BAVO @ MANUBHAI AMBALAL THAKOREversusSTATE OF GUJARAT

                        [2012] 1 S.C.R. 822


    A       BAVO @ MANUBHAI AMBALAL THAKORE
                                 v.
                       STATE OF GUJARAT
                (Criminal Appeal No. 309 of 2012)
                        FEBRUARY 3, 2012
 B
         [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

       Penal Code 1860 - ss. 376 and 506 (2) - Commission
  of rape by accused aged 18119 years on victim aged about 7
C years - Conviction of accused for commission of offence u/
  ss. 376 and 506 (2) - Sentence of life imprisonment with a fine
  of Rs. 20, 0001- in default, to further undergo rigours
  imprisonment for three years imposed - On appeal held: In
  view of the age of victim and accused; and that the incident
D occurred nearly 10 years ago, sentence of life imprisonment
  modified to RI for 10 years with fine of Rs. 1,000/-.

       Appellant committed rape on a girl aged about 7
   years. At the time of the incident appellant was 18119
E years. The courts below convicted the appellant-accused
  for the offence punishable under Sections 376 and 506
  (2) of the Penal Code, 1860 and sentenced him to
  undergo imprisonment for life with a fine of Rs.20,000/-,
  in default, to further undergo RI for three years. Therefore,
  the appellant filed the instant appeal questioning the
F quantum of sentence only.

        Disposing of the appeal, the Court
       HELD: 1.1 For the offence of rape on a girl under 12
  years of age, punishment shall not be less than 10 years
G 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) IPC lays down that the Court

H                              822
Bil.VO @ MANUBHAI AMBALAL THAKORE v. STATE 823
                OF GUJARAT
may, for adequate and special reasons to be mentioned            A
in the judgment, impose a sentence of imprisonment of
either description for a term of less than 10 years. The
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 reasons,                 B
 recourse to proviso to Section 376(2) cannot be applied
 in a casual manner. [Para 8] [826-E-G]
     1.2 Considering the fact that the victim, in the instant
case was aged about 7 years on the date of the incident
and the accused was in the age of 18/19 years and also C
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, the ends of justice
would be met by imposing RI for 10 years. Furthermore, D
the appellant had already served nearly 10 years. [Para
 11] [827-E-F]
      1.3 In view of the fact that the accused hails from a
 poor family and was working as an agricultural labourer         E
 and is not in a position to pay such a huge amount as
 fine , the fine of Rs. 20,000/- is reduced to Rs. 1,000/-, in
 default, to further undergo RI for one month. The
 conviction imposed on the appellant is upheld. However,
 the sentence of life imprisonment is modified to RI for 10      F
 years with a fine of Rs.1,000/-, in default, to further
 undergo RI for one month. [Paras 12.and 13] [827-G-H;
 828-A]
     Narayanamma (Kum) vs. State of Kamataka and Ors.
 (1994) 5 SCC 728: 1994 (2) Suppl. SCR 799; Rajendra             G
 Datta Zarekar vs. State of Goa (2007) 14 SCC 560: 2007 (12)
 SCR 840 - referred to.
                      Case Law Reference:
    1994 (2) Suppl. SCR 799      Referred to        Para 9           H
      824      SUPREME COURT REPORTS                 [2012] 1 S.C.R.

 A          2007 (12) SCR 840       Referred to            Para 10

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
     No.309 of 2012.

       From the Judgment & Order dated 28.8.2009 of the High
 B Court of Judicature of Gujarat at Ahmedabad in Criminal
   Appeal No. 505 of 2004.

            K.S. Bahl, Merusagar Samantaray for the Appellant.

            Hemantika Wahi, Jesal for the Respondent.
 c
          The Judgment of the Court was delivered by

          P. SATHASIVAM, J. 1. Leave granted.
          2. This appeal is directed against the final judgment and
0
     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.
E
         3. Brief facts:

        (a) According to the Complainant-Ramilaben, on
  02.05.2002 in the morning, when her husband had gone to
F 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 Bava
  @ Manubhai Arnbalal Thakore - the appellant herein for taking
  her to the doctor.

G      (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 - -
  incidentibat how the appellant herein over-powered her and the - -
H Co~inar)t tinally came to know that he has committed rape,--
BAVO @ MANUBHAI AMBALAL THAKORE v. STATE 825
      OF GUJARAT [P. SATHASIVAM, J.]
on her daughter which was also evident from her condition.          A
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.
                                                                    B
     (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,       C
Anand. On 18.03.2004, the Addi. Sessions Judge, convicted
the appellant for the offence punishable under Sections 376 and
506(2) of the Indian Penal Code, 1860 (in short "the !PC") 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
    (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 Addi. Sessions Judge.                       E

    (e) Being aggrieved, the appellant herein has preferred this
appeal by way of special leave before this Court.

      4. Heard Mr. Merusagar Samantaray, learned counsel for
the appellant herein and Ms. Hemantika Wahi, learned counsel        F
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          G
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          H
    826      SUPREME COURT REPORTS                   (2012] 1 S.C.R.


A 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
8
    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
C a 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,
D 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
E 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
F 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 mat:er of awarding of sentence in all such cases. In the
  absence of any special and adequate reasons, recourse to
  proviso mentioned above cannot be applied in a casual
G 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
H imprisonment is not warranted and sentence may be reduced
· BAVO @ MANUBHAI AMBALAL THAKORE v. STATE 827
        OF GUJARAT [P. SATHASIVAM, J.]
to the period already undergone. The said decision relates to          A
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        B
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.                                                                 c
     10. Counsel for the appellant relied on another decision
of this Court in Rajendra Datta Zarekar vs. State of Goa,
(2007) 14  sec  560. The said case also relates to the offence
under Section 376. The victim was aged about 6 years and the
accused was aged about 20 years. Ultimately, this Court                D
confirmed the conviction and sentence of 1Oyears 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/-.
                                                                       E
      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              F
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,           G
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
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            H
 828      SUPREME COURT REPORTS                   [2012] 1 S.C.R.

  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.

 N.J.                                        Appeal disposed of.