State of Gujarat vs Mahendra Subhashbhai Vankhede

R/CR.A/1546/2011 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL No. 1546 of 2011 With CRIMINAL REVISION APPLICATION No. 581 of 2013

FOR APPROVAL AND SIGNATURE : HONOURABLE Mr. JUSTICE ANANT S. DAVE and HONOURABLE Mr. JUSTICE B.N. KARIA =============================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

============================================================= STATE OF GUJARAT....Appellant(s) Versus MAHENDRA SUBHASHBHAI VANKHEDE....Opponent(s)/Respondent(s) ============================================================= Appearance : Mr RUTVIJ OZA, APP for the Appellant(s) No. 1 Mr KUNAL S SHAH, Advocate for the Opponent(s)/Respondent(s) No. 1 =============================================================

CORAM: HONOURABLE MR. JUSTICE ANANT S. DAVE and HONOURABLE MR. JUSTICE B.N. KARIA Date : 18th July 2016

CAV JUDGMENT

(PER : HONOURABLE Mr. JUSTICE B.N. KARIA)

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Criminal Appeal No. 1546 of 2011 is preferred by the

State of Gujarat under Section 377 of the Code of Criminal

Procedure, 1973 ["CrPC" for short] against the judgment

and order of sentence passed by the learned Principal

District & Sessions Judge, Surat in Sessions Case No. 39 of

2010 dated 26th July 2011. Whereas, Criminal Revision

Application No. 581 of 2013 is preferred by the original

Complainant under Section 397 read with Section 401

CrPC for enhancement of the sentence awarded by the

learned trial Judge. Since both these proceedings call in

question the very judgment and order of sentence, they

are heard together.

The broad essential facts, which need to be

adumbrated for the decision of the present Appeal as well

as Revision Application are that - on 11th October 2008 at

about 10:20 hours, the present respondent-Mahendra

Subhashbhai Vankhede alongwith another accused-

Babubhai Anilbhai @ Hanifbhai Rathod induced and

enticed away minor daughter of the complainant named

Jyoti from Englo Vaidik Hindi Vidyalaya, Surat and taken

away at various places and committed rape on her against

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her will and consent. Thus, both the accused persons in

connivance of each other, committed heinous offence

punishable under Sections 363, 366, 376, 114 IPC, and

therefore, a complaint came to be lodged at Udhana Police

Station, Surat which was registered as I-C.R No. 344 of

2008, moving the wheels of investigation machinery into

motion.

After investigation, Police laid chargesheet before the

11th Addl. Chief Judicial Magistrate, First Class, Surat. Since

the offence committed by the respondent and another co-

accused was absolutely triable by the Court of learned

Sessions Judge, the matter was committed to the learned

Principal District & Sessions Judge, Surat and numbered as

Sessions Case No. 39 of 2010.

At trial, the respondent pleaded not guilty and

claimed to be tried for the charges levelled against him.

Therefore, the prosecution examined, complainant,

Medical Officer, Police witnesses and panch witnesses. The

prosecution also placed reliance on documentary evidence

in support of oral evidence. The learned trial Judge, after

appreciating evidence was pleased to convict the

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respondent-Mahendra Subhashbhai Vankheda for the

offence punishable under Section 363, 366, 376 IPC and

ordered to suffer simple imprisonment for a period of two

years and nine months and to pay fine of Rs. 100/=; and

in default thereof, to undergo further simple imprisonment

for a period of seven days. And whereas, the learned trial

Judge was pleased to acquit another accused named

Babubhai Anilbhai @ Hanifbhai Rathod for the offence

punishable under Sections 363, 366 read with Section 114

IPC. The learned trial Judge directed the respondent herein

to suffer all sentences concurrently and gave set off, for

which he has already undergone during his judicial

custody, giving rise to filing of the present Appeal by the

State of Gujarat and the Revision Application by the

original complainant on the grounds pleaded therein.

