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Judgment
This enhancement appeal has been preferred by the State under Section 418 of the Bharatiya Nagarik Suraksha Sanhita, 2023, against the judgment and order of conviction and sentence dated 28.02.2026 passed by the learned Special Judge (POCSO) and 4th Additional Sessions Judge, Amreli, in Special (POCSO) Case No.25 of 2024, whereby the learned Special Judge convicted the respondent (i.e. the original accused No.1) for the offences punishable under Sections 363, 366, 354A of the Indian Penal Code, 1860, as well as, under Sections 8 & 18 of the POCSO Act, and sentenced him as under:
| Section | Imprisonment | Fine (Rs.) | In default of payment of fine |
|---|---|---|---|
| 363 & 366 of the IPC | Rigorous Imprisonment for 03 years | 5000 | Simple imprisonment for 03 months |
354A of the Rigorous 5000 Simple IPC as well Imprisonment for imprisonment for as Sections 03 years 03 months 8 & 18 of the POCSO Act
The facts of the case, giving rise to the present appeal, may be summarized as under :
That on 19.04.2024, between approximately 2:00 a.m. and 6:00 a.m., the minor daughter of the complainant, aged about 14 years and 05 months (date of birth: 09.11.2009), was allegedly abducted by the accused Nos.1 and 2, namely, Vipulbhai Vinubhai Gohil and Ajaybhai Kalubhai Rathod. Accused No.3, Jaydeepbhai Vekariya, is alleged to have abetted the commission of the offence by helping the accused No.1 in arranging accommodation and providing him with financial assistance. Thus, according to the prosecution, accused Nos.1 to 3 have committed the alleged offences.
That a complaint came to be lodged against the present respondent- accused at the Damnagar Police Station, for the offences punishable under Sections 363, 366, 354A of the Indian Penal Code as well as under Sections 8, 17 & 18 of the POCSO Act, which was registered as II- CR No.11193017240085 of 2024.
That pursuant to the FIR, the investigation was carried out, and during the investigation, the necessary panchnamas were drawn and the statements of the witnesses were recorded. After the completion of the investigation, charge-sheet came to be filed against the present respondent-accused for the offences punishable under the provisions of the IPC, as well as, the POCSO Act before the Special POCSO Court, Amreli, which was registered as Special (POCSO) Case No.25 of 2024. The learned Special Judge framed the Charge vide Exh.11 against the present respondent-accused, whereupon the respondent-accused pleaded innocent and claimed to be tried.
To bring home the charge against the respondent-accused, the prosecution had examined, in all, 11 witnesses and adduced documentary evidence in support of the case, which are as follow:
| WITNESSES | |||
|---|---|---|---|
| Rank | EXH. | NAME | NATURE OF EVIDENCE |
| PW-1 | 20 | Victim’s father | Complainant |
| PW-2 | 22 | Victim’s mother | Witness |
| PW-3 | 23 | Victim | Witness |
| PW-4 | 26 | Dr.Lavjibhai Jivabhai Ramani | Doctor witness (Gynecologist specialist) |
| PW-5 | 33 | Dr.Abhikumar Nareshbhai Parvadiya | Doctor witness (Medical Officer) |
| PW-6 | 42 | Chandradipsinh Harpalsinh Gohil | Witness (Talati-cum-Mantri), who issued the victim’s birth certificate |
| PW-7 | 45 | Kamleshbhai Girishbhai Dabhi | Panch witness (place of offence) |
| PW-8 | 52 | Rajubhai Polabhai Boliya | Panch witness (arrest of the accused, seizure of victim and accused’s clothes, and seizure of muddamal) |
| PW-9 | 62 | Atulbhai Laljibhai Daloliya | Panch witness (arrest of the accused and seizure of muddamal) |
| PW-10 | 65 | Gopalkrishna Ratansingh Vasaiya | Investigating Officer (I.O.) |
| PW-10 | 66 | Bharatbhai Punabhai Parmar | Complaint scribe / Writer & Filing officer |
| PW-11 | 74 | Ankurbhai Chhotubhai Patel | Investigating Officer (I.O.) |
| DOCUMENTARY EVIDENCE | ||
|---|---|---|
| Sr. No. | EXHIBIT No. | Description |
| 1 | 21 | Complaint |
| 2 | 24 | Forwarding letter of victim’s statement recorded under Cr.P.C. Section 164 |
| 3 | 25 | Statement of the victim recorded under Cr.P.C. Section 164 |
| 4 | 27 | Police Yadi (memo) for gynecological examination of the victim |
| 5 | 28 | Referral note by Damnagar Medical Officer |
| 6 | 29 | OPD case paper of the victim |
| 7 | 30 | MLC (Medico-Legal Case) certificate of the victim |
| 8 | 31 | UPT (Urine Pregnancy Test) laboratory report of the victim |
| 9 | 32 | Police Yadi (memo) for conducting UPT report of the victim a second time |
| 10 | 34 | Police Yadi (memo) for physical examination of the victim |
| 11 | 35 | OPD case paper of the victim |
| 12 | 36 | Form No.2(B) of the victim |
| 13 | 37 | MLC (Medico-Legal Case) certificate of the victim |
| 14 | 38 | Police Yadi (memo) for physical examination of the accused |
| 15 | 39 | OPD case paper of the accused |
| 16 | 40 | Form No.2(B) of the accused |
| 17 | 41 | MLC (Medico-Legal Case) certificate of the accused |
| 18 | 43 | Birth certificate of the victim |
| 19 | 44 | Copy of the birth register entry extract of the victim |
| 20 | 46 | Panchnama of the place of offence |
| 21 | 53 | Panchnama regarding physical condition, arrest of the accused, and seizure of clothes of the accused and victim |
| 22 | 54 to 60 Panch slips for Muddamal Articles No.1 to 7 | |
| 23 | 61 | Panchnama regarding the arrest of the accused and seizure of muddamal (evidence/ property) |
| 24 | 67 | Deputation order |
| 25 | 75 | Certificate of authorization/ power |
| 26 | 76 | Letter detailing the incident and the details of the seized muddamal |
| 27 | 77 | Dispatch note of muddamal- Online |
| 28 | 78 | Receipt for receiving the muddamal |
| 29 | 79 | Police Yadi (memo) issued to obtain the victim’s birth certificate |
| 30 | 80 | Police Yadi (memo) issued for allotting government panchas |
| 31 | 81 | Forwarding letter of F.S.L. (Forensic Science Laboratory) Junagadh |
| 32 | 82 | Biology and Serology examination report of F.S.L. Junagadh |
The learned Special Judge recorded the further statement of the respondent-accused under Section 313 of the Cr.P.C. with regard to the incriminating circumstances made against him in the evidence rendered by the prosecution and the respondent-accused denied it and contended that he has been falsely implicated in the alleged offence. Thereafter, the respondent-accused was called upon to lead evidence in his defence, however, he has not led any evidence in defence. Thereafter, hearing the learned advocates appearing for both the sides, the learned Special Judge proceeded to sentence the respondent–accused for the offences as aforesaid.
Being aggrieved and dissatisfied with the quantum of sentence awarded by the trial court, the appellant-State has preferred the present appeal for enhancement of the sentence imposed upon the respondent-accused, mainly on the ground that the sentence awarded by the trial court is highly inadequate and disproportionate to the offences committed by the respondent-accused and the trial court has committed an error in taking a lenient view while imposing lesser sentence.
SUBMISSION ON BEHALF OF THE APPELLANT-STATE.
Mr.Bhargav Pandya, learned APP appearing for the appellant- State has submitted that the trial court has, without assigning any adequate and special reasons, awarded inadequate sentence. The law in this regard is well-settled that while awarding the punishment, the court should take into consideration the nature of the offence, the circumstances under which it was committed and the degree of deliberation shown by the offender. Mr.Pandya has submitted that the measure of punishment should be proportionate to the gravity of the offence. In the facts of the present case, the respondent-accused has been held guilty for the commission of offences under Sections 363, 366, 354A of the Indian Penal Code, 1860, for which, the maximum punishment is ten years with fine, as well as, under Sections 8 & 18 of the POCSO Act, for which, the maximum punishment is five years with fine, however, the trial court, considering the age of the respondent-accused as well as considering the fact that the respondent-accused was not having any past antecedents, imposed minimum sentence of 03 years for the offences punishable under Sections 363, 366, 354A of the Indian Penal Code, 1860, as well as, under Sections 8 & 18 of the POCSO Act. In the facts of the present case, despite the overwhelming evidence against the respondent- accused, the trial court awarded lesser sentence which, ultimately, will result into travesty of justice and spread a wrong message to the society. The trial court ought to have taken a deterrent view while imposing the sentence in such a serious offence. Learned APP Mr.Pandya has lastly submitted that taking into consideration the aforesaid circumstances as well as the seriousness and gravamen of the offence committed by the respondent-accused, the appeal is required to be allowed and the sentence awarded by the trial court may be enhanced to the maximum punishment for the offences with which the respondent-accused has been charged.
