STATE OF GUJARAT Vs. RADHESING BIHARISING

JUDGEMENT

(1.) The present appeal, under section 377 of the Code of Criminal Procedure, 1973, is directed against the judgement and order dated 20.02.2007 passed by the Additional Sessions Judge, Bharuch in Sessions Case No. 115 of 2005 whereby the accused present respondent has been convicted for the offence punishable under section 376(2) of the Indian Penal Code. The accused is ordered to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1000/-, in default, simple imprisonment for six months. The appellant state has prayed for enhancement of the sentence imposed.

(2.) It is the case of the prosecution that the complainant Apsari Miraj wife of Miraj Sarfaraj had lodged a complaint stating therein that on 09.09.2005, while her husband had gone out of the house for doing labour work and in the afternoon while she was asleep, her daughter, aged 5 years went out of the house to play. It is the case of the prosecution that the complainant heard the cry of her daughter and woke up and after opening the latch of the door, she went to the house of the accused from where her daughter's cry was coming. When she entered the room, she saw her daughter lying in a corner of the room with her underwear pulled down to her knee and the accused on top of the child. The complainant started shouting and immediately pushed the accused and took her daughter. It is the case of the prosecution that after coming out from the room, the complainant shouted and therefore people gathered there. The accused was caught by the persons and he was handed over to the police.

(3.) It was contended by Ms. Shah, learned APP that looking to the evidence on record, this is a case where the trial court has passed the sentence which does not commensurate the gravity of the offence. Ms. Shah has submitted that therefore the Sessions Court has manifestly erred in awarding grossly disproportionate sentence looking to the nature of the offence in which the accused person is involved.