At the outset, it needs to be mentioned that Criminal

Misc. Application No. 17224 of 2011 moved by the State of

Gujarat seeking leave to appeal against the very judgment

and order dated 26th July 2011 qua another accused viz.

Babubhai Anilbhai @ Hanifbhai Rathod came to be

rejected by this Court [Coram : Ravi R Tripathi & Paresh

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Upadhyay, JJ.] vide Order dated 6th September 2012.

Heard learned APP Mr. Rutvij Oza appearing for the

respondent-State, learned advocate Mr. Manan A. Shah for

the applicant-original complainant and learned advocate

Mr. Kunal S. Shah appearing for the respondent.

It is urged by learned APP that the sentence imposed

by the learned trial Judge for the offence punishable under

Section 363, 366, 376 IPC is highly inadequate and

disproportionate to the offence committed by the

respondent, and therefore, the same deserves to be

enhanced by this Court. It is further urged that the learned

Judge below was wholly wrong in his approach and did not

take even into consideration the mandatory requirement

of the law, while reducing the sentence to a period of two

years and nine months for an offence of rape, which was

committed on a minor girl. He submitted that the

impugned judgment suffers from lack of application of

mind and the sentence awarded is wholly disproportionate

not only to the mandate of law but also to the nature of

gravity of offence committed by the respondent. That, the

learned Judge has not properly appreciated the evidence

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of the complainant [PW-1 : Exh. 10] alongwith evidence of

Rameshbhai Tulsiram [PW-11 : Exh. 48] and Principal

-Renukaben Manilal [PW-12 : Exh. 49] from where it is

crystal clear that the accused person has abducted minor

daughter of the complainant, aged about 14 years and 9

months from the lawful possession and committed rape on

her against her will and consent. That, the learned Judge

has committed an error in taking lenient view, while

imposing sentence for an offence punishable under

Section 363, 366, 376 IPC. That, the sentence awarded by

the learned trial Judge for the offence is nothing but

mockery of justice, and therefore also, the same deserves

to be enhanced. He added that looking to the nature of

evidence of victim and the seriousness of the crime

committed by the accused, the learned trial Judge ought

to have imposed maximum punishment. That, without

assigning any adequate reason, the learned Judge has

committed an error in imposing lesser sentence upon the

accused as it is not in accordance with the provisions of

the law. That, the evidence of PW-7 victim at Exh. 34 is

not properly appreciated by the learned Judge. It was

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further urged that when from the record it is clearly made

out that the accused person has forcefully committed rape

against the will and consent of the minor, the learned

Judge ought to have placed reliance upon the version of

the victim. However, the learned trial Judge has

committed an error in not relying upon the evidence of

victim by imposing lesser sentence. Under the

circumstances, it is requested by the learned APP to allow

this appeal and thereby enhance the sentence imposed by

the learned Judge. In support of his arguments, learned

APP has placed reliance upon the following authorities,

viz.,

[a] Shimbhu & Anr. v. State of Haryana, (2014) 13 SCC 318;

[b] Parminder alias Ladka Pola v. State of Delhi, (2014) 2 SCC 592;

[c] State of Rajasthan v. Vinod Kumar, (2012) 6 SCC 770;

[d] State of Madhya Pradesh v. Balu, (2005) 1 SCC 108.

Learned advocate Mr. Manan A. Shah appearing for

the applicant in Criminal Revision Application has

supported the arguments advanced for and on behalf of

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the State by the learned APP Mr. Rutvij Oza. He further

contended that the sentence awarded to the accused by

the Court below is contrary to the law and without any

adequate reasons, and therefore, the same should be

enhanced by this Court.

