(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present appeal is directed against the judgment and the order of the learned Sessions Judge dated 23.06.2011 in Sessions Case No.150/10, whereby the learned Sessions Judge has convicted the accused for the offence under section 363 of the IPC and imposed sentence of 4 years RI with fine of Rs.1000 and further 3 months SI for default in payment of fine. The learned Sessions Judge has also convicted the accused for the offence under section 366 of IPC and imposed sentence of 7 years RI with the fine of Rs.1000 and further 3 months SI for default in payment of fine. The learned Sessions Judge has also convicted the accused for the offence under section 506(2) of IPC and imposed sentence of 4 years RI with the fine of Rs.1000 and further 3 months SI for default in payment of fine. The learned Sessions Judge has also convicted the accused for the offence under section 354 of IPC and imposed sentence of 2 years RI with the fine of Rs.500 and further 1 month SI for default in payment of fine and it is also directed by the learned Sessions Judge that all sentences shall run concurrently.
It is against the aforesaid judgment and order of the learned Sessions Judge, the State has preferred the appeal for enhancement of the sentence only.
We may record that when the matter was earlier taken up for hearing, the learned APP was instructed to inquire and report to this Court as to whether any conviction appeal has been preferred by the accused or not.
Mr.Pandya, learned APP today has declared that no appeal has been preferred against the conviction by the accused.
Under the above circumstances, the only aspect to be considered is whether the sentence imposed by the learned Sessions Judge upon the accused is proper or not.
On the aspect of proportionality of punishment, the law is by now well settled. It is the gravity of the offence and the personal circumstance of the accused, impact on the society and also deterrent effect to be created by imposition of the sentence are broadly to be taken into consideration by the Court while imposing sentence upon the accused.
If the facts of the case as it appears from the judgment are considered, it is an admitted position that no rape has been committed by the accused nor it was the case of the prosecution for any offence under section 376 of IPC. It is also required to be considered that as per the prosecution case, the accused had kidnapped the victim aged about 13 years for illicit purpose but the fact remains that there is no sexual intercourse or otherwise. The charge was under sections 363, 366, 506(2) and 354 of IPC of molestation or outraging the modesty. In our view, the aspect of no offence committed under section 376 of IPC would be relevant for reducing the gravity of the offence while imposing sentence upon the accused.
Keeping in view the aforesaid aspect with the reasons recorded by the learned Sessions Judge at paragraph 31 are taken into consideration, it appears to us that the discretion exercised by the learned Sessions Judge for imposing sentence of four years RI for the offence under section 363 of IPC and for imposing sentence of 7 years RI for the offence under section 366 of IPC and imposing sentence of 4 years RI for the offence under section 506(2) of IPC and imposing sentence of 2 years RI for the offence under section 354 of IPC cannot be said to be perverse exercise of the discretion on the part of the learned Sessions Judge.
Under the circumstances, we find that there is no merit in the present appeal for enhancement of the sentence preferred by the State.
Under the circumstances, the appeal is dismissed.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) *bjoy Top