IMPORTANT POINT
Discretion in awarding sentence for an offence has to be exercised carefully keeping in mind principle of proportionality.

JUDGMENT

Santosh Hegde, J.-Heard learned counsel for the parties.

Leave granted.

2. The appellant and one Kamlesh were found guilty of an offence punishable under Section 365/511 read with Section 149 IPC for which learned 6th Additional Sessions Judge, Lucknow awarded two years rigorous imprisonment to the said accused. They were also awarded a further sentence of three months rigorous imprisonment for an offence punishable under Section 147 IPC. He directed both the sentences to run concurrently.

3. Being aggrieved by the said judgment and conviction, the appellant preferred an appeal before the High Court of Judicature at Allahabad, Lucknow Bench. The High Court by the impugned order noted that the case of the appellant herein was not pressed on merits and only a plea to reduce the sentence was advanced before it, hence while confirming the conviction awarded by the Trial Court by generally observing, that considering all facts and circumstances of the case as well as age, character and other antecedents of the appellant held that the ends of justice would meet if sentence awarded to the appellant is modified and reduced to the period already undergone. It, however, imposed a fine of Rs. 4,000/- for an offence punishable under Section 365/511 read with Section 149 and for offence under Section 147 the sentence of imprisonment was reduced to the period already undergone and fine of Rs. 1,000/- was awarded.

4. Not being satisfied with the said reduced conviction, appellant has preferred this appeal. When this appeal came for preliminary hearing. This Court on 8th of August, 2003, while issuing notice on the S.L.P. also issued notice to the appellant why the sentence awarded by the High Court should not be enhanced. Since the High Court has recorded that the appellant has not pressed his appeal on merits in the ordinary course we would have accepted that statement recorded by the High Court and would have dismissed the appeal without going into the question on merit, however, since there is a notice in enhancement of the sentence by this Court, it is but proper in law that we should hear the appellant on merits of the case also.

5. Shri K.B. Sinha, learned senior counsel appearing for the appellant contended that at the relevant point of time there was ongoing love affair between the appellant and Kamla (PW-1) the girl who was attempted to be kidnapped. He also pointed out that the maternal uncle of the appellant had a fight with the appellant it is because of this background a false complaint was lodged against the appellant and others. The trial court did not properly appreciate the evidence in this background, hence, the conviction recorded by the courts below cannot be sustained.

6. We have perused the evidence adduced by the prosecution in this case and we notice that though it is true that there was a love affair between Kamla and the appellant, on the date of incident the appellant alongwith 5 other persons did come in tempo and tried to kidnap Kamla at about 10 P.M. and it is because of the intervention of the mother and maternal uncle of the victim alongwith the neighbors, the appellant and another accused by name Kamlesh were apprehended and were produced before the police promptly. The fact that said Kamla had a affair with the appellant would not, in any manner, give any right to the appellant to forcibly take her away from her lawful guardianship. In this background the Trial Court correctly came to the conclusion that the appellant was guilty of the offences for which he is convicted and the said conviction, in our opinion, deserves to be sustained.

7. This brings us to the next question in regard to the reduction of sentence made by the High Court. In criminal cases awarding of sentence is not a mere formality. Where the statute has given the court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the court. This discretion can not be exercised arbitrarily or whi