The necessity of proportional sentencing based on established evidence in criminal cases, emphasizing that mere allegations without conviction do not justify sentence enhancements.

JUDGMENT :

GITA GOPI, J.

1. Under Section 377 of Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’), the appellant- State by way of this Appeal has made an prayer for enhancement of the sentence passed on 30.09.2005 in Criminal Case No.4014 of 2004 by the learned 3^rd Additional Senior Civil Judge and Judicial Magistrate First Class, Bhavnagar. The sole respondent as an accused in the trial was convicted for the offences punishable under Section 506(2) of the INDIAN PENAL CODE for six months while he was acquitted for the offences punishable under Section 507 of the IPC.

2. At the outset, learned Advocate for the appellant Mr. Darshan A. Dave referring to the provision of Section 377 of Cr.P.C. took objection and submitted that since the sentence is passed by the leaned Magistrate, the Appeal would lie before the Court of Sessions and thus, stated that on this very ground the Appeal should be outrightly dismissed. Learned advocate has further submitted that considering the facts of the case, enhancement of sentence to set an example of deterrence is not in consonance with the principles of the judicial system. It is also submitted that the reference been made by the complainant of the cases are the one which had been filed by him and his father and for rest of the matters no order of conviction is placed on record. It is further submitted that the respondent has already undergone six months imprisonment. Referring to the Certificate issued by the Bhavnagar District Jail, Bhavnagar it is submitted that the respondent was appreciated by the issuance of Certificate on 26.01.2025 of being a member of the Winning Team of Volley Ball which was organized by the jail authority on 26.01.2025.

3. Learned advocate Mr. Darshan A. Dave has submitted that the respondent is at present serving as Security Guard in a School. The matter was instituted in the year 2006 and the hearing is after a long time, i.e. now in the year 2025, the elapsed period is also required to be taken into account while considering the Appeal under Section 377 of Cr.P.C.

4. Learned advocate Mr. Darshan A. Dave has referred to the decision of the Division Bench of this Court in the case of State of Gujarat v. Ayub Ganibhai Odiya reported in 2018 (2) GLR 1643 to submit that in a case under Section 354 of IPC, the benefit of probation under the Probation of Offenders Act and Section 360 of Cr.P.C. was granted. Thus, showing the Court the difference on facts of the matter in Ayub Ganibhai Odiya (supra) and in the present case, it submitted that the case herein deals with aspect of giving threats. The facts as has been brought on record would show that the complainant and the witnesses were actually knowing each other and were residing in the same vicinity. The facts shows that the respondent had good aquaintances with the complainant, his brother and his friend. The facts that have been brought on record was to show that he was threatening the complainant through telephone. No evidence of the Telephone Department has been produced to show that the respondent was threatening the complainant telephonically.

5. Learned advocate Mr. Darshan A. Dave for the respondent- accused submitted that infact, the conviction is not consistent with the evidence on record. The accused was required to be acquitted, as the threat which is stated to have been administered, is not proven by cogent evidence of any independent witnesses and all the witnesses are interested witnesses. It is further submitted that the complaint appears to have been filed only with a intent to teach a lesson to the respondent, where actually the complaint had started when the father of the complainant and the whole family are only interested in seeing the respondent-accused behind the bars. It is further submitted that since six months imprisonment has already been undergone by the respondent, there would not be any case of enhancement of sentence.

6. On the above argument, learned