IMPORTANT POINT
The Appellate Court should not interfere with the trial Court's sentencing unless the sentence is manifestly inadequate or perverse.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. This enhancement appeal is being filed by the State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973 against the judgment and order of sentence dated 26.04.2017, passed in Special Pocso Case No. 21 of 2015 whereby, the respondent accused came to be tried for the offence punishable under Section 376 of Indian Penal Code and Section 4 and 8 of the Protection of Children from Sexual Offences Act, 2012. At the end of the trial, the respondent accused came to be convicted for the offence of rape and he was directed to undergo 10 years simple imprisonment and fine of Rs.10000/- and default thereof, to suffer simple imprisonment for 6 months. The respondent accused also convicted and sentenced for the offence punishable under Section 4 and 8 of the POCSO Act, for which, he was directed to undergo simple imprisonment for 7 years and fine of Rs.5000/- and in default, to suffer simple imprisonment for 2 months and convicted and sentenced under Section 8of the POCSO Act and was directed to undergo 3 years simple imprisonment and fine of Rs.5000/- in default thereof, SI for 2 months. The trial Court ordered that the sentences run concurrently.

2. The facts and circumstances giving rise to this appeal are that, the respondent accused – Harendra Mishra aged about 65 years old, was neighbor of original complainant – Vrundaben More, resident of city Vadodara. Before the incident, their relations were cordial and due to their relations, the daughter of the complainant aged about 2years and 1/2 months used to come to the house of the respondent accused. On 02.06.2014, the minor victim had gone to the house of the respondent accused and during her stay, the accused inserted his finger into the vagina of the child. After some time, when child came to the her house, she complaint of unbearable pain and by making sign, she pointed out the pain she suffered. The mother bonafide belief, apply domestic oil at the private part, however, the pain was not reduced. On further inquiry, the child has, by making sign, stated to her mother that, the accused inserted his finger into her vagina. The mother PW-1 told the said fact to her husband and accordingly, lodged an FIR with the jurisdiction police station. The police has arrested the respondent accused for the penetrative assault and the act of rape allegedly committed by the accused upon the minor child. The child was taken to the medical examination and after administration of anesthesia by the Government Hospital doctor, it was found that, there was scratch marks in the right labia majora and according to opinion of the doctor, the possibility of vaginal penetration cannot be ruled out. The chargesheet came to be filed before the court concerned. The respondent accused was tried by the trial Court. The prosecution has examined 17 witnesses and exhibited 23 documents. The learned trial court, after analysis of the evidence, found guilty the respondent accused for the aforesaid offences and directed to undergo 10 years imprisonment.

3. Aggrieved with the quantum of sentence, the State has preferred this enhancement Appeal.

4. We have heard learned Additional Public Prosecutor Mr. L.B. Dabhi and Mr. Hemant Makwana, learned advocate for the respondent accused.

5. Mr. L.B. Dabhi, learned Additional Public Prosecutor assailing the reasons recorded by the trial Court, has submitted that, the order of sentence is unduly lenient and grossly inadequate; that learned trail Court ought to have awarded maximum punishment. The reasons for awarding less than minimum sentence, are not in consonance with the sentencing policy, as merely the age factor, cannot be termed to be exceptional circumstances, therefore, in absence of any compelling reasons, the learned trial Court in a casual manner, awarded minimum sentence. It is the duty of the trial Court to award proper sentence, having regard to the nature of offence and manner in which it was commi