code of Criminal Procedure, 1973

against the judgement and order of conviction passed by the

learned Special & Additional Sessions Judge, Bharuch

(hereinafter referred to as “the learned Trial Court”) in

Special POCSO Case No. 56/2015 on 27.07.2017, whereby,

the learned Trial Court has convicted the appellant for the

offence punishable under Sections under Sections 363, 366,

376 of Indian Penal Code, 1860 and Section 4 and 6 of the


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Protection of Children From Sexual Offences Act, 2012

(hereinafter referred to as “POCSO Act” for short). The

appellant was sentenced to simple imprisonment for three

years and fine of Rs. 2000/- and in default, simple

imprisonment for six months for the offence under Section

363 of IPC, simple imprisonment for three years and fine of

Rs. 2000/- and in default, simple imprisonment for six

months for the offence under Section 366 of IPC, simple

imprisonment for seven years and fine of Rs. 10,000/- and

in default, simple imprisonment for one year for the offence

under Section 376 of IPC, simple imprisonment for seven

years and fine of Rs. 10,000/- and in default, simple

imprisonment for one year for the offence under Section 4 of

POCSO Act and simple imprisonment for ten years and fine

of Rs. 10,000/- and in default, simple imprisonment for one

year for the offence under Section 6 of POCSO Act. All the

sentences were ordered to run concurrently.


2.      Heard learned advocate Mr. Aamir Pathan appearing

from the High Court Legal Services Committee for the

appellant          and   learned   APP      Ms.   C.M.    Shah       for    the

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respondent State.


3.      Learned advocate Mr. Aamir Pathan for the appellant

submits that the appellant has been convicted under

Sections 363, 366, 376 of Indian Penal Code, 1860 and

Section 4 and 6 of the POCSO Act. Learned advocate

submits that Section 376 of Indian Penal Code, 1860 before

the amendment Act No. 22 of 2018 w.e.f. 21.04.2018 i.e. on

the date of offence reads as under:

376. Punishment for rape.—
        (1) Whoever, except in the cases provided for 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, and shall
        also be liable to fine].



Learned advocate further submits that Section 6 of the

POCSO Act before the amendment by Act 25 of 2019 w.e.f

16.08.2019 i.e. on the date of offence reads as under:

6. Punishment for aggravated penetrative sexual assault.—
        (1) Whoever commits aggravated penetrative sexual assault shall
        be punished with rigorous imprisonment for a term which shall
        not be less than ten years, but which may extend to
        imprisonment for life and shall also be liable to fine.




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     Learned advocate for the appellant has not pressed the

appeal on merits so far as the conviction is concerned,

however, he has submitted that the learned Trial Court has

committed an apparent error while imposing sentence for

the offences under Section 376 of IPC and Section 6 of the

POCSO Act by awarding “Simple Imprisonment”, though the

statutory provisions, as applicable on the date of the offence

i.e. 08.06.2015, mandate “Rigorous Imprisonment”. It is

further submitted that the default sentences awarded for

non-payment of fine, when aggregated, operate harshly and

deserve to be suitably reduced. Learned advocate for the

appellant      further      submits     that    the     award of          Simple

Imprisonment for the offences punishable under Section 376

of the IPC and Section 6 of the POCSO Act is contrary to the

statutory mandate prevailing on the date of commission of

the offence. It is submitted that both the provisions, as

applicable       at   the    relevant     time,   prescribed           Rigorous

Imprisonment as the minimum punishment and, therefore,

the imposition of Simple Imprisonment is ex facie erroneous

and not in consonance with law. Learned advocate submits



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that the said discrepancy appears to be an inadvertent error

on the part of the learned Trial Court and, therefore, this

Court, in exercise of its appellate jurisdiction, may be

pleased to correct the same by passing appropriate orders in

the interest of justice.


4.      Learned APP Ms. C.M. Shah for the respondent State

has submitted that the learned Trial Court has appreciated

the evidence and passed the impugned judgement and order

but there is an apparent error in the sentence which is

required to be corrected and necessary order may be

passed.


5.      Considering the submission of learned advocate for the

applicant it is not in dispute that the offence in question

occurred on 08.06.2015. On the said date:

      Section 376(1) IPC (prior to its substitution by Act No.
        22 of 2018 w.e.f. 21.04.2018) prescribed punishment
        of rigorous imprisonment for a term not less than
        seven years, which may extend to life, and fine.

      Section 6 of the POCSO Act (prior to its substitution by
        Act       25    of   2019    w.e.f.       16.08.2019)       prescribed



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      punishment of rigorous imprisonment for a term not
      less       than   ten   years,          which     may        extend          to
      imprisonment for life, and fine.


      Therefore, the award of Simple Imprisonment for the

offences under Section 376 IPC and Section 6 of the POCSO

Act is contrary to the statutory mandate as it stood on the

date of commission of the offence. The same appears to be

an inadvertent error on the part of the learned Trial Court

and deserves to be corrected in exercise of appellate

jurisdiction. Accordingly, while maintaining the conviction

and the substantive quantum of sentence imposed by the

learned Trial Court, it is directed that:

    The sentence awarded for the offence under Section
      363 IPC shall stand modified to Simple Imprisonment
      for three years with fine of Rs.1000/-, and in default,
      simple imprisonment for two months;

    The sentence awarded for the offence under Section
      366 IPC shall stand modified to Simple Imprisonment
      for three years with fine of Rs.1000/-, and in default,
      simple imprisonment for two months;

    The sentence of Simple Imprisonment awarded for
      the offence under Section 376 IPC shall stand modified



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        to Rigorous Imprisonment for seven years with fine
        of Rs.5,000/-, and in default, simple imprisonment
        for five months;

      The sentence of Simple Imprisonment awarded for
        the offence under Section 4 of the POCSO Act shall
        stand modified to Simple Imprisonment for seven years
        with fine of Rs.5,000/-, and in default, simple
        imprisonment for five months;

      The sentence of Simple Imprisonment awarded for
        the offence under Section 6 of the POCSO Act shall
        stand modified to Rigorous Imprisonment for ten
        years with fine of Rs.5,000/-, and in default, simple
        imprisonment for five months.

The       substantive           sentences        shall   continue         to     run
concurrently as ordered by the learned Trial Court.


6.      So far as the default sentences are concerned, the

learned Trial Court has imposed default sentences which, if

aggregated,             would    result     in     a     cumulative         default

imprisonment of four years. Considering the overall facts

and circumstances of the case, and in order to balance the

ends of justice, the default sentences for non-payment of

fine under all the counts are modified and the total default



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     R/CR.A/1119/2018                                                    JUDGMENT DATED: 12/02/2026




imprisonment is reduced and shall not exceed 1 year and 7

months in aggregate.


7.       On perusal of the jail remarks, the appellant has

undergone                the         substantive                sentence              and,          upon

recalculation              in     light       of the           above modification,                      the

appellant would be entitled to be released, if not required in

any other case.


8.       The Registry is directed to communicate this order

forthwith to the concerned Jail Authority for necessary

compliance and recalculation of sentence


9.       The appeal stands partly allowed to the aforesaid

extent. The conviction is confirmed. The sentence is

modified as above.


                                                                                              Sd/-
                                                                                        (S. V. PINTO,J)
VASIM S. SAIYED

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: VASIM SHABBIR SAIYED(HC01902), PRIVATE SECRETARY, at High Court of Gujarat on 12/02/2026 17:39:34




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