STATE OF GUJARAT Vs. JAYSUKH ALIAS HARSUKH HAKUBHAI

JUDGEMENT

(1.) Criminal Appeal No. 1358 of 1986 is preferred by the State for enhancement of sentence recorded by Assistant Sessions Judge, Gondal on 30th August 1986 whereby the accused was convicted for offences punishable under Secs. 376, 363 and 366 of the Indian Penal Code and was sentenced to rigorous imprisonment for 5 years and to pay a fine of Rs. 300.00, in default of payment of fine, rigorous imprisonment of 6 months. While passing the sentence, the Court did not pass any separate sentence for offences punishable under Secs. 363 and 366 of the Penal Code. Accused preferred Criminal Appeal No. 4 of 1987 before the Sessions Judge against the aforesaid order of conviction and sentence and by order passed on 22- 9-1989 by the Division Bench of this Court (Coram : R. J. Shah and K. J. Vaidya, JJ.) the same was ordered to be transferred to this Court and the said Criminal Appeal No. 4 of 1987 is renumbered as Criminal Appeal No. 17 of 1990. Both the appeals are arising from the common judgment and they are, therefore, heard together and disposed of by this common judgment.

(2.) Section 376(1) of the Indian Penal Code reads as under :-

(3.) On behalf of the State it was submitted that the trial Court came to the conclusion that the accused is guilty of the offences aforesaid and, therefore, the trial Court ought to have passed appropriate order of sentence. The trial Court has sentenced the accused to rigorous imprisonment for 5 years and a fine of Rs. 300/ -, in default of payment of fine, rigorous imprisonment for six months, for an offence punishable under Sec. 376 of the Penal Code. Mr. Patel, learned Additional Public Prosecutor submitted that in a case like this, when the accused has been convicted under Secs. 363 and 366, the trial Court ought to have passed appropriate sentence. He further submitted that Sec. 376 provides for imprisonment for life or imprisonment for 10 years and fine and Sec. 363 provides for imprisonment for 7 years and fine. He submitted that in the instant case, by not sentencing the accused for the aforesaid two offences, the trial Court has committed serious error.