MAHENDRA SUBHASHBHAI VANKHEDEversusTHE STATE OF GUJARAT ETC.

                           [2017] 7 S.C.R. 672


A             MAHENDRASUBHASHBHAIVANKHEDE
                                     v.
                     THE STATE OF GUJARAT ETC.
                 (Criminal Appeal Nos. 1365-1366 of2017)
B                            AUGUST 08, 2017
           [N. V. RAMANA AND PRAFULLA C. PANT, JJ.j
          Penal Code, 1860 - ss. 363, 366 and 376 - Conviction
  under, of appellant-accused - Trial Court while imposing lesser
C sentence of 2 years and nine months reasoned that the case was a
  love affair involving young adolescents, therefore giving severe
  punishment would not be feasible - On appeal by the complainant
  as well as the State, High Court enhanced the punishment of
  imprisonment holding that there was no adequate or special reason
  for the trial court to reduce the sentence - On appeal, held: Trial
D Court while imposing a lesser sentence provided valid reasons -
  Accused and the girl had a love affair and she had left her parent's
  house voluntarily without any force - Both of them stayed together
  for around ten days and the nature of sexual intercourse was
   consensual - Furthe1; the incident relates to the date prior to the
E amendment of JPC which came into force on 03.02.2013, and for
  special reasons as aforesaid, sentence less than seven years was
   imposable - Moreover, after the High Court enhanced the sentence,
   the accused has further undergone a sentence of six months (in all
   more than three years), which is sufficient to meet the ends ofjustice
   - Appellant to be released forthwith, if not required in any other
F case - Sentencing - The Criminal Law (Amendment) Act, 2013, No.
   XIII of 2013 (w.e.f 03.02.2013).
          State of Punjab v. Rakesh Kumar (2008) 12 SCC 33:
          [20081 12 SCR 929 - held applicable.
          Parminder v. State of NCT Delhi (2014) 2 SCC 592:
G         [20141 1 SCR 451 - distinguished.
                            Case Law Reference
           [20081 12 SCR 929        held applicable        Para6
           [20141 1 SCR 451         distinguished          Para 7
H
                                     672
  MAHENDRA SUBHASHBHAI VANKHEDE v. THE STATE OF                                 673
                 GUJARAT ETC.

      CRIMINAL APPELLATE JURISDICTION :. Criminal Appeal                        A
Nos. 1365-1'366 of2017.
      From the Judgment and Order dated 18.07 .2016 of the High Court
of Gujarat atAhmedabad in Criminal Appeal No. 1546 of2013.
     Pradhuman Gohil, Vikash Singh, Ms. Taruna Singh Gohil, Himanshu
Chaubey, Ms. Ishita Singh, Advs. for the Appellant.                             B
      Ms. Tanmaya Agarwal, Ms. Hemantika Wahi, Ms. Jesal Wahi,
Ms. Puja Singh, Ms. Mamta Singh, Ms. Shodhika Sha1ma,Advs. forthe
Respondents.
       The following Order of the Court was delivered                           c
                                   ORDER
       1. Leave      nted.
         2. Chai· _,ge in this appeal is to the judgment of the High Court of
  Gujarat, dated 18.07.2016, in Crim. App. No. 1546 of2011 and Crim.
                                                                              0
  Rev. App. No. 581 of2013, wherein the High Court has enhanced the
  sentence ofimprisonment from two years nine months and fine of Rs. 100/-
  , in default thereof, a further period of simple imprisonment of seven
  days, as convicted by the Trial Court, to an imprisonment of seven years
  and additional fine of Rs. 5,000/-, in default thereof, to undergo further
  imprisonment for a period of three months under Sections 363, 366 and E
· 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       F
 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 fi-
 nally. 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       G
 is no dispute as to the fact that the accused was nineteen years old and
 the girl was less than six~een 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 of2008 under Sections 363, 366, 376, 114, 377, 397
                                                                                H
674             SUPREME COURT REPORTS                            [2017] 7 S.C.R.


A     and 401 ofIPC. Subsequently, 5th Addi. Sessions Judge took cognizance
      of the case under-Section 363, 366, 376 and 114 ofIPC.
              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
B     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.
 c          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
 D    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·adol_escents having love af-
      fair. Additionally he submits that the girl had voluntarily accompanied
 E    the accused and the sexual intercourse was consensual. He relies on
      the judgment of this Court in State ofPunjab 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 ofIPC.
 F           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 ofNCT Delhi; (2014)
 G    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
 H    provided valid reasons. Although the complainant places reliance on
  MAHENDRA SUBHASHBHAI VANKHEDE v. THE STATE OF                                    675
                 GUJARAT ETC.

 Parminder v. State of NCT Delhi, (Supra), the aforesaid case is A
  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 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
                                                                              B
  the other hand the decision in State ofPunjab 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 bomout 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 c
  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            D
 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 enhanred 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 ends of justice. In light of the above, we allow the       E
 appeal and direct the appellant to be released forthwith, if not required in
 any other case.


 Divya Pandey                                                    Appeol ollowed.




  'The Criminal Law (Amendment) Act, 2013, No. XIIl of2013 w.r.f. 03.02.2013)