THE STATE OF GUJARAT Vs. SANTOSH RAMPRASAD GUPTA

JUDGEMENT

(1.) Both these appeals are preferred against the judgment and order dated 9.8.2004 passed by learned Additional Sessions Judge, Court No. 16, Ahmedabad City, in Sessions Case No. 293 of 2002, whereby the respondent -original accused was convicted for the offence punishable under Sec. 376 of the Indian Penal Code (for short, "IPC") and sentenced to suffer rigorous imprisonment for six months and ordered to pay fine of Rs. 1,000/ - and, in default of payment of fine, the accused was ordered to undergo further rigorous imprisonment of fifteen days, however, the accused acquitted from the charges of offence punishable under Sec. 363 and 366 of IPC. Being aggrieved by imposition of sentence, the State has preferred Criminal Appeal No. 853 of 2005 under Sec. 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence, while Criminal Appeal No. 850 of 2005 is preferred against acquittal of the accused from the charges of offence under Ss. 363 and 366 of IPC.

(2.) The facts in brief giving rise to the filing of present appeal are as under: - -

(3.) Learned APP, Ms. C.M. Shah appearing for the appellant -State has taken us through the oral as well as documentary evidence and contended that the victim in the present was below 16 years at the time of offence, therefore, even if she would have remained a consenting party, maximum sentence is required to be awarded to the accused. She also submitted that the accused had committed rape on the victim by giving false promises that he would marry her. She submitted that the trial Court has committed an error in imposing lesser sentence upon the accused inspite of voluminous evidence against him and also contended that the trial Court ought not to have imposed such a lesser punishment. She submitted that the prosecution has examined six witnesses in support of its case. The prosecution has also produced 14 documentary evidences on the record of the case. However, without appreciating those documentary as well as oral evidence available on the record of the case in their proper perspective, learned Judge has erred in imposing lesser punishment. She also submitted that though the accused is convicted by the trial Court for an offence punishable under Sec. 376 of IPC, the trial Court has committed an error in imposing punishment. She also submitted that the offence is serious in nature and no leniency should have been showed towards the accused. She, therefore, submitted that the learned trial Judge has rightly convicted the accused, however, lesser sentence is imposed upon the accused. She further submitted that the learned Judge has also erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed grave error by imposing lesser punishment. She also submitted that the learned Judge ought to have imposed maximum sentence on the present accused as provided under Sec. 376 of IPC. Hence, impugned judgment and order passed by learned Judge in imposing the lesser sentence deserves to be modified by this Hon'ble Court and the sentence imposed to the accused deserves to be enhanced to maximum sentence as provided under the aforesaid section. She also submitted that the learned Judge has failed to appreciate the seriousness of the offence committed by the accused while imposing the sentence. The learned Judge also failed to appreciate that there is no sufficient and reasonable cause for the learned Judge to impose lesser punishment. She also submitted that the learned Judge failed to appreciate that there is no any mitigating circumstance to impose less punishment and it is very clear from the facts and circumstances of the case and the material available on record of the case that there are aggravating circumstances in which Hon'ble Judge ought to have imposed the maximum sentence as provided under the law.