CR.A/747/1988 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 747 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJ - Appellant(s) Versus DINSHBHAI AMRABHAI VAGHARI - Opponent(s) ========================================================= Appearance : MR AJ DESAI, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 20/06/2008 ORAL JUDGMENT This appeal has been filed by the appellant-State of Gujarat, for enhancing the sentence awarded by the learned Assistant Sessions Judge, Panchmahals, at Godhra, vide judgment CR.A/747/1988 2/4 JUDGMENT and order dated 311.5.1988 in Sessions Case No.5 of 1988 convicting the respondent herein (original accused) for the offences punishable under Section 376 of Indian Penal Code and sentencing him to undergo Rigorous Imprisonment of one year and to pay a fine of Rs.500/-, in default, to undergo further Rigorous Imprisonment of one month. The said judgment and order has not been challenged by the respondent-accused by filing appeal and hence, the finding arrived at by the trial Court has remained as it is. 2. I have heard learned APP Mr.A.J.Desai for the appellant State. Though the notice was served on the respondent-accused, he neither chose to remain present before this Court nor chose to engage an advocate. 3. It has been contended on behalf of the appellant-State that at the time of the incident, the victim was only nine years old and the prosecution has proved the charges levelled against the respondent-accused beyond reasonable doubt and in such kind of serious offence which has been committed on a minor girl, no lenient view should have been taken by awarding sentence of only one year Rigorous Imprisonment and instead, the maximum sentence ought to have been imposed. Therefore, the learned trial Judge has committed an error. CR.A/747/1988 3/4 JUDGMENT 4. Section 376 of Indian Penal Code reads as under: “376. Punishment for rape..-- (1) 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 women raped is his own wife and is not under twelve years of age, in which cases, 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 term of less than seven years.” At the time of awarding the sentence, the learned trial Judge has verified the report of the Probation Officer and as per the report of the Probation Officer, the accused was 18 years old and he has no criminal history in the past. From the report, it is also found that in jail, the respondent accused is repenting for the offence which he CR.A/747/1988 4/4 JUDGMENT has committed and he was under tremendous depression. The learned trial Judge has also found that the accused is coming from a very backward community , and is very poor and illiterate. Taking into consideration all these, the learned trial Judge thought it fit to award a lesser sentence. The reasons assigned by the learned trial Judge is quite legal and proper in awarding lesser sentence and hence the same is not required to be interfered with by this Court. It is also pertinent to note that the appeal is of year 1988 and almost 21 years have been elapsed and the accused has not remained present before this Court during the hearing of the case. In view of this, the appeal deserves to be dismissed and it is accordingly dismissed. The bail bond, if any, shall stand cancelled. However, it is clarified that this case may not be treated as a precedent in any other cases. (M.D.Shah, J.) Sreeram.