(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present appeal for enhancement of sentence is directed against the judgment and order passed by the learned Sessions Judge in Sessions Case No.28/11, whereby the learned Sessions Judge has convicted the accused for the offence under section 376 of the IPC and has imposed sentence of 7 years RI with the fine of Rs.2000 and 6 months default sentence in the event the fine is not paid.
We have considered the judgment and the reasons recorded by the learned Judge and more particularly the evidence on record. We have also heard the learned APP for the State.
It appears from the cross-examination of the victim that she had voluntarily gone with the accused and she had voluntarily left the parent's home. Even on the aspects of physical relationship in the medical history given to Dr. Chaman Tarachand Maheshwari (Exhibit 6), the victim has clearly stated that since last 3 years, with consent, she had the physical relation with the accused Mangalbhai and the last physical relation was two days' back. If the aforesaid evidence is taken into consideration, had she been above 16 years, possibly, there may not be any case of conviction. However, since she was aged less than 16 years at the time when the incident happened, it could be said that the offence was constituted under section 376 of the IPC.
In view of the aforesaid peculiar circumstances that she had voluntarily eloped with the accused, the gravity of the offence could be said as diluted. It is hardly required to be stated that at the time when the sentence is to be imposed by the Court, the gravity of offence is one of the relevant circumstances to be taken into consideration while sentencing the accused and in our view, when such is to be considered, the sentence could not be said to be improper. Under the circumstances, we find that there is no case on merit for enhancement of the sentence. Therefore, the appeal deserves to be dismissed and hence dismissed.
However, we make it clear that we have not examined the aspects of holding the accused guilty for the offence under section 376 of the IPC and conviction for such purpose. We have restricted our judicial scrutiny only on the aspect of quantum of sentence taking in view the gravity of the offence and on the other aspect, if any appeal is preferred by the accused, the same shall remain open to be considered in accordance with law.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) *bjoy Top