Per contra, learned advocate Mr. Shakeel Kureshi

appearing for the respondent-accused strongly supported

the impugned judgment and order by contending that the

respondent-accused was himself 18 years' of age at the

time of the occurrence, and hence, severe sentence as

contemplated under Section 376 IPC would be counter

productive. He further submitted that the respondent-

accused as well as the victim were in love. The victim was

never abducted by the respondent-accused or she was

never committed rape against her wish or desire, and

therefore, compassionate view should be taken, more so

in the background of the fact that the incident in question

had occurred nearly eight years back. He further

contended that the learned trial Judge has given adequate

and cogent reasons for awarding lesser sentence then the

minimum prescribed under the law, as she was below

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sixteen years of age and had fallen in love with the

respondent. That, they had no idea about the result in

future of their love affair, and therefore, discretion has

rightly been exercised by the learned trial Judge in

awarding lesser sentence upon the accused. He added

that there was no injury on her body and that the sexual

intercourse, if any was done, we done with the consent of

the victim and hence, the accused could not be convicted

by imposing maximum punishment for an offence

punishable under Section 376 IPC. In support of his

arguments, learned advocate Mr. Kureshi placed reliance

upon the following authorities :

[a] State of Chhatisgarh v. Lekhram, (2006) 5 SCC 736;

[b] Ashi Devi & Ors. v. State [NCT of Delhi], (2014) 12 SCC 591;

[c] Sushil Ansal v. State, thro' C.B.I., (2015) 10 SCC 359;

[d] Mohd. Imran Khan v. State Government [NCT of Delhi] (2011) 10 SCC 192;

[e] Lavjiji S/o. Chaturji Kamaji Thakore v. State of Gujarat, 2014 (2) GLH 153;

[f] M/s. Indus Airways Prvt. Ltd & Ors. vs. M/s.

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Magnum Aviation Private Limited & Anr., 2014 (2) GLH 161;

[g] Jarnail Singh v. State of Punjab, (1998) 7 SCC 629;

[h] Pareshbhai Annabhai Sonvane v. State of Gujarat & Ors., 2016 (3) SCALE 349;

[i] Lalit Kumar Yadav alias Kuri v. State of Uttar Pradesh, (2014) 11 SCC 129;

[j] Dhaval Dalpatbhai Patel v. State of Gujarat, [Criminal Appeal Nos. 178-179 of 2016 : DD on 29/2/2016].

Lastly, it was urged by the learned advocate

appearing for the respondent-accused to confirm the

judgment and order of the trial Court and thereby dismiss

the present Appeal preferred by the State, as well as

Criminal Revision Application moved by the original

complainant.

In Appeal filed against the conviction and sentence,

learned advocate appearing for the respondent did not

challenge the findings of conviction and addressed the

Court only in respect of sentence awarded on the ground

that the same was sufficient, considering the love affair

between the victim and the respondent. He contended

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that the age of the accused is one of the vital

consideration. According to the learned advocate the

respondent-accused has already undergone sentence of

two years and nine months. He has no criminal history,

and therefore, the learned trial Judge, considering the

letter written by the victim and other circumstances;

including the age of the respondent has rightly considered

it to be a fit case for reducing the sentence to the period

already undergone, which as noticed above, was about

two years and nine months.

Let us, first of all, consider the question of sentence.

Section 376 IPC imposes an obligation on the Court

convicting the accused of that offence to impose a

minimum sentence of seven years. However, an exception

is made for adequate and special reasons to be recorded

in the judgment. Thus, the Court can impose a sentence of

less than seven years, but for good reasons. However, in

the instant case, by the impugned judgment, the learned

trial Judge had assigned the following reasons for reducing

the sentence against the minimum period prescribed of

seven years, to the period already undergone ie., 2 year

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and 9 months.