ANALYSIS AND FINDINGS:
Having regard to the facts and circumstances of the present case, prima facie it appears that the appellant-State has filed the present appeal for enhancement of sentence on a very limited ground. It is an admitted fact that after the judgment of conviction and order of sentence passed by the trial court, the appellant-State has preferred the present appeal being Criminal Appeal No.2075 of 2026. Admittedly, it appears from the bare perusal of the judgement of the trial court that the trial court, after taking into consideration the age of the respondent-accused, as well as, the considering the fact that the respondent-accused was not having any past antecedents, has imposed minimum sentence of 03 years upon the respondent-accused for the offences punishable under Sections 363, 366, 354A of the Indian Penal Code, 1860, as well as, under Sections 8 & 18 of the POCSO Act. While awarding the sentence, the opportunity of being heard was given to both the sides, i.e., to the prosecution and the defence. After hearing the learned APP and the defence counsel, the trial court has, in its judgement at para-43 and 44, assigned the reasons for awarding the punishment, as under:
“(43)Considering the submissions of both parties and the facts of the present case, it appears that the accused No.1 earns his livelihood through agricultural labour to maintain his family. Thus, he belongs to a poor community and, under these circumstances, the atmosphere in which he was raised can be understood. Moreover, there is nothing on record which shows that any other offences have been registered against the accused No. 1 or that the accused No. 1 has been previously convicted in any other case. Thus, considering the circumstances of the atmosphere in which the accused No. 1 was raised, his age and absence of any criminal antecedents of the accused No. 1, as well as the aspect of rehabilitation to enable offenders to live a good life in society after serving their sentence, awarding the maximum sentence to Accused No. 1 would adversely affect his family and his future. Moreover, it may also adversely affect his social rehabilitation upon serving the sentence. Therefore, considering the criminal act committed by accused No. 1 against the victim, seriousness of the offence, the nature of the present offence, and the special circumstances of the offence, it is deemed fit and proper to impose a proportionate and exemplary sentence upon accused No. 1.
(44)Furthermore, accused No. 1 has been held guilty of offences punishable under Sections 363 and 366 of the Indian Penal Code. To establish an offence punishable under Section 363 of the Indian Penal Code, the act of kidnapping must be proved. To establish an offence punishable under Section 366 of the Indian Penal Code, in addition to kidnapping, it must be proved that the victim was abducted or forced against her will into marriage, or compelled by force for illicit intercourse or seduced to go from any place for illicit intercourse, or kidnapped knowing that she was likely to be compelled or seduced into illicit intercourse. Thus, the act of kidnapping required for an offence under Section 363 of the Indian Penal Code forms an integral part of the act constituting an offence under Section 366. In view of these circumstances and keeping in mind the provisions of Section 71 of the Indian Penal Code, if the accused is sentenced for the commission of offence punishable under Section 366 of the Indian Penal Code, a separate sentence cannot be awarded for the commission of offence punishable under Section 363 of the Indian Penal Code. Therefore, under these circumstances, separate sentences cannot be imposed simultenrously upon the accused for the offences punishable under Section 366 and Section 363 of the Indian Penal Code.”
On the overall appreciation and reanalysis of the entire evidence, it appears that the trial court, considering the fact that the respondent-accused was not having any past criminal antecedent as well as taking into consideration the nature of the incident as well as the circumstances and the manner in which it was occurred, has imposed the minimum sentence upon the respondent-accused to suffer rigorous imprisonment for three years with fine, which cannot be said to be perverse or illegal since the trial court has exercised its discretion to impose the minimum sentence. Therefore, this Court does not find any infirmity in the order passed by the trial court, since, while exercising the judicial discretion, the trial court has recorded sufficient and adequate reasons. This Court is satisfied with the reasoning assigned by the trial court on the aspect of sentence and, therefore, no interference is required to be made with the discretion exercised by the trial court. It is settled position of law that the question of sentence is a matter of discretion and if sufficient reasons are recorded by the trial court, then the High Court should not interfere with the decision of the trial court on the issue of sentence.
This Court deems it fit to refer to the principles, as laid down by the Supreme Court in the case of Bed Raj vs. State of U.P., reported in AIR 1955 SC 778, governing the exercise of power by the High Court while enhancing the sentence imposed by the trial court, which reads thus :
“A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; see for example the observations in -'Dalip Singh v/ s. State of Punjab', and 'Nar Sigh v/s. State of Uttar Pradesh'.
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate. In our opinion, these principles have not been observed. It is impossible to hold in the circumstances described that the Sessions Judge did not impose a substantial sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate. In the circumstances, bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored.”
Considering the peculiar facts and circumstances of the present case, this Court is of the considered opinion that the findings recorded by the trial court do not suffer from any perversity or illegality. The findings recorded by the trial court are absolutely just and proper, and in recording the same, no illegality or infirmity has been committed by the trial court. Therefore, this Court does not find any ground warranting interference with the order of sentence passed by the trial court.
On the facts and in the circumstances of the case, this Court is in complete agreement with the order of sentence passed by the trial court, therefore, no interference is warranted. The appeal, therefore, fails and the same is hereby dismissed in limine. Records and proceedings be sent back to the concerned court.