The court has the discretion to consider the appellant's time already spent in incarceration and the overall circumstances to modify the sentence while maintaining the conviction.

JUDGMENT :

MANOJ KUMAR GARG, J.

1. Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 08.04.2019 passed by learned Special Judge, POCSO Act, 2012 and Commission for Protection of Child Rights Act, 2005, No. 2, Udaipur in Special Sessions Case No. 04/2018 by which the learned Judge convicted the appellant for offence under Section 354D IPC and sentenced him to undergo six months’ R.I. alongwith fine of Rs. 2,000/- and in default of payment of fine to undergo seven days’ R.I.

2. Brief facts of the case are that on 24.03.2017, a report was submitted by the complainant before the SP, Udaipur against the appellant inter-alia alleging therein that she is student of 11th class in Pawan Putra School, Bhatevar. She alleged that whenever she went to school, the accused-appellant used to harass by teasing her, stalking her, insulting her and also making vulgar and obscene comments on her. It was alleged that few days earlier also, the appellant did the same thing with her, therefore, now she is unable to attend the school.

3. On this report, Police registered a case against the accused-appellant for offence under Section 354A IPC and started investigation.

4. After investigation, the police filed challan against the present appellant for offence under Sections 354A, 354D IPC and Section 11/12 of POCSO Act. Thereafter, the charges of the case were framed against the appellant. He denied the charges and claimed trial.

5. During the course of trial, the prosecution examined seven witnesses and exhibited various documents. Thereafter, statement of appellant under section 313 Cr.P.C. was recorded. Two defence witnesses were examined from his side and some documentary evidence were produced.

6. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 08.04.2019 while acquitting the appellant for offence under Section 354A IPC and Section 11/12 of POCSO Act, convicted and sentenced him for offence under Section 354D IPC as mentioned earlier.

7. At the threshold, learned counsel for the appellant does not challenge the finding of conviction but it is submitted that since the occurrence relates back to year 2017 and the appellant has so far suffered a sentence of one day out of total sentence of six months’ therefore, it is prayed that the sentence awarded to the appellant for the aforesaid offence may be reduced to the period already undergone by him.

8. On the other hand, the learned Public Prosecutor and counsel for the complainant have vehemently opposed the submissions made by the learned counsel for the appellant and submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellant nor any compassion or sympathy is called for in the said case.

9. Since the appellant’s counsel does not challenge the appellant’s conviction, this Court need not go into the merits of the case and accordingly, the conviction of the appellant as recorded by the learned trial court for the offence under Section 354D IPC is maintained.

10. Heard learned counsel for the parties and perused the evidence of the prosecution as well as defence and the judgment passed by the trial.

11. It is not disputed that occurrence relates back to the year 2017 and the appellant has so far undergone a period of one day incarceration out of the total six months’ rigorous imprisonment so also suffered the agony and trauma of protracted trial. Thus, looking to the over-all circumstances and the fact that the appellant has remained behind the bars for considerable time, it will be just and proper if the sentence awarded by the trial court for offence under Section 354D IPC is reduced to the period already undergone by him while enhancing the amount of fine.

12. Accordingly, the appeal is partly allowed. While maintaining the appellant’s conviction and sentence for offence under Section 354D IPC, the sentence awarded to him is reduced to the period already undergone by him