Important Point
Undue sympathy to impose inadequate sentence would do more harm to justice system to undermine public confidence in efficacy of law.

Rajesh H. Shukla, J.

1. The present appeal under sec. 374 of the Code of Criminal Procedure is directed against the impugned judgment and order rendered in Sessions Case No. 28 of 2001 by the Addl. Sessions Judge, 4th Fast Track Court, Porbandar, dated 27.7.2004 recording the conviction of the appellant original accused for the offence under sec. 354 of IPC and sentencing him to R.I. for 2 years and fine of Rs. 1,000/- and in default S.I. for 1 month. He was also convicted for the offence under sec. 452 of IPC and sentenced him to R.I. for 3 years and fine of Rs. 10,000/-, i/d S.I. for 6 months. Out of the amount of fine, the victim is also ordered to be compensated.

2. The facts of the case, briefly summarized, are as follows:

"2.1 As it transpires from the record, the daughter of the complainant, aged about 9 years, was at home on 15.1.2001 when the parents had gone out for labour work. At that time, the accused who was residing nearby is said to have entered the house of the complainant when the victim was alone and made an attempt to commit the offence of rape and tried to outrage the modesty of the girl. He is also said to have threatened the victim. Therefore, when the victim raised shouts the grandfather came and the accused ran away and she conveyed to the mother about the incident culminating into the FIR being C.R. No. 2-0/2001 registered with Madhavpur Police Station, Dist. Porbandar, for the alleged offences under sections 376, 511, 506(2), 354 and 452 of IPC.

2.2. After the investigation was over, the charge-sheet was filed before the Court of Magistrate and it was committed to the Court of Sessions as the offences are triable by the court of sessions.

2.3 In order to bring home the charges levelled against the appellant accused, the prosecution examined the witnesses including the complainant, victim, mother and other witnesses.

2.4 The accused has also testified and led the evidence in the defence.

2.5 After recording of the evidence of the prosecution witnesses was over, the statement of the accused under sec. 313 of CrPC was recorded and the evidence of the defence was also recorded.

2.6 After hearing the learned APP as well as the learned advocate for the accused, the learned Addl. Sessions Judge, as stated above, recorded acquittal for the offence under sec. 376 of IPC and recorded conviction for the offences under sec. 354 and 452 of IPC.

2.7 It is this judgment and order which has been assailed in the present appeal on the grounds stated in the memo of appeal."

3. Heard learned advocate Ms. Sadahna Sagar for the appellant-original accused and learned APP Shri HL Jani for the State.

4. Learned advocate Ms. Sagar referred to the charge-sheet at exh. 4 and the testimony of the doctor, PW-1, who had examined the victim, at exh. 14. She has also referred to the injury certificate, exh. 15 and submitted that as stated by the doctor, there are no marks of injury and it has been clearly stated that there was no intercourse which would attract the offence under sec. 376. She therefore submitted that the court below has recorded the conviction for offence under sec.354 of IPC which may also be considered in background of the motive. For that purpose, she referred to the testimony of the complainant father, PW-2 at exh. 17 and the complaint at exh. 18. Learned advocate Ms. Sagar also referred to the testimony of the minor victim at exh. 19. She submitted that even the minor victim is not said to have stated about the act which can be said to be covered for offence under sec. 376 and therefore he has been acquitted for the offence under sec.376. However, she submitted that the conviction for the offence under sec. 354 for outraging the modesty could be considered in background of the facts suggesting the probability of false implication. For that purpose, she referred to the testimony of PW-7 who is the elder brother of the complainant father at exh. 25. Learned advocate Ms. Sagar submitted that as it is revealed this