"Reasons - In the further statement recorded by the

Court, the accused has stated that he was of 18 years' of

age at the time of incident. From the record of the Court

below, on a statement of identification, the age of the

respondent is shown as 20 years by applying whitener on

the previous written figure. In a Certificate issued by the

Doctor at Exh. 37, the age disclosed is 20 years. In the

history given by the victim before PW-9 Dr. Anjali, the age

of the respondent was declared as 18 years. When the

charge was framed on 9th April 2009, the accused had

declared his age as 19 years. As per the observations of

the learned Sessions Judge, in short, the age of the

respondent-accused was 18 years which cannot be either

termed as minor or major, in a case of love affair, where

the parties would not be aware of consequences, nor they

would care for the result. But, considering the conduct of

the victim, where it is proved that offence is constituted

as per the law, it is not justifiable to award severe

punishment when the minimum punishment can be

imposed as per the law by mentioning reasons for the

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same, the accused can be given relief by taking into

consideration the facts of the case."

The learned Sessions Judge also considered that the

respondent-accused was in judicial custody from 20th

October 2008 and had completed two years and nine

months, and therefore, lessor sentence should be

awarded.

Per se, none of the reasons given by the learned

Sessions Judge in his judgment and as quoted hereinabove

can be construed as either 'adequate' or 'special' reasons

for reducing the sentence from minimum period of seven

years prescribed for an offence punishable under Section

376 IPC. The learned trial Judge does not seem to have

applied his mind to the gravity of the offence and instead

reduced the sentence on the ground that the accused was

18 years' of age; they were not aware of the result in a

case of love affair, or would not care of the consequences

at the young age as well as the conduct of the victim. We

think that the sentence of two years and nine months for

an offence punishable under Section 376 IPC is ridiculously

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low and is not commensurate with the gravity of the crime

proved. As the sympathy shown by the learned Sessions

Judge is wholly misconceived and likely to send a wrong

signal in the society, we would like to review the same by

delving into the matter by scrutinizing and analyzing the

law on the subject.

In case of State of Chhatisgarh v. Lekhram

[Supra], the Apex Court, while allowing the appeal

preferred by the State held and observed that the

prosecutrix was a mature girl. She was married. She spent

few months in her in-laws' place. The respondent was

working in her house. They, thus, knew each other for a

long time. The prosecution evidently could not prove its

case that she was enticed away from the custody of her

guardian by the respondent on a false plea that he would

marry her. She denied the said suggestion as presumably

she was aware that she being married, the question of her

marrying the respondent again may not arise. She lived

for some time with the respondent in a rented house. Both

the courts proceeded on the basis that she was a

consenting party. The occurrence took place in the year

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1986. The same remained pending for about 10 years. The

special leave petition was filed by the State 230 days after

the prescribed period of limitation for preferring such

appeal. The delay in filing the special leave petition,

however, was condoned. He is said to have remained in

custody for about one-and-a-half years. In the peculiar

facts and circumstances of this case and having regard to

the fact that both the courts have arrived at the

conclusion that she was a consenting party, it may not be

proper to send the appellant back to prison. Comparing

the facts of the present case with this decided case, the

same are totally different. Here, the prosecutrix is a minor

girl and unmarried, and therefore, this decision would

render no assistance to the respondent-accused.

In case of Ashi Devi & Ors. v. State [NCT of

Delhi] (supra), the charge levelled against the accused,

aged 93 years, who remained imprisoned from 5th

February 2009 until bail came to be granted by the Apex

Court by Order dated 13th May 2009 sentence was

modified, considering old age from three years' rigorous

imprisonment under Section 379 IPC and one year's

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rigorous imprisonment under Section 448 IPC. Facts of this

case differs from the one, which this Court adjudicates,

and therefore, decision relied upon by the learned

advocate for the respondent will not be applicable in the

facts of the case. In the cited case, considering the age of

the lady accused, the Apex Court modified the sentence

awarded to her. It hardly needs to be mentioned that

appropriate sentence has to be awarded by taking into

consideration the gravity of the offence, the manner of

commission of crime, age of the accused and other

mitigating circumstances. The sentence should neither be

excessively harsh nor ridiculously low.

