State of Gujarat Versus Vs Karanbhai @ Dargo Laljibhai Umedbhai Parmar

Vimal K. Vyas, J

1. Though served with the notice issued by this Court, the respondent-accused has not remained present before this Court either in person or through an advocate and oppose the present appeal.

2. This enhancement appeal is being filed by the State under Section 377 of the Code of Criminal Procedure, 1973, against the judgment and order of conviction and sentence dated 25.09.2023 passed by the learned Special (POCSO) Judge and Additional Sessions Judge, Kheda at Nadiad, in Special (POCSO) Case No.28 of 2021, whereby the learned Special Judge convicted the respondent-appellant (i.e. the original accused no.1) for the offences punishable under Section 354D(1)(i) of the Indian Penal Code, 1860, as well as under Section 12 of the Protection of Children from Sexual Offences Act, 2012, and sentenced him as under :

3. The case of the prosecution, in a nutshell, is as under :

(i) That on 01.03.2021 at around 12:00 noon, while the present complainant-victim along with her sisters (i.e. victims – Witnesses Nos.4 and 5) were returning home from their tuition classes, at that time, the present appellant-accused no.1 and the accused no.2 started harassing and eve teasing them and used lewd remarks while following and stalking them, thereby the accused committed the offences punishable under the provisions of the Indian Penal Code.

(ii) That a complaint came to be lodged against the present respondent-accused at the Nadiad (Rural) Police Station for the offences under Sections 354D(1)(i), 114 of the IPC as well as under Sections 11(1), 12 of the POCSO Act, which was registered as I-CR No.11204045210074 of 2021.

(iii) 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 conversant with the incident 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 Sessions Court, Kheda at Nadiad, and it was registered as Special (POCSO) Case No.28 of 2021. The learned Special Judge framed the Charge vide Exh.5 against the present respondent-accused, whereupon the respondent-accused pleaded innocent and claimed to be tried.

4. To bring home the charge against the respondent-accused, the prosecution examined, in all, 07 witnesses and adduced 07 documentary evidence in support of the case, which are as follow:

5. 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 the charges levelled against him by pleading innocence and stated that he has been falsely implicated in the alleged offence. The respondent-accused had not led any evidence in defense. Therefore, the learned Special Judge proceeded to convict and sentence the respondent–accused for the offences as aforesaid.

6. 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 grounds that the sentence awarded by the trial court is highly inadequate and disproportionate to the offence committed by the respondent-accused and the trial court has committed an error in taking a lenient view while imposing a lesser sentence.

SUBMISSION ON BEHALF OF THE APPELLANT-STATE.

7. Ms.Shruti Pathak, 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. Ms.Pathak 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 offence under Section 354D(1)(i) of the IPC, for which, the punishment on first conviction is imprisonment of either description for a term which may extend to three years and shall also be liable to fine, and for the commission of offence under Section 12 of the POCSO Act, the punishment is imprisonment of either description for a term which may extend to three years and shall also be liable to 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 simple imprisonment of six days for the offences under Section 354D(1)(i) of the IPC and Section 12 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 Ms.Pathak 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 admitted and allowed, thereby 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 :

8. Having heard the learned advocates for the respective parties and having regard to the facts and circumstances of the present case, prima facie it appears that the trial court has convicted the present respondent-accused for the alleged offence and sentenced him for a short term of sentence to undergo imprisonment for six days and also imposed a fine of Rs.25,000=00. It prima facie 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.1955 of 2024. Admittedly, it appears from the bare perusal of the judgment 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 six days and a fine of Rs.25,000=00 upon the respondent-accused for the offences under Section 354D(1)(i) of the IPC and Section 12 of the POCSO Act. The trial court has, in its judgment at para-33, assigned the reasons for awarding the punishment.

9. The punishment for the offence under Section 354D(1)(i) of the Indian Penal Code on first conviction is imprisonment of either description for a term which may extend to three years and shall also be liable to fine. Section 354D(1)(i) of the IPC reads thus :

“354D. Stalking.—(1) Any man who--

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking :

Provided that such conduct shall not amount to stalking if the man who pursued it proves that--

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.”

10. The punishment for the offence under Section 12 of the POCSO Act is imprisonment of either description for a term which may extend to three years and shall also be liable to fine. Section 12 of the POCSO Act reads thus :

“12. Punishment for sexual harassment.—Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.”

11. On the overall appreciation and reanalysis of the entire evidence, prima facie, it appears that the trial court, after taking into consideration the seriousness of the offence, declined to grant the benefit of probation to the respondent-accused. However, 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, the trial court has imposed the minimum sentence of simple imprisonment for six days along with a fine of Rs.25,000=00, 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.”

12. Considering the peculiar facts and circumstances of the present case, more particularly, the fact that the respondent-accused had uttered only the words “have our mobile numbers, don’t you like us?” and he had not uttered any bad word or used any filthy language or shown any indecent behaviour or abused the victim girls physically, this Court is of the considered opinion that the findings recorded by the trial court while imposing the sentence 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.

13. On the facts and in the circumstances of the case, this Court is in complete agreement with the findings, ultimate conclusion and the resultant 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.