Bavo @ Manubhai Ambalal Thakore vs State Of Gujarat

State of Gujarat .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) This appeal is directed against the final judgment and

order dated 28.08.2009 passed by the Division Bench of the

High Court of Gujarat at Ahmedabad in Criminal Appeal No.

505 of 2004 whereby the High Court while affirming the

conviction and sentence awarded by the trial Court dismissed

the appeal of the appellant herein.

1 3) Brief facts:

(a) According to the Complainant-Ramilaben, on 02.05.2002

in the morning, when her husband had gone to work, she was

in her house along with her three children. At that time, her

daughter - Smita, aged seven years, was having pain in her

finger, therefore, she called her distant relative Bavo @

Manubhai Ambalal Thakore - the appellant herein for taking

her to the doctor.

(b) Thereafter, the appellant herein took Smita to a doctor at

about 10:00 a.m. and at about 11:30 a.m. she returned home

alone limping and crying. When the complainant asked her

daughter as to what had happened, she narrated the whole

incident that how the appellant herein over-powered her and

the Complainant finally came to know that he has committed

rape on her daughter which was also evident from her

condition. Thereafter, the Complainant went to the house of

the appellant, but he was not present there. When her

husband returned home in the evening, she informed him

about the incident and, on 05.05.2002, a complaint was

lodged at Umreth Police Station.

2 (c) On 07.07.2002, the police, after conducting the

investigation, filed a charge sheet before the Judicial

Magistrate, First Class, Umreth. Since the case was

exclusively triable by the Court of Sessions, the Judicial

Magistrate committed the case to the Court of Additional

Sessions Judge, Anand. On 18.03.2004, the Addl. Sessions

Judge, convicted the appellant for the offence punishable

under Sections 376 and 506(2) of the Indian Penal Code, 1860

(in short "the IPC") and sentenced him to undergo

imprisonment for life with a fine of Rs.20,000/-, in default, to

further undergo RI for three years.

(d) Being aggrieved by the order of conviction and sentence,

the appellant herein preferred an appeal before the High

Court. The High Court, by order dated 28.08.2009, dismissed

the appeal and confirmed the conviction and sentence

awarded by the Addl. Sessions Judge.

(e) Being aggrieved, the appellant herein has preferred this

appeal by way of special leave before this Court.

3 4) Heard Mr. Merusagar Samantaray, learned counsel for

the appellant herein and Ms. Hemantika Wahi, learned

counsel for the respondent-State.

5) Learned counsel appearing for the appellant fairly states

that he is not challenging the conviction but questioning the

quantum of sentence only. According to him, taking note of

various factors including the age of the appellant-accused

being 18-19 years at the time of the incident and hailing from

a poor family, award of life imprisonment and a fine of

Rs.20,000/-, in default, to further undergo RI for three years

is excessive. Learned counsel appearing for the respondent-

State fairly submitted that the Court is free to impose

appropriate sentence in terms of Section 376(2)(f) of the IPC.

6) In view of the limited submission, there is no need to go

into the finding regarding conviction under Sections 376 and

506(2) of the IPC. The only question to be considered is

whether the sentence of life imprisonment and a fine of

Rs.20,000/- is reasonable or excessive.

7) Section 376 speaks about the punishment for rape. Sub-

section(2)(f) makes it clear that whoever commits rape on a

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woman when she is under 12 years of age shall be punished

with RI for a term which shall not be less than 10 years but

which may be for life and shall also be liable to fine. Proviso

appended to sub-section (2) makes it clear that the Court may,

for adequate and special reasons to be mentioned in the

judgment, impose a sentence of imprisonment of either

description for a term of less than 10 years.

8) It is clear from the above statutory provision that for the

offence of rape on a girl under 12 years of age, punishment

shall not be less than 10 years but which may extend to life

and also to fine shows that the legislature intended to adopt

strictness in awarding sentence if the victim is below 12 years

of age. No doubt, the proviso to Section 376(2) lays down that

the Court may, for adequate and special reasons to be

mentioned in the judgment, impose a sentence of

imprisonment of either description for a term of less than 10

years. It is settled law that courts are obliged to respect the

legislative mandate in the matter of awarding of sentence in all

such cases. In the absence of any special and adequate

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reasons, recourse to proviso mentioned above cannot be

applied in a casual manner.

9) Learned counsel for the appellant relied on a decision of

this Court in Narayanamma (Kum) vs. State of Karnataka

and Others, (1994) 5 SCC 728 and contended that the life

imprisonment is not warranted and sentence may be reduced

to the period already undergone. The said decision relates to

the rape on a minor girl aged 14 years. While the trial Judge

convicted and sentenced the accused to three years RI, the

High Court reversed the same and acquitted the accused. It

was challenged before this Court. After considering the entire

materials, this Court set aside the order of the High Court and

affirmed the conclusion arrived at by the trial Court. Though

this Court expressed displeasure in awarding only three years

RI for the crime of rape, taking note of length of time, not

inclined to enhance it and confirmed the sentence awarded by

the trial Court.

10) Counsel for the appellant relied on another decision of

this Court in Rajendra Datta Zarekar vs. State of Goa,

(2007) 14 SCC 560. The said case also relates to the offence

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under Section 376. The victim was aged about 6 years and

the accused was aged about 20 years. Ultimately, this Court

confirmed the conviction and sentence of 10 years as awarded

by the High Court. However, the fine amount of Rs. 10,000/-

awarded under Section 376(2)(f) being found to be excessive

reduced to Rs. 1,000/-.

11) Considering the fact that the victim, in the case on hand,

was aged about 7 years on the date of the incident and the

accused was in the age of 18/19 years and also of the fact that

the incident occurred nearly 10 years ago, the award of life

imprisonment which is maximum prescribed is not warranted

and also in view of the mandate of Section 376(2)(f) IPC, we

feel that the ends of justice would be met by imposing RI for

10 years. Learned counsel appearing for the appellant

informed this Court that the appellant had already served

nearly 10 years.

12) Coming to the quantum of fine, in the case on hand, the

learned trial Judge has imposed Rs.20,000/-, in default, to

undergo RI for three years, learned counsel for the appellant

submitted that the accused hails from a poor family and was

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working as an agricultural labourer and is not in a position to

pay such a huge amount as fine which is not disputed by the

State. Taking note of all these aspects, we reduce the fine of

Rs. 20,000/- to Rs. 1,000/-, in default, to further undergo RI

for one month.

13) In view of the above discussion, the conviction imposed

on the appellant herein is confirmed. However, the sentence

of life imprisonment is modified to RI for 10 years with a fine of

Rs.1,000/-, in default, to further undergo RI for one month.

14) With the above modification of sentence, the appeal

stands disposed of.

...........................................J.

(P. SATHASIVAM)

...........................................J.

(J. CHELAMESWAR)

NEW DELHI;

FEBRUARY 3, 2012.

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