In another decision relied upon by the learned

advocate for the respondent-accused in case of Sushil

Ansal v. State through Central Bureau of

Investigation [Supra], the charges qua accused were for

the offence punishable under Sections 304-A, 337, 338 &

36 of the Penal Code for criminal negligence causing

death or endangering the human life or safety causing

hurt/grievous hurt/negligence, and for breach of duties

and obligations under the common law and statutory

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provisions. It was a case of Uphaar Cinema where

conviction and quantum of sentence warranted to A-1, A-2

(owners of Uphaar Cinema) of Criminal Appeals No. 597-

98 of 2010 and A-15 (Delhi Fire Service Officer who had

issued NOC from fire safety and escape point of view, to

Uphaar Cinema). As per the facts of this case, the

appellants - the owners of Uphaar Cinema closed one of

the exists of the balcony to accommodate more seats.

This in effect compromised the safety of viewers and when

a fire occurred due to electrical faults, 59 persons died

and 100 others got injured. If the owners would not have

closed one of the exits, perhaps the damage to human life

would have been to a lesser extent. The conviction of

appellants A-1 and A-2 was affirmed by the Supreme

Court. A-1 and A-2 were convicted for offences under

Sections 304-A/337/338 read with Section 36 IPC and

Section 14 of the Cinematograph Act, 1952. A-15 was

convicted under Sections 304-A/336/338 read with Section

36 IPC. Sentence was enhanced to maximum period of two

years from one year imposed by the Courts below. As no

civil damages were claimed and considering old age and

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health condition, fine of Rs. 3 Crores was imposed on each

A-1 & A-2 in lieu of their remaining period of sentence. On

the ground of parity, A-15 was also released on similar

terms but the fine amount was fixed at Rs. 10 lacs. On the

issue of A-1 Sunil Ansal in respect of his sentence, as the

matter was referred to three-Judge Bench, the Apex Court

observed in para-17 that, "..We are conscious of the fact

that matter of this magnitude may call for a higher

sentence, but the Court has to limit itself to the choice

available under the law prescribing sentence. The fact

that remains is that the maximum sentence prescribed

under the law is period of two years and the High Court

had chosen, in the facts and circumstances of the case, to

award sentence of one year.." The Apex Court was of the

view that the sentence awarded by the High Court needs

to be enhanced to the maximum period of two years

under Section 304-A IPC, but in lieu of additional period of

sentence of one year, the substantial amount of fine

needs to be imposed. And hence, both the Accused [A-1 &

A-2 therein] were ordered to pay fine of Rs. 3 Crores and if

the said fine is paid within a period of three months, the

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sentence shall be reduced to the sentence already

undergone. The Apex Court also noted that appellant no.1

there was fairly aged, and therefore, it may not be fruitful

to ask him to undergo rigorous imprisonment.

In another decision rendered in case of Mohd. Imran

Khan v. State Government [NCT of Delhi] (Supra), the

accused were charged under Sections 366 & 376 IPC. Both

the accused were convicted by the trial Court. The High

Court of Delhi affirmed conviction of appellants-accused

by its Order dated 8th December 2009 under Section 376

IPC, however, set aside their conviction under Section

366/34 IPC and further reduced the sentence from seven

years rigorous imprisonment with fine of Rs. 10,000/=

each; and in default of payment of fine, to undergo further

punishment for three months. The High Court considered

all the circumstances; including that the incident took

place in the year 1998, the appeal before it was pending

for more than 10 years, the prosecutrix had willingly

accompanied the appellants to Meerut and stayed with

them in a hotel and she was more than 15 years of age

when she eloped with the appellants and the appellants

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were young boys, reduced the sentence to 5 years which

was less than the minimum prescribed sentence for the

offence. In this decision, as per the opinion of the Apex

Court, as the High Court itself had awarded sentence less

than the minimum sentence prescribed for the offence by

recording special reasons, the Apex Court did not think it

to be a fit case to further reduce the sentence, in a proved

case of rape of a minor, and accordingly, appeals

preferred by the accused were dismissed. Here also, the

facts in the cited case as well as the case on hands are

quite different, as there the incident occurred in the year

1989 and the Apex Court decided the appeals on 10th

October 2011. Therefore, no such long period has elapsed

in the present case.

