[2017] 7 S.C.R. 672

MAHENDRASUBHASHBHAIVANKHEDE

THE STATE OF GUJARAT ETC.

(Criminal Appeal Nos. 1365-1366 of2017)

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 of justice

- 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: [20141 1 SCR 451 - distinguished.

Case Law Reference

[20081 12 SCR 929

[20141 1 SCR 451

held applicable

distinguished

Para6

Para 7

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.

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

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 finally. 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 sixeen 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

SUPREME COURT REPORTS


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 wereadol_escents having love affair. Additionally he submits that the girl had voluntarily accompanied the accused and the sexual intercourse was consensual. He relies on the judgment of this Court in State of Punjab 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.

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

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 the other hand the decision in State of Punjab 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 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

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 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)