K.S. Jhaveri, J. - (1.)HEARD learned Additional Public Prosecutor for the appellant - State Mr. L.R. Pujari and learned Advocate for the opponent/respondent Mr. Pratik B. Barot.
(2.)BY way of this Appeal, the State has felt aggrieved by the judgment and order dated 21.11.2009 of the learned Additional Sessions Judge, Junagadh in Sessions Case No. 105/2008 whereby the respondent herein was convicted and sentenced as under: - -
Under Sections 363 and 366 of the Indian Penal Code

Acquittal

Under Section 376 of the Indian Penal Code

Rigorous imprisonment for four years and fine of Rs. 11,000/ -, in default, simple imprisonment for 30 days.

The accused was given the benefit of set off.

The State has preferred this Appeal for enhancement of sentence only.

The case in brief and the incident which is alleged to have occurred on 16.08.2008 is as under: - -

3.1. The complainant Bhupatbhai Dhanjibhai Ghosiya, Caste: Ghediya Koli, registered a complaint against the present accused with Junagadh 'B' Division Police station for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. It is the case of the prosecution that the complainant was residing at Sardarpara, Opp. Suryamandir, Murlidhar Society, Junagadh and was serving in a factory. He had two children - one daughter and a son. His daughter - Pooja aged about 14 years was studying in the 10th standard.

3.2. On 16.08.2008 at about 4.00 pm, the complainant's daughter Pooja had gone for tuitions and had not returned home till 7.00 pm. The complainant searched for his daughter but could not find her. It came to the knowledge of the complainant that the accused herein had induced and coerced his minor daughter and then allegedly committed the above cited offences. Thereafter, the police started investigation. After completion of investigation, the chargesheet was filed against the accused for the above cited offence and the case was triable by Court of Sessions, the learned Magistrate committed the case to the Sessions Curt at Junagadh where it was numbered as Sessions Case No. 105/2008. Thereafter charge was framed against the accused.

The accused pleaded not guilty to the charge and claimed to be tried.

3.3. At the time of the trial, the prosecution examined the following witnesses: - -

The prosecution also relied upon various documentary evidences, some of them are: - -

3.4. At the conclusion of the trial, the learned Additional Sessions Judge, Junagadh passed the order as above.

(3.)LEARNED Additional Public Prosecutor Mr. L.R. Pujari has submitted that the State has desired to prefer this Appeal for enhancement of sentence passed by the learned Judge. It is submitted that the learned Judge has erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed a grave error. It is also submitted that the learned Judge ought to have imposed maximum sentence to the present accused as provided under Section 376 of the Indian Penal Code, which reads as under: - -
"Whoever, except in the case provided for by Sub -Section (2) commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term, which may extend to two years or with fine or with both."

However, the learned Judge without doing so committed a grave error in imposing meagre sentence as stated herein. From the available material and facts and circumstances of the case, it is submitted that the accused deserves maximum sentence as provided under the aforesaid provision of the Code. In addition, it is submitted that the learned Judge failed to appreciate that there is no mitigating circumstance to impose less than ten years sentence and it is very clear from the facts and circumstances of the case available on the record of the case that there are aggravating circumstances in which the learned Judge ought to have imposed the maximum sentence as provided under law. In view of the above, it is submitted that this is a fit case which requires the interference of the Court and the judgment and order of the learned Additional Sessions Judge, Junagadh requires to be upturned.