In case of Lavjiji S/o. Chaturji Kamaji Thakore v.

State of Gujarat [Supra], the accused was charged for

offence punishable under Sections 363, 366 and 376 IPC,

however, the learned trial Judge ordered his acquittal for

the offence punishable under Section 363 and 366 IPC

after extending him benefit of doubt and was convicted

and sentenced to two years r.i with fine of Rs. 2000/=; in

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default, to undergo two months simple imprisonment for

the offence punishable under Section 376 IPC. The

question that arose for consideration before the learned

Single Judge of this Court was as to what were adequate

and special reasons given by the trial Court while

imposing lesser sentence than the minimum prescribed

under the law. In this case, the High Court on

appreciation of evidence on record and provisions of law

came to the conclusion independently that the trial Court

has not committed any lawful error in disposing of the

matter/case as well as rightly considered the adequate

source circumstances/reasons for imposing punishment

lesser than the minimum sentence prescribed for the

offence of rape under Section 376 IPC. The discretion in

passing lesser sentence than the minimum sentence

prescribed under the law is always faced with the Court,

but the facts of each case would require to be considered

and examined by the Court, while granting lesser

sentence.

In case of Jarnail Singh v. State of Punjab

[Supra], rape of a minor girl aged 15 years was committed

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by a young boy of 17 years of age. The prosecutrix was a

consenting party, and therefore, in view of the fact that it

was a one-time act and also the young age of the

appellant, the Apex Court reduced the sentence of

imprisonment to the period already undergone with a fine

of RS. 12,000/= to be paid to the prosecutrix as

compensation. In the present case, fine of Rs. 100/= only

is imposed by the learned Sessions Judge, Surat. Further,

in the cited case, it was a one-time act and not a

continuous cause of conduct by the accused. Therefore,

facts of the case on hand are quite different from the one,

on which reliance is being placed for and on behalf of the

respondent-accused.

In case of Pareshbhai Annabhai Sonvane v. State

of Gujarat & Ors. [Supra], conviction was awarded for an

offence under Section 395, 397 & 504 IPC. Accused nos. 1

to 3 therein were convicted by the trial Court for offence

under Section 395 IPC, while other charges were not

proved by the prosecution. Considering the fact that value

of the alleged loot including cash and mobile was only Rs.

16,550/= and the young age of appellant, the trial Court

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inflicted rigorous imprisonment of only one year alongwith

fine of Rs. 100/=. On appeal, the High Court enhanced the

sentence to five years rigorous imprisonment along with

fine imposed by the trial Court. Appellant remained in jail

for three years and two months, since his surrender in the

year 2008. The question was whether sentence imposed

on appellant is liable to be reduced to period already

undergone. Replying the same in affirmative, the Apex

Court reduced the period of sentence imposed upon the

appellant to the period already undergone ie., three years

and two months of actual imprisonment, particularly when

the trial Court found that nothing was recovered from the

custody of the accused, who was the sole accused-

appellant before the Apex Court.

In another decision rendered in case of Lalit Kumar

Yadav alias Kuri v. State of Uttar Pradesh [Supra],

conviction recorded by the trial Court under Section

376/511 and 302 IPC was confirmed and death sentence

awarded was converted and commuted to life

imprisonment by the Apex Court by holding that the case

does not fall under rarest of the rare category.

