Mahendra Subhashbhai Vankhede vs The State Of Gujarat

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO 1365-1366 OF 2017 (Arising out of SLP (Crl.) No(s). 3509-3510 of 2017)

MAHENDRA SUBHASHBHAI VANKHEDE …Appellant

Versus

THE STATE OF GUJARAT ETC. …Respondent(s)

ORDER

1. Leave granted.

2. Challenge in this appeal is to the judgment of the High Court of

Gujarat, dated 18.07.2016, in Crim. App. No. 1546 of 2011 and

Crim. Rev. App. No. 581 of 2013, wherein the High Court has

enhanced the sentence of imprisonment from two years nine

months and fine of Rs. 100/-, in default thereof, a further period Signature Not Verified Digitally signed by SHASHI SAREEN Date: 2017.08.10 16:24:21 IST of simple imprisonment of seven days, as convicted by the Trial Reason:

Court, to an imprisonment of seven years and additional fine of 2

Rs. 5,000/-, in default thereof, to undergo further imprisonment

for a period of three months under Sections 363, 366 and 376 of

Indian Penal Code, 1860 [hereinafter ‘IPC’ for brevity].

3. From the material placed before us, the emergent facts are that

the father of the victim (girl) had lodged the complaint on

13.10.2008, complaining that his daughter was missing from her

school since 11.10.2008 and the accused is responsible for the

same. It is clear from the written note left in her school bag, that

the girl had left the school voluntarily due to harassment meted

out by her mother. Accused as well as the girl stayed together

until 20.10.2008 when they were nabbed finally. Additionally it is

borne out of the evidence available on record that the girl had

love affair with the accused and indulged herself in consensual

sexual intercourse in the intervening period when they had

eloped. There is no dispute as to the fact that the accused was

nineteen years old and the girl was less than sixteen years old at

the time of the incident. Basing on the complaint filed by the

father of the girl, police registered an FIR being CR No. 344 of

2008 under Sections 363, 366, 376, 114, 377, 397 and 401 of

IPC. Subsequently, 5th Addl. Sessions Judge took cognizance of

the case under Section 363, 366, 376 and 114 of IPC. 3

4. The trial court after a full-fledged trial found the accused guilty

for offences under Sections 363, 366 and 376 of IPC and ordered

to undergo sentence of simple imprisonment of two years and

nine months and fine of Rs. 100/- (Rupees one hundred only),

failing which, he shall have to undergo further simple

imprisonment of seven days. The trial court while imposing lesser

sentence reasoned that this case was a love affair involving

young adolescents, therefore severe punishment would not be

feasible.

5. On an appeal by the complainant as well as the State, High

Court further enhanced the punishment of imprisonment to

seven years and ordered additional fine of Rs. 5,000/- and in

default thereof, to undergo imprisonment for a period of three

months for the reason that there was no adequate or special

reason for the trial court to reduce the sentence. Aggrieved by the

decision of the High Court, the appellant is in appeal before us.

6. Ld. Counsel for appellant contends that the trial court, by well

considered judgment, has rightly imposed a lower sentence.

Further he states that both accused and the girl were

adolescents having love affair. Additionally he submits that the

girl had voluntarily accompanied the accused and the sexual 4

intercourse was consensual. He relies on the judgment of this

Court in State of Punjab v. Rakesh Kumar, (2008) 12 SCC 33,

to submit that this Court under identical circumstances had

convicted the accused therein for three years under Sections 366

and 376 of IPC.

7. Per contra Ld. Counsel appearing on behalf of the State as well as

complainant (father of girl) while supporting the judgment of the

High Court, vehemently opposed this appeal on the ground that

the rape of a minor should be dealt with in a strict manner.

Reliance is placed on the judgment of this Court in Parminder v.

State of NCT Delhi, (2014) 2 SCC 592, to contend that there is

no adequate and special reasons for imposing lesser sentence

under Section 377 of the Code of Criminal Procedure Code, 1973.

8. Having perused the documents available on record, we are of the

opinion that the trial court while imposing a lesser sentence has

provided valid reasons. Although the complainant places reliance

on Parminder v. State of NCT Delhi, (Supra), the aforesaid case

is distinguishable as the accused therein had forcibly raped the

victim, when she had come to visit the sister of the accused.

Further the accused therein had threatened to kill the victim, if 5

she reveals to anybody about the incident. In the case at hand

there is neither force nor threat meted out to the girl, therefore

the aforesaid case has no relevancy herein. On the other hand

the decision in State of Punjab v. Rakesh Kumar, (Supra), is

applicable to this case. In this case at hand, there is no dispute

as to the fact that the accused was nineteen years of age at the

time of the incident. Additionally it is born out of the record that

the accused and the girl had a love affair and she had left her

parent’s house voluntarily without any force. Further it is pointed

out that both of them stayed together for around ten days and

the nature of sexual intercourse was consensual. Moreover the

appellant herein has already undergone the period awarded (two

years nine months) by the trial court.

9. In consideration of peculiar facts and circumstances herein, and

as the incident relates to the date prior to the amendment of IPC 1

which came into force on 03.02.2013, and for special reasons

sentence less than seven years was imposable, we think that the

trial court has rightly imposed a lesser sentence. It is to be noted

that after the High Court had enhanced the sentence, the

accused has further undergone a sentence of six months (in all

more than three years) which we feel is sufficient to meet the

1 The Criminal Law (Amendment) Act, 2013, No. XIII of 2013 (w.r.f. 03.02.2013) 6

ends of justice. In light of the above, we allow the appeal and

direct the appellant to be released forthwith, if not required in

any other case.

………………J. (N. V. Ramana)

………………J. (Prafulla C. Pant)

NEW DELHI DATE- AUGUST 08, 2017 7

ITEM NO.21 COURT NO.10 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 3509-3510/2017

(Arising out of impugned final judgment and order dated 18-07-2016 in CRA No. 1546/2011 with CRA No. 581/2013 passed by the High Court Of Gujarat At Ahmedabad)

MAHENDRA SUBHASHBHAI VANKHEDE Petitioner(s)

VERSUS

THE STATE OF GUJARAT & ANR. Respondent(s) (FOR ON IA 7697/2017 FOR EXEMPTION FROM FILING O.T. ON IA 7699/2017)

Date : 08-08-2017 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE N.V. RAMANA HON'BLE MR. JUSTICE PRAFULLA C. PANT

For Petitioner(s) Mr. Pradhuman Gohil, Adv.

Mr. Vikash Singh, AOR Ms. Taruna Singh Gohil, Adv. Mr. Himanshu Chaubey, Adv. Ms. Ishita Singh, Adv.

For Respondent(s) Ms. Tanmaya Agarwal, AOR

Ms. Hemantika Wahi, AOR Ms. Jesal, Adv.

Ms. Puja Singh, Adv.

Ms. Mamta Singh, Adv.

Ms. Shodhika Sharma, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeals are allowed in terms of the signed order.

The appellant is directed to be released forthwith, if 8

not required in any other case.

Pending applications, if any, shall stand disposed of.

(SHASHI SAREEN) (S. SIVARAMAKRISHNA) AR CUM PS ASST.REGISTRAR

(Signed reportable order is placed on the file)