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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 309 OF 2012
(Arising out of S.L.P. (Crl.) No. 2967 of 2011)
Bavo @ Manubhai Ambalal Thakore …. Appellant(s)
Versus
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.
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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.
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(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.
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4) Heard Mr. K.S. Bahl, 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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