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Last judgment relied upon by the learned advocate

for the respondent-accused is in case of Dhaval

Dalpatbhai Patel v. State of Gujarat [Criminal Appeal

No. 178-179/2016] wherein the appellant was charged

with offence under Sections 363, 366 and 375 IPC. The

learned Sessions Judge, convicted the appellant for the

aforesaid offence. The main allegation was that the

appellant had eloped with prosecutrix, who was 14 years

and 10 months old. However, since she was less than 15

years of age, the offence under Section 376 IPC was also

made out. The trial Court invoked the provisions of Section

376 and stated that there were adequate and special

reasons to give lessor sentence, and accordingly, awarded

sentence of two years of rigorous imprisonment to the

appellant. In Appeal preferred by the State, the High Court

held that the minimum sentence of seven years should

have been given, and accordingly, it was enhanced from

two years to seven years. The order of the High Court was

challenged in Appeal before the Apex Court, where the

Hon'ble Court found that there were certain such reasons

which in the opinion of the trial Court were adequate

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enough to grant lessor sentence, and therefore, the High

Court should not have enhanced the sentence. Here, in

the instant case, the reasons recorded by the learned

Sessions Judge, Surat can never be said to be adequate

and/or special for awarding lessor sentence ie., 2 years

and 9 months with fine of Rs. 100/=; as mentioned earlier.

In case of State of Madhya Pradesh v. Balu

[Supra], the accused was punished under Section 376 IPC

to suffer 7 years rigorous imprisonment for commission of

rape, which had been reduced by the High Court to the

period of sentence already undergone [ie., 10 months].

The Apex Court, while allowing the appeal and restoring

the sentence of seven years' rigorous imprisonment

awarded for rape by the trial Court, held and observed

that, "..none of the reasons mentioned by the High Court

can be construed as either adequate or special reasons to

reduce the minimum mandatory period of sentence for an

offence punishable under Section 376 IPC. The High Court

does not seem to have applied its mind to the gravity of

the offence. Having found that the respondent has

committed rape of a minor, to reduce the sentence on the

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ground that the accused was either 17 years or 19 years

of age, or that the accused is an illiterate villager coming

from a rural area is neither adequate nor special reason

contemplated under section 376 IPC." Therefore, on the

established facts and circumstances of the case, the Apex

Court restored the sentence awarded by the trial Court.

In case of State of Rajasthan v. Vinod Kumar

[Supra], while allowing the appeal moved by the State, the

Apex Court held and observed that, power to award

punishment less than prescribed minimum sentence is not

to be used indiscriminately or routinely. It is to be used

sparingly with reasons for its justification. The Court

further held that the judicial discretion must be exercised

objectively and recording of special and adequate reasons

is a mandatory requirement for granting this extra

ordinary relief.

In case of Parminder alias Ladka Pola v. State of

Delhi [Supra], the Apex Court held and observed that

what is adequate and special, would depend upon several

factors and on the facts of each case and no straitjacket

formula has been laid down by this Court. The Legislature,

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however, requires the Court to record the adequate and

special reasons in any given case where the punishment

less than the minimum sentence of seven years is to be

imposed. Conduct of accused at the time of commission of

offence of rape, age of prosecutrix and consequences of

rape on prosecutrix are some of relevant factors which the

Court should consider while considering the question of

reducing sentence to less than minimum sentence. The

fact that rapist had since got married, was the sole

breadwinner, had a family, etc., held to be not adequate

and special reasons to reduce sentence of rape below

statutory minimum. In the present case also, no adequate

and special reasons to reduce the sentence to less than

minimum prescribed under Section 376 [1] IPC have been

assigned by the learned Sessions Judge.

In case of Shimbhu & Anr. v. State of Haryana

[Supra], the Full Bench of the Apex Court, while deciding

on the question of reduction in sentence awarded to the

appellant-accused under Section 376(2)(g) IPC [as it stood

prior to Criminal Law (Amendment) Act, 2013] rejected the

plea of the appellant for reduction of the sentence to less

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than 10 years made on the basis of compromise affidavit

of victim that the occurrence took place 18 years ago and

victim was settled in life. As per the observations of the

Apex Court, subsequent compromise between parties

whereby victim having no objection to reduction of

accused's sentence to period already undergone, may

often be an outcome of pressure and her compulsion and

it would be unsafe to consider it a ground for reducing the

sentence under the proviso. The Courts should not take

softer view while awarding sentence for heinous crime like

rape. The Apex Court reiterated that the proviso being an

exception clause, it should be construed strictly.

