CR.A/1325/1993 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1325 of 1993 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HONOURABLE MR. JUSTICE J. C. UPADHYAYA ========================================= 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 GUJARAT. Versus PRAKASHBHAI NANSING SOLANKI. ========================================= Appearance : Mr. UDAY BHATT, APP, for the Appellant-State. Mr. KR RAVAL for the Respondent. ========================================= CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J. C. UPADHYAYA Date : 15/09/2008 ORAL JUDGMENT :- (Per : A. L. DAVE, J.) CR.A/1325/1993 2/8 JUDGMENT 1. A judgment was rendered by learned Additional Sessions judge, Surat, on 238th September, 1993, convicting the present respondent for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The respondent was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- for the offences punishable under Sections 363 and 366 of I. P. C. and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- for the offence punishable under Section 376 of I. P. C. 1.1 Aggrieved by the said judgment, present appeal is preferred by the State of Gujarat seeking enhancement of sentence, mainly, on the ground that the sentence awarded by the Trial Court is inadequate and less than the minimum prescribed by law, in absence of any special reasons or ground for awarding lesser sentence. 1.2 The respondent-convict had also preferred Criminal Appeal No.1403 of 1993, in which several office objections were raised. This Court, on 1st March, 1994, passed the following order:- “Office objections to be removed on or before 16th March, 1994, failing which, the matter will be dismissed for non-prosecution.” CR.A/1325/1993 3/8 JUDGMENT Within the stipulated time, i.e. before 16th March, 1994, the office objections were not removed and, therefore, the said appeal came to be dismissed for non-prosecution. 2. Learned Additional Public Prosecutor, Mr. Bhatt, has submitted that the age of the prosecutrix was less than 15 years. She was taken out of custody of her parents under the pretext of marrying, but the respondent did not marry her even after a lapse of more than three months. The respondent, during that time, had coitus with the prosecutrix against her will. Learned Additional Public Prosecutor submitted that all these factors are recorded by the Trial Court while recording conviction and even while awarding sentence. Still, however, the Trial Court awarded a punishment lesser than what is prescribed by Section 376 of I.P.C., namely, seven years, so far as the offence of rape is concerned. So far as the offences punishable under Sections 363 and 366 are concerned, the learned Additional Public Prosecutor submitted that the sentence awarded is inadequate and, therefore, the appeal may be appropriately allowed. 3. Learned Advocate, Mr. Raval, has opposed this appeal. He has drawn our attention to the medical evidence, which indicates that the Medical Officer was unable to give any specific CR.A/1325/1993 4/8 JUDGMENT opinion about recent intercourse after examining both the prosecutrix and the respondent-convict. Mr. Raval submitted that this was a case of inter-community love affair and the prosecutrix was free to raise objection and to raise shouts for help, which she did no do and, therefore, she was a consenting party and, therefore, the Trial Court awarded punishment lesser than prescribed by law, which is just, legal and proper and, therefore, the appeal may be dismissed. Mr. Raval submitted that the order of sentence may not be happily worded, but the fact remains that the element of love affair seems to have weighed with the learned Trial Judge. 4. We have taken into consideration rival side contentions. 5. Since conviction appeal of the respondent came to be dismissed for non-prosecution and since the learned Advocate for the respondent has not pressed any specific contention on the merits of the trial and the conviction, we do not propose to go into that aspect. The question, therefore, that would require consideration would be the quantum of punishment, i.e. the sentence awarded by the Trial Court. 5.1 We are conscious about the fact that the Appellate Court would interfere with the sentence awarded by the Trial Court using its judicial discretion only where the sentence is manifestly CR.A/1325/1993 5/8 JUDGMENT inadequate and results in failure of justice (Ram Narain v. State of U. P., AIR 1971 SC 757 and Ram Sanjiwan Singh v. State of Bihar, AIR 1996 SC 3265). 6. With the above legal proposition, if the present case is examined, we may record that the Trial Court has awarded sentence lesser than the minimum prescribed by law. In this regard, we may refer to the relevant provision of Section 376(1) of I. P. C. : “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 woman 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.” 7. In the instant case, it is not in dispute that the offence of rape would be constituted for the reason that the CR.A/1325/1993 6/8 JUDGMENT age of the prosecutrix was less than 15 years and that there were repetitive coitus between the respondent and the prosecutrix. The case would, therefore, fall in sixthly of Section 375. Consent of the prosecutrix, as is argued by learned Advocate, Mr. Raval, even if accepted, would be of no consequence so far as constituting the offence of rape is concerned and, in such an eventuality, as can be seen from Section 376(1), whoever commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years. Therefore, minimum seven years' imprisonment has to be awarded in ordinary course unless, according to the Court, there are adequate and special reasons persuading the Court to impose a sentence of imprisonment for a term less than seven years. In the instant case, there are no special circumstances indicated by learned Advocate, Mr. Raval, or by the Trial Court in its judgment nor are they found by us while inspecting the record and proceedings and scanning the evidence. 8. While going through the judgment of the Trial Court, we find that the Trial Court has not recorded any reasons for awarding punishment less than the minimum prescribed by law. On the contrary, we find that the Trial CR.A/1325/1993 7/8 JUDGMENT Court has indicated in the operative part of the judgment factors showing gravity of the offence and, therefore, the Trial Court ought to have awarded at least the minimum sentence prescribed under Section 376(1) of I. P. C. The appeal, therefore, merits acceptance, but in part. 9. We notice that a period of about 12 years has passed since the appellant might have been released from jail after undergoing the sentence awarded by the Trial Court. We do not have any special circumstances before us to award a sentence more than the minimum prescribed by law. Under the circumstances, we partly allow this appeal, by altering the sentence of rigorous imprisonment for a period of seven years for the offence punishable under Section 376 of I. P. C., from what is awarded by the Trial Court. We do not deem it necessary to interfere with the sentence awarded for the offences punishable under Sections 363 and 366 of I. P. C. or with the fine awarded thereunder or even with the fine awarded for the offence punishable under Section 376 of I.P.C. The respondent is ordered to undergo rigorous imprisonment for a period of seven years with a fine of Rs.1,000/-, in default, to undergo simple imprisonment for four months, for the offence punishable under Section 376 of I.P.C. CR.A/1325/1993 8/8 JUDGMENT He is ordered to surrender before the Trial Court within a period of one month from today. He shall be given set off for the sentence he has already undergone. 9.1 In the event the respondent fails to surrender, as directed above, the Trial Court shall be at liberty to take coercive action for storing him to prison. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt