Sonia Gokani, J.

1. By way of present preferred under Section 377 of the Code of Criminal Procedure, 1973, the appellant State has prayed for enhancement of sentence in respect of the judgment and order of conviction and sentence dated January 28, 2011 passed by learned Additional Sessions Judge, Court No. 10, Ahmedabad in Sessions Case No. 225 of 2010. Brief facts leading to the present appeal are as under :-

1.1. Complainant Anjali Rakeshchandra Nair, studying her diploma course of Fashion Designing at National Institute of Design ("NID" for short) and a permanent resident of Delhi, was staying, as a paying guest, in Samay Apartment near NID, Paldi. On March 26, 2009, while returning to her apartment at 01:00 a.m. from NID Studio, she found unknown boys near the main gate of NID. One aged 19 years and another aged 21 years. They were forcibly taking away one lady aged about 35 to 40 years. The lady did not appear to be in a fit state of mind and, therefore, the complainant stopped those persons and enquired as to why she was being dragged. She was rebuked and replied to in abusive manner which also was scaring. She, of course, left for her apartment. However, after some time, at about 02:00 a.m., she heard someone in agony and when watched from her balcony, she found those two boys committing rape on the mentally unstable lady. She informed the same to her colleague, one Mr. Dhruv Rao, and also called the control room. Police reached the place. Three persons were found, one actually committing the act of sexual intercourse and one was juvenile. The complaint came to be filed with Ellis Bridge police station being I.C.R. No. 171 of 2009. One accused was below 18 years and a juvenile, he was to be tried separately by the Juvenile Court. However, for the rest, on completion of investigation, chargesheet under Sections 120B, 375, 376(2)(g) of the Indian Penal Code came to be submitted after verification of documents to the Court of learned Metropolitan Magistrate, Ahmedabad from where the committal was made to the Court of Sessions under Section209 of the Code of Criminal Procedure and the Sessions Case was registered being Sessions Case No. 225 of 2010. When accused pleaded not guilty, prosecution examined in all 17 witnesses and totally 11 documentary evidences came to be proved during the course of the trial.

1.2. After appreciating the evidence, ocular and documentary, the Court held both the accused guilty of the offences of gang rape under Sections 376(2)(g) read with Sections 120B of the Indian Penal Code vide its order dated 28.1.2011.

2. The original accused No. 1, respondent herein has been sentenced to undergo 10 years of rigorous imprisonment and fine of Rs. 5000/- and in default of paying the fine, further simple imprisonment for six months is directed whereas respondent No. 2 original accused No. 2 for the very offence is sentenced to undergo 5 years of rigorous imprisonment and fine of Rs. 2000/- and in default of payment of fine simple imprisonment of two months is ordered. Not only there is anomaly in sentencing both the accused but also lesser punishment has aggrieved the State for not imposing maximum sentence as prescribed under the law. According to the State, no reasons have been given. Resultantly, the present appeal is preferred under Section 377 of the Code of Criminal Procedure for modifying the impugned order and judgment and enhancing the period of sentence making the same to the maximum.

3. At the outset, it is to be noted that while challenging the order of conviction, no appeal has been preferred by either of the respondents, and therefore, as far as the the original accused respondents are concerned, the order and judgment passed by the learned Sessions Judge has been accepted without murmur.

SUBMISSIONS :

4. Mr. J.K. Shah, learned Additional Public Prosecutor appearing for and on behalf of respondent State has forcefully submitted that as far as respondent No. 2 is concerned the Court ought not