Considering the reasons given by the learned

Sessions Judge, Surat while awarding lesser sentence to

the respondent-accused than the minimum prescribed

under the law reflects most casual approach on the part of

the learned trial Judge. Moreover, there are no good

reasons given by the learned Sessions Judge while

reducing the sentence much less "adequate or special

reasons". The learned trial Judge has exhibited lack of

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sensitivity towards the victim of rape and the Society at

large. The Courts are expected to properly operate the

sentencing system and impose a sentence commensurate

with the crime committed. Hence, the present Criminal

Appeal as well as Revision Application preferred by the

original complainant deserves to be allowed.

Under Section 376 IPC, whoever, except in the cases

provided for by sub-section (2), commits rape shall be

punished with imprisonment of either description for a

term which shall not be less than seven years but which

may be for life or for a term which may extend to ten

years and shall also be liable to fine unless the woman

raped is his own wife and is not under twelve years of age,

in which case, he shall be punished with imprisonment of

either description for a term which may extend to two

years or with fine or with both. Provided that the Court

may, for adequate and special reasons to be mentioned in

the judgment, impose a sentence of imprisonment for a

terms of less than seven years. Here, as observed earlier,

no adequate or special reasons are available to the

accused for a sentence less than seven years. The

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minimum sentence prescribed is seven years under this

offence. The learned trial Judge has also accepted the

prosecution case of committing of rape by the accused,

but has awarded lessor sentence for the reasons

mentioned hereinabove. The accused was convicted for

the offence punishable under Sections 360, 366 & 376 IPC

by awarding common sentence of simple imprisonment for

a term of two years and nine months and a fine of Rs.

100/= only. Here, we must observe that the sentencing

Courts are expected to consider all the facts and

circumstances, bearing in mind the question of sentence

and impose a sentence commensurate with the crime

committed. The Courts must hear the laud cry for justice

by the Society in cases of heinous crime of rape on

innocent, helpless girls of tender age, as in this case and

respond to it by imposing appropriate sentence. Moreover,

social impact of the crime particularly where it relates to

offence against women, cannot be lost sight of and per se

requires exemplary treatment. Therefore, Courts are

expected to try and decide the case of sexual crime

against women with utmost sensitivity. Such cases need

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to be dealt with strictly and severely. Once a person is

convicted for an offence of rape, he should be treated with

heavy hand. Thus, considering all the circumstances and

the legal position, this Court is of the view that when there

are no adequate or special reasons in this case, the

accused should be sentenced as prescribed under the law,

for a term of seven years and fine of Rs. 5,000/= for the

offence punishable under Sections 363, 366 & 376 IPC;

and in default of payment of fine, to undergo further

simple imprisonment for a period of three months.

Resultantly, Criminal Appeal preferred by the State of

Gujarat as well as Criminal Revision Application preferred

by the original complainant stood allowed. The

respondent-accused is directed to suffer rigorous

imprisonment for a term of seven years for the offence

punishable under Sections 363, 366 & 376 IPC and pay

additional fine of Rs. 5,000/=; and in default thereof, to

undergo imprisonment for a period of three months. All

the sentences to run concurrently. He shall surrender

himself before the learned Sessions Judge, Surat within a

period of six weeks from today and shall undergo

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remaining part of the sentence. The time spent by the

accused in judicial custody would be given set-off.

In case the respondent fails to surrender himself

within the said period, the learned 11th Chief Judicial

Magistrate, First Class, Surat is directed to take him into

custody and send him to prison for serving the remaining

part of the sentence.

Rule nisi issed in each case is made absolute in the

above terms.

Registry is directed to send a copy of this judgment

to the learned Sessions Judge, Surat.

(ANANT S.DAVE, J.)

(B.N. KARIA, J.